# Standards for All Terrain Vehicles and Ban of Three-Wheeled All Terrain Vehicles; Notice of Proposed Rulemaking

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URL: https://www.frixlaw.com/law-library/documents/fr%3A06-6703

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 10, 2006
- **Citation:** 71 FR 45904

## Text

CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Parts 1307, 1410, 1500 and 1515
Standards for All Terrain Vehicles and Ban of Three-Wheeled All Terrain Vehicles; Notice of Proposed Rulemaking

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

To address the unreasonable risks of injury and death associated with all terrain vehicles (“ATVs”), the Commission is proposing rules for adult and youth ATVs. The proposed rules include requirements concerning the mechanical operation of ATVs, requirements for providing safety information about operating ATVs (such as through labeling and training), and requirements for certification, testing and recordkeeping. The proposed standards would apply to adult single-rider and tandem ATVs and to youth ATVs. The Commission is also proposing a rule to ban three-wheeled ATVs. The proposed rules are issued under the authority of both the Consumer Product Safety Act (“CPSA”) and the Federal Hazardous Substances Act (“FHSA”).

DATES:

Written comments in response to this document must be received by the Commission no later than October 24, 2006. Comments on elements of the proposed rule that, if issued in final form would constitute collection of information requirements under the Paperwork Reduction Act, may be filed with the Office of Management and Budget (“OMB”) and with the Commission. Comments will be received by OMB until October 10, 2006.

ADDRESSES:

Comments should be filed by email to
cpsc-os.gov
. Comments also may be filed by telefacsimile to (301) 504-0127 or they may be mailed or delivered, preferably in five copies, to the Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7923. Comments should be captioned “ATV NPR.”

Comments to OMB should be directed to the Desk Officer for the Consumer Product Safety Commission, Office of Information and Regulatory Affairs, OMB, Washington, DC 20503. The Commission asks commenters to provide copies of such comments to the Commission's Office of the Secretary, with a caption or cover letter identifying the materials as copies of comments submitted to OMB on the proposed collection of information requirements for the proposed ATV standard.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Leland, Project Manager, ATV Safety Review, Directorate for Economic Analysis, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7706 or e-mail:
eleland@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

The Commission is proposing rules that will cover single-rider ATVs, tandem ATVs (intended for two people) and ATVs intended for children under 16 years of age.
1

These proposed rules include proposed standards that specify mechanical requirements for ATVs and informational requirements so that ATV purchasers and operators will have safety information about ATVs. The Commission is also proposing to ban three-wheeled ATVs. The Commission believes that these proposed rules are necessary to address an unreasonable risk of injury and death associated with ATVs.

1
The Commission voted unanimously to issue the notice of proposed rulemaking with changes to address youth and adult ATV training (subsection (g)). Commissioner Nancy A. Nord and Commissioner Thomas H. Moore voted for additional changes not included in Chairman Stratton's vote, including additional instructions to staff and request for comments, a new subsection and modifying language in the preamble. Commissioners Nord and Moore issued statements which are available from the Commission's Office of the Secretary or from the Commission's Web site,
http://www.cpsc.gov.

ATVs were first available in this country in the early 1970's, and became increasingly popular in the early 1980's. With their rise in popularity, the number of ATV-related incidents also rose. On May 31, 1985, the Commission published an advance notice of proposed rulemaking (“ANPR”) stating the Commission's safety concerns and outlining options the Commission was considering to address ATV-related hazards. 50 FR 23139. In 1987, the Commission filed a lawsuit under section 12 of the CPSA against the five companies that were major ATV distributors at that time to declare ATVs an imminently hazardous consumer product, see 15 U.S.C. 2061(b)(1).
2

The lawsuit was settled by Consent Decrees filed on April 28, 1988 that were effective for ten years.

2
The five distributors were American Honda Motor Co., Inc., American Suzuki Motor Corp., Polaris Industries, L.P., Yamaha Motor Corp., USA, and Kawasaki Motors Corp., USA. In 1996, Arctic Cat, Inc. began manufacturing ATVs and entered into an Agreement and Action Plan with the Commission in which the company agreed to take substantially the same actions as required under the Consent Decrees.

1. The Consent Decrees

In the Consent Decrees, the distributors agreed to: (1) Halt the distribution of three-wheel ATVs, (2) attempt “in good faith” to devise a voluntary performance standard satisfactory to the Commission; (3) label ATVs with four types of warnings, the language and format of which were specified in the Consent Decrees; (4) supplement existing owners manuals with safety text and illustrations specified in the Consent Decrees and to prepare new owners manuals with specified safety information; (5) provide point of purchase safety materials meeting guidelines specified by the Consent Decrees, including hangtags, a safety video, and other safety information; (6) and offer a rider training course to ATV purchasers and members of their immediate families at no cost. In addition, the Consent Decrees contained several media and marketing provisions.

The distributors also agreed in the Consent Decrees that they would “represent affirmatively” that ATVs with engine sizes between 70 and 90 cc should be used only by those age 12 and older, and that ATVs with engine sizes larger than 90 cc should be used only by those 16 and older. Because distributors did not sell their products directly to consumers but through dealerships (which were not parties to the Consent Decrees), distributors agreed to “use their best efforts to reasonably assure” that ATVs would “not be purchased by or for the use of” anyone who did not meet the age restrictions. While the Consent Decrees were in effect, the distributors entered into agreements with the Commission and the Department of Justice agreeing to monitor their dealers to determine whether they were complying with the age recommendations and to terminate the franchises of dealers who repeatedly failed to provide the appropriate age recommendations.

2. Development of the Voluntary Standard for Single-Rider ATVs

Industry had begun work on a voluntary standard before the Consent Decrees were in place. Distributors that were parties to the Decrees agreed to work in good faith to develop a voluntary standard that was satisfactory to the Commission within four months of the signing of the Consent Decrees. The five companies, working through the Specialty Vehicle Institute of America (“SVIA”), submitted a standard

for approval as an American National Standards Institute (“ANSI”) standard in December 1988. On January 13, 1989, the Commission published a notice in the
Federal Register
concluding that the voluntary standard was “satisfactory” to the Commission.
3

54 FR 1407. The standard, known as ANSI/SVIA 1-2001,
The American National Standard for Four Wheel All-Terrain Vehicles—Equipment, Configuration, and Performance Requirements,
was first published in 1990, and was revised in 2001. The ANSI standard has requirements for the mechanical operation of ATVs, but does not contain any provisions concerning labeling, owners manuals or other information to be provided to the purchaser because such requirements were stated in the Consent Decrees that were in effect when the ANSI standard was developed. As discussed in section G.3, ANSI now has a draft voluntary standard for tandem ATVs.

3

In the FR notice, the Commission noted that it “specifically reserved its rights under the consent decrees to institute certain enforcement or rulemaking proceedings in the future.” 54 FR 1407.

3. ATV Action Plans/Letters of Undertaking

The Consent Decrees expired in April 1998. The Commission entered into voluntary “Action Plans,” also known as “Letters of Undertaking” or “LOUs,” with eight major ATV distributors (the five who had been parties to the Consent Decrees, plus Arctic Cat, Inc., Bombardier, Inc. and Cannnondale Corporation, which no longer makes ATVs)
See
63 FR 48199 (summarizing Action Plans).
4

Except for Bombardier's, all of the Action Plans took effect in April 1998 at the expiration of the Consent Decrees. (Bombardier's took effect in 1999 when the company began selling ATVs.) The companies agreed to continue many of the actions the Consent Decrees had required concerning the age recommendations, point of sale information (i.e., warning labels, owners manuals, hang tags, safety alerts, and safety video), advertising and promotional materials, training, and stopping distribution of three-wheeled ATVs.

4
These documents are available on CPSC's Web site at
www.cpsc.gov/library/foia/foia98/fedreg/honda.pdf; www.cpsc.gov/library/foia/foia98/fedreg/suzuki.pdf; www.cpsc.gov/library/foia/foia98/fedreg/kawasaki.pdf; www.cpsc.gov/library/foia/foia98/fedreg/polaris; www.cpsc.gov/library/foia/foia98/fedreg/yamaha.pdf; www.cpsc.gov/library/foia/foia98/fedred/arctic.pdf; and www.cpsc.gov/library/foia/foia99/pubcom/bobard.pdf.

4. Termination of Previous Rulemaking

As mentioned above, the Commission issued an ANPR concerning ATVs in 1985, but chose to pursue legal action under section 12 of the CPSA instead of taking regulatory action. In 1991, the Commission terminated the rulemaking proceeding it had started with the 1985 ANPR. 56 FR 47166. The Commission observed in its termination notice that, at the time of the termination, the Consent Decrees were in effect, the five ATV distributors had agreed to conduct monitoring of dealers' compliance with the Consent Decrees' provisions, and ATV-related injuries and deaths were declining. The ATV-related injury rate for the general population (per ATV) had dropped by about 50 percent between 1985 and 1989, and ATV-related fatalities had declined from an estimated 347 in 1986 to about 258 in 1989. Id. At 47170.

The Commission's termination of its rulemaking proceeding was challenged by the Consumer Federation of America (“CFA”) and U.S. Public Interest Research Group (“PIRG”) arguing that withdrawing the ANPR rather than pursuing a ban on the sale of new adult-size ATVs for use by children under 16 was arbitrary and capricious. The court upheld the Commission's decision.
Consumer Federation of America
v.
Consumer Product Safety Commission
, 990 F.2d 1298 (D.C. Cir. 1993). The court noted that it was reasonable for the Commission to determine the effectiveness of the Consent Decrees and monitoring activities before considering whether additional action would be necessary. Id. at 1306.

5. CFA's Petition and the Chairman's Memo

In August 2002, CFA and eight other groups requested that the Commission take several actions regarding ATVs. CPSC docketed the portion of the request that met the Commission's docketing requirements in 16 CFR § 1051.5(a). That request asked for a rule banning the sale of adult-size four wheel ATVs for the use of children under 16 years old. The Commission solicited public comments on the petition. 67 FR 64353 (2002). In 2003, the Commission held a public hearing in West Virginia, and the Chairman held hearings in Alaska and New Mexico to hear oral presentations from the public about ATVs. The staff prepared a briefing package analyzing the petition and recommending that the Commission deny the petition (available on the Commission's Web site at
www.cpsc.gov/library/foia/foia05/brief/briefing.html
). (After an initial vote on October 6, 2005 to defer a decision on the petition, the Commission voted 2-1 to deny the petition when it voted on July 12, 2006 to issue this NPR. The statements issued by Commissioner Nord and Commissioner Moore, referenced in footnote 1, also discuss their votes on the petition.)

On June 8, 2005, Chairman Hal Stratton delivered a memorandum to the staff asking the staff to review all ATV safety actions and make recommendations on a number of issues. The memo directed the staff to consider whether: (1) The current ATV voluntary standards are adequate in light of trends in ATV-related deaths and injuries; (2) the current ATV voluntary standards or other standards pertaining to ATVs should be adopted as mandatory standards by the Commission; and (3) other actions, including rulemaking, should be taken to enhance ATV safety. The memo also identified several specific issues for the staff to review, namely: (1) Pre-sale training/certification requirements; (2) enhanced warning labels; (3) formal notification of safety rules by dealers to buyers; (4) the addition of a youth ATV model appropriate for 14-year olds; (5) written notification of child injury data at the time of sale; (6) separate standards for vehicles designed for two riders; and (7) performance safety standards. The memo directed the staff to give particular attention to improving the safety of young riders.

6. 2005 ANPR

On October 14, 2005, the Commission published an ANPR that began this proceeding. 70 FR 60031. The ANPR reviewed the history of the Commission's involvement with ATVs, summarized the ANSI/SVIA-1-2001 standard, described regulatory and non-regulatory options to address ATV-related injuries and deaths, and requested comments from the public. Comments on the ANPR and the Commission's responses are discussed at section H.

B. Statutory Authority

This proceeding is conducted pursuant to the Consumer Product Safety Act (“CPSA”) and the Federal Hazardous Substances Act (“FHSA”). All Terrain Vehicles are “consumer products” which can be regulated by the Commission under the authority of the CPSA. See 15 U.S.C. 2052(a). However, the FHSA provides the Commission with regulatory authority over articles intended for use by children. See 15 U.S.C. 1261(f)(1)(D). See also 15 U.S.C. 2079(d) (requiring, that the Commission regulate under the FHSA if the risk of injury at issue can be eliminated or sufficiently reduced by action under the FHSA unless the Commission finds by rule that it is in the public interest to

regulate under the CPSA). Thus, the Commission is proposing standards for adult 4-wheel ATVs and a ban of adult three-wheeled ATVs under the CPSA, and is proposing a standard for youth ATVs, which includes a ban of three-wheeled ATVs, under the FHSA.

1. The CPSA

Section 7 of the CPSA authorizes the Commission to issue consumer product safety standards that consist of performance requirements and/or requirements for warnings or instructions. Id. 2056(a). The requirements of the standard must be “reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product.” Id.

Section 8 of the CPSA authorizes the Commission to issue a rule declaring a consumer product a “banned hazardous product” when the Commission finds that: The product is being, or will be, distributed in commerce; the product presents an unreasonable risk of injury; and no feasible consumer product safety standard would adequately protect the public from the risk of injury. Id. 2057.

Section 9 of the CPSA specifies the procedure the Commission must follow to issue a consumer product safety standard or a ban under section 8. In accordance with section 9, the Commission commenced this rulemaking by issuing an ANPR identifying the product and the risk of injury, summarizing regulatory alternatives, and inviting comments or suggested standards from the public. Id. 2058(a). 70 FR 60031 (2005). The Commission considered the comments submitted in response to the ANPR, and has decided to issue these proposed rules and a preliminary regulatory analysis in accordance with section 9(c) of the CPSA. Next, the Commission will consider the comments received in response to the proposed rules and decide whether to issue final rules and a final regulatory analysis. 15 U.S.C. 2058(c)-(f).

According to section 9(f)(1) of the CPSA, before promulgating a consumer product safety rule, the Commission must consider, and make appropriate findings to be included in the rule, concerning the following issues: (1) The degree and nature of the risk of injury that the rule is designed to eliminate or reduce; (2) the approximate number of consumer products subject to the rule; (3) the need of the public for the products subject to the rule and the probable effect the rule will have on utility, cost or availability of such products; and (4) means to achieve the objective of the rule while minimizing adverse effects on competition, manufacturing and commercial practices. Id. 2058(f)(1).

According to section 9(f)(3) of the CPSA, to issue a final rule, the Commission must find that the rule is “reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with such product” and that issuing the rule is in the public interest. Id. 2058(f)(3)(A) & (B). In addition, if a voluntary standard addressing the risk of injury has been adopted and implemented, the Commission must find that (1) the voluntary standard is not likely to eliminate or adequately reduce the risk of injury, or that (2) substantial compliance with the voluntary standard is unlikely. Id. 2058(f)(3)(D). The Commission also must find that expected benefits of the rule bear a reasonable relationship to its costs and that the rule imposes the least burdensome requirements that would adequately reduce the risk of injury. Id. 2058(f)(3)(E) & (F).

Other provisions of the CPSA also authorize this rulemaking. Section 27(e) provides the Commission with authority to issue a rule requiring consumer product manufacturers to provide the Commission with such performance and technical data related to performance and safety as may be required to carry out the CPSA, and to give such performance and technical data to prospective and first purchasers. Id. 2076(e). This provision bolsters the Commission's authority under section 7 to require provision of safety-related information such as hangtags, instructional/owners manuals, safety videos, and training.

Section 14 of the CPSA authorizes the Commission to issue a rule requiring certification that a product meets a consumer product safety standard. Id. 2063(c). Section 14 also authorizes the Commission to prescribe, by rule, reasonable testing programs for consumer products subject to a consumer product safety rule. Id. 2063(b).

Finally, section 16 of the CPSA authorizes the Commission to issue rules requiring establishment and maintenance of records needed to implement the CPSA or to determine compliance with rules or orders issued under the CPSA. Id. 2065(b).

2. The FHSA

The FHSA requires proceedings and findings similar to those required by the CPSA. Section 2(f)(1)(D) of the FHSA defines “hazardous substance” to include any toy or other article intended for use by children that the Commission determines, by regulation, presents an electrical, mechanical, or thermal hazard. 15 U.S.C. 1261(f)(1)(D). An article may present a mechanical hazard if its design or manufacture presents an unreasonable risk of personal injury or illness during normal use or when subjected to reasonably foreseeable damage or abuse. 15 U.S.C. 1261(s).

Under section 2(q)(1)(A) of the FHSA, an article intended for use by children, which is a hazardous substance (as defined in the FHSA) accessible by a child, is banned. 15 U.S.C. 1261(q)(1)(A). Under this authority, the Commission can issue a rule stating that if a particular article intended for use by children does not meet requirements that the Commission specifies by rule, the item is banned.
See Forester
v.
Consumer Product Safety Commission,
559 F.2d 774, 782 (D.C. Cir. 1977).

Section 3(f) through 3(i) of the FHSA, 15 U.S.C. 1262(f)-(i), describes the procedures to promulgate a regulation determining that an article intended for children presents an electrical, mechanical, or thermal hazard. The procedures are the same as those required for a CPSA rule discussed above. 15 U.S.C. 1262(f) through (i).

Before the Commission can issue this type of final rule under the FHSA, it must make many of the same findings necessary for a final CPSA rule: (1) if an applicable voluntary standard has been adopted and implemented, that compliance with the voluntary standard is not likely to adequately reduce the risk of injury, or compliance with the voluntary standard is not likely to be substantial; (2) that benefits expected from the regulation bear a reasonable relationship to its costs; and (3) that the regulation imposes the least burdensome alternative that would adequately reduce the risk of injury. Id. 1261(i)(2).

Section 10 of the FHSA authorizes the Commission to issue regulations “for the efficient enforcement of” the FHSA. Id. 1269(a). This provision gives the Commission authority to issue the requirements for certification, testing and recordkeeping in the youth ATV standard.

C. The Product

1. What's Covered by the Proposed Rules

An ATV is a motorized vehicle with three or four broad, low pressure tires (less than 10 pounds per square inch) a seat designed to be straddled by the operator, handlebars for steering, and it is designed for off-road use. Most ATVs are designed for use by only one person. However, some companies have developed ATVs intended for use by the operator and one passenger. These

ATVs are referred to in this notice as tandem ATVs. The proposed rules the Commission is issuing cover three-wheeled ATVs, four-wheeled adult ATVs intended for single riders, four-wheeled adult tandem ATVs, and ATVs intended for children under 16 years of age (referred to here as youth ATVs).

2. Market and Sales Information

The market for ATVs has increased greatly since they were first introduced over thirty years ago. The SVIA, an ATV trade association, estimated that in 2005, there were 6.9 million ATVs in use. The market is made of seven major distributors of ATVs (the companies that have entered into voluntary LOUs with the Commission and are represented by SVIA) and new entrants that import ATVs to the U.S. Sales by both groups have increased over the past decade. U.S. retail sales of ATVs by the seven major distributors have increased from an estimated 293,000 ATVs sold in the U.S in 1995 to an estimated 921,000 ATVs sold in the U.S. in 2005. [4]
5

5
Numbers in brackets refer to documents listed at the end of this notice. They are available from the Commission's Office of the Secretary (see “Addresses” section above) or from the Commission's web site (
http://www.cpsc.gov/library/foia/foia.html
)

3. Imports

Imports for the new entrants have increased markedly in recent years. In the late 1990's, imports comprised a small portion of the ATV market, near zero. In 2001, imports were estimated to account for about 5 percent of total U.S. sales. By 2004, imports had increased to 10 percent of the total U.S. market. [4]

In 2006, Commission staff has identified over 80 importers of ATVs. Most of these firms import other products in addition to ATVs, such as powered scooters, dirt bikes, go-carts and snow mobiles. A recent trade report estimated that 100 to 150 Chinese manufacturers and an estimated 22 Taiwanese firms exported ATVs worldwide in 2005. The trade report does not indicate what share of these firms” output is exported to the U.S., but based on another trade analysis, Commission staff estimates that approximately 80,000 ATVs were exported from China to the U.S. in 2004 and approximately 14,000 ATVs were exported from Taiwan in that year. There also appear to be imports from other countries in Europe and Southeast Asia (notably South Korea and Vietnam), but the staff does not have information on the extent of such imports. [4]

Staff has observed that imported ATVs may lack some or all of the labeling specified in the LOUs. On such ATVs, labels may be unclear, translated incorrectly, or in a language other than English. Staff has also found that owner's manuals for imported ATVs may not provide information that could be understood by U.S. consumers (
e.g.
, information that conflicts with labeling, measurements in unfamiliar measuring systems). [8]

4. Marketing

The major distributors have traditionally marketed ATVs through franchises, either as free-standing locations or in conjunction with other related retail operations (such as motorcycle retailers). [4]

Imported ATVs are sold in a variety of ways. They may be sold through distributors, including some of the major distributors. Foreign firms also market through U.S. importer/wholesalers who, in turn, may market the products to retailers (including such mass marketers as Pep Boys, Fleet and Farm, Wal-Mart, Sam's Club, and BJ's). Some importer/suppliers also have dealer networks. [4]

Imported ATVs also are offered for sale directly to consumers through import brokers who transship imported units to retailers (or consumers), often without taking physical control of the products. Web sites offering ATVs for sale are ubiquitous. A recent CPSC surveillance effort reported that there were literally hundreds of Web sites offering ATVs for sale, but the staff does not know the extent of actual purchases through the Internet. [4]

5. Consumer Prices

The staff's 2004 market study observed that the major distributors' suggested retail price for ATVs ranged from about $2,000 to $8,000; the median suggested retail price was $5,150. As a subgroup, the price ranges for youth ATVs from these manufacturers was $1,800 to $2,500. The median suggested retail price for youth ATVs was about $2,300. [4]

A recent staff Internet search of new ATVs with brand names other than those of the North American distributors, offered for sale by business entities, found youth ATV models ranging from about $320 to $950 each, with an average price of about $630. Larger ATVs ranged from about $600 to $2,400, with an average of $1,340. The cited prices included the cost of shipping to points within the lower 48 states from the dealers' U.S. warehouses. Thus, it appears that ATVs from importers/new entrants may have a significant price advantage over the major distributors' products. [4]

D. Risk of Injury

As noted in the 2005 ANPR, the most recent annual report of ATV deaths and injuries that the Commission has issued is the 2004 Annual Report (which was issued in September 2005). According to that report, the Commission had reports of 6,494 ATV-related deaths that have occurred since 1982. Of these, 2,019 (31 percent of the total) were to children under 16 years of age and 845 (13 percent of the total) were to children under 12 years of age. According to the 2004 Annual Report, 569 ATV-related deaths were reported to the Commission for 2003. Deaths reported to the Commission represent a minimum count of ATV-related deaths. To account for ATV-related deaths that are not reported to the Commission, the staff calculates an estimated number of ATV deaths. The most recent estimate of ATV-related deaths for 2003 is 740. [3]

CPSC collects information on hospital emergency room treated injuries. The estimated number of ATV-related injuries treated in hospital emergency rooms in 2004 was 136,100. This is an increase of about eight percent over the 2003 estimate. The estimated number of injuries to children under 16 in 2004 was 44,700 (about 33 percent of the total estimated injuries for 2004). [3]

The staff also estimates the risk of injury and the risk of death per 10,000 ATVs in use. According to the 2004 Annual Report, the estimated risk of injury for four-wheel ATVs for 2004 was 187.9 injuries per 10,000 four-wheel ATVs in use. A recent high in the estimated risk of injury occurred at 200.9 in 2001. The estimated risk of death for four-wheel ATVs in 2003 was 1.1 deaths per 10,000 four-wheel ATVs in use. In 1999, the earliest comparable year due to changes in data collection, the estimated risk of death was 1.4 deaths per 10,000 four-wheel ATVs in use. [3]

Based on injury and exposure studies conducted in 1997 and, most recently, in 2001, the estimated number of ATV-related injuries treated in hospital emergency rooms rose from 52,800 to 110,100 (a 109 percent increase). Injuries to children under 16 rose 60 percent. During these years, the estimated number of ATV drivers rose from 12 to 16.3 million (a 36 percent increase); the estimated number of driving hours rose from 1,580 to 2,360 million (a 50 percent increase); and the estimated number of ATVs rose from 4 to 5.6 million (a 40 percent increase). The chief finding of the 2001 Report was that increases in the estimated

numbers of drivers, driving hours and vehicles did not account for all of the increase in the estimated number of ATV injuries. [3]

E. Children and ATVs

During its involvement with ATVs, the Commission has been particularly concerned with reducing the ATV-related deaths and injuries suffered by children. The Consent Decrees established age guidelines, which the major distributors continue through their Letters of Undertaking. In the Consent Decrees, the major distributors agreed to represent and to make their best efforts to see that their dealers also abided by age recommendations in their dealings with purchasers. These age recommendations were based on the ATV's engine size (measured as cubic centimeter (“cc”) displacement). They established that an ATV with an engine that is larger than 90 cc should be used only by those 16 years of age and older, and that an ATV with an engine size between 70 and 90 cc should be used only by those 12 years of age and older. Thus, ATVs with engine sizes larger than 90 cc have been considered adult ATVs.

Yet, in spite of these efforts through the Consent Decrees and LOUs, recent Commission staff studies have shown that many children ride adult ATVs, and that injury rates are climbing. The Commission's injury and exposure studies indicate that injuries to children under age 16 rose 60 percent from 1997 to 2001. Although the number of children riding ATVs also rose during this period, that increase does not fully account for the rise in incidents.

The age delineations in the Consent Decrees made no mention of speed limits. However, the ANSI/SVIA-1-2001 voluntary standard does categorize youth ATVs by reference to speed limits. The voluntary standard requires that Y-6 ATVs (intended for ages 6-11) have devices to limit their speed to not more than 10 mph and allow upward adjustment to a maximum unrestricted speed of 15 mph. Y-12 ATVs (intended for ages 12-16) have similar requirements to limit speed to not more than 15 mph and allow upward adjustment to a maximum unrestricted speed of 30 mph.

The Commission is proposing to change the categorization of ATVs based on engine size that the Consent Decrees established. Instead the Commission proposes three categories of youth ATVs based on maximum speed of the ATV. The 90cc policy is design restrictive; engine size does not necessarily restrict ATV size, nor does it necessarily regulate maximum unrestricted speed; staff cannot make assumptions (e.g., speed, power, weight, or size) about all ATVs of a certain engine size based solely on the engine displacement values; and the current voluntary standard for ATVs categorizes youth ATVs by speed limiting characteristics, not engine size.

The Commission's ESHF staff considered several sources to determine appropriate categories of ATVs. Based on developmental characteristics, children are typically grouped as: age 5 through 7 or 8; age 8 or 9 through 11 or 12; age 12 through 15; and age 16 and up. Children, of course, do not all develop at the same rate, but these groupings are appropriate for most.

The CPSC staff's Age Determination Guidelines, state that children age 6 through 8 years can operate slow-moving motorized vehicles, and that children age 9 through 12 years can operate motorized vehicles with gear shifting up to 10 miles per hour. The guidelines state a clear demarcation with the teenage years: “faster [than 10 mph] moving motorized [vehicles] are generally not appropriate even for 12-year-olds because of the difficulty associated with both balancing and steering the vehicle while moving.” Since ATVs require significant balance and control, it seems most appropriate to have an age division around the late pre-teen/early teenage years. Based on youth attributes described in the Age Determination Guidelines, reasonable youth ATV categories would be Y-6 (“slow-moving,” no gear shifting), Y-9 (speeds 5-15 mph, gear shifting acceptable) and Y-13 (since the Age Determination Guidelines stop at age 12, no specifications can be made based on them). Additionally, the Age Determination Guidelines mention that 9-to 12-year-olds are generally “aware of traffic laws, but they are very likely to engage in high-risk behaviors like riding in traffic and stunt riding.”

In addition to cognitive development, appropriate age groupings should account for children's physical size. Analysis of children's physical growth suggests groupings with breaks roughly at around ages 8 to 9 and 11 to 13, acknowledging that growth will be rapid between ages 11 and 16 for both males and females.

Groupings set out in the Age Determination Guidelines can be used to delineate three categories for youth ATVs based on maximum speed of the ATV. For the youngest category, the Age Determination Guidelines indicate that the ATV should be “slow-moving.” One method of defining “slow moving” could be slow enough to allow parents to walk or jog with the ATV to facilitate supervision. Under this premise, it would be reasonable to set the maximum speed for the slowest youth ATV between the jogging speed and running speed. Research indicates that is about 9 to 10 mph. Based on the Age Determination Guidelines, the next category should be roughly 10 to 15 mph. The Age Determination Guidelines do not extend past 12 years of age, but it is reasonable to assume that the third category could be faster than 10 mph and that older, more experienced teens may be able to handle speeds higher than 10 to 15 mph. The Commission's ESHF staff has found no scientific research to support either raising or lowering the current 30 mph speed limit for teens. Thus, 30 mph is a reasonable top speed for the third category of youth ATVs.

Proposed ATV Models and Intended Ages

ATV Model age (years)
Speed range

Junior 6 +
10 mph or less.

Pre-teen 9 +
10*−15 mph.

Teen 12 +
15*−30 mph.

Adult 16 +
Not restricted.

* With speed limiter.

Although the weight of the ATV can play a role in the suitability of an ATV for a youth, the Commission does not have sufficient information to set an appropriate weight for youth ATVs.

Frame size also plays a role in the appropriateness of an ATV for a child. Several commenters have expressed frustration with the current ATVs available for children because the smaller frames of these ATVs will not fit some 13 to 15 year olds. Establishing categories based on speed limit rather than engine size may encourage manufacturers to offer ATVs with larger frames (and larger engines), but with limited maximum speeds that would be appropriate for children.

The availability of such youth ATVs may shift a number of young riders to youth ATVs rather than larger adult models. This would increase safety. Commission analysis indicates that the injury rate for ATV riders under the age of 16 who are driving adult ATVs is about twice the expected injury rate of those who are driving age-appropriate ATVs. Moreover, these categories may enable more children to receive formal ATV training. The largest and best established formal training programs will not train children under age 16 unless they are riding an appropriate youth model. [8]

The proposed rule also requires that youth ATVs must have automatic

transmissions. Based on the Age Determination Guidelines, ESHF staff believes that manual transmission ATVs are inappropriate for children under 9 years of age. Due to the high cognitive load required to operate complex motorized vehicles, HF staff believes it best to allow all children below 16 years of age to master driving skills before learning to coordinate gear shifting with the many other skills involved when riding.

F. Training

In the 1980s, Commission staff worked with the major ATV distributors to develop the predecessor to the current ATV training course that is offered through the ATV Safety Institute (“ASI”), the non-profit training division of the SVIA. Training is important because operating an ATV seems deceptively easy; steering controls are similar to a bicycle, and the throttle is generally simply lever-operated with the thumb. ATVs are, however, high-speed motorized vehicles that require repeated practice to drive proficiently. Operating an ATV is somewhat comparable to operating other complex motorized vehicles. ATVs have top speeds approaching that of automobiles on highways, yet have as little protection from oncoming objects as a motorcycle. Even at relatively low speeds (20-30 mph) they can take as much skill to operate as an automobile because the operator requires: (1) Situational awareness to negotiate unpaved terrain with both eye-level hazards (trees, other ATVs) and trail-level hazards (ditches, rocks, hidden holes); and (2) quick judgments including not only steering, speed, and braking, but also terrain suitability, weight shifting and other active riding behaviors. [12]

Formal, hands-on training teaches drivers how the ATV responds in situations that are typically encountered. ATV training may act as a surrogate for experience because it exposes new ATV drivers to situations they will encounter when riding off-road and teaches them the proper driving behavior to navigate those situations.[12]

All of the major distributors offer training through the ASI. In spite of the offers of free training and other incentives, relatively few ATV riders take formal safety training. According to a 2004 study by SVIA, only about 7 percent of new purchasers actually took training. The newer entrants to the market do not offer any training with their ATVs. These manufacturers account for about 10 percent of domestic ATV sales, but their share of the market has been increasing. [4 & 12]

The Commission is proposing to require that manufacturers provide purchasers with a certificate for free training for the purchaser and any member of his/her immediate family who meets the age recommendations for the ATV. The benefits of training to new ATV purchasers could be substantial. As stated above, training may act as a surrogate for experience. The greatest risk of injury occurs with inexperienced riders. Staff's analysis of ATV incident data has found a strong inverse relationship between driving experience and the risk of hospital emergency department-treated injury. The analysis indicates that risk in the first year of riding was about 65 percent higher than the risk in the second year, and about twice the risk of the third year. [8]

The proposed rules outline the basic content that a free training course must have. This curriculum is based on CPSC safety messages and the “ATV Rider's Course Outline” from the Consent Decrees. In addition to instruction about the basic maneuvers that are necessary to operate an ATV safely, the course must include instruction about the risks of ATV-related deaths and injuries, the importance of safety equipment, and the importance of avoiding the warned against behaviors that are stated in the general warning label (such as children not riding ATVs, not driving on paved roads, etc.). [12]

In many ways, training is essentially an extension of the warning labels and owners instruction manuals. The training course provides the rider with a fuller understanding of the risks involved in riding an ATV and of the actions he/she can take to avoid or reduce these risks.

G. Description of Proposed Standards

1. General

The proposed standards draw from the ANSI/SVIA 1-2001 standard for four-wheel ATVs (for single rider ATVs), the draft voluntary standard for tandem ATVs, the Consent Decrees, and the LOUs. The Commission has pulled together elements from all of these sources to construct proposed standards with the goal of reducing ATV-related deaths and injuries. Both the adult and youth standards require that ATVs meet requirements for the mechanical operation of the ATV, informational/point of sale requirements, and certification and recordkeeping requirements.

The Commission believes that the reduction of deaths and injuries from both adult and youth ATVs will require the active participation and cooperation of the ATV industry and we encourage their recommendations for additional safety provisions to the proposed mandatory standards. The creation of viable, safer youth ATVs will be an important component of any final rule.

2. Requirements for Adult Single Rider ATVs

a. Definitions

All terrain vehicle or ATV is defined as “a three-or four-wheeled motorized vehicle that travels on low pressure tires, has a seat designed to be straddled by the operator (and a passenger if provision is made for carrying a passenger), has handlebars for steering, and is intended for off-road use on non-paved surfaces.” The definition of ATV states that for purposes of this part, an ATV is one that is intended for an operator 16 years of age or older. The term “manufacturer” is defined to include an importer for purposes of the ATV standards. Many of the definitions in the proposed standard are derived from the ANSI/SVIA-1-2001 standard.

b. Equipment and Configuration Requirements

General.
Section 1410.5 proposes requirements for various aspects of the mechanical operation of adult single-rider ATVs. Many of these requirements are substantially the same as requirements of the ANSI/SVIA-1-2001 voluntary standard. However, the CPSA requires that consumer product safety standards be stated as performance rather than design standards. Thus, some requirements that were stated in the ANSI standard in terms of design have been modified to establish performance requirements.

The provisions of this section ensure that there will be uniformity in the basic operation of ATVs from one make or model to another. Proposed configuration requirements for vehicle controls, indicators, and gearing ensure the standardized instrumentation and safety features of current ATVs. It is important that the location and method of operation of safety related controls, such as brake controls and engine stop switch, be standardized to reduce operator confusion. The specified requirements are consistent with current ATV practice which is based on the National Highway Traffic Safety Administration requirements for motorcycle control location and operation requirements (49 CFR 571.123). [5]

Operator Foot Environment.
Proposed performance requirements for operator foot environment ensure adequate vehicle configuration that reduces inadvertent contact between the

operator's feet and the ground or the ATV's rear wheels. Operator foot contact with the ground or the ATV's rear wheels has been identified as a hazard pattern among ATV-related injuries. Differing zones are defined for ATVs equipped with footpegs (designed to support the operator's foot with a relatively narrow bar), and footboards (designed to support the operator's foot with a platform-type structure). [5]

Lighting.
Proposed lighting requirements mandate headlamps, tail lamps, and stop lamps on all adult ATVs. The lighting equipment must conform to applicable referenced standards. This provision was adopted from the ANSI/SVIA-1-2001 standard. Nighttime riding can be expected with adult ATVs and requirements for industry standard headlamps will ensure minimum illumination for night-time or safer operation of the vehicle. [5 & 7]

VIN or PIN.
The proposed standard requires that each ATV have assigned a unique vehicle identification number (“VIN”) in accordance with 49 CFR Part 565 or a product identification number (“PIN”) in accordance with Recreation Off-Road Vehicle Product Identification Numbering System, SAE International Consortium Standard, ICS-1000, issued 2004-9. If the ATV has a VIN number, the characters in location 4 and 5 of the number must be “A” and “T”, respectively to identify the vehicle as an ATV and an off road vehicle. Having a VIN or PIN on every ATV can be helpful if an ATV is the subject of a corrective action. The VIN or PIN should also permit tracing the ATV back to its retailer to determine compliance with applicable requirements.

Maximum speed capability and brake requirements.
Procedures are outlined for the measurement of a loaded vehicle's maximum speed. The maximum speed is used to determine the brake test speed and conformance to the youth ATV speed restriction requirements. [5]

The proposed standard establishes performance tests for service brakes and parking brakes. Reliable brake performance is critical to the safety of an ATV operator. The requirements specify a braking deceleration of 5.88m/s
2
(0.6g) or greater for service brakes and brake holding power up to a 30 percent grade for parking brakes. [5]

These proposed requirements establish minimum brake performance to ensure that brake systems are adequate for stopping the vehicle and holding the vehicle on an incline. The specified requirements are consistent with current ANSI/SVIA-1-2001 voluntary standard requirements which are patterned after those in the Federal Motor Vehicle Safety Standard No. 122 Motorcycle Brake Systems (49 CFR 571.122).

The proposed requirements deviate from the current ANSI/SVIA-1-2001 requirements in terms of the vehicle test weight used to perform service brake tests. The current voluntary standard specifies the test weight as the unloaded vehicle weight plus 91 kg (200 lb) if the vehicle load capacity is specified as 91 kg (200 lb) or more. The proposed requirements specify the test weight as the unloaded vehicle weight plus the vehicle load capacity. This will ensure that larger vehicles with larger load capacities do not have a less stringent brake requirement (by using a comparatively lower test weight during brake tests).

Stability requirements.
The standard proposes the same pitch stability requirements as the ANSI/SVIA-1-2001 voluntary standard. The pitch stability for single-rider ATVs is based on the longitudinal tilt angle of a vehicle without an operator. A vehicle's longitudinal tilt angle can be calculated by measuring the vehicle's front and rear weights and balancing angle (angle at which vehicle is balanced on its rear wheels) or it can be measured on a tilt table. The ANSI/SVIA-1-2001 voluntary standard requires calculation of a vehicle's longitudinal pitch angle which must be 45 degrees or higher to meet the pitch stability requirement. The proposed requirements adopt this test procedure and minimum tilt angle for single-rider ATVs, and add a tilt table option to address larger ATVs whose weights could make it unsafe to follow the voluntary standard procedures for measuring and calculating the pitch stability.

The proposed pitch stability requirements deviate from ANSI/SVIA-1-2001 in terms of the test conditions of the vehicle. The current voluntary standard specifies that the vehicle tires be inflated to the ATV manufacturer's lowest recommended pressure. The proposed requirements specify that the tires be inflated to the ATV manufacturer's highest recommended pressure. This will ensure that the vehicle configuration with the highest expected center of gravity will be tested.

Over the years, the Commission has analyzed the issue of ATV stability. Because ATVs are rider-active vehicles (that is, their performance is affected by the rider's movements), it is difficult to evaluate an ATV's actual stability. A satisfactory static test has been developed to measure an ATV's pitch stability (movement from front to back). At this point in time, the industry has not been able to develop a satisfactory test of lateral stability (movement from side to side). Thus, the ANSI/SVIA-1-2001 standard has a requirement for pitch stability, but not for lateral stability. The Commission's proposed standard likewise contains requirements only for pitch stability. However, the Commission encourages the industry to continue to pursue an accurate and reliable test for lateral stability.

c. Information/Point of Sale Requirements

The proposed standard mandates by rule many similar information/point of sale requirements as were specified in the Consent Decrees and subsequently continued in the LOUs. This subpart of the proposed standard contains requirements for labeling, hangtags, age acknowledgment forms, instructional/owner's manuals, a safety video, and instructional training.

Warning labels.
The Consent Decrees specified four labels to appear on all ATVs: (1) a general warning label, (2) an age recommendation label, (3) a passenger warning label, and (4) a tire pressure and overloading warning label. Most ATVs include these or substantially equivalent labels as well as other discretionary warning labels. However, imported ATVs may not have all of these warning labels, the labels may be unclear or they may not be in English.

The proposed rule requires labels that are similar to those required by the Consent Decrees, but allows more flexibility. The warning labels have evolved since the Consent Decrees, and the major distributors currently use their own copyrighted labels that present substantially the same warnings. In the case of the general warning label and the passenger label, the distributors sought Commission approval for new labels that included pictograms and somewhat different wording than had been specified in the Consent Decrees.

Like the Consent Decrees, the proposed rule requires a general warning label, an age recommendation warning label, a passenger warning label and a tire pressure/overloading label (or labels). All of the warning labels must display the safety alert symbol in accordance with section 4.1 of ANSI Z535.4-2002, American National Standard for Product Safety Signs and Labels, and the word “WARNING” in capital letters. The format for all of the labels must be consistent with the ANSI Z535.4-2002 standard. The proposed rule requires the same location for the single-rider ATVs as was required by the Consent Decrees. The proposed rule

requires the warning labels to be in English.

The proposed rule specifies statements for these warning labels and requires that the warning labels provide these, or substantially equivalent, statements. This should enable provision of the vital safety information but allow some flexibility to manufacturers who are using labels that are consistent with, but not identical to, the Consent Decree labels.

General warning label.
The proposed rule requires a general warning label that contains the same statements, or substantially equivalent ones, as the general warning label required by the Consent Decrees. This label warns that ATVs can be hazardous to operate and that severe injury or death can result if the operator does not follow instructions to: Read the owners manual and all labels; never operate the ATV without proper instruction; never carry a passenger; never operate the ATV on paved surfaces or on public roads; always wear a helmet and protective clothing; never consume alcohol or drugs before or while operating ATVs; never operate the ATV at excessive speeds; and never attempt wheelies, jumps or other stunts. The proposed rule states that the warning statements may be arranged on the label to group the prohibited actions together and the required actions together. This is how many of the current general warning labels are arranged. The location is to be the same as specified in the Consent Decrees.

Age recommendation warning labels.
The content of the age recommendation warning labels differs from the Consent Decree labels. The Commission's Human Factors staff concluded that the Consent Decree age labels for adult ATVs are vague about the nature of the hazard they are warning against and may not be as persuasive as they could be. The primary reasons for the age recommendations are children's lack of experience and, particularly, their immature judgment. If the reasons for the age recommendations are not explicitly described in the label, parents may rationalize why their children are exceptions to the recommendations. Thus, the proposed rule requires the following, or substantially similar statement: “Even youth with ATV experience have immature judgment and should never drive an adult ATV.” The proposed age recommendation label also differs from the Consent Decree label by directing the message to the supervising parents rather than to the child, who is likely to ignore it. Thus, the proposed rule requires the following, or substantially equivalent, statement: “Letting children under the age of 16 operate this ATV increases their risk of severe injury or death. NEVER let children under age 16 operate this ATV.” [10]

Passenger warning label.
The proposed rule specifies different wording for the passenger warning label than the Consent Decrees required. The major distributors are currently using a passenger label that differs from the Consent Decrees. As with the general warning label, they asked for and received approval from the Commission for a different passenger label. Both the current label and the Consent Decree label identify that the hazard caused by a passenger is that the ATV may go out of control, but the labels do not state how the presence of a passenger can lead to loss of control. To address this, the proposed standard requires the following, or substantially similar, statement: “Passengers can affect ATV balance and steering. The resulting loss of control can cause SEVERE INJURY or DEATH.” The proposed standard also requires the statement (or a substantially similar one): “NEVER ride on this ATV as a passenger.” The proposed language inserts the phrase “on this ATV” because, with the development of tandem ATVs, some ATVs are intended to carry passengers. [10]

Tire pressure and overloading label(s).
Like the Consent Decrees, the proposed standard allows the option of having the tire pressure warning and the overloading warning in separate warning labels or combined into one label. The proposed content of the label(s) is the same as specified in the Consent Decrees.

Label durability.
The proposed rule requires that all of the warning labels must meet the durability requirements of Underwriters Laboratories Standard UL 969, fourth edition, October 3, 1995. This should ensure that the labels will remain on the ATVs and legible for operators to see.

Discretionary warning labels.
The proposed standard allows manufacturers to display additional warning labels on ATVs so long as they are consistent with ANSI Z535.4-2002, American National Standard for Product Safety Signs and Labels ANSI Z535.4 (2002) and are affixed to the ATV in an appropriate location that does not detract from the required warning labels. [10]

Hangtags.
Like the Consent Decrees, the proposed standard requires that certain hangtags be present on the ATV at the point of sale. The hangtags must provide the contents of the general warning label, a statement that the hangtag is not to be removed before sale, and a statement directing the purchaser to check with the ATV dealer about state or local laws concerning ATVs. The hangtags must be conspicuous and must be at least 4 by 6 inches.

Age acknowledgement form.
The proposed rule requires that before the sales transaction, the ATV retailer must provide the purchaser with an age acknowledgement form, the content of which is specified in the proposed rule. The form tells the purchaser that the ATV he/she is considering is for adults and that children have immature judgment and should never drive an adult ATV. The form states the number of children who have died and who have been injured on adult ATVS in each year since 2001 and informs the purchaser that youth ATVs are available. The retailer must require the purchaser to sign the acknowledgement form before the sales transaction; must provide the purchaser and manufacturer with a copy of the form; and must maintain the original for at least five years. The signed forms must be available for Commission inspection upon request.

The purpose of the age acknowledgment form is to ensure that everyone who purchases an adult ATV is aware that it is not intended to be ridden by anyone under 16 and that children can be severely injured or die when riding an adult ATV. The Commission has received comments from parents indicating that they were unaware of the hazard adult ATVs pose for children until their child became injured or killed while riding one. Even with the current warning labels on ATVs stating this hazard and with the LOU provisions that voluntarily continue the major distributors’ agreement to follow the age guidelines of the Consent Decrees, apparently some consumers purchase adult ATVs without knowing that a child should not ride them. Requiring purchasers to sign a form which states the age recommendations will inform the purchaser of the risks to children riding adult ATVs and could influence them to prohibit children under 16 from riding one. [8 & 11]

Instructional/owners manuals.
Like the Consent Decrees, the proposed rule requires that ATVs be provided with an instructional/owners manual. The proposed rule continues many of the Consent Decrees’ requirements for the manuals. They must be written to convey information about the safe operation and maintenance of the ATV, be written plainly in language that is comprehensible to a 7th grader, and be consistent with other required safety messages. The basic content of the

manual is specified much as it was in the Consent Decrees. The proposed rule adds a requirement that the manuals be in English.

An introductory safety section must contain certain specified safety messages. This section concludes with CPSC's website and phone number, and the manufacturer must provide a contact number for the purchaser to obtain further ATV safety information. The manufacturer also must provide a phone number or email address for the owner to report any safety issues (this could be the same phone number). The section of the manual that describes proper operating procedures must include narrative text identifying potential hazards, possible consequences, and describing how to avoid or reduce the risk of those hazards. This text must also include relevant warning statements required by the standard. The manufacturer must retain a copy of the manual for each model for 5 years and make it available for CPSC inspection upon request.

Safety Video.
The proposed rule requires the retailer to provide the purchaser with a safety video before the sales transaction is completed. The requirements for the safety video are substantially the same as those set out in the Consent Decrees. The video is to include the contents of the hang tag, the concept of knowing one's limitations when operating an ATV, the importance of gradually progressing from basic to more complex maneuvers, and the importance of remaining alert while operating the ATV. The video also must include ATV-related death and injury statistics, both for all riders and for children under the age of 16, which can be stated in rolling five-year averages. These must be updated when there is a statistically significant change in the statistics. The video must be made available to the purchaser in at least one commonly used format, such as VHS or DVD. The manufacturer must retain a copy of the video for 5 years and make it available for CPSC inspection upon request.

The Commission believes that providing the safety video is an extension of the safety messages specified in the warning labels and the instructional/owners manual. The video provides safety information through a readily accessible medium. It can impart more detailed safety information than a warning label can. A purchaser might be more inclined to watch a safety video shortly after purchasing an ATV than he/she would be to read the entire owner's manual with all of its safety information.

Instructional Training.
The proposed rule requires ATV manufacturers to provide to purchasers a training course (at no cost) for the purchaser and each member of the purchaser's immediate family who meets the minimum age recommendation for the ATV that is being purchased. At the time of sale, the retailer must deliver to the purchaser a certificate which is valid for attendance at a training course that meets the requirements in the proposed rule. The retailer also must have the purchaser sign a form indicating that ATVs are complex vehicles to drive and that he/she is aware that free training is available. The retailer must retain the original of the training disclosure form and provide the purchaser and the manufacturer each with a copy.

As discussed above, the Commission believes that training can play an important role in reducing ATV-related deaths and injuries. The curriculum specified in the proposed rule is similar to training that is currently offered by SVIA. It includes instruction on the maneuvers necessary for operation of the ATV and information about behaviors to avoid in order to reduce the rider's risk of injury. The course must include classroom, field and trail activities. The course content must include information on ATV-related deaths and injuries; the role of safety equipment; rider responsibilities and safety messages; identifying displays and controls on the ATV itself; recognizing one's limitations while driving; evaluating a variety of situations to predict a proper course of action, including terrain obstacles and behavior of other riders; demonstrating successful learning of riding skills, including starting, stopping, and negotiating turns of all types; stopping in a turn; emergency braking; negotiating full-track and partial-track obstacles; driving up hills; and combining skills together in a non-predictable manner. No course duration is specified, but it must be sufficient to cover all of the topics outlined in the proposed rule and to allow for students to individually master the riding skills covered in the course and to allow for written and riding skills tests.[12]

Although no specific time or location is stated, the course must be provided within a reasonable time from the date of purchase of the ATV and a reasonable distance from the place the ATV is purchased.

Recordkeeping, testing and certification.
The proposed rule requires manufacturers to provide near the VIN or PIN number a statement certifying that the ATV meets the requirements of the standard. The manufacturer must perform, or cause to be performed, tests sufficient to demonstrate on an objectively reasonable basis that each ATV produced by the manufacturer meets the mechanical operation requirements of the proposed rule (sections 1410.5 through 1410.9). (This requirement is not intended to mandate testing of every ATV of a particular model.)

The proposed rule requires ATV manufacturers (including importers) to keep records sufficient to show that each ATV the manufacturer produces meets the requirements of the proposed standard. The records must be in English and must be kept at a U.S. location for five years after the manufacturer ceases production of that model. Retailers must keep records of the age recommendations acknowledgment form and the training acknowledgment form for five years after the purchase.

3. Requirements for Tandem ATVs

a. Background

Tandem ATVs are a relatively recent development. The Consent Decrees did not contemplate ATVs designed for more than one rider. The ANSI/SVIA-1-2001 standard does not cover tandem ATVs. However, in 2002 the International 2-Up ATV Manufacturers Association (I2AMA) began working on a voluntary standard for tandems, which subsequently became a draft ANSI voluntary standard, ANSI/I2AMA-1-XXXX, Draft American National Standard for Four Wheel, Two Person, All-Terrain Vehicles Equipment, Configuration, Performance, Safety Information and Training Requirements. Recently, I2AMA agreed to suspend its development of a tandem standard and will instead work with SVIA to include tandem ATVs in the existing ANSI/SVIA standard. [5]

The Commission covers tandem ATVs in its proposed standard for adult ATVs. Most of the requirements for single rider ATVs also apply to tandems. A few provisions in the equipment and configuration requirements and the information requirements are different in order to make them appropriate for tandems. The certification, testing and recordkeeping requirements specified above also apply to tandem ATVs.

b. Equipment and Configuration Requirements

Most of the proposed equipment and configuration requirements for single rider ATVs also apply to tandem ATVs. The proposed standard for tandems states requirements for the passenger environment, and modifies the single

rider requirements for the operator and passenger foot environment to suit tandem ATVs. The proposed tandem standard also adds requirements for passenger handholds. Two headlights and two tail lights are required for tandem ATVs that are wider than 1500 mm. These proposed requirements are based on the draft voluntary standard for tandem ATVs and additional information provided by letter from the SVIA of May 19, 2006. [5]

The proposed pitch stability requirements are different for tandem ATVs than for single rider ATVs. The pitch stability for single rider ATVs is based on the longitudinal tilt angle of a vehicle without an operator. However, the pitch stability for tandem ATVs is based on the tilt angle of a vehicle with an operator and passenger (simulated loads). The proposed requirements for tandem ATVs adopt the tilt table method and minimum tilt angle specified in the ANSI draft standard for tandem ATVs. A tandem ATV with simulated operator and passenger weights must reach a minimum of 36 degrees in the longitudinal direction on a tilt table before lift-off of both uppermost tires occur. Lift-off of a tire occurs when a strip of 20-gauge steel can be pulled from underneath the tire with a force of 9 N (2 lbf) or less. [5]

c. Information Requirements

Most of the information requirements discussed above for single rider ATVs also apply to tandem ATVs. However, there are a few differences. The general warning label proposed for tandem ATVs omits the warning about carrying a passenger. The passenger warning label is completely different from the passenger warning label of single rider ATVs. It states “Never carry more than 1 passenger,” and states the following recommended hazard avoidance behaviors: “Never carry a passenger too small to firmly plant his/her feet on the footrests and to securely grab the handles; never allow a passenger to sit in a location other than the passenger seat; and never carry a passenger who is not securely grasping the grip handles at all times.” [10]

The location required for the passenger warning label for tandem ATVs is also different from the location required for the single rider ATV. Because the general warning label required by the proposed standard no longer has any warnings about passengers, the passenger warning label should have greater visibility. Therefore, the proposed rule requires it to be affixed to the front fender of the tandem adjacent to the general warning label, so that it can be easily read by the operator when seated on the ATV in the proper operating position. [10]

The hangtag must provide the contents of the general warning label required for tandems rather than the one required for single rider ATVs. The instructional/owners manual also must have a different statement about passengers. It must state the following (or substantially equivalent): “NEVER CARRY MORE THAN ONE PASSENGER. This ATV has been designed specifically to carry one passenger.” [10]

4. Requirements for Youth ATVs

a. General

As discussed in section E above, the Commission is proposing three categories of youth ATVs based on maximum speed. Many of the proposed requirements for youth ATVs are similar to those for adult ATVs and the ANSI/SVIA-1-2001 voluntary standard. Because the FHSA, which provides authority for the proposed youth standard, allows design standards, some of the provisions of the proposed youth standard are phrased more closely to the ANSI/SVIA-1-2001 standard than the comparable adult standard provisions.

A youth ATV is defined as an ATV that is intended for use by an operator less than 16 years of age. A Junior ATV is a youth ATV intended for use by an operator at least 6 years old. A Pre-teen ATV is a youth ATV intended for use by an operator at least 9 years old. And a Teen ATV is a youth ATV intended for use by an operator at least 12 years old.

b. Equipment and Configuration Requirements

With the exception of lighting, maximum speed capability, and the requirement for automatic transmission, the proposed equipment and configuration requirements for youth ATVs are essentially the same as those for adult single rider ATVs, which are expressed as performance requirements.

Lighting.
The proposed youth standard requires all youth ATVs to have at least one stop lamp, and it prohibits any headlamp or forward-facing day-time running lights. The ANSI/SVIA-1-2001 standard prohibits both headlamps and tail lamps and is silent about running lights. [7]

The Commission believes that youth ATVs should have stop lamps to alert a follower to the deceleration of a lead vehicle. The Commission believes it is also appropriate to allow (but not require) tail lamps for youth ATVs. Both of these types of lights could increase the ability of other ATVs to see a youth ATV, but they would not improve the ability of the youth ATV rider to operate the ATV at night. It is the concern that children may be encouraged to ride ATVs at night that is the basis for the proposed rule's prohibition of headlamps and forward-facing daytime running lights. Although the purpose of daytime running lights is to make the vehicle more conspicuous to other drivers rather than to illuminate the driver's path, the Commission is concerned that parents and children may have difficulty distinguishing between a daytime running light and a headlamp. This may encourage a child to ride at night. Thus, the proposed standard for youth ATVs allows daytime running lights only if they are not forward facing. This should increase the conspicuity of the ATV without providing forward illumination that could encourage night riding. [7]

Maximum speed capability.
As discussed above, the proposed rule establishes maximum speeds for three categories of youth ATVs. Junior ATVs, which are intended for children age 6 and older, must have a maximum speed capability of 10 mph. Pre-teen ATVs, which are intended for children age 9 and older, must have a maximum speed capability of 15 mph. And Teen ATVs, intended for children age 12 and older, must have a maximum speed of 30 mph. In addition to placing limits on the maximum speed capability of the ATV, the proposed youth standard also requires speed limiting devices for Pre-teen and Teen ATVs. The maximum speed allowed for a Pre-teen ATV with a speed limiting device is 10 mph and the maximum restricted speed allowed for a Teen ATV is 15 mph. The youth ATVs requiring speed limiting devices must be delivered to the purchaser with the speed limiting device adjusted to limit the maximum speed to the lowest setting specified for each category of youth ATV. The proposed rule requires the simultaneous use of two different tools for the speed limiting devices to be adjusted or removed. This requirement is to make the devices more difficult to remove and thus discourage children from removing them without the participation of an adult. [5&6]

Although the proposed rule creates three categories of youth ATVs instead of the current two categories, the proposal retains the current maximum unrestricted speed of 30 mph for youth ATVs. The combination of defining youth ATVs only by their maximum speed capability (rather than engine size) while retaining the maximum speed currently in place should allow manufacturers to develop ATVs with larger frames and somewhat more powerful engines while still

maintaining the safety of the current speed limitations. Consequently, provided a manufacturer is committed to the speed limitations of this proposed youth ATV standard, the Commission would not oppose a modification to a LOU to delete the engine size limitation.

Automatic transmission.
As discussed above, the proposed rule requires that all youth ATVs have automatic transmissions. The operation of an ATV is complex for a child even without the added activity of changing gears.

c. Information Requirements

The requirements for labels, hangtags, instructional/owners manuals, safety video, and training in the proposed youth ATV standard are essentially the same as those in the proposed adult standard. However, there are some differences in wording where appropriate.

Labels.
As with the warning labels for adult ATVs, the format for all required warning labels for youth ATVs must be consistent with the ANSI Z535.4-2002 standard. The required location for all of the youth warning labels is the same as required for adult single rider ATVs. The contents of the general warning label, the passenger warning label, and the tire pressure and overloading label(s) are the same as required for adult single rider ATVs. The contents of the age recommendation labels differ slightly for each category of youth ATV. The age recommendation label for the Junior ATV must display the safety alert symbol and the word “WARNING” in capital letters. It must also contain a circle with a slash through it and within the circle the words “UNDER 6.” The proposed rule requires that below the circle must be the following, or substantially equivalent, statements: “Operation of this ATV by children under the age of 6 increases the risk of severe injury or death. Adult supervision required for children under 16. Never let children under 6 operate this ATV.” The age recommendation labels for the Pre-teen and Teen ATVS are similar, but the ages 9 and 12, respectively, are inserted instead of the age 6. [10]

Hangtags.
The proposed rule requirements for hangtags are similar to those in the proposed adult single rider standard. However, in addition to the statements required there, the youth ATV hangtag must also state: “Even though a child is of the recommended age to operate a particular size ATV, not all children have the strength, skills, or judgment needed to operate an ATV safely, and parents should, therefore, supervise their child's operation of the ATV at all times.” [10]

Age acknowledgment.
The proposed youth ATV standard also requires the retailer to get the purchaser's signature on an age acknowledgment form before the sales transaction. However, the required acknowledgment form is different from the adult standard. The form states the age categories and corresponding speed range. It advises the purchaser to buy an ATV that fits his/her child or teen, to use the speed limiter while the child is developing skills on the ATV, and to always supervise his/her child or teen. [6]

Instructional/owners manuals.
The proposed youth standard's requirements for owners manuals are essentially the same as the requirements for adult single rider ATVs. However, statements concerning children's use of ATVs have been modified or added. The manual must contain an introductory notice to parents emphasizing that ATVs are not toys and that it is important for children to understand the manual's instructions and warnings. The introductory section must contain the following statement: “Children differ in skills, physical abilities, and judgment. Some children may not be able to operate an ATV safely. Parents should supervise their children's use of the ATV at all times.” [10]

Safety video and training.
Requirements concerning the safety video and training are the same in the proposed youth standard as in the proposed adult ATV standard.

5. Ban of Three-Wheeled ATVs

The Consent Decrees prohibited the ATV distributors who signed the Consent Decrees from distributing or selling three-wheeled ATVs. In the LOUs, the major distributors agreed to continue to refrain from selling three-wheeled ATVs. None of them currently sell them (although three-wheeled ATVs that pre-date the Consent Decrees are still in use and could continue to be used if a ban is finally adopted). However, newer entrants to the ATV market have not made such agreements with the Commission.

The Commission's Office of Compliance has found that three-wheeled vehicles are being advertised and marketed as ATVs for sale in the United States. Compliance staff has identified three importers who have sold a recreational vehicle that is essentially a cross between a traditional ATV and a dirt bike, and would meet the proposed rule's definition of an ATV. All three importers use the Internet as the retail location for this product. They refer to it as a three-wheeled ATV. The price ranges from $350.00 to $380.00, plus shipping. All three importers are selling this product with a 49cc engine displacement. [14]

In addition, two styles of an all terrain three-wheeled golf scooter are being sold on the Internet and at golf supply stores. Both of these styles would meet the proposed rule's definition of an ATV.

The presence of these three-wheeled vehicles on the market indicates that the current LOU provisions, which continue the stop sale provision in the Consent Decrees, are not sufficient to keep new three-wheeled ATVs from entering the market. As discussed earlier, the newer entrant importers have been increasing their proportion of the market for ATVs sold in the U.S. This could mean increasing availability of these types of three-wheeled ATVs. [4]

Analysis of Commission data indicates that the risk of injury associated with three-wheeled ATVs is substantially higher than with four-wheeled ATVs. A recent risk analysis, based on injuries reported through the CPSC's National Electronic Injury Surveillance System (“NEISS”) and a parallel survey of the general population of ATV drivers, found that the risk of a hospital emergency department treated injury on a three-wheeled ATV was about 3.1 (95% confidence interval, 1.5 times to 6.4 times) times the risk on a similar four-wheeled ATV. As explained in the Preliminary Regulatory Analysis, the staff estimates the expected difference in non-fatal injury costs between three- and four-wheeled ATVs to be about $3,045 per ATV annually. This means that over the expected 9 year life of an ATV, the present value of the injury cost difference would be about $23,700. Even a lower bound estimate for the injury cost differential comes to a difference of $6,839 over the life of the product. The injury cost difference would be offset somewhat by the lower retail costs of a three-wheeled ATV compared to a four-wheeled ATV. Accounting for this, the total costs associated with three-wheeled ATVs (including both the injury costs and the costs of purchasing the ATV) might amount to about $23,400 ($23,700 in injury costs less $300 in retail costs) more than the costs of a similar four-wheeled ATV (over its useful product life). At the lower bound level, the difference would amount to about $6,530. [8]

Although the Commission cannot quantitatively estimate the utility of a three-wheeled ATV, available evidence suggests that the utility differential between a three-wheeled ATV and a four-wheeled ATV, for most people, is minimal. In the 1980s, before the Consent Decrees, four-wheeled ATVs

were steadily increasing their market share, so that by 1986, 80% of ATVs sold were four-wheeled models. Moreover, after the manufacturers agreed to stop selling three-wheeled ATVs pursuant to the Consent Decrees, the market price of used three-wheeled ATVs declined relative to four-wheeled models. This indicates that most consumers did not value three-wheeled ATVs significantly more than four-wheeled ATVs. [8]

At this point, it seems unlikely that any feasible standard could be developed for three-wheeled ATVs. As the Engineering staff notes, three-wheeled ATVs are less stable than four-wheeled ATVs and require far more active rider input to steer properly. Although many technical factors make a four-wheeled ATV more dynamically stable than a three-wheeled ATV, one of the largest factors is the fourth wheel. Given the inherent difference in vehicle configuration, the Commission does not believe that it is feasible to develop a performance standard for three-wheeled ATVs that would improve their stability performance to the level of a four-wheeled ATV. [5]

H. Response to Comments on the ANPR

As discussed above, the Commission published an ANPR in the
Federal Register
on October 14, 2005, 70 FR 60031. The Commission received 165 comments; one of those comments was a form letter, copies of which were submitted by about 1,500 consumers. Among those who sent comments to the Commission were ATV Safety Institute instructors; a state senator; ATV riders; parents and relatives of riders; parents, relatives, and friends of fatality and injury victims; consumers; medical professionals; consumer organizations; ATV industry associations; employees of the ATV industry; the Centers for Disease Control and Prevention; and students at a U.S. university.

The issues that were raised most frequently concerned the importance of training and safety education; state and local laws and enforcement; the use of protective gear; age/size guidelines, the proper fit of a child on an ATV and a transitional vehicle; the need to provide ATV purchasers with ATV-related death and injury statistics; ATV design; and parental rights and responsibilities. Other comments provided ATV-related injury and fatality statistics for specific states, regions, and hospitals. Some comments stated a position on the petition that was submitted in 2002 by the CFA and eight other groups. Another issue raised in a handful of comments was the non-recreational use of ATVs and the marketing of ATVs for that purpose.

Each of these issues, with the Commission's response, is summarized below. Many of the issues raised in the comments are discussed in more detail in the staff's input memoranda listed at the end of this notice.

Training

Comment.
Many comments expressed the importance of training for safe ATV driving. Some comments spoke about training in general being important, while a few others suggested that training should be mandated, that training should be required before purchase of an ATV, or that training should be free of charge to all ATV riders.

Response.
CPSC agrees that formal hands-on training teaches drivers how the ATV responds in situations that are typically encountered. CPSC believes that ATV training is important because, as mentioned in the memo “ATV Training” from the Division of Human Factors, operating an ATV seems deceptively easy; steering controls are similar to a bicycle's, and the throttle is generally lever-operated with the thumb. ATVs, however, are high-speed motorized vehicles that require repeated practice to drive proficiently. In addition, riding an ATV is “rider-active,” that is, the rider must actively shift his or her body to maintain proper control of the vehicle. It takes repeated practice to become a proficient driver. Formal training may act as a surrogate for experience because it exposes new ATV drivers to situations they will encounter while riding off-road and teaches them the proper driving behavior to navigate those situations.

As discussed above, to address the issue of training, CPSC is proposing that retailers of ATVs provide to every purchaser of an ATV a training certificate that would offer free hands-on training to members of the purchaser's immediate family. The course would include classroom, field, and trail activities, and a means for the student to demonstrate skills.

State and Local Laws and Enforcement

Comment.
Many comments reflected on the role of states and localities in addressing the risks associated with ATVs. Some commenters expressed the need to enact state legislation, while others expressed the need for the states to clarify and enforce the laws that already are in place. Some commenters called for ATV licensing, just as automobile drivers have driver's licenses. Others suggested fines for riding on public roads, as well as sales taxes or city taxes on ATVs. Some commenters felt that more laws are not the answer because they still will not cause irresponsible drivers to drive safely. One commenter suggested that state laws should set minimum age limits for ATV riders and require licensing, registration, training, safety equipment, and prohibit passengers, while another commenter suggested that Congressional action should be taken to provide financial incentives for states to adopt safer ATV laws. Other commenters asked that CPSC join the ATV companies and other interested parties in actively supporting enactment of comprehensive ATV safety legislation in states where it is under consideration. A state senator from Minnesota expressed opposition to any federal regulation that “removes the state as the primary regulatory mechanism” for ATVs. Other commenters wrote about having graduated licensing of ATV drivers as some states have for automobiles.

Response.
CPSC believes that states and localities have a critical role to play in any strategy to address the risk of injury and death associated with ATVs. Legislative activity, or interest in such activity, has been on the increase in the states. As noted in the staff's briefing memorandum, the staff suggests that the Commission establish an online state data resource bank for use by those who might want to pursue legislation or other ATV safety-related actions.

Helmets and the Use of Protective Gear

Comment.
Some commenters noted that the use of helmets and protective gear is important in reducing deaths and injuries. One commenter cited CPSC staff research that suggests that between 42 and 64 percent of fatalities and hospitalized injuries involving the head “could have been averted by helmet use in cases where a helmet was not being worn.” Others mentioned that ATV riders and parents of riders need to know the importance of helmet use, while another commenter suggested that the helmet should be “required to be thrown in as part of the package.”

Response.
CPSC has always emphasized the importance of using helmets and other protective safety gear. As noted in the briefing package, CPSC staff encourages retailers to co-merchandise ATV safety gear, particularly helmets, alongside ATVs. The importance of wearing helmets and safety gear is one of the messages in the proposed rule; the message would be required on the general warning label and in the owner's manual. Wearing suitable equipment also is included as

an element in the required training course.

Age/Size Guidelines, Proper Fit, and Transitional Vehicle

Comment.
Many commenters addressed the current age/size guidelines and the importance of finding a “right fit” for a child who rides an ATV; they also supported or opposed a transitional vehicle. Commenters noted the difficulty of children being able to get training when they were on an adult ATV; others said that the current CPSC guidelines matching engine size to age are too narrow in focus. One commenter suggested focusing less on the age of the rider and more on size, weight, and experience. Another commenter pointed out that the market now has some mid-sized ATVs and that they are safer for a child to ride than the smaller 90cc ATVs, while another suggested that children ages 12 to 15 years old should be able to ride up to a 250cc 4-stroke ATV. Other commenters pointed out that the age restriction actually leads to a safety problem because riding an undersized ATV is as much a safety concern as riding an oversized ATV. A few commenters mentioned that being able to adjust the throttle limits was a particularly useful feature as children grow physically and learn to ride.

With respect to a transitional vehicle, many commenters expressed opposition and stated that any proposal to put a child on an ATV larger than 90cc should be rejected, that this would be a step backward, and it would put children at an even greater risk of death and injury. Commenters who were in opposition to a transitional vehicle seemed to equate a transitional vehicle as one that was heavier, larger and faster.

Response.
As discussed in section E of this notice and in the briefing memo, CPSC believes that speed, not engine size, is a more appropriate criterion for determining which ATVs should be recommended for children and youth under the age of 16. The proposed rule eliminates engine size as a category marker for distinguishing youth ATVs. In addition, all youth model ATVs will be required to have an automatic transmission, so that children can focus on mastering driving skills before learning to coordinate gear shifting with the many other skills involved in operating an ATV.

CPSC believes that limiting maximum speed is the most critical safety factor for youth ATV models. By eliminating the engine size restriction, manufacturers will be able to produce a variety of ATV models that meet speed restrictions but are more appropriately sized to account for the wide variation in physical dimensions of young people. By having the option of riding better-fitting ATVs that are not performance limited by undersized engines, CPSC believes that more youth will ride age-appropriate and speed-restricted ATVs rather than gravitating toward adult ATV models.

Disclosure of Death and Injury Data

Comment.
Several comments expressed the belief that information about the risk of injury and death associated with riding ATVs, especially with regard to children riding adult ATVs, has not been available to prospective purchasers and that such information should be provided at the point of sale. One of these comments includes the 1,500 individuals who submitted the letters that are entered as comment 57.

Response.
The proposed rule would require that ATV dealers provide purchasers of adult ATVs with a written statement that (1) clearly states that adult ATVs are not intended for use by children under the age of 16, and (2) gives consumers specific information about the possible injury consequences of allowing children to ride adult ATVs. The disclosure statement would be provided to purchasers prior to completion of the sale. Consumers would be required to sign the statement to acknowledge that they had been informed about the CPSC age guidelines for youth models and the risks associated with children riding adult ATVs. Similar disclosure forms would be provided to purchasers of youth ATVs; those forms would indicate the age of the child for which the youth model was designed.

ATV Design

Comment.
Comments on ATV design ranged from the belief that deaths and injuries are operator error and not the result of the machine's design to some specific suggested design changes. One commenter said that manufacturers should not be required to significantly modify their designs for the sake of adding safety equipment, while a few others stated that ATVs should have a roll bar and safety belt. Other suggested design changes included: tags (license plates) on machines so they can be identified; make the ATVs two inches wider; provide a seat actuator which would turn the engine off if a passenger was on a single-person ATV; provide daytime running lights and headlights on ATVs. One commenter suggested that CPSC should determine the appropriate testing that needs to be done in order to assess dynamic stability, rollover propensity, and braking, suspension, and handling systems.

Response.
CPSC staff notes in Tab G of the briefing package from the Directorate for Engineering Sciences that there are technical issues that would benefit from further testing and study. This work, however, will require time and the coordinated application of CPSC and private sector resources. CPSC believes that the most effective way to carry this out is through close, ongoing interaction with voluntary standards committees that are addressing ATVs in that regard.

With respect to lighting equipment, the proposed rule for adult ATVs would require at least one headlamp projecting a white light to the front of the ATV, at least one tail lamp projecting a red light to the rear and at least one stop lamp or combination tail/stop lamp. Daytime running lights would be allowed on adult ATVs.

All youth ATVs would be required to have at least one stop light. As discussed in section G.4.b above and in the briefing package, CPSC believes that riding ATVs at night is a significant risk factor for children and should be discouraged. Because headlamps or any forward-facing light on youth ATVs may encourage nighttime and unsupervised riding in challenging conditions, CPSC believes that these lights should not be allowed. Under the proposed rule, forward-facing daytime running lights for conspicuity would be prohibited on a youth ATV; but daytime running lights would be allowed on other parts of youth ATVs. A brake light would be required on youth ATVs.

Parental Rights and Responsibilities

Comment.
Many comments focused on parental rights and responsibilities. For the most part, these comments expressed the belief that parents have the right and the responsibility to make decisions for their children and are the best judges of their children's abilities and skill levels. Other comments stated that some parents have neglected supervising their children and that the rights of many should not be taken away because of the actions of a few.

Response.
CPSC agrees that parents must play a critical role in supervising their children's use of ATVs. This includes decisions about the size of ATV their child /children should use and their child's riding behavior. As mentioned above, the proposed rule requires that information be provided to help parents in their decision-making. The mandatory labels for youth ATVs provide a notice to parents that children

should ride only age-appropriate ATVs, while the hangtags and the owner's manual are required to include messages about the importance of supervision.

Injury and Fatality Statistics

Comment.
Some comments included death and/or injury statistics for specific regions of the country, specific hospital emergency rooms, and specific states; some of the information was contained in articles that had been published in professional journals. A few commenters talked about the comparative risk of ATV riding and the risk associated with other activities. One commenter stated that overall ATV injury risk, as measured per vehicle in use (for all ages or for children) has been stable since the expiration of the Consent Decrees in 1998 and that ATV-related fatality risk (for all ages or for children) has declined or remained stable since 1999.

Response.
With respect to the comment that overall ATV injury risk has been stable since the expiration of the Consent Decrees, the Directorate for Epidemiology notes that the 2004 Annual Report of ATV Deaths and Injuries compared the 2004 injury risk to the 2001 injury risk and concluded that there was no statistically significant trend in injury risk, positive or negative, from 2001 to 2004. However, the report noted that the statistical testing of differences in injury risk prior to 2001 is not possible due to the unavailability of measures of variation for risk estimates during those years.

With respect to fatality risk, CPSC staff notes that, because data collection was incomplete for the years 2002-2004 at the time of the most recent report, no conclusions could be made about fatality risk for those years. The commenter's assertion that fatality risk has declined or remained stable does not appear to be the result of a statistical test, since no measures of variation are provided in the commenter's report. CPSC staff has not performed statistical testing on risk of death for similar reasons.

As noted in section D of this notice and in the briefing memo, there were an estimated 136,100 emergency room-treated injuries for all ages in 2004. This was an increase of 10,600 from 2003. In 2003, there were an estimated 740 deaths associated with ATVs. Twenty-six percent of the reported deaths in 2001 were of children under 16 years old.

Ban the Sale of Adult-Size ATVs for the Use of Children Under 16 Years Old

Comment.
Several comments were submitted that specifically expressed a position on the CFA petition to ban the sale of adult sized vehicles for use by children under 16 years old. This included the 1,500 form letters submitted as comment 57, which expressed the opinion (without mentioning the petition) that the sale or rental of adult-sized ATVs to anyone under 16 should be prohibited. A few letters expressed opposition to the petition.

Response.
The petition to ban the sale of adult ATVs for the use of children under 16 years old was the focus of the staff's 2005 briefing package. The staff comments on the petition are contained in that document.

Non-Recreational Use of ATVs, ATV Marketing

Comment.
A few commenters mentioned the non-recreational aspect of ATVs, the perceived need to limit their marketing to farm or utility use alone, and that the advertised recreational use of ATVs is not a practical or safe form of activity. Some of these commenters expressed concern about the injuries and deaths associated with the use of ATVs in farm or utility work.

Response.
CPSC believes the issue of how ATVs are marketed as recreational or utility vehicles is better addressed by the Federal Trade Commission.

I. Preliminary Regulatory Analysis

The Commission is issuing a proposed rule under sections 7, 8 and 9 of the CPSA and section 2(q)(1)(A) of the FHSA. Both the CPSA and FHSA require that the Commission prepare a preliminary regulatory analysis for these proposed rules and that it be published with the final rule. 15 U.S.C. 2058(c) and id. 1262(h). The following discussion is extracted from the staff's memo, “All Terrain Vehicle Mandatory Standard: Preliminary Regulatory Analysis.”

1. Introduction

The main provisions of the ATV proposed rules include (1) Mechanical requirements for ATVs,(2) a ban on the sale of new three-wheel ATVs, (3) speed limitations on ATVs intended for children under 16 years of age, (4) requirements for warnings and recommendations to be provided to purchasers of new ATVs through hang tags, labels, videos, and owner's manuals, (5) requirements for a disclosure statement to be provided to purchasers warning against the use of adult ATVs by children, (6) a requirement that all purchasers of new ATVs be offered free safety training, and (7) requirements that purchasers of new ATVs be provided with a means for reporting safety related complaints to the manufacturer and the CPSC.

Many of the provisions of the proposed rules are based on an existing voluntary standard (ANSI-SVIA-1-2001), provisions of the 1988 Consent Decrees, and the current LOUs with a number of manufacturers that may account for as much as 90 percent of the U.S. market for ATVs. Consequently, the Commission believes that most ATVs are already in substantial conformance with most of the provisions of the proposed rule. Some of the smaller manufacturers, and some of the recent entrants into the market may also be in conformance with some (or most) of the provisions of the proposed rule. Promulgating a mandatory rule will ensure that manufacturers that are already conforming continue to do so, and that any manufacturer that does not now conform can be brought into conformance.

Below is a preliminary regulatory analysis of the proposed rule, including a description of the potential costs and potential benefits. Each element of the proposed rule is discussed separately. For some elements, the benefits and costs cannot be quantified in monetary terms. Where this is the case, the potential costs and benefits are described and discussed conceptually.

2. Products Covered

An ATV is a motorized vehicle with 3 or 4 low-pressure tires (less than 10 pounds per square inch) that is intended for off-road use. The seat is designed to be straddled by the operator. Handlebars are used for steering control. Most ATVs are intended to carry only one person: the operator. More recently, some tandem ATVs have been introduced that are designed to carry a passenger in addition to the operator. ATVs can be used for purposes of recreation, sport or utility.

If promulgated in final, the proposed rule will apply to all ATVs sold in the United States on or after the effective date of the rule (180 days after publication of a final rule). It will not apply to ATVs that were sold prior to the effective date.

3. ATV Manufacturers, Numbers in Use, and Sales

The ATV market has grown substantially since Honda introduced the first ATV in 1969. The Specialty Vehicle Institute of America (SVIA) estimated that in 2005, there were 6.9

million ATVs in use. While most ATVs are used for recreational activities, ATVs can also be used for non-recreational activities, such as farm or ranch work or for transportation to remote work sites that are not accessible on paved roads.

The number of new ATVs sold annually has increased substantially in the last decade. In 1995, an estimated 293,000 ATVs were sold in the US, almost all by 7 North American distributors (Honda, Kawasaki, Yamaha, Suzuki, Polaris, Bombardier, and Arctic Cat). In 2005, an estimated 921,000 ATVs were sold in the US. An estimated 10 percent (or 92,000) were imported. The share of imports is expected to continue to increase in the future.

With the substantial increase in ATV sales has come a substantial increase in the number of manufacturers supplying ATVs to the U.S. market. In 1995, virtually all the ATVs were supplied by 7 domestic distributors; by 2006, the staff had identified at least 87 firms supplying ATVs to the U.S. market.

Generally, the largest manufacturers sell their ATVs through franchised dealers. Importers will typically import ATVs from a foreign manufacturer and then market them to various retailers. Some importers may sell directly to consumers. Some imported ATVs are sold directly to consumers through import brokers who never actually have physical possession of the ATV. ATVs are also offered for sale through the internet.

Most ATV retailers sell products in addition to ATVs. For example, many ATV dealers also sell motorcycles, scooters, personal water craft, and sometimes farm equipment. Some ATVs are sold by other types of retailers, such as aftermarket automotive parts and accessories dealers.

The median retail price of an ATV from the domestic manufacturers is about $5,150 (range $2,000 to $8,000). The median price for youth ATVs is about $2,300 (range $1,800 to $2,500). The retail prices of imports can be substantially lower.

4. Benefits and Costs of the Proposed Rule

Mechanical Requirements.
The proposed rule incorporates a number of mechanical requirements from the current voluntary standard for ATVs (ANSI/SVIA-1-2001). The specific requirements and rationales are described and discussed in more detail above. They include, among other things, requirements for service and parking brakes, mechanical suspension, pitch stability, handlebars, and the operator foot environment. There are also some additional design requirements for youth models covering items such as the location of brake and throttle controls.

The proposed rule differs from ANSI/SVIA-1-2001 with regard to some lighting requirements. The proposed standard would require stop lamps on all ATVs, including youth models (i.e., those intended for children under the age of 16). ANSI/SVIA-1-2001 allows, but does not require stop lamps on adult and youth ATVs. Stop lamps can reduce the risk of a collision by visibly signaling to a following ATV that an ATV ahead of it is decelerating. CPSC believes that while most adult ATVs are already equipped with stop lamps, most youth ATVs do not currently have stop lamps.

The proposed rule would require that youth ATVs be equipped with automatic transmissions so that the operator does not have to either engage a clutch or select the proper gear in order for the engine to maintain its optimum speed. This is a change from the voluntary standard, which does not specify the type of transmission on youth ATVs.

Each provision of the mechanical requirements should reduce injury risks associated with ATVs. For example, the pitch stability requirement is intended to reduce the propensity of ATVs to tip rearward, which could injure the rider if he or she was thrown from the vehicle or the vehicle flipped and landed on the rider. The service and parking brake performance requirements are intended to ensure that brakes are at least adequate for stopping the vehicle and preventing the vehicle from rolling when it is left unattended. The requirement for automatic transmissions on youth ATVs could reduce injury risk by reducing the number of tasks that inexperienced drivers must perform while driving an ATV.

Mandating these mechanical requirements would help ensure compliance with these minimum mechanical safety requirements and enhance the CPSC's ability to enforce the mechanical safety requirements at a time when many new manufacturers are entering the market. Conformance to ANSI/SVIA-1-2001 is voluntary.

Mandating these mechanical requirements would have a small initial impact on injury risk. The ATV manufacturers that have negotiated LOUs with the CPSC are already in conformance with the requirements of the voluntary mechanical standard, from which the requirements in the proposed rule were adapted. Some of the smaller manufacturers are also believed to be in conformance with the voluntary standard. In total, the firms that are already in substantial conformance probably account for more than 90 percent of ATVs now sold. However, mandating these requirements would ensure that those firms that do not now meet these minimum safety requirements will begin to do so. Moreover, as new firms enter the market, the presence of a mandatory standard that can be more easily enforced would make it more likely that new entrants comply with the mechanical safety requirements. Mandating these requirements should also help ensure that the risk of ATV-related injury due to ATVs that do not meet the mechanical safety standards does not increase in the future.

Since many manufacturers already conform with the voluntary standard, the additional cost that will be incurred by manufacturers to meet the mechanical requirements of the proposal will be low. The cost to some may be limited to the cost of adding stop lamps to their youth ATVs. The cost of adding stop lamps to ATVs could amount to several dollars or more, especially on youth ATVs. Most adult ATVs are thought to already have stop lamps.

Additionally, some manufacturers will have to modify the transmissions on some youth ATV models so that they are fully automatic. Based on staff observations, most current youth ATV models are already equipped with automatic transmissions, especially those intended for children under the age of 12 years. The staff has identified some ATVs intended for children between 12 and 15 years of age that are equipped with automatic clutches, but not automatic transmissions. These ATVs would not meet the requirements of the proposed rule.

The fact that many youth ATVs are already equipped with automatic transmissions indicates that many consumers are willing to pay the additional cost of automatic transmissions for the additional safety, convenience, or driving ease that is provided by automatic transmissions. However, the Commission has not been able to quantify the difference in cost between automatic transmissions and manual transmissions or between automatic transmissions and automatic clutches/manual transmissions.

The mechanical requirements are not expected to cause a substantial loss of utility for the rider. In fact, to the extent that the requirements prevent accidents, reduce downtime, make the ride more comfortable (e.g., the suspension requirements), and increase the functionality of the vehicles, most of the

requirements could have a positive impact on rider utility.

The proposed rule would require manufacturers (including importers) to perform, or cause to be performed, testing sufficient to ensure, on an objectively reasonable basis, that each ATV conforms to the requirements in the proposed rule. The specified tests will require some time and equipment. If the tests are conducted at a facility where the required equipment is available and set up time for each test is kept to a minimum, it is possible that all of the tests could be conducted in one day (8 hours) or less. It is reasonable to assume that the person supervising the tests will be a senior mechanical engineer and that at least one other mechanical engineer will be involved in conducting the tests. If the total labor costs were $90 per hour, then the cost of conducting the tests would be about $720 per model (8 hours × $90).
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According to the U.S. Department of Labor, Bureau of Labor Statistics, the average wage for a Level 13 Mechanical Engineer was $52.45 in July 2003. In this discussion $90 is used to allow for the assistance of a less experienced engineer and inflation.

In addition to the labor cost, some accounting for the cost of equipment required for testing should also be made. Assuming that ATV manufacturers have the equipment easily available, it is probably reasonable to assume that the cost of the equipment used in the testing is perhaps about $500. This could be thought of as the rental value of the equipment for a day of testing.

The testing must be documented and maintained for 5 years after the production of that model ceases. The information required for this documentation would be collected during the performance of the tests. However, this information might be reformatted and assembled into the final record after the testing is completed. Moreover, in the case of foreign manufacturers, this documentation will have to be provided to the U.S. based importer and it is the importer that will be required to maintain the records. This could add perhaps another $100 to the cost of the testing and record keeping.

These estimates suggest that the full testing and recordkeeping costs of the proposed rule could be about $1,320 per model. Previously, CPSC staff had identified 131 different ATV models for the model year 2001 and 235 different ATV models for the year 2003. Given the significant increase in sales of ATVs in recent years, it is not unreasonable to believe that there might be 500 different ATV models today. Therefore, the full testing and recordkeeping costs could be $660,000 per year, assuming models are changed annually.

Several ATV manufacturers conform to ANSI/SVIA-1-2001 and, therefore, should already be performing the testing called for in the proposed rule. The proposed rule will not impose additional testing burdens on these manufacturers. The staff estimates that these manufacturers account for at least 150 ATV models. Therefore, the testing and recordkeeping costs that could be attributed to the proposed rule that would not be incurred in the absence of the proposed rule, could be less than $462,000 annually ($660,000 − 150 × $1,320).

Ban on the Sale of New 3-Wheel ATVs.
As part of the 1988 Consent Decrees, ATV manufacturers agreed not to sell any new 3-wheel ATVs, which had been shown to be less stable and more risky than their 4-wheel counterparts. As a result, until recently, no new 3-wheel ATVs have been marketed in the United States since the late 1980s. However, the CPSC Office of Compliance has found evidence on the Internet that 3-wheel vehicles that could be considered to be ATVs have recently been offered for sale to the public. Therefore, the proposed rule would formalize a ban on the sale of new 3-wheel ATVs. While formalizing the ban will not reduce ATV-related injuries significantly from their present levels, it will ensure that 3-wheel ATVs are not reintroduced into the U.S. market.

The justification for a ban on the sale of 3-wheel ATVs is based on the substantially higher expected injury costs associated with the ownership and use of 3-wheelers, relative to 4-wheelers, and the likelihood that these higher costs outweigh any additional utility that they may provide to their owners. We begin with a discussion of the costs associated with the ownership and use of 3-wheel and 4-wheel ATVs.

The real costs of ATVs include the expected injury costs associated with their use as well as their purchase price. A recent risk analysis, based on injuries reported through the CPSC National Electronic Injury Surveillance System (NEISS) and a parallel survey of the general population of ATV drivers, found that the risk of a hospital emergency department-treated injury on a 3-wheel ATV was about 3.1 (95% confidence interval (CI), 1.5, 6.4) times the risk on a similar 4-wheel ATV.
7

7
Gregory B. Rodgers and Prowpit Adler, “Risk Factors for All-Terrain Vehicle Injuries: A National Case-Control Study,”
American Journal of Epidemiology,
Vol. 153, No. 11 (2001). Hereafter Cited “Rodgers and Adler (2001).”

These relative risk estimates can be used to estimate the expected difference in annual injury costs between 3-wheel and 4-wheel ATVs. In 2001, the societal cost of non-fatal ATV-related injuries was about $1,876 per ATV in use. In 2001, 3-wheel ATVs made up about 14 percent of the ATVs in use. If we let Cost
3
and Cost
4
represent the expected annual non-fatal injury cost per 3-wheel and 4-wheel ATVs in use respectively, then the expected annual injury cost per ATV can be expressed as 0.14(Cost
3
) + 0.86(Cost
4
) = $1,876.

Since the risk of a non-fatal injury on 3-wheel ATVs is approximately 3.1 times that of a 4-wheel ATV, Cost
3
can be expressed in terms of Cost
4
(i.e., Cost
3
= 3.1 * Cost
4
). Solving these equations yields Cost
3
= $4,494 and Cost
4
= $1,450. Therefore the expected difference in non-fatal injury costs between 3-wheel and 4-wheel ATVs is about $3,045 per vehicle annually.
8

If the expected life of an ATV is 9 years, the present value of this injury cost difference (at a 3 percent discount rate) over the expected life of the product will come to about $23,700.
9

8
An analysis of fatal injury risks also suggested a higher relative risk on 3-wheel ATVs. However, because information regarding a key driver characteristic was missing, the difference in fatal injury risks was less amenable to quantification and, therefore, not included in the above analysis. It suggests however, that the cost differential between 3-wheel and 4-wheel ATVs estimated above could be low (see Gregory B. Rodgers, “Revisiting All-Terrain Vehicle Risks: Response to Critique,”
Journal of Regulatory Economics,
Vol. 10 (September 1996).

9
This is a low estimate of the average life of an ATV. One analysis suggests that the expected life of an ATV could be 19 years (Statement of Ed Heiden of Heiden Associates at the Consumer Product Safety Commission West Virginia Public Field Hearing, Morgantown, West Virginia, 5 June 2003).

A lower bound estimate for the injury cost differential might be based on the lower 95 percent confidence bounds of the relative risk factors for 3-wheel ATVs described above, or 1.5 instead of 3.1. Based on these relative risk estimates, the non-fatal injury cost differential on a 3-wheel ATV would be about $877 per year. Assuming a 9-year useful life and a 3 percent discount rate, this comes to a difference of $6,830 over the life of an ATV.
10

10
Even if a higher discount rate were used, the cost differences would be substantial. For example, if a 7 percent discount were used with the lower estimates of the relative risks, the expected cost difference over the life of an ATV would be $5,713.

The injury cost differential would be offset somewhat by the lower retail costs of 3-wheel ATVs. Based on information from the late-1980s, when 3-wheel ATVs were still being produced, 3-wheeled ATVs cost about $190 less than a similar 4-wheel model. This cost

differential would probably amount to about $300 in 2004 dollars.

Thus, the total costs associated with 3-wheeled ATVs (including both the injury costs and the costs of purchasing the ATV) might amount to about $23,400 ($23,700 in injury costs less $300 in retail costs) more than the costs of a similar 4-wheel ATV (over its useful product life). At the lower bound level, the difference would amount to about $6,530.

A ban of 3-wheel ATVs would therefore be beneficial (on average) if the average extra valuation (i.e., use value or utility) that individuals put on a 3-wheel ATV over a 4-wheel ATV is less than $23,700 (or about $6,530 at the lower bound) over the useful life of the product. Consequently, if the utility from a 4-wheel ATV is not substantially different from the utility from a 3-wheel ATV, the ban would be justified.

We cannot estimate the utility that individuals get from ATVs, and so we cannot say that the ban would be justified for all individuals. However, available evidence suggests that for most individuals, the utility differential is minimal. First, 4-wheel ATVs were growing in market share throughout the 1980s, even though their retail prices were marginally higher than similar 3-wheel ATVs. By 1986, for example, two years before the consent decrees became effective, about 80 percent of ATVs sold in the U.S. had four wheels. Second, after the ATV manufacturers agreed to stop selling 3-wheel ATVs as part of the consent decrees, the market price of used 3-wheel ATVs actually declined relative to the price of 4-wheel models.
11

There was no evidence of a strong market reaction to the 3-wheel ATV stop-sale, such as bidding up the price of the increasingly scarce 3-wheelers that would suggest many consumers valued 3-wheel ATVs significantly more than they valued 4-wheel models.

11
Gregory B. Rodgers, “All-Terrain Vehicles: Market Reaction to Risk Information,”
Economic Inquiry,
Vol. 31, No. 1 (January 1993).

Speed Limitations on ATVs Intended for Youths.
The proposed rule would limit the maximum speeds of ATVs intended for children under the age of 16 years. Teen ATVs (i.e., those intended for riders between 12 and 15 years of age) would have a maximum unrestricted speed of 30 mph and a speed limiting device that can limit the maximum restricted speed to 15 mph. Pre-Teen ATVs (i.e., those intended for children between 9 and 11 years of age) would have a maximum unrestricted speed of 15 mph and a speed limiting device that can limit the maximum restricted speed to 10 mph. Junior ATVs (i.e., those intended for children between 6 and 8 years of age) would have a maximum speed of 10 mph. N

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-6703. Public record. Not legal advice.