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

J.R.

Well-Known Member
I'm questioning that the states can impact interstate commerce
That's been addressed. I could pick any 2 states where products are either different or available for sale in one and not the other. Products regulated by the CPSC or one of the other alphabet agencies.

Pennsylvania vs California. Things I can buy that Californians cannot; either not at all or in a very different form. Let's call the latter different programming and stickers.

Cars and pickups
Space heaters
Kerosene heaters
Gasoline powered lawn equipment
Hair dryers
Paint
Stain
Household cleaning chemicals
Boats
Outboard motors
Snowmobiles
Motorcycles
Hunting knives
Firearms
Power tools
Fireworks
A variety of children's products
Vaping products
Mercury switches (thermostats, etc.)
A variety of cosmetics

Not to mention the variety of foods!

Just a sampling across a broad spectrum, the list just goes on and on and on. States requiring different specs or having different regulations or not allowing the sale of some products is as old as the country.

Some light reading:



"The Supreme Court has held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce."

"From 1937 until 1995, the Supreme Court did not invalidate a single law on the basis of the Commerce Clause."

Not because cases were not filed, it's just really rare that it can be proven that a state law has a substantial economic impact.

Requiring different tuning and stickers is not onerous; it doesn't prevent the sale of the bike, it can be done and the seller passes the minor costs on to the consumer. Happens all the time. Things often cost more in states that have different regulations. If ebikes ever get big enough, I expect to see some states really crack down on bikes they deem illegal. There's a lot that I don't like about it, but there's that pesky 10th amendment.
 

Ken M

Well-Known Member
That's been addressed. I could pick any 2 states where products are either different or available for sale in one and not the other. Products regulated by the CPSC or one of the other alphabet agencies.

Pennsylvania vs California. Things I can buy that Californians cannot; either not at all or in a very different form. Let's call the latter different programming and stickers.

Cars and pickups
Space heaters
Kerosene heaters
Gasoline powered lawn equipment
Hair dryers
Paint
Stain
Household cleaning chemicals
Boats
Outboard motors
Snowmobiles
Motorcycles
Hunting knives
Firearms
Power tools
Fireworks
A variety of children's products
Vaping products
Mercury switches (thermostats, etc.)
A variety of cosmetics

Not to mention the variety of foods!

Just a sampling across a broad spectrum, the list just goes on and on and on. States requiring different specs or having different regulations or not allowing the sale of some products is as old as the country.

Some light reading:



"The Supreme Court has held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce."

"From 1937 until 1995, the Supreme Court did not invalidate a single law on the basis of the Commerce Clause."

Not because cases were not filed, it's just really rare that it can be proven that a state law has a substantial economic impact.

Requiring different tuning and stickers is not onerous; it doesn't prevent the sale of the bike, it can be done and the seller passes the minor costs on to the consumer. Happens all the time. Things often cost more in states that have different regulations. If ebikes ever get big enough, I expect to see some states really crack down on bikes they deem illegal. There's a lot that I don't like about it, but there's that pesky 10th amendment.

The states can ban the "use" of all bikes. I believe that when a product is defined and regulated by a safety agency such as the CPSC or NHTSA the states are not just free to change it as they please. For example, some just can't decide to require special class programming on an ebike, especially when based entirely on subjective desire (there must be objective safety reasons or that product is only used in that state..

Give me an example of a regulated product that a state has change for commerce in their state. Don't bring up the California emissions example as that was an exceptional situation where public health was a serious problem and not based on some land managers thinking a throttle will do more trail damage.
 
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J.R.

Well-Known Member
The states can ban the "use" of all bikes. I believe that is a product is defined and regulated by a safety agency such as the CPSC or NHTSA the states are not just free to change it as they please like require special class programming on an ebike, especially when based entirely on subjective desire.

Give me an example of a regulated product that a state has change for commerce in their state. Don't bring up the California emissions example as that was an exceptional situation where public health was a serious problem and not based on some land managers thinking a throttle will do more trail damage.
You need to find the products and circumstances that support your opinion, not the other way around. The laws and regulations exist, you need to prove them wrong or illegal. It will take court action to change it. They aren't guilty until proven innocent. On top of that you want to cut out pressidance setting examples because you don't like them. It doesn't work that way. You can't just say that's a safety or health issue, that's an exceptional circumstance they don't apply.

The commerce clause doesn't protect businesses, segments of industries or individuals. It's meant to protect the US economy against protectionism and substantial economic threats. Requiring programming and stickers isn't substantial, doesn't prevent the sale and isn't a threat to the economy.

Don't bring back the bike is a bike argument. (More circular logic) A truck is a truck, yet state and local governments can regulate the roads they can drive on. They can regulate size, weight and noise (engine brakes), they can regulate how many axles. They can also permit vehicles on their roads that the Feds say are not road worthy. Let's call all these exceptions: special programming and stickers;).

Post in thread 'Statement Regarding Potential CPSC Ebike Law Preemption of 3-class Legislation' https://electricbikereview.com/foru...tion-of-3-class-legislation.41792/post-410115
 

Ken M

Well-Known Member
You need to find the products and circumstances that support your opinion, not the other way around. The laws and regulations exist, you need to prove them wrong or illegal. It will take court action to change it. They aren't guilty until proven innocent. On top of that you want to cut out pressidance setting examples because you don't like them. It doesn't work that way. You can't just say that's a safety or health issue, that's an exceptional circumstance they don't apply.

The commerce clause doesn't protect businesses, segments of industries or individuals. It's meant to protect the US economy against protectionism and substantial economic threats. Requiring programming and stickers isn't substantial, doesn't prevent the sale and isn't a threat to the economy.

Don't bring back the bike is a bike argument. (More circular logic) A truck is a truck, yet state and local governments can regulate the roads they can drive on. They can regulate size, weight and noise (engine brakes), they can regulate how many axles. They can also permit vehicles on their roads that the Feds say are not road worthy. Let's call all these exceptions: special programming and stickers;).

Post in thread 'Statement Regarding Potential CPSC Ebike Law Preemption of 3-class Legislation' https://electricbikereview.com/foru...tion-of-3-class-legislation.41792/post-410115
I'm just going to allow the CPSC to make the decision. I think the petition speaks for itself.

You need to keep "product defintion" and "use" separated...they are mutually exclusive things.

When the AG of Mississippi decided a "low speed electric bicycle" was just a "bike" for use regulations was that "circular logic?" I was not involved with that decision.
 

J.R.

Well-Known Member
I'm just going to allow the CPSC to make the decision. I think the petition speaks for itself.

You need to keep "product defintion" and "use" separated...they are mutually exclusive things.

When the AG of Mississippi decided a "low speed electric bicycle" was just a "bike" for use regulations was that "circular logic?" I was not involved with that decision.
Missippippians decided for Mississippians. That's the way it's supposed to work. I don't know anything about that case. I tried to encourage you long ago to get involved in your local community where you could make a real difference. I appreciate one thing here and that's your passion.
 

Ken M

Well-Known Member
Missippippians decided for Mississippians. That's the way it's supposed to work. I don't know anything about that case. I tried to encourage you long ago to get involved in your local community where you could make a real difference. I appreciate one thing here and that's your passion.
It was not a case - it was a sheriff asking the AG for an opinion on ebike use regulations. The Mississippi AG read the federal statutes and concluded the intent was for "low speed electric bicycles" to be just considered a bike. The state then has the right to regulate bikes as they always have. I give that significant merit because I could get no other state AG to go on the record with an opinion. It's a simple question - is a HR727 compliant LSEB intended to be "use" regulated as a bike? If not why put the definition in CPSC 1512? The CPSC could have created a new product regulation specifically for ebikes but obviously the consensus in 2002 was that they were very well aligned with traditional bikes and could be defined and safety regulated as a bike.

I do not think the states should have the power to define the products that are sold in the US. If they are going to rely on the CPSC to regulate safety of bikes then why not just accept the definition as well? To my knowledge all 50 states rely on the CPSC 100% for ensuring safe ebikes are sold (i.e. none have their own safety regulation of bikes or ebikes).
 
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Ken M

Well-Known Member
Something else I found that is interesting and maybe the reason why PFBs and the states felt they could define their own sub-classes of "low speed electric bicycles." From regulatory agency website:

Note that States are free to regulate the use of such vehicles and may use their own terms when describing vehicle types for the purpose of their regulations. But Those terms have no relevance to the classification of a vehicle.

My view of this is that while the states have the authority to regulate bike/LSEB use, there is no change in the regulatory classification of products if choose to sub-class as 3-class system did. The implications on interstate commerce are clear given that many states have not adopted 3-class legislation (and hopefully they see no reason as it should be preempted).
 

J.R.

Well-Known Member
I hesitate to reengage in this conversation because its tiresome. I don't enjoy the debate/argument. I'd rather ride and discuss the ride.

In doing some recent reading about ebike insurance and accident data, I read about the rise of accidents and injuries in North America, Europe and Scandinavia. I was particularly surprised at the rise in the Netherlands (2020 was a record year) where the cycling culture and awareness is the strongest.

@Ken M I wrote in one of your threads on this issue about law of unintended consequences. LINK. Back a page or 2 in this thread you opined about a possible push for insurance and registration. And you often mention the bike is a bike theme. The following data came up in the list while I was reading about insurance. The CPSC own study concluded ebikes differ from traditional bikes. Good or bad, agree or disagree with the study or how government works, this is the kind of thing the Feds do, and act on with House Resolutions behind closed doors. At any point in time the CPSC can write a new HR behind closed doors and it is never debated in Congress. If left up to beurocrats, they can turn on a dime in the dark of night and separate ebikes from bikes. That would be the backdoor for the insurance industry to get in. If left up to 50 state legislatures, where reps are held accountable, it is much more difficult.

Even so, I know the feds can't force anything on the states. For instance moped regs vary from state to state. Some require license and insurance and some don't. Yet the Feds class them motor vehicles.

- - -

Injuries associated with electric-powered bikes and scooters: analysis of US consumer product data

  1. http://orcid.org/0000-0003-2356-6659Charles J DiMaggio1,2,
  2. Marko Bukur1,2,
  3. Stephen P Wall3,
  4. Spiros G Frangos1,2,
  5. Andy Y Wen4
  6. Correspondence to Dr Charles J DiMaggio, Surgery and Population Health, New York University Langone Medical Center, New York, New York, USA; charles.dimaggio@nyumc.org

Abstract

Background Powered, two-wheeled transportation devices like electric bicycles (E-bikes) and scooters are increasingly popular, but little is known about their relative injury risk compared to pedal operated bicycles.
Methods Descriptive and comparative analysis of injury patterns and trends associated with E-bikes, powered scooters and pedal bicycles from 2000 to 2017 using the US National Electronic Injury Surveillance System.
Results While persons injured using E-bikes were more likely to suffer internal injuries (17.1%; 95% CI 5.6 to 28.6) and require hospital admission (OR=2.8, 95% CI 1.3 to 6.1), powered scooter injuries were nearly three times more likely to result in a diagnosis of concussion (3% of scooter injuries vs 0.5% of E-bike injuries). E-bike-related injuries were also more than three times more likely to involve a collision with a pedestrian than either pedal bicycles (OR=3.3, 95% CI 0.5 to 23.6) or powered scooters (OR=3.3, 95% CI 0.3 to 32.9), but there was no evidence that powered scooters were more likely than bicycles to be involved in a collision with a pedestrian (OR=1.0, 95% CI 0.3 to 3.1). While population-based rates of pedal bicycle-related injuries have been decreasing, particularly among children, reported E-bike injuries have been increasing dramatically particularly among older persons.
Conclusions E-bike and powered scooter use and injury patterns differ from more traditional pedal operated bicycles. Efforts to address injury prevention and control are warranted, and further studies examining demographics and hospital resource utilisation are necessary.


 

Ken M

Well-Known Member
Some of the injury data I read mentioned the higher rate among older riders but most of the injuries reported were from mounting and dismounting an ebike. I would not consider that relevant safety data. It seems all the studies have a built in bias such that the data will simply match what the goal of the study prior to beginning the study.

I use to be pretty good at statistical analysis so I would love to see how they derived that ebikes are 3 times more likely to involve a collision with a pedestrian than pedal bicycles or powered scooters. My guess is that study was sponsored by insurance companies.

Given that average riding speeds will be higher on ebikes than pedal bikes I would expect an uptick in injury rates but that is not justification for concluding that ebikes are less safe. That's like saying that cars going over 100mph are less safe than a truck traveling at 50mph.

There is no new update from the CPSC on the Preemption Petition which probably indicates that it's actually getting attention and was not simply tossed out for lack of merit. I know it was provided to CPSC secretary and scheduled for a general counsel review. I understand not wanting to argue over this as I would prefer not too as well but my opinion was and still is that the ebike industry in the US will be better off with 3-class preempted.

I found it interesting that the top manager of the MOAB park area said that he anticipated no issues due to the DOI order to allow use of all 3-class ebikes in the park. So why was there an outright ban on ebike at MOAB for so long? I don't want to argue about this either but this is exactly why I struggle to respect a lot of what trail managers say.
 

Ken M

Well-Known Member
Given this national injury summary I would not consider ebikes a national treat just yet even though the higher average speeds will have some impact on accidents and injury severity.

Of more than 245 million injuries reported in the study period, 130,797 involved powered-scooter accidents, accounting for 5.3 per 10,000 U.S. emergency department injuries. There were 3,075 e-bike injuries, or 0.13 per 10,000. In addition, about 9.4 million pedal bicycle injuries accounted for 385.4 per 10,000 of all emergency department injuries.
 

BarnBoy

Active Member
Region
USA
City
Pleasanton, CA
@Ken M - I found this on my 1999 EVG I am restoring. Thought you might like to see it....
"MOTOR - DRIVEN CYCLE"
-BB
VIN.jpg
 

Ken M

Well-Known Member
I have a frame for an EVG that I'll build on someday. It has the dual head clamp forks which look more like motorcycle forks. I think the Taiwan made Chromemoly frame is awesome.
 

Ken M

Well-Known Member
Just a quick update on the status of the preemption petition. The good news is that it has not been rejected so the CPSC initial general counsel review must have found merit in the information presented.

Something I found very very interesting was that during a CPSC EV consumer products webinar late last year People for Bikes presented 3-class policy as "voluntary." That was clearly a very intentionally deceptive presentation. I think PFBs is aware of the interstate commerce conflict they have created so they didn't want to present their model legislation accurately (they know CPSC controls first sale compliance via the federal definition).

Sadly I read that Dr. Currie passed away last weekend at the age of 94. Here is his presentation to congress on the original federal law to move LSEB under CPSC jurisdiction.

https://www.c-span.org/video/?c4960349/user-clip-malcolmcurrie-congress
 

Ken M

Well-Known Member
Another interesting observation recently was that Section 202 of the People For Bikes model legislation was that insurance is not actually in the list of exclusions on ebikes even though it's in the section title. I have mentioned my concern that Class 3 is a potential foothold for mandatory insurance on those ebikes and I believe that explains this omission (i.e. I do not think it was missing by mistake). Just something to keep in mind.
 

Ken M

Well-Known Member
I think we are now past 6 weeks which I think means the petition is not just going to be tossed out. I believe there is a good chance the preemption will happen.