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

Well-Known 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.
 

Ken M

Well-Known Member
I realize this post is loosing steam but I can not emphasize enough how important I feel it is for the CPSC to preempt the 3-class legislation adopted by up to 28 states. Whenever legislation like that is driven by lobby money it's probably safe to assume it had goals that were not in the best interest of the majority.
 

Arthritic Old Man

New 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.
This is a great because they mentioned the third wheel! Would think that they are understanding about adaptive mobility devices and accessibility requirements for trike users?
 

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.
Where you are wrong is that the CPSC and NHTSA have full preemptive power (they don't need the Supreme Court to holding their hand). The examples you mention are almost all "less stringent" example which the states are allowed to do because it does not impact what the CPSC says is "OK" to sell in all 50 states.

Here's my one BIG POINT on this.... What did parsing the federal definition into 3 classes accomplish? Logically answer that and please don't anyone say class 1 provided trail access because that was irrational from day one (anyone that understands tech knows that the performance of a Class 1 and 2 as far as trail safety and damage to the trail are not different (anyone claiming otherwise probably just wants to make their opinion heard but there is nothing supporting that opinion).
 

Ken M

Well-Known Member
I have again contacted the CPSC to find out status and apparently they are writing a decision. I hope ebike riders in the future appreciate the effort I put into this if the 3-class legislation is preempted as it really should be. It was poorly conceived and had nothing to do with improved clarity or safety as claimed by People for Bikes. They will not even engaged in a dialog about the legislation which I think says a lot about their intent.