Voluntary Standards versus Government Regulation: Which of the two is more useful for purposes of promoting safety, assuming there are differences?

[schema type=”organization” orgtype=”Corporation” url=”www.iltva.org” name=”International Light Transportation Vehicle Association, Inc.®” description=”Voluntary Standards versus Government Regulation: Which of the two is more useful for purposes of promoting safety, assuming there are differences?” ]Voluntary Standards versus Government Regulation: Which of the two is more useful for purposes of promoting safety, assuming there are differences?

A standard is a document that applies collectively to codes, specifications, recommended practices, classifications, test methods, and guides, which have been prepared by a standards developing organization or group, and published in accordance with established procedures.[1]

Voluntary standards are standards established generally by private-sector bodies and that are available for use by any person or organization, private or government.  The term includes what are commonly referred to as “industry standards” as well as “consensus standards.”  A voluntary standard may become mandatory as a result of its use, reference, or adoption by a regulatory authority, or when invoked in contracts, purchase orders, or other commercial instruments.[2]

A mandatory standard is a standard that requires compliance because of a government statute or regulation, an organization’s internal policy, or contractual requirement.  Failure to comply with a governmental mandatory standard usually carries a sanction, such as civil or criminal penalties.[3] An example of a governmental mandatory standard is the Proposed Rule: Recreational Off-Highway Vehicles (ROVs) published by the Consumer Products Safety Commission.[4],[5] The Rule is presently pending receipt of comments through to June 19, 2015.

Regulation has been described as a rule of order having the force of law, prescribed by a superior or competent authority, relating to the actions of those under the authority’s control.[6] Regulations are issued by various government departments and agencies to carry out the intent of legislation enacted by the legislature of the applicable jurisdiction. Administrative agencies perform a number of different government functions, including rule making. The rules issued by these agencies are usually called “regulations” and are designed to guide the activity of those regulated by the agency. Regulations also function to ensure uniform application of the law.[7]

International Light Vehicle Transportation Association, Inc., (“ILTVA”), is the American National Standards Association, (“ANSI”), accredited standards developer for two voluntary standards, ANSI/ILTVA 130.1 Safety and Performance Specifications for golf cars; and ANSI/ILTVA 135 Safety and Performance Specifications for Personal Transportation Vehicles (“PTV”).[8] ANSI is a private, non-profit organization that administers and coordinates the U.S. voluntary standards and conformity assessment system.

Various states and local governments have adopted laws and regulations pertaining to the use of golf cars and Personal Transportation Vehicles within their respective jurisdictions. There do not presently exist any U.S. federal laws or regulations governing golf cars and Personal Transportation Vehicles. However, the National Highway Traffic Safety Administration (“NHTSA”) has adopted regulations addressing the required equipment for use of Low Speed Vehicles (“LSVs”) on public roads.[9] LSVs differ from golf cars and Personal Transportation Vehicles primarily in that they are capable of speeds up to 25 mph versus 15 mph and 19 mph for golf cars and Personal Transportation Vehicles respectively.

The state and local jurisdictions which have adopted laws and regulations addressing the use of golf cars and Personal Transportation Vehicles on public roads have mostly done so in a seemingly prudent manner. However, in the main, with some exceptions, they have promulgated these laws and regulations with scant attention to the applicable ANSI/ILTVA golf car and Personal Transportation Vehicles standards. Given the autonomy and unique characteristics of the various states and localities, their constituents and their perceived individual needs and concerns, there likely will never be complete harmony or consistency in these laws and regulations.

This is not to say these various state and local law and regulation are deficient. It is only to point out that the states and local governments are not as informed concerning the mechanical structure, capability and operational risks as are the vehicle manufacturers whose representatives and other industry specialists authored the ANSI/ILTVA safety and performance specifications for these same vehicles.

Why care? The reasons are essentially twofold. First is the concern over the safety of occupants of these vehicles enhanced by conformity to the voluntary safety and performance specifications of the ANSI/ILTVA standards. Absent conformity to these standards, the occupants of the vehicles face increased risk of injury or even death. Absent conformity to applicable government laws, regulations and mandatory standards, a similar enhanced risk of injury or death may apply.

Beyond the occupant safety concern is the potential for increased liability for the vehicle’s manufacturer, dealer, owner, controlling party[10] or operator if adherence to the applicable standard or regulation is not present.

Courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence.[11]

The Consumer Product Safety Commission, (“CPSC”), enforces compliance with mandatory federal safety standards. However, it is also required by law to rely on voluntary safety standards when it determines that the standard adequately addresses the product hazard and is likely to have substantial compliance.[12] Because voluntary standards do not have the force of law, CPSC cannot compel compliance with them. However, noncompliance with a voluntary standard can inform a determination of a substantial product hazard by the CPSC that in turn can lead to CPSC enforcement actions.[13]

Manufacturers that fail to comply with voluntary standards can face consequences when CPSC has determined that noncompliance poses a significant risk of injury or death to consumers. CPSC can take corrective action against the manufacturer, including recalls, or take longer term action to ban the hazardous product. These recalls occur on a frequent basis across a wide spectrum of products. CPSC has focused much of its surveillance and compliance work on imported products.

Modifications made to Personal Transportation Vehicles or golf cars that are not approved by the original equipment manufacturer, (“OEM”),  may adversely affect the safe operation and performance of the vehicle. A vehicle dealer, re-seller or owner who modifies a golf car or Personal Transportation Vehicles becomes the original equipment manufacturer of the modified vehicle and has the responsibility to ensure that capacity, operation, warning, maintenance instruction plates, tags, and decals are changed accordingly.[14]

If a Personal Transportation Vehicles has been modified by a party other than the original equipment manufacturer, the controlling party[15] shall (i) arrange for the modification to be designed, tested and implemented by an engineer expert in Personal Transportation Vehicles and their safety; (ii) maintain a permanent record of the design test(s) and implementation of the modification; (iii) make appropriate changes to the capacity, plate(s), decals, and operation and maintenance manuals; and (iv) affix a permanent and readily visible label on the Personal Transportation Vehicles car stating the Personal Transportation Vehicles has been modified with the date of the modification and the name of the organization that accomplished the modification. The controlling party shall not perform, or allow to be performed, any modification or addition to the vehicle that affects capacity or safe operation, or make any change not in accordance with the original equipment manufacturer’s operations and service manuals, without the original equipment manufacturer’s prior written authorization.[16]

Typical examples of modifications to golf cars and Personal Transportation Vehicles not approved by the OEM include replacing the controller with a new one that allows for speeds in excess of that for which the vehicle was originally designed; and installing lift kits to raise the vehicle’s profile, allowing for larger than originally specified tires, distorting the center of the vehicle’s gravity, changing the vehicle speed and potentially creating stability issues.

A manufacturer must identify those standards, laws and regulations that apply to its product. Sometimes, that is not easy to determine or there are numerous and different ones that must be reconciled, especially if the product is sold internationally.[17] For example, if a product is to be exported or sold in the EU, a careful search and determination must be made of the EU Directives, and ISO, EN/ISO and IEC standards, interpretations and guidances concerning directives and standards and applicable country implementations of the EU Directives to ascertain whether they apply to the product. A vehicle product importer to  the U.S. must search U.S. domestic standards organizations lists of standards, e.g., ANSI and SAE, and applicable federal and state laws, regulations and governmental mandatory standards to see which if any, apply. If the product does not comply and this noncompliance caused the injury, then the manufacturer may be liable for damages caused by the injury.[18]

Unfortunately, on the flip side, compliance with all applicable laws and regulations is not, for most products, an absolute defense in a product liability case. Therefore, a jury could come back and say a manufacturer should have exceeded laws and regulations pertaining to safety. Similarly, industry standards and even certifications like UL are considered minimum. As a result, compliance with standards and certifications is not an absolute defense although it is pretty good evidence that the product was reasonably safe.[19]

To conclude,  anyone other than a original equipment manufacturer whose design engineers are well versed in the intricacies of standards and regulations applicable to products such as golf cars and Personal Transportation Vehicles, who modifies the design or equipment of a vehicle is courting substantial risks. The risks are both personal liability for the modifier and a safety risk for the users of the vehicle.

While we believe voluntary standards are usually superior to government regulation in their utility for purposes of promoting safety for the reasons stated, adherence to government regulation and mandatory standards is also a prudent exercise of sound judgment to avoid risk of sanction.

Fred L. Somers, Jr.[20]

[1] The Society for Standards Professionals: SES-1, “Recommended Practice for Standards Designation and Organization”. See http://www.ses-standards.org/?58

[2] Standards Management:  A Handbook for Profits” by Robert B. Toth (Editor): (American National Standards Institute 1990) ISBN-13: 978-9991154527 ISBN-10: 9991154523 cited at http://www.ses-standards.org/?58

[3] Id.

[4] ROVs are motorized vehicles designed for off-highway use with the following features: four

or more pneumatic tires designed for off-highway use; bench or bucket seats for two or more

occupants; automotive-type controls for steering, throttle, and braking; and a maximum vehicle

speed greater than 30 miles per hour (mph).

[5] See Briefing Package Proposed Rule on Safety Standard for Recreational Off Highway Vehicles September 24, 2014. http://www.cpsc.gov/en/Search/?query=recreational+vehicles&filters=all&page=2

[6] http://legal-dictionary.thefreedictionary.com/Government+regulation

[7] Id.

[8] These Standards are available for free download at www.iltva.org/standards.

[9] 49 CFR 571.500 – Standard No. 500; Low-speed vehicles. See http://www.gpo.gov/fdsys/granule/CFR-2011-title49-vol6/CFR-2011-title49-vol6-sec571-500/content-detail.html

[10] See definition below in footnote 15.

[11] Regulatory Standards and Products Liability: Striking the Right Balance between the Two; Schwartz, Teresa Moran, 30 U. Mich. J.L. Reform 431 (1996-1997)

[12] http://www.gao.gov/products/GAO-12-582

[13] Id.

[14] See, e.g., ANSI/ILTVA Z135-2012 § 5.8.

[15] controlling party: The person responsible for the management and maintenance of a PTV. See ANSI/ILTVA Z 135-2012 § 3.8.

[16] Id.

[17]  http://incompliancemag.com/article/compliance-with-product-safety-standards-as-a-defense-to-product-liability-litigation/

[18] Id.

[19] Id.

[20] Somers is the General Counsel and Secretary of ILTVA.