Statement Regarding Potential CPSC Ebike Law Preemption of 3-class Legislation

Ken M

Well-Known Member
I’m releasing this statement to inform the media, industry and consumers that I have filed a “petition for preemption” with the CPSC regarding the “3-Class” E-Bike state legislation. If the petition is determined to have legal merit by CPSC General Counsel, the 3-Class legislation adopted by 26 states will likely have no legal standing. This will result in reactionary required legislative corrections, but all currently compliant ebikes will continue to be regulatory and use compliant so the impact to the industry and consumers will be negligible.

The motivations were:
  • The opinion preemption was inevitable given the explicit/express preemption clause in HR727 - 3-Class was more stringent than the CPSC definition, it impacted interstate commerce & was simply not about improving safety (the primary motive was EU harmonization).
  • The opinion that the intent of the CPSC definition was to ensure that a “low speed electric bicycle” is the equivalent of a bike for “use” by all states.
  • Respect for what I felt was a technically astute and visionary federal CPSC definition that had the intent of maximizing the adoption potential for E-Bikes as an effective urban mobility solution.
Low speed electric bicycles (LSEB) are subjected to the same consumer product regulations as non electric bicycles. A majority of states have essentially adopted this definition for “use” regulation as a bicycle (For example, the Mississippi Attorney General came to this conclusion after review of the statutes). The federal definition adopted in 2002 stated LSEBs to be non-motorized vehicles, so dividing classes based on motor performance is illogical. Interstate commerce and all riders will benefit from one regulatory definition for LSEBs with them “use” regulated as a “bicycle” by all states.

Following is the document content of the petition for preemption submitted to the CPSC. I encourage anyone interested or concerned to read it and form their own opinion.


Formal CPSC Petition

I am formally petitioning the Commission to exercise a preemptive decision. This is a commission request to assess what clearly appears to be a regulatory conflict and/or overlap and provide a statement on CPSC “low speed electric bicycle” (LSEB / ebike) statute/definition standing vs the 3-class legislation adopted or being adopted by some states. It is my understanding this is a consumer right and to my knowledge there was no petition or advisory position request made by any state prior to adopting 3-Class legislation even though it has the effect of setting multiple requirements which a bicycle must meet at the time it enters interstate commerce that are not CPSC requirements. Objectively, this situation demands a preemptive decision and a formal position statement by the Commission.

CPSC LSEB Federal Statute & State ebike 3-Class Legislation Detail

Per CPSC Federal Law 16 C.F.R. Part 1512, the term `low-speed electric bicycle' means a two- or three-wheeled vehicle with fully operable pedals and an electric motor of less than 750 watts (1 h.p.), whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 mph.

Note: Per CPSC clarification, this definition limits dynamic power that a LSEB drive system (motor alone) can provide - technically limits motor power above 20mph per the maximum sustained speed, nominal rider weight, and level surface constraints. It does not provide a maximum assisted speed for when a LSEB is being powered by a combination of human and motor power as the speed-based power limit effectively limits maximum speed via physical limits of human power to ensure traditional maximum bike speed essentially unchanged.

Per 3-class state law, an “Electric bicycle” shall mean a bicycle equipped with fully operable pedals, a saddle or seat for the rider, and an electric motor of less than 750 watts that meets the requirements of one of the following three classes:
(a) “Class 1 electric bicycle” shall mean an electric bicycle equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 20 miles per hour.
(b) “Class 2 electric bicycle” shall mean an electric bicycle equipped with a motor that may be used exclusively to propel the bicycle, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour.
(c) “Class 3 electric bicycle” shall mean an electric bicycle equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 28 miles per hour (this is not outside common road bike speeds).

Note: All adopting states have included a class specific label requirement and some adopted the requirement for a speedometer on Class 3 electric bicycles.

Per a casual review, these may seem consistent but the 3-class legislation requires class specific microprocessor controller programming for the cease of assist function, class specific labeling, and a speedometer on class 3 ebikes, each of which has the effect of setting a requirement which a bicycle must meet at the time it enters interstate commerce that is not required by the CPSC. Clearly this is state legislative over-reach given CPSC’s regulatory authority. In the federal statute there is not a speed-based cease of assist required (maximum speed is regulated via a power limit constraint at 20mph which is intuitively more safe), no class specific labeling, or speedometer requirement. Effectively, the adopting states are using an altered federal law definition as an element of state “use” regulation on a product - addresses the same safety elements but is NOT identical.

Clear Precedence Exists

Interestingly, Commission precedent is clearly implied on a decision where preemption was actually not exercised when an advisory opinion was requested in mid-1978 on state(s) requiring bicycle lighting when riding at night…

Per CPSC records….
“Our [September 12] opinion should have included some additional discussion about the preemption question that your letter raised. The requirement you described, for lighting on bicycles ridden at night, is clearly one which defines how a consumer must use a bicycle. In contrast, the Commission's regulation sets requirements which a bicycle must meet when introduced into interstate commerce. Because the Commission's regulation does not define how a consumer may or may not use a bicycle, the Commission believes that the Federal Hazardous Substances Act does not prohibit states or localities from issuing or enforcing a requirement that lighting be used on bicycles ridden at night. Please note that this advice concerning a "use" requirement is based on an assumption. For the purpose of answering your question, we have assumed that the state or local requirement would not have the effect of setting any requirement which a bicycle must meet at the time it enters interstate commerce.”

Clearly implied is that preemption would have been exercised if the states required lighting at the time a bike enters interstate commerce. States are claiming the 3-class law is “use” only legislation but it requires the class programming, labeling, and speedometer to be implemented at the time the ebike enters interstate commerce. Preemption exists where a federal law expressly states it preempts state law as HR727 explicitly does state. Unquestionably, precedence exists to justify preemption decision.

Additional Support Information for Preemption Decision

I believe each of these itemized details alone is justification for a preemption decision, thus in total the legal basis is very robust (states will not challenge a preemption decision). I’ve detailed these to help with preemption justification.

  • HR 727 defining “low speed electric bicycle” has an explicit preemption statement. The 3-class legislation is more stringent while lacking any evidence it provides a level of added safety. In addition, it clearly addresses the same safety issues (power rating & assist speed) that are addressed by the CPSC LSEB definition & safety regulations. For 12+ years most states adopted the CPSC definition or less stringent as a basis for LSEB “use” equivalent as a bicycle and many states still do.
  • LSEBs that were compliant to CPSC definition and use were made illegal for use in states adopting the 3-class legislation. For example, the Polaris Diesel / PIM Archer has a throttle-assist drive system that provides CPSC compliant dynamic assist up to ~24mph but is no longer “use” compliant in any state that has adopted the 3-class legislation (throttle-assist LSEB must cease assist at 20mph). A CPSC compliant LSEB model (Izip Express) that was utilized by the Los Angeles police department is no longer “use” compliant in California or other 3-class states. Minnesota has banned use of Class 3 E-Bikes which are CPSC regulation compliant. Many other examples exist, yet the states consider 3-class legislation consistent with the CPSC definition/statute.
  • This should be a legislative alarm as H.R. 1019 is drafted such that a tax credit is tied to 3-class state law but this law does not control what is a compliant bike to be sold in the 50 states. Regulatory Capture!!
  • A bike advocacy organization, People for Bikes, was provided a lobby money budget to promote the 3-class legislation with a fairly obvious goal of US market harmonization with EU ebike regulations (i.e. promotion of the 3-class state legislation was not based on safety merit). This is documented in multiple YouTube videos and statements by People for Bikes representatives.
  • My understanding is that no state or People for Bikes has petitioned the Commission for preemption exemption or even requested an advisory opinion as they feel the 3-class is both consistent with the federal statute and is “use” specific. This is clearly a legislative capture agenda driven largely by a few large industry manufacturers who would benefit (a complex technical subject of its own). CPSC’s granted preemptive power was intended to prevent this.
  • The perception that the state 3-class legislation has legal standing is behind a new generation of E-Bikes that are state regulation compliant but provide more assist (power) above 20mph than the CPSC definition states (motor power alone limited to what can sustain a 170lb rider at 20mph). Note: there are some notable examples but I do not wish to judge this as acceptable practice or not in this petition request.
  • Some ebikes, including examples from top brands, have ignored the speedometer requirement even in the states that have adopted 3-class legislation. Clear confusion on legal standing exists and preemption would address this.
  • Many states still use the CPSC definition or less stringent regulation of ebike power and speed to “use” regulate LSEBs as bikes. In Mississippi, there is no clear designation for an electric bicycle as an attorney general opinion indicates that an electric bicycle would be considered a bicycle for use per statute review. While Kentucky also lacks a definition for e-bikes, the Department of Transportation passed an administrative regulation in 2015 that brought e-bikes within the scope of the state’s bicycle regulations. Every state usage law reviewed allows usage equality of Class 1 and 2. This is just a subset of the evidence that the state claims of 3-class legislation being necessary to clarify and improve “use” safety vs. the CPSC definition is not accurate. To my knowledge there has been no associated “use” safety issues documented by states using the CPSC federal LSEB definition or less stringent. I would also argue that the 3-class legislation has created significant more confusion and worse it’s seemingly unenforceable.
  • Congressional notes on HR727 indicate that the intent was for the definition of a “low speed electric bicycle” to be consistent with other bicycles. Also explicitly stated is that LSEB are not motor vehicles so state efforts to define as such by parsing motor assist performance into classes implies states legislatively insist they are motor vehicles. There is no evidence that states are addressing any tangible safety issues by not simply adopting the federal definition of a LSEBs as a bike (congressional notes indicate that was the intent of putting LSEBs under CPSC regulatory control).
  • Consumer confusion exists because in nearly half the states the federal definition for LSEBs has been adopted and they are “use” regulated as bikes. Many ebikes that are CPSC compliant are being sold in states where, per the 3-class legislation, these CPSC compliant ebikes are not legal for use on any public infrastructure. The confusion caused by the regulatory overlap was created when 3-class legislation started being adopted by states. People for Bikes claims it provides legislative clarity which is simply not accurate.
  • Per 3-class “model legislation” Class 3 ebikes are “use” allowed only on roads and roadside bike lanes. Interestingly this class can not have a throttle-assist system even though mopeds and motorcycles utilizing that same infrastructure are legally allowed to have throttles. This makes no common sense whatsoever and I would argue it actually puts consumers riding class 3 LSEBs at more risk. Class 3 designated solely as a harmonization placeholder to mimic EU speed pedelec ebikes.
  • Per 3-class adopted state use regulations, I could not find a single example of Class 1 and 2 ebikes being “use” regulated differently. Pretty solid additional proof this legislation was about harmonization and not safety.
  • The National Conference of State Legislatures (NCSL) website they detail the 3-class legislation (the motor power and 3 class tiers) and follow that by stating “Any device outside of these definitions is not considered a low-speed electric bicycle that would be regulated as a bicycle.” This shows clear confusion on bike safety regulations - states only have the right to regulate how bikes are “used.” Again legislative capture is taking place.
  • NY recently proposed (may have approved) legislation requiring class 3 ebikes to have a cease of assist at 25mph for legal use. The only way this is possible is for the manufacturers to produce a unique drive system program just for NY. This is a classic example of why CPSC was created to stop.

Supplemental Information

Given the environmental and health benefits that increased LSEB usage would provide to the country I think simple effective regulation of LSEBs should be considered very important. The best way to increase adoption is to have simple, safe, effective regulation at federal and state levels (the CPSC definition is actually technically very robust while not negatively impacting bicycle use safety). The original intent of HR727 giving jurisdiction of LSEB to the CPSC is/was clear - to have them compliance and “use” regulated as a bicycle (the Mississippi AG review of the statutes came to this conclusion and that’s the only formal state opinion I can find on this). Any historical assessment of the events behind the 3-class state legislation efforts proves it was not driven by a concern for safety - it was about US and EU market harmonization focused (the EU is now reviewing a 3rd round of ebike regulation changes so that is not something the CPSC should consider having merit). Interstate commerce benefited from one compliance definition for LSEBs and the intent to be “use” regulated as a “bicycle” - both consumers and manufacturers benefited. The safety outcome of the federal LSEB regulations is equivalent to other types of bicycles and states still have the full power to regulate bicycle usage but their efforts to legislate performance, labeling, and requirements of LSEBs should be preempted immediately before the market confusion just gets worse.
 

rich c

Well-Known Member
A glossary for the acronyms? I also understood that any local government could set any restrictions they wanted on bicycles, bicycle use, eBikes and eBike usage. Am I incorrect?
 

Ken M

Well-Known Member
A glossary for the acronyms? I also understood that any local government could set any restrictions they wanted on bicycles, bicycle use, eBikes and eBike usage. Am I incorrect?
Keep in mind this is my opinion. States have complete regulatory authority for "use" but I question that they actually have the right to separate ebikes from other bikes given how the definition is structured and regulated as any other bike. States can pass legislation to use regulate ebikes separately but I'm not certain that assures legal standing.

I have a Polaris / PIM Diesel that has a throttle that provides some assist past 20mph. It was legal for use in Colorado when purchased and after 3-class was passed it essentially became illegal to ride on any public infrastructure. Given that there was no public discussion to pass 3-class I do not believe the state can do this.

I reached out to all 50 state AGs and even PFBs to discuss the questions I had with the 3 class legislation but there was no dialog so I just decided to file the petition. The fact that 3-class impacts the product prior to 1st sale should require CPSC to preempt the legislation in all the adopted states but we'll see.
 

Asher

Well-Known Member
I don't understand. You're effectively saying states can't set their own more restrictive rules, and making vague references to interstate commerce to back up your point. That doesn't sound like a credible legal argument.
 

Ken M

Well-Known Member
A glossary for the acronyms? I also understood that any local government could set any restrictions they wanted on bicycles, bicycle use, eBikes and eBike usage. Am I incorrect?
Let me make a point from a different angle. Some claim a state can ban road bikes while allowing other bike types to remain "use" legal. I question that is accurate and is why I question if they can parse out ebikes from other bikes for usage. I know many will say they have, but that doesn't mean it will stand if challenged.
 

Ken M

Well-Known Member
I don't understand. You're effectively saying states can't set their own more restrictive rules, and making vague references to interstate commerce to back up your point. That doesn't sound like a credible legal argument.
I suggest reading more on CPSC preemptive power. One of the primary intentions of the safety commissions was to keep states from each having different regulations/definitions of products. The Federal Government has the enumerated power to regulate interstate commerce so it's not a loose legal argument.

Take for example that NY just created a class 3 as a throttle ebike with a 25mph top assist speed. The only way that is possible is if a manufacturer produces that bike just for NY and that clearly impacts interstate commerce. It's totally unjustified. I just suggest you read more history of the CPSC.
 
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Ken M

Well-Known Member
Another suggestion for anyone having questions. Please read HR727 and understand that for 12+ years most states just regulated the definition compliant ebikes as bikes. There were no real safety issues during those 12 years ... i understand adoption was low but to have merit to change the regulations of products under CPSC regulation (bikes have been regulated by the CPSC since at least 1978) there must be specific needs such as only used by that state or significant usage safety needs are present.

Has anyone read the Dept. of the Interior order 3376 and noticed it states:
b) E-bikes shall be allowed where other types of bicycles are allowed; and
c) E-bikes shall not be allowed where other types of bicycles are prohibited.

So the default position is that ebikes are "use" treated as a bike and there is a defined process if this needs to change in any location and it's not just someone blindly making a decision to ban ebikes from a trail.
 

Asher

Well-Known Member
I suggest reading more on CPSC preemptive power. One of the primary intentions of the safety commissions was to keep states from each having different regulations/definitions of products. The Federal Government has the enumerated power to regulate interstate commerce so it's not a loose legal argument.

Take for example that NY just created a class 3 as a throttle ebike with a 25mph top assist speed. The only way that is possible is if a manufacturer produces that bike just for NY and that clearly impacts interstate commerce. It's totally unjustified. I just suggest you read more history of the CPSC.

What resource do you recommend for reading about the CPSC preemptive power?
 

Ken M

Well-Known Member
wow that's a long post, can someone summarize what's going on?
Hi,
It's a bit complex but essentially I've challenged the legal standing of the state 3-class legislation. While I'm a big advocate of ebikes I feel that the 3-class system was almost entirely about harmonizing with EU legislation and not the claimed clarity and safety. If the petition is successful the most likely outcome is a fall back to the original state adoption of the federal definition but that's pure speculation. Obviously, anyone that is a fan of the 3-class legislation will not be happy with my effort.

I wanted to add that I truly don't think this is a subjective issue given the history of federal safety regulations. The idea of a common definition for products has common sense merit and I'm just wondering how the states interpreted their "use" rights with having the power to redefine a product going into interstate commerce without at minimum requesting advisory feedback from the CPSC.
 
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Marrduk24

Member
I read the original long post but still not clear about a couple of things

- what is this petition solving for: seems like it is saying there should be no speed restriction when the bikes are powered by a combination of human and motors, as long the motor is below 1hp and bike without human asssitance can’t go above 20 mph

- I am not across all of the federal-state statutes but how does this petition help get there?
 

rich c

Well-Known Member
I suggest reading more on CPSC preemptive power. One of the primary intentions of the safety commissions was to keep states from each having different regulations/definitions of products. The Federal Government has the enumerated power to regulate interstate commerce so it's not a loose legal argument.

Take for example that NY just created a class 3 as a throttle ebike with a 25mph top assist speed. The only way that is possible is if a manufacturer produces that bike just for NY and that clearly impacts interstate commerce. It's totally unjustified. I just suggest you read more history of the CPSC.
I don't even know what CPSC is and you don't seem interested in helping me out. So I will continue to ride my 2 different class 3 eBikes just like I have since 2016.
 

Ken M

Well-Known Member
I read the original long post but still not clear about a couple of things

- what is this petition solving for: seems like it is saying there should be no speed restriction when the bikes are powered by a combination of human and motors, as long the motor is below 1hp and bike without human asssitance can’t go above 20 mph

- I am not across all of the federal-state statutes but how does this petition help get there?
The original definition (most likely edited by a PhD Electrical Eng.) does control speed via a power limit at 20mph - the dynamic power allowed above 20mph is what would sustain 20mph with a 170lb rider on a level surface. While that may seem strange you must remember that back in 2002 the NHTSA was allowing the regulatory control of ebikes to be passed to the CPSC and they originally wanted to max motor power without governing power to lot allow a speed motor alone above 20mph. This federal definition allows 750W continuous below 20mph (great for cargo and utility ebikes) but that much power can not be fully applied when an ebike reaches 20mph. When the rider is pedaling the assist that would sustain 20mph is allowed to continue (the CPSC has clarified this and in reality that closely matches what an EU 250W speed pedelec is capable off - takes from 300-350W to sustain the range of ebikes at 20mph). Technically speaking the federal definition was wonderful if you wanted to max out performance without the NHTSA taking regulation for ebikes back.

Essentially I'm advocating that the industry "harmonize" around the federal definition for compliance and just allow "use" of that low speed electric bike as a traditional bike (if you read the congressional notes from back in 2002 that was the intent of the federal definition).
 

PedalUma

Well-Known Member
Region
USA
I like the Three-Class system for bikes. And I look forward to Standardization. Isn't it great that I can go anywhere and get a bolt that fits? That is because of standardization. The internet could not work without standardization. If a bike were purchased prior to standardization it can 1) have its wheel diameter reset in programing to bring it into compliance or 2) be subject to a grandfather clause allowing its use.
I would like gross polluting "Classic" Cars to be subject to the pollution laws for new cars. But they are grandfathered. That is understandable. Yet, these smelly cars are a huge problem where I live in Petaluma, CA. This is where the nostalgic (nostalgia is an illness, fact check this) film American Graffiti was filmed and there are Classic Car rallies (false nostalgia about fictional nostalgia) here.
I also want local public areas to make their own laws based on the standard Three-Class system for bikes. What works for Nantucket in 2021 may not be the current consensus in Oklahoma. And if it becomes no longer popular in Nantucket, or Oklahoma they can then amend their local rules based on the Three-Class system.
1617057776322.png
 

Ken M

Well-Known Member
I don't even know what CPSC is and you don't seem interested in helping me out. So I will continue to ride my 2 different class 3 eBikes just like I have since 2016.
Sorry. The CPSC is the Consumer Product Safety Commission. The essentially control the safety regulations for most consumer products sold in the US. Bikes were one of the initial products that were regulated by the CPSC which establishes a very long regulatory history.

Please understand I have nothing to do with the preemptive powers of the CPSC. I just feel strongly that the 3-class legislation crossed the line by pushing 3 requirements that had to be on ebikes prior to introduction into interstate commerce and that is simply crossing a regulatory line that should be preempted.
 

Ken M

Well-Known Member
I like the Three-Class system for bikes. And I look forward to Standardization. Isn't it great that I can go anywhere and get a bolt that fits? That is because of standardization. The internet could not work without standardization. If a bike were purchased prior to standardization it can 1) have its wheel diameter reset in programing to bring it into compliance or 2) be subject to a grandfather clause allowing its use.
I would like gross polluting "Classic" Cars to be subject to the pollution laws for new cars. But they are grandfathered. That is understandable. Yet, these smelly cars are a huge problem where I live in Petaluma, CA. This is where the nostalgic (nostalgia is an illness, fact check this) film American Graffiti was filmed and there are Classic Car rallies (false nostalgia about fictional nostalgia) here.
I also want local public areas to make their own laws based on the standard Three-Class system for bikes. What works for Nantucket in 2021 may not be the current consensus in Oklahoma. And if it becomes no longer popular in Nantucket, or Oklahoma they can then amend their local rules based on the Three-Class system.
View attachment 83289
It think you may be confused. It sure seems all "use" regulations treat Class 1 and 2 so I'm struggling to see the merit of those 2 classes besides wanting class 1 to be the equivalent with the EU before they dropped their assist limit to 15.5mph. Then consider that class 3 which can not have a throttle is required to only ride on road side bike lanes or just the sides of roads where other throttle controlled vehicles are allowed just makes no common sense.

There are studies that show that the 3-sigma upper travel speeds of human-only powered bikes is in the 28-32mph range so I think that is entirely ignored when discussing the 3-class assist limits. Honestly the federal definition was in place for 12+ years before California became the 1st to adopt the 3 class system and there were no problems or confusion before that (the claims there were were smoke screens to frame the false need for the 3-class system and it's use enforcement sticker idea).
 

Ken M

Well-Known Member
I like the Three-Class system for bikes. And I look forward to Standardization. Isn't it great that I can go anywhere and get a bolt that fits? That is because of standardization. The internet could not work without standardization. If a bike were purchased prior to standardization it can 1) have its wheel diameter reset in programing to bring it into compliance or 2) be subject to a grandfather clause allowing its use.
I would like gross polluting "Classic" Cars to be subject to the pollution laws for new cars. But they are grandfathered. That is understandable. Yet, these smelly cars are a huge problem where I live in Petaluma, CA. This is where the nostalgic (nostalgia is an illness, fact check this) film American Graffiti was filmed and there are Classic Car rallies (false nostalgia about fictional nostalgia) here.
I also want local public areas to make their own laws based on the standard Three-Class system for bikes. What works for Nantucket in 2021 may not be the current consensus in Oklahoma. And if it becomes no longer popular in Nantucket, or Oklahoma they can then amend their local rules based on the Three-Class system.
View attachment 83289

If you are OK with the federal standardization for automobiles, why would one definition for an ebike be troubling? We are talking about 750W (the average power of a two slice toaster) with speed controlled via a power limit at 20mph ensuring that ebikes really will not shift the bike speed distribution, only increase the average speeds and probably reduce the standard deviation a bit.
 

Oberst

Well-Known Member
I don't even know what CPSC is and you don't seem interested in helping me out. So I will continue to ride my 2 different class 3 eBikes just like I have since 2016.
Consumer Product Safety Commission