March 11, 2024

Effective March 7, 2024, new fire code legislation takes effect for lithium-ion batteries for Powered Mobility Devices in San Francisco.

Following New York City in 2023 the city of San Francisco has developed a new fire code in effect as of March 7 regarding the use and charging of lithium ion batteries. Hopefully the US Consumer Product Safety Commission (CPSC) moved much faster on its hinting of taking action on batteries this year because to have many sets of state and local laws regarding batteries is going to be very confusing and disruptive for the industry. The longer the CPSC waits the worse this problem is going to get with conflicting state and local laws. Also some of these fire code issues like with this one deal with the storage and charging aspects (that affect users and more importantly retailers) that go beyond a "product only" design type of standard which I expect out of CPSC at some point.

The new code section available in full here defines Powered Mobility Devices (PMDs) as devices powered by a lithium-ion battery with the primary purpose of transporting people, such as electric bikes, scooters, hoverboards, or skateboards. PMDs do not include wheelchairs or other devices used by persons with disabilities.
- All PMDs in San Francisco must be Safety-Certified, which is defined as compliance with one of the following certification requirements:
 Underwriters Laboratories (UL) standards UL 2849 or UL 2272
 European (EN) standards EN 15194 or EN 17128
 Other safety standard of an accredited laboratory, approved by the San Francisco Fire Department.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

February 11, 2024

CPSC finally is taking real action on electronic certificates of compliance

Published February 5, 2024

Reprinted with permission from Bicycle Retailer and Industry News 

Original article link 

A certificate of compliance requirement was in the original Consumer Product Safety Improvement Act passed in 2008 and signed by George W. Bush. It has taken 16 years for the Consumer Product Safety Commission to finally implement the full intended scope of electronic certificates of compliance as originally envisioned by Congress in 2008.

There have been multiple “beta” and “pilot” programs with many large institutional participants (especially many large retailers, e.g., Walmart and Target) giving feedback on the process. Only one or two small bike brands gave feedback per the current notice of proposed rulemaking, and it's not even clear they were in the pilot or beta programs.

The biggest issue I see for the bike industry is that the commission is proposing that the new rules take effect within 120 days of the new rules being passed; the passage date is not clear at this point. Given that the bike industry is slow to respond to large changes in the manner of doing business like this and that there has been zero coverage of this issue, I suspect there will be some pushback and scrambling going on especially by smaller brands.

These rules have been in effect for many years, but now that CPSC has teamed up with Customs and Border Protection (CBP) on this project, the certificates will need to be filed before importation using the elaborate electronic system called the Automated Commercial Environment (ACE). The CBP has completed its ACE interface and the Partner Government Agency Message Set, which now enable importers or their brokers to submit electronic import data.

The Supplemental Notice of Proposed Rulemaking (SNPR) to amend 16 CFR Part 1110 was first published on Dec. 8. All 65 pages are here, not including the 289-page Ballot package that the CPSC commissioners have to vote on and that contains more details about the Part 1110 rule change. Comments have to be received by Tuesday at 5 p.m. They can be made here.

Only finished products or substances that are subject to a CPSC rule, ban, standard, or regulation, are required to be tested and certified, and only such finished products that are imported into the United States for consumption or warehousing would be required to e-file certificates with CBP.

How the bike industry is affected

This is of course where things start getting murky, especially for the bike industry that has many segments: human-powered bikes, e-bikes, bikes intended for kids under 12, original equipment components, aftermarket components, and replacement components. Many industries don’t have to deal too much with replacement parts, such as the toy industry.

Here is a quote from CPSC’s response to one comment made previously:

Comment 38: Several commenters expressed confusion regarding the difference between certificates for component parts, for finished products, and for replacement parts of consumer products.

Response 38: Proposed § 1110.3(b) defines “component part” as a product or substance that is intended to be used in the manufacture or assembly of a finished product, and is not intended for sale to, or use by, consumers as a finished product. The SNPR defines a “finished product” as a product or substance that is “regulated by the commission that is imported for consumption or warehousing or is distributed in commerce.” The SNPR definition explains that parts of such products or substances, including replacement parts, that are imported for consumption or warehousing, or are distributed in commerce, and that are packaged, sold, or held for sale to, or use by, consumers, are considered finished products.

 Only (1) finished products (2) subject to a CPSC rule must be tested and certified. (I added these numbers for clarification that it’s a two part-test.) Component part certificates are voluntary and are not required to accompany an imported component part, are not required to be furnished to retailers and distributors (as described in proposed § 1110.13(b)), and are not to be e-filed.

Not all replacement parts are finished products that require testing and certification. A replacement part of a consumer product that meets the definition of a finished product may be subject to Part 1110, if the replacement part is subject to a rule. For example, a stem for a bicycle that is sold to consumers as a replacement part requires a certificate, because stems, either as a stand-alone product or as part of a finished bicycle, must be tested for strength in accordance with 16 CFR 1512.18(g). (I tend to disagree with this part as the CPSC historically, even in recalls, has not taken this position that 16 CFR 1512 is a separately sold “component” standard but rather a “complete bike” standard.)

Additionally, parts of toys, such as doll accessories, that are sold to consumers as a separate finished product, must comply with all applicable rules, including for example lead in paint and/or lead content (Editor’s note: if it is a product intended for children under 12). If the same doll accessories were imported for manufacturing purposes and not for consumption or warehousing, (this is a small part of competent imports in the bike business) and were intended to be combined with a doll for sale, then such accessories would not be a finished product required to be certified until they are part of a finished product.

Majority of aftermarket products will need testing

So this means that 80% of the aftermarket products are going to need CPSC testing provided there is some requirement in a CPSC rule that arguably pertains to that bike product or component. If they are not “intended for children under 12” (kids product) that testing can be done in house apparently by the manufacturer or brand (subject to other requirements). If it is a kids product then a CPSC certified lab has to do the testing, which includes chemical testing (that does not meet California Prop 65 requirements, by the way).

E-bikes don’t have their own standard except for 16 CFR 1512, provided they meet the 20 mph requirement in the standard; if they don't, well then there are other issues to deal with. E-bike batteries, of course, don’t yet have a CPSC standard as they are not discussed in 16 CFR 1512, so in theory they escape the rule and these new testing and reporting requirements. How ironic as they are the biggest threat at this time and not really foreseen in 2008.

How this whole process is going to work as far as getting that testing data etc. into the CPB and CPSC computers is what has been the focus of multiple beta filing pilots. The importer of record has the responsibility. Not the foreign manufacturer. It's also not clear how this works with the tariff codes and what the timing is on the uploading of this data before the product hits U.S. shores. Import brokers are obviously a resource but won't likely be doing this for free. I do see a process where smaller companies are going to be allowed to access the data entry screens from the CPSC website using a special logon and portal. 

The “new” CPSC Product Registry will allow importers, or their designees, to enter the certificate data elements via a user interface, batch upload, and/or Application Programing Interface (API) upload. The user interface is a step-by-step process, where the importer submits one certificate at a time. The batch upload allows the importer to submit multiple certificates using a Comma-Separated Value template. The API upload allows the importer to build an API connection via the product registry and their data systems to instantaneously enter certificates. Clearly, this is going to involve some training on the brand side of the equation.

So, for example, if you import 10 SKUs, or more or less all of the same model bike widget with 10 colors, every time you get a container shipped from Asia, you will know what the test requirement is for the widget, and you will have it tested by the manufacturer, unless it's a child widget, and that data will pretty much be cut and pasted each time using a CSV data spreadsheet. But it will need to be changed if you change suppliers or test requirements or anything else on the product changes, usually SKU’s changes.

Import enforcement currently lacking

The whole rationale for this rule change and disruption is as follows: Currently, CPSC's import enforcement methodology is labor-intensive and lacks an efficient means of using product-specific data to identify potentially non-compliant products. CPSC co-locates staff alongside CBP staff at ports of entry to target shipments for examination.

Once identified, staff request that CBP place a shipment on hold and transport it to an examination station for CPSC inspection; an examination hold creates delay that costs businesses and CPSC time and money. Accordingly, stakeholders and CPSC have a common interest in reducing examinations of compliant products and maximizing examinations of products that are likely to be violative. Currently, certificates are collected only after a shipment is stopped for examination; certificate data are not used to target shipments for examination. Using certificate data for more precise targeting would maximize examination efficiency for stakeholders and staff.

Using certificate data can also improve CPSC's ability to target low-value shipments. CPSC's current targeting capabilities were designed for larger commercial shipments for which the commission receives CBP data. CPSC's port staff is currently unable to pinpoint with a high degree of certainty potentially non-compliant and hazardous products in low-value shipments, which CBP refers to as “de minimis shipments,” and international mail shipments. 

As we all know the de minimis shipments to consumers of batteries below an $800 value is where we are having a problem with low-quality batteries. But this new certificates filing rule won't fix the e-bike battery problem as there is not currently a CPSC standard specifically regarding batteries and as such no certificate filing will be required.

The biggest issue I see right now is that the SNPR proposes a 120-day effective date for a final rule. So that means after the comments on this rule are received, I expect that the rule will be final in less than six months, and once that happens, there will be another six months to get ready for the enforcement. Hopefully, that will be enough time for the industry to get ready.

This is going to be a four-step process for each product: First, companies need to decide what CPSC rules pertain to their specific products; second, they need to determine if they are products intended for kids under 12 (a whole other analysis); third, they need to decide on a test protocol for their products and whether it can be done in house or requires a CPSC certified lab (see Step 2); then finally they need to set up an account with CPSC and learn the methods by which they have to enter all this data on an ongoing basis and how that data entry timeline coincides with the timely shipment and receiving of the product. 

Clearly there is lots of work to be done on this by brands. Our office is going to be assisting clients with this issue going forward as there are a number of issues that have to be dealt with that are more legal than scientific or logistical but the latter two issues are surely ones that must be addressed as well.

Steven W. Hansen is an attorney who represents product manufacturers, distributors and retailers in product liability and other lawsuits and provides consultation on all matters related to the manufacture and distribution of e-bikes and other consumer products. For further questions visit www.swhlaw.com or email legal.inquiry@swhlaw.com

 The information in this article is subject to change and may not be applicable in your state or country. It is intended as a thought-provoking discussion of general legal principles and does not constitute legal advice. Any opinions expressed herein are solely those of the author.


Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

December 30, 2023

Proposed changes to California Proposition 65 short form warnings (Jan 3 2024)

On October 27, 2023 the California Office of Environmental Health Hazard Assessment (OEHHA), the state agency that implements Proposition 65, introduced its third attempt to amend the “short form” warning provisions. This has been going on for a few years now but every time they get ready to amend the regulations they stop short and put it off for various "reasons". The fourth attempt may be the charm. Comments are due on the new regulations by January 3 2024. The proposed regulations (and rationale for changes) are here and the comment form is here. However I am gathering commitments from companies for our office to write a collective letter on all their behalves (so that they remain anonymous to the agency).  Please email me if you wish to join in out letter. The main problem with the proposed amendments is that OEHHA does not like the fact that manufacturers and distributors are defaulting to the use of the short form warning in order to escape the dragnet of plaintiff's lawsuits that are impossible to cost effectively defeat. OEHHA wants to force companies to have to run very costly tests on hundreds of potential chemicals (many not testable) so that they can list the chemical(s) in the warning text before they can use the safe harbor short form warning. Think of it as sort of a "penalty" for using the short form. All the arguments they make for this change are fallacious arguments. They don't like all the short form warnings being used as they feel its diluting the overall effect of Prop 65. That is not the industry's problem that's the regulators problem. Their rationales are comical if it were not so sad and costly for companies to deal with. They are also proposing some additional "catch all" warnings for motorsports parts that are just not workable/feasible or cost effective and are NOT going to make consumers safer at all. This is what we would expect from bureaucrats who have never worked in the recreational sports business or any product manufacturing business for that matter.


Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2024 Conditions of Use

July 17, 2023

California bill aims to require drivers licenses for unlicenced users of class three e bikes

This new bill that appears to have been first proposed in July 2023 looks to prevent children under age 12 from using any class of e bike. For those over 12 they can operate class 1 and 2 e bikes but for class 3 e bikes you must be 16 or older (part of existing law) and posses "the new" class three users license and also wear an approved helmet (part of existing law). Not a completely bad idea but license training and issuance for kids (and adults with no vehicle drivers license) seems like a big challenge in this state where we can hardly manage vehicle drivers licenses (digital vehicle licenses were promised Jan 2023 and still have not happened). Specifically the bill states it is the "intent of the Legislature to create an e-bike license program with an online written test and a state-issued photo identification for those persons without a valid driver’s license". So again this is a bit broader than it appears at first blush. It appears the intent of the law is if you don't have a "vehicle" drivers license then you would need to get a "class 3 e bike license" regardless of your age. As I like to say about California we are really good at churning out thousands of new laws every year but we are not so good at implementing and enforcing them. Welcome to California.

Another thing to note about the bill is that appears to have been created using a "gut and amend" procedure. This controversial legislative maneuver is when a lawmaker takes an existing bill that has already been approved by several committees or even one house of the Legislature, strips the contents and adds in new unrelated bill language. You can see traces of the old bill in the current bill (one involving natural resources) This procedure has been around for years and is typically done when new legislation is desired but the window to submit a new bill has passed. Its also used for more troubling tactics as noted here. These bills can end up being sneaky and hard to track.

It will be interesting to see if this gets any traction. Most bills don't make it thru the full legislative session. All bills must be approved by Sept 14 2023 or they die. Then you have the veto process and Governor Newsom does Veto quite a few bills that don't fit with his agenda. That is in Oct.

Stay tuned to this page for updates on this proposed legislation.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

July 8, 2023

Congress tries to force CPSC to create mandatory standards for lithium batteries under the "Setting Consumer Standards for Lithium-Ion Batteries Act” introduced in March 2023

As we all know CPSC has been trying for force manufactures of e bikes and other related mobility devices to use existing UL standards in the manufacture of these devices. The worst offenders will of course ignore these polite non binding requests. We also know the CPSC is going to have a meeting in July 2023 to "discuss" batteries but we really are not sure what will come of such meeting(s). In the past the CPSC has resisted calls to create mandatory standards when in their opinion a voluntary standard seems to be solving the problem. (see 15 USC 2058)  Many have argued the voluntary UL standards are not working as adherence to them is low and only done by high end manufacturers. So Congress has stepped in under Senate bill 1008 introduced in March 2023. (in the same way they did to force the CPSC to create the massively confusing lead laws and related laws under CPSIA in 2008) Stay tuned to this blog for updates on the status of this bill.

Senate Bill 1008 (March 2023) (related bill HR 1797)

SECTION 1. Short title.

This Act may be cited as the “Setting Consumer Standards for Lithium-Ion Batteries Act”.

SEC. 2. Consumer product safety standard for certain batteries.

(c) Treatment of standard.—A consumer product safety standard promulgated under subsection (a) shall be treated as a consumer product safety rule promulgated under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058).

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2023 Conditions of Use

June 5, 2023

CPSC Lithium-Ion Battery Safety; Notice of Meeting on July 27 2023 and Request for Comments

UPDATE 8/1/23: Today I received a Federal Register notice of the CPSC's "Semiannual Regulatory Agenda" just days after the meeting below. What stands out to me is that this document "...includes an agenda of regulations that the Commission expects to develop or review during the next 12 months." and there is no mention or reference at all in this very long document about ebikes, lithium batteries, bicycles or 16 CFR part 1512 (the bicycle and e bike regulation). Again these come out twice a year and we know that Congress is pushing CPSC to regulate ebikes via this bill but I don't thinks its likely that there will be anything significant happening at CPSC re batteries or ebikes until this bill passes. I might be wrong but I don't think anyone should be holding their breath in the next 12 mo for some regulations coming forth from the CPSC on the issues in the meeting referenced below. The proposed de minimus bill (H.R.4148 - Import Security and Fairness Act 118th Congress (2023-2024)) may also help the battery import situation well before CPSC acts.

Prior Post June 5 2023:

The Consumer Product Safety Commission will be holding a meeting on lithium-ion battery safety, with a specific focus on fires occurring in e-bikes and other micro-mobility products as well as the fire risks that may arise with the growing consumer market for other products containing such batteries. They are inviting interested parties to participate in or attend the meeting. A remote viewing option will be available for registrants. CPSC also invites interested parties to submit written comments related to the issues discussed in the notice.

There was allegedly going to be broader rulemaking announced on human powered bikes and or all of 16 CFR part 1512 as well but that notice has not yet appeared. That story appeared in Bicycle Retailer. It is not clear if this current notice is related to the notice discussed in Bicycle Retailer

If you wish to submit written comments for the record, you may do so before or after the meeting, as described in the ADDRESSES section of the notice. These written comments should be received by no later than August 21, 2023.  Please refer to the notice for the topics that the CPSC would like to see addressed.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright |

December 28, 2022

Class three (3) e bikes in CA now must be specifically prohibited on an equestrian trail, or hiking or recreational trail.

I am not sure why or who (outside the legislature) initiated this California bill in Feb. 2022. The purpose is to allow class 3 bikes anywhere a class 1 or 2 bike is allowed by default. Unless of course the city or the county (or some other CA state local jurisdiction) disallow class 1, 2 or 3 bikes on some specific path or area under their control. I think the intent here here is that the Legislature assumed that most local entities wont take any action on this unless there is a real problem locally.  Like Del Mar CA as an example. I do not think allowing class 3 on class 1 bike paths (and other places) was the intent of the original model legislation passed around by People for Bikes. This also raises more issues with respect to class 3 classification jurisdiction as has been raised by the US Consumer Product Protection Agency (CPSC) lately. FYI the reference to "motorized bicycle" below in pink means basically a moped like device that does not go over 30 mph. See details here (CCV sec 406)   So the legislature at least smartly preserved that exception. However I don't see much difference between a moped and class 3 devices functionally or speed wise and quite frankly the ebikes on the class 1 bikeways I see now likely do not even meet CA class 3 requirements. I really DON'T think class 3 ebikes are appropriate on Class 1 bikeways (those completely separate and not near roads) but quite frankly nothing has been done to enforce or even post the existing law on most class 1 bike paths in CA to date so I don't see this as having much of an effect.

[ Approved by CA Governor September 16, 2022. Filed with Secretary of State September 16, 2022. ]
LEGISLATIVE COUNSEL'S DIGEST

[swh note: I have left in the red and blue original editing in the bill markups]

AB 1909, as amended, Friedman. Vehicles: bicycle omnibus bill.
Existing law generally regulates the operation of bicycles upon a highway. A violation of these provisions, generally, is punishable as an infraction.
(1) Existing law prohibits the operation of a motorized bicycle or a class 3 electric bicycle on a bicycle path or trail, bikeway, bicycle lane, equestrian trail, or hiking or recreational trail, as specified. Existing law authorizes a local authority to additionally prohibit the operation of class 1 and class 2 electric bicycles on these facilities.
This bill would remove the prohibition of class 3 electric bicycles on these facilities and would remove the authority of a local jurisdiction to prohibit class 1 and class 2 electric bicycles on these facilities. The bill would instead authorize a local authority to prohibit the operation of a class 3 any electric bicycle at a motor-assisted speed greater than 20 miles per hour. or any class of electric bicycle on an equestrian trail, or hiking or recreational trail.

SECTION 1.

 Section 21207.5 of the Vehicle Code is amended to read:

21207.5.
 (a) Notwithstanding Sections 21207 and 23127 of this code, or any other law, a motorized bicycle shall not be operated on a bicycle path or trail, bikeway, bicycle lane established pursuant to Section 21207, equestrian trail, or hiking or recreational trail, unless it is within or adjacent to a roadway or unless the local authority or the governing body of a public agency having jurisdiction over the path or trail permits, by ordinance, that operation.
(b) The local authority or governing body of a public agency having jurisdiction over an equestrian trail, or hiking or recreational trail, may prohibit, by ordinance, the operation of an electric bicycle or any class of electric bicycle on that trail.
(c) The Department of Parks and Recreation may prohibit the operation of an electric bicycle or any class of electric bicycle on any bicycle path or trail within the department’s jurisdiction.




Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

May 14, 2022

Why interoffice emails that discuss potential product issues are a long term land mine for businesses

While not strictly a product liability action but a Song Beverly Warranty action available to vehicle buyers in CA, Bowser v Ford Motor Co. (May 2022) exemplifies the problems with “bad” internal company emails being created as well as long threads which loop different people in and out of the thread and even loop in parties outside the corporate entity. Needless to say email is very dangerous when not used properly and our office counsels clients all the time on best practices for ensuring that internal emails do not end up becoming an damning exhibit in a case against them or even another company. These days very often employees want to text, chat or email a free flowing “discussion” which really should be conducted on the phone or conference call. Failing to heed that one simple rule creates lots of headaches down the road that cannot be “undone”. Keeping outside legal counsel active in the thread discussion of the “issue” goes a long way to defeating claims of admissibility. But there are also limits to that practice as well which is the subject of another posting. Using social media of course is even worse than email and this article only address internal company emails (not communications outside the company). We are also not delving into the courts discussion of the depositions used against Ford that were taken in another action as that is another long analysis for another post (and most entities do not run into that situation as often as the email problem). The decision (Bowser v Ford Motor Co.; decision issued May 2022) is a great read however it is 83 pages long. It is available here.

I quote liberally from the decision below but of course I have only taken out the essential parts of the ruling at issue here and tried to ensure clarity and continuity in the relevant portions of the decision.

The purchase price of the 2006 Ford truck in question was $43,084.68. Mr. Bowser (the plaintiff) reviewed literature at the dealership that said “the Ford Super Duty [was] the best in class, having the best performance, highest quality.”

Over Ford’s objections, the Bowsers introduced a number of internal Ford emails and presentations. These showed that Ford was aware that certain parts of the 6.0L engine, including fuel injectors, turbochargers, and EGR valves, were failing at excessive rates, and that Ford was struggling to find the root cause of some of these failures. Some of the emails said that this information should be kept secret.

The Bowsers sued Ford, asserting causes of action under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq. [Song-Beverly or Song-Beverly Act]) and for common-law fraud. Ford conceded liability under the Song-Beverly Act. A jury found for the Bowsers on all causes of action. It awarded compensatory damages ($42,310.17 under the Song-Beverly Act; $43,084.68 for fraud), $84,620.34 as a statutory penalty under the Song-Beverly Act, and $253,861.02 in punitive damages. The Bowsers elected to recover compensatory damages under the Song-Beverly Act rather than for fraud. The trial court awarded them $836,528.12 in attorney fees plus $94,264.99 in costs.

Ford appealed. It contended that the trial court erred by admitting the internal Ford documents, because they were inadmissible hearsay.

The Bowsers introduced a number of internal Ford emails and presentations (I am only highlighting a few for the purposes of showing the efforts to keep them secret):

In one email in the chain, dated May 29, 2002 (note how hold this email is), Freese noted that the turbocharger of a test vehicle had failed. There were “[n]ew concerns” about “loose injectors.” He requested a “[r]oot [c]ause [d]efinition,” a “[c]ontainment [p]lan,” and a “[c]orrective action plan.”

Exhibit 42 was an email chain dated November 2002 sent by Steven Henderson. Henderson’s title was Power Train Purchasing Manager. He said, “[W]e’re in the middle of 6.0L launch, and . . . things are not going well. J1 was delayed a full week for [Navistar] to work on the issues, but they are not fully resolved yet.”

Exhibit 47 was an email chain including a September 2004 email sent by Frank Ligon. Ligon’s title was Director of the Customer Service Division. He said Ford was “putting together a comprehensive strategy to bring all 6.0 up to standard.” “We are seeing a new group of concerns that range from chaffing [sic] of various wire harnesses causing drivability concerns, sensors that are failing at a high rate and turbo concerns.” “At this point we do not have a definitive repair action . . . to properly address the concern universe.” “Bottom line is we are not ‘out of the woods’ on this 6.0 and in fact may experience repeat symptoms once certain repairs are performed . . . .” The email was marked “privileged and confidential.” It added, “This is very confidential!!!” “I strongly urge that this information NOT be shared at this time until the ‘official’ action is announced.”

Exhibit 198 was a PowerPoint-style presentation dated February 2006. No author was indicated. It was entitled, “ITEC and Large Diesel Strategy Review.” It was labeled, “Ford secret draft.”

Exhibit 64 was an email chain dated February 2006 sent by Koszewnik. It said, “FYI only. Don’t forward or reference.”

The court addressed the hearsay objections to the emails (those above and many others) as follows:

There is a hearsay exception for a statement by the opposing party: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . .” (Evid. Code, § 1220.) A corporation, however, can speak only through its officers and agents (employees included in “agent”). Accordingly, statements assertedly made by a corporation are not usually analyzed as party admissions under Evidence Code section 1220, but rather as authorized admissions under Evidence Code section 1222.

The court held “an assertion made by an agent in the course and scope of the agent’s employment, when offered against the principal by a party-opponent, no matter to whom the assertion was addressed.” California cases also hold that a statement by one employee to another was an authorized admission of the employer. It need only be shown that the agent’s statement “concerned a matter within the scope of the declarant’s employment and was made before that relationship was terminated.”

“Whatever is said by an agent . . . , either in the making of a contract for his principal, or at the time, and accompanying the performance of any act, within the scope of his authority, . . . of the particular contract or transaction in which he is then engaged, is, in legal effect, said by his principal, and admissible as evidence . .” Also when based on evidence of the declarant’s duties and responsibilities, it can apply to lower-ranking agents.

“In general, the determination requires an examination of the nature of the employee’s usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement. A statement is “admissible as an authorized admission only where a proper foundation has been laid as to the declarant’s authorization to speak on behalf of the party against whom the statement is offered.”

The once concession made to Ford, (which did not really help them) was “The declarations of an [alleged] agent (employee) are not admissible to prove the fact of his agency or the extent of his power as such agent. [Citations.]”. “Hearsay statements in the documents themselves cannot be used to prove that they were authorized admissions.” For example, the fact that Koszewnik’s email signature described him as “Director, North American Diesel” cannot be used to prove that he actually was Ford’s Director of North American Diesel.

So clearly 20 year old emails in this case were a problem for Ford. The other problem is that email tends to exist on servers outside of your control and has backup and retention policies that don’t align with your company’s own policy. So think twice before sending that email to someone else in the company. Should you pick up the phone first rather then later on write a “better” less inflammatory open ended no resolution email?


Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2022 Conditions of Use

February 12, 2022

Problem Solved ! AB-1946 Electric bicycles: safety and training program. (Calif 2022)

The California legislature likes to do three things (1) spend money on government initiatives/programs (spend on yourself I call it) (2) create as many rules and laws as possible to make it look like the legislature is "fixing" a "problem" or solving a "need" (3) do these things in a way that makes nothing mandatory but yet allows the state to spend lots of money doing "something" usually at 10x the cost of what the private sector would spend. In the end it accomplished nothing but at least you can campaign on it (even if it does not pass you can say you voted for it). The bill below meets all three characteristics. Putting up a website that no one even knows about is not going to make e-bike riders safer or better riders. Properly posting the signs and rules on trails and paths and the ENFORCING those rules would go a long way but alas that requires way too much work. Better to just put up a website. Does the state not recall (or know of) People for Bikes website? They have pretty much done all the work. Will the bike industry agree with what the CA "Office of Traffic Safety" is going to write as far as "guidelines"? Does it even matter?

We will try to keep posting on this as it evolves. Watch this space.

Assembly Bill
No. 1946



Introduced by Assembly Member Boerner Horvath

February 10, 2022


An act to add Article 4 (commencing with Section 893) to Chapter 8 of Division 1 of the Streets and Highways Code, relating to electric bicycles.

LEGISLATIVE COUNSEL'S DIGEST

AB 1946, as introduced, Boerner Horvath. Electric bicycles: safety and training program.
Existing law, the Protected Bikeways Act of 2014, provides that the state’s bicycle programs have not been fully developed or funded. Existing law requires the Department of Transportation to develop safety standards in connection with the use of bicycles, including the establishment of minimum safety design criteria for the planning and construction of specified types of bikeways and roadways where bicycle travel is permitted.
This bill would require the department, in coordination with the Office of Traffic Safety, to develop, on or before September 1, 2023, statewide safety standards and training programs based on evidence-based practices for users of electric bicycles, as defined, including, but not limited to, general electric bicycle riding safety, emergency maneuver skills, rules of the road, and laws pertaining to electronic bicycles. The bill would require the safety standards and training programs to be developed in collaboration with relevant stakeholders and to be posted on the internet websites of both the department and the Office of Traffic Safety.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Article 4 (commencing with Section 893) is added to Chapter 8 of Division 1 of the Streets and Highways Code, to read:
Article  4. Electric Bicycle Safety and Training
893.
 As used in this article, “electric bicycle” has the meaning provided in Section 312.5 of the Vehicle Code.
894.
 (a) The department, in coordination with the Office of Traffic Safety, shall develop, on or before September 1, 2023, statewide safety standards and training programs based on evidence-based practices for users of electric bicycles, including, but not limited to, general electric bicycle riding safety, emergency maneuver skills, rules of the road, and laws pertaining to electronic bicycles.
(b) The safety standards and training programs shall be developed in collaboration with relevant stakeholders.
(c) The safety standards and training programs shall be posted on the internet websites of both the department and the Office of Traffic Safety on or before September 1, 2023.




Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

December 1, 2021

full text of the California e bike law (AB 1096) that was signed into law in October 2015 that governs the use of e bike on California roadways

Our readers have requested that we post the full text of the California e bike law that was signed into law in October 2015 that governs the use of e bike on California roadways and some bike paths. Again please check individual vehicle code sections to insure that changes have not been made since this bill was issued in October 2015.

Assembly Bill No. 1096

An act to amend Sections 406, 12804.9, 21113, 21207.5, and 24016 of, and to add Sections 312.5 and 21213 to, the Vehicle Code, relating to vehicles.

[ Approved by Governor  October 07, 2015. Filed with Secretary of State  October 07, 2015. ]

LEGISLATIVE COUNSEL'S DIGEST

AB 1096, Chiu. Vehicles: electric bicycles.

Existing law defines a “motorized bicycle” or a “moped” as a 2-wheeled or 3-wheeled device having fully operative pedals for propulsion by human power, or having no pedals if powered solely by electrical energy, and an automatic transmission and motor, as specified.

Existing law also defines a “motorized bicycle” as a device that has fully operative pedals for propulsion by human power and has an electric motor that meets specified requirements. Existing law requires a motorized bicycle, as described by this definition, to comply with specified equipment and manufacturing requirements. Existing law also imposes specified requirements relating to the operation of bicycles. A violation of the Vehicle Code is a crime.

This bill would delete the latter definition of a “motorized bicycle.” The bill would define an “electric bicycle” as a bicycle with fully operable pedals and an electric motor of less than 750 watts, and would create 3 classes of electric bicycles, as specified. The bill would require manufacturers or distributors of electric bicycles to affix a label to each electric bicycle that describes its classification number, top assisted speed, and motor wattage. The bill would require every electric bicycle manufacturer to certify that it complies with specified equipment and manufacturing requirements. The bill would also require an electric bicycle to operate in a manner so that the electric motor disengages or stops functioning when brakes are applied, or in a manner so that the release or activation of a switch or other mechanism disengages or stops the electric motor from functioning.

The bill would require a person riding an electric bicycle to comply with the above-described requirements relating to the operation of bicycles. The bill would prohibit persons under 16 years of age from operating a class 3 electric bicycle. The bill would also require persons operating, or riding upon, a class 3 electric bicycle to wear a helmet, as specified. The bill would prohibit the operation of a class 3 electric bicycle on specified paths, lanes, or trail, unless that operation is authorized by a local ordinance. The bill would also authorize a local authority or governing body to prohibit, by ordinance, the operation of class 1 or class 2 electric bicycles on specified paths or trail. The bill would prohibit a person from tampering with or modifying an electric bicycle to change its speed capability, unless he or she appropriately replaces the classification label. The bill would specify that a person operating an electric bicycle is not subject to financial responsibility, driver’s license, registration, or license plate requirements. The bill would also make conforming changes.

This bill would incorporate additional changes to Section 21113 of the Vehicle Code proposed by AB 604 that would become operative only if this bill and AB 604 are both chaptered, and this bill is chaptered last.

Because the bill would create new requirements regarding electric bicycles, the violation of which would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES 

Bill Text

The people of the State of California do enact as follows:

 

SECTION 1. Section 312.5 is added to the Vehicle Code, to read:

 

312.5. (a) An “electric bicycle” is a bicycle equipped with fully operable pedals and an electric motor of less than 750 watts.

(1) A “class 1 electric bicycle,” or “low-speed pedal-assisted electric bicycle,” is a 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.

(2) A “class 2 electric bicycle,” or “low-speed throttle-assisted electric bicycle,” is a 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.

(3) A “class 3 electric bicycle,” or “speed pedal-assisted electric bicycle,” is a 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, and equipped with a speedometer.

(b) A person riding an electric bicycle, as defined in this section, is subject to Article 4 (commencing with Section 21200) of Chapter 1 of Division 11.

(c) On and after January 1, 2017, manufacturers and distributors of electric bicycles shall apply a label that is permanently affixed, in a prominent location, to each electric bicycle. The label shall contain the classification number, top assisted speed, and motor wattage of the electric bicycle, and shall be printed in Arial font in at least 9-point type.

SEC. 2. Section 406 of the Vehicle Code is amended to read:

406. (a) A “motorized bicycle” or “moped” is a two-wheeled or three-wheeled device having fully operative pedals for propulsion by human power, or having no pedals if powered solely by electrical energy, and an automatic transmission and a motor that produces less than 4 gross brake horsepower and is capable of propelling the device at a maximum speed of not more than 30 miles per hour on level ground.

(b) Every manufacturer of a motorized bicycle or moped, as defined in this section, shall provide a disclosure to buyers that advises buyers that their existing insurance policies may not provide coverage for these bicycles and that they should contact their insurance company or insurance agent to determine if coverage is provided. The disclosure shall meet both of the following requirements:

(1) The disclosure shall be printed in not less than 14-point boldface type on a single sheet of paper that contains no information other than the disclosure.

(2) The disclosure shall include the following language in capital letters:

“YOUR INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING THE USE OF THIS BICYCLE. TO DETERMINE IF COVERAGE IS PROVIDED YOU SHOULD CONTACT YOUR INSURANCE COMPANY OR AGENT.”

 SEC. 3. Section 12804.9 of the Vehicle Code is amended to read:

12804.9. (a) (1) The examination shall include all of the following:

(A) A test of the applicant’s knowledge and understanding of the provisions of this code governing the operation of vehicles upon the highways.

(B) A test of the applicant’s ability to read and understand simple English used in highway traffic and directional signs.

(C) A test of the applicant’s understanding of traffic signs and signals, including the bikeway signs, markers, and traffic control devices established by the Department of Transportation.

(D) An actual demonstration of the applicant’s ability to exercise ordinary and reasonable control in operating a motor vehicle by driving it under the supervision of an examining officer. The applicant shall submit to an examination appropriate to the type of motor vehicle or combination of vehicles he or she desires a license to drive, except that the department may waive the driving test part of the examination for any applicant who submits a license issued by another state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico if the department verifies through any acknowledged national driver record data source that there are no stops, holds, or other impediments to its issuance. The examining officer may request to see evidence of financial responsibility for the vehicle prior to supervising the demonstration of the applicant’s ability to operate the vehicle. The examining officer may refuse to examine an applicant who is unable to provide proof of financial responsibility for the vehicle, unless proof of financial responsibility is not required by this code.

(E) A test of the hearing and eyesight of the applicant, and of other matters that may be necessary to determine the applicant’s mental and physical fitness to operate a motor vehicle upon the highways, and whether any grounds exist for refusal of a license under this code.

(2) (A) Before a class A or class B driver’s license, or class C driver’s license with a commercial endorsement, may be issued or renewed, the applicant shall have in his or her driver record a valid report of a medical examination of the applicant given not more than two years prior to the date of the application by a health care professional. As used in this paragraph, “health care professional” means a person who is licensed, certified, or registered in accordance with applicable state laws and regulations to practice medicine and perform physical examinations in the United States. Health care professionals are doctors of medicine, doctors of osteopathy, physician assistants, and registered advanced practice nurses, or doctors of chiropractic who are clinically competent to perform the medical examination presently required of motor carrier drivers by the United States Department of Transportation. The report shall be on a form approved by the department. In establishing the requirements, consideration may be given to the standards presently required of motor carrier drivers by the Federal Motor Carrier Safety Administration.

(B) The department may accept a federal waiver of one or more physical qualification standards if the waiver is accompanied by a report of a nonqualifying medical examination for a class A or class B driver’s license, or class C driver’s license with a commercial endorsement, pursuant to Section 391.41(a)(3)(ii) of Subpart E of Part 391 of Title 49 of the Code of Federal Regulations.

(3) A physical defect of the applicant that, in the opinion of the department, is compensated for to ensure safe driving ability, shall not prevent the issuance of a license to the applicant.

(b) In accordance with the following classifications, an applicant for a driver’s license shall be required to submit to an examination appropriate to the type of motor vehicle or combination of vehicles the applicant desires a license to drive:

(1) Class A includes the following:

(A) Except as provided in subparagraph (H) of paragraph (3), a combination of vehicles, if a vehicle being towed has a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds.

(B) A vehicle towing more than one vehicle.

(C) A trailer bus.

(D) The operation of all vehicles under class B and class C.

(2) Class B includes the following:

(A) Except as provided in subparagraph (H) of paragraph (3), a single vehicle with a gross vehicle weight rating or gross vehicle weight of more than 26,000 pounds.

(B) A single vehicle with three or more axles, except any three-axle vehicle weighing less than 6,000 pounds.

(C) A bus with a gross vehicle weight rating or gross vehicle weight of more than 26,000 pounds, except a trailer bus.

(D) A farm labor vehicle.

(E) A single vehicle with three or more axles or a gross vehicle weight rating or gross vehicle weight of more than 26,000 pounds towing another vehicle with a gross vehicle weight rating or gross vehicle weight of 10,000 pounds or less.

(F) A house car over 40 feet in length, excluding safety devices and safety bumpers.

(G) The operation of all vehicles covered under class C.

(3) Class C includes the following:

(A) A two-axle vehicle with a gross vehicle weight rating or gross vehicle weight of 26,000 pounds or less, including when the vehicle is towing a trailer or semitrailer with a gross vehicle weight rating or gross vehicle weight of 10,000 pounds or less.

(B) Notwithstanding subparagraph (A), a two-axle vehicle weighing 4,000 pounds or more unladen when towing a trailer coach not exceeding 9,000 pounds gross.

(C) A house car of 40 feet in length or less.

(D) A three-axle vehicle weighing 6,000 pounds gross or less.

(E) A house car of 40 feet in length or less or a vehicle towing another vehicle with a gross vehicle weight rating of 10,000 pounds or less, including when a tow dolly is used. A person driving a vehicle may not tow another vehicle in violation of Section 21715.

(F) (i) A two-axle vehicle weighing 4,000 pounds or more unladen when towing either a trailer coach or a fifth-wheel travel trailer not exceeding 10,000 pounds gross vehicle weight rating, when the towing of the trailer is not for compensation.

(ii) A two-axle vehicle weighing 4,000 pounds or more unladen when towing a fifth-wheel travel trailer exceeding 10,000 pounds, but not exceeding 15,000 pounds, gross vehicle weight rating, when the towing of the trailer is not for compensation, and if the person has passed a specialized written examination provided by the department relating to the knowledge of this code and other safety aspects governing the towing of recreational vehicles upon the highway.

The authority to operate combinations of vehicles under this subparagraph may be granted by endorsement on a class C license upon completion of that written examination.

(G) A vehicle or combination of vehicles with a gross combination weight rating or a gross vehicle weight rating, as those terms are defined in subdivisions (j) and (k), respectively, of Section 15210, of 26,000 pounds or less, if all of the following conditions are met:

(i) Is operated by a farmer, an employee of a farmer, or an instructor credentialed in agriculture as part of an instructional program in agriculture at the high school, community college, or university level.

(ii) Is used exclusively in the conduct of agricultural operations.

(iii) Is not used in the capacity of a for-hire carrier or for compensation.

(H) Firefighting equipment, provided that the equipment is operated by a person who holds a firefighter endorsement pursuant to Section 12804.11.

(I) A motorized scooter.

(J) A bus with a gross vehicle weight rating or gross vehicle weight of 26,000 pounds or less, except a trailer bus.

(K)  Class C does not include a two-wheel motorcycle or a two-wheel motor-driven cycle.

(4) Class M1. A two-wheel motorcycle or a motor-driven cycle. Authority to operate a vehicle included in a class M1 license may be granted by endorsement on a class A, B, or C license upon completion of an appropriate examination.

(5) (A) Class M2 includes the following:

(i) A motorized bicycle or moped, or a bicycle with an attached motor, except an electric bicycle as described in subdivision (a) of Section 312.5.

(ii) A motorized scooter.

(B) Authority to operate vehicles included in class M2 may be granted by endorsement on a class A, B, or C license upon completion of an appropriate examination, except that no endorsement is required for a motorized scooter. Persons holding a class M1 license or endorsement may operate vehicles included in class M2 without further examination.

(c) A driver’s license or driver certificate is not valid for operating a commercial motor vehicle, as defined in subdivision (b) of Section 15210, any other motor vehicle defined in paragraph (1) or (2) of subdivision (b), or any other vehicle requiring a driver to hold any driver certificate or any driver’s license endorsement under Section 15275, unless a medical certificate approved by the department that has been issued within two years of the date of the operation of that vehicle and a copy of the medical examination report from which the certificate was issued is on file with the department. Otherwise, the license is valid only for operating class C vehicles that are not commercial vehicles, as defined in subdivision (b) of Section 15210, and for operating class M1 or M2 vehicles, if so endorsed, that are not commercial vehicles, as defined in subdivision (b) of Section 15210.

(d) A license or driver certificate issued prior to the enactment of Chapter 7 (commencing with Section 15200) is valid to operate the class or type of vehicles specified under the law in existence prior to that enactment until the license or certificate expires or is otherwise suspended, revoked, or canceled. Upon application for renewal or replacement of a driver’s license, endorsement, or certificate required to operate a commercial motor vehicle, a valid medical certificate on a form approved by the department shall be submitted to the department.

(e) The department may accept a certificate of driving skill that is issued by an employer, authorized by the department to issue a certificate under Section 15250, of the applicant, in lieu of a driving test, on class A or B applications, if the applicant has first qualified for a class C license and has met the other examination requirements for the license for which he or she is applying. The certificate may be submitted as evidence of the applicant’s skill in the operation of the types of equipment covered by the license for which he or she is applying.

(f) The department may accept a certificate of competence in lieu of a driving test on class M1 or M2 applications, when the certificate is issued by a law enforcement agency for its officers who operate class M1 or M2 vehicles in their duties, if the applicant has met the other examination requirements for the license for which he or she is applying.

(g) The department may accept a certificate of satisfactory completion of a novice motorcyclist training program approved by the commissioner pursuant to Section 2932 in lieu of a driving test on class M1 or M2 applications, if the applicant has met the other examination requirements for the license for which he or she is applying. The department shall review and approve the written and driving test used by a program to determine whether the program may issue a certificate of completion.

(h) Notwithstanding subdivision (b), a person holding a valid California driver’s license of any class may operate a short-term rental motorized bicycle without taking any special examination for the operation of a motorized bicycle, and without having a class M2 endorsement on that license. As used in this subdivision, “short-term” means 48 hours or less.

(i) A person under the age of 21 years shall not be issued a class M1 or M2 license or endorsement unless he or she provides evidence satisfactory to the department of completion of a motorcycle safety training program that is operated pursuant to Article 2 (commencing with Section 2930) of Chapter 5 of Division 2.

(j) A driver of a vanpool vehicle may operate with a class C license but shall possess evidence of a medical examination required for a class B license when operating vanpool vehicles. In order to be eligible to drive the vanpool vehicle, the driver shall keep in the vanpool vehicle a statement, signed under penalty of perjury, that he or she has not been convicted of reckless driving, drunk driving, or a hit-and-run offense in the last five years.

SEC. 4. Section 21113 of the Vehicle Code is amended to read:

21113. (a) A person shall not drive a vehicle or animal, or stop, park, or leave standing a vehicle or animal, whether attended or unattended, upon the driveways, paths, parking facilities, or the grounds of any public school, state university, state college, unit of the state park system, county park, municipal airport, rapid transit district, transit development board, transit district, public transportation agency, county transportation commission created pursuant to Section 130050 of the Public Utilities Code, joint powers agency operating or managing a commuter rail system, or any property under the direct control of the legislative body of a municipality, or a state, county, or hospital district institution or building, or an educational institution exempted, in whole or in part, from taxation, or any harbor improvement district or harbor district formed pursuant to Part 2 (commencing with Section 5800) or Part 3 (commencing with Section 6000) of Division 8 of the Harbors and Navigation Code, a district organized pursuant to Part 3 (commencing with Section 27000) of Division 16 of the Streets and Highways Code, or state grounds served by the Department of the California Highway Patrol, or any property under the possession or control of a housing authority formed pursuant to Article 2 (commencing with Section 34240) of Chapter 1 of Part 2 of Division 24 of the Health and Safety Code, except with the permission of, and upon and subject to any condition or regulation that may be imposed by, the legislative body of the municipality, or the governing board or officer of the public school, state university, state college, county park, municipal airport, rapid transit district, transit development board, transit district, public transportation agency, county transportation commission, joint powers agency operating or managing a commuter rail system, or state, county, or hospital district institution or building, or educational institution, or harbor district, or a district organized pursuant to Part 3 (commencing with Section 27000) of Division 16 of the Streets and Highways Code, or housing authority, or the Director of Parks and Recreation regarding units of the state park system or the state agency with jurisdiction over the grounds served by the Department of the California Highway Patrol.

(b) A governing board, legislative body, or officer shall erect or place appropriate signs giving notice of any special conditions or regulations that are imposed under this section and the governing board, legislative body, or officer shall also prepare and keep available at the principal administrative office of the governing board, legislative body, or officer, for examination by all interested persons, a written statement of all those special conditions and regulations adopted pursuant to this section.

(c) When a governing board, legislative body, or officer permits public traffic upon the driveways, paths, parking facilities, or grounds under their control then, except for those conditions imposed or regulations enacted by the governing board, legislative body, or officer applicable to the traffic, all the provisions of this code relating to traffic upon the highways shall be applicable to the traffic upon the driveways, paths, parking facilities, or grounds.

(d) A public transportation agency that imposes any condition or regulation upon a person who parks or leaves standing a vehicle, pursuant to subdivision (a), is authorized to do either of the following:

(1) Enforce that condition or regulation in the manner provided in Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of this code. The public transportation agency shall be considered the issuing agency for that purpose.

(2) Designate regularly employed and salaried employees, who are engaged in directing traffic or enforcing parking laws and regulations, for the purpose of removing any vehicle in the same manner as a city, county, or jurisdiction of a state agency pursuant to Chapter 10 (commencing with Section 22650) of Division 11 of this code.

(e) With respect to the permitted use of vehicles or animals on property under the direct control of the legislative body of a municipality, no change in the use of vehicles or animals on the property, that had been permitted on January 1, 1976, shall be effective unless and until the legislative body, at a meeting open to the general public, determines that the use of vehicles or animals on the property should be prohibited or regulated.

(f) A transit development board may adopt ordinances, rules, or regulations to restrict, or specify the conditions for, the use of bicycles, motorized bicycles, electric bicycles, skateboards, and roller skates on property under the control of, or any portion of property used by, the board.

(g) A public agency, including, but not limited to, the Regents of the University of California and the Trustees of the California State University, may adopt rules or regulations to restrict, or specify the conditions for, the use of bicycles, motorized bicycles, electric bicycles, skateboards, and roller skates on public property under the jurisdiction of that agency.

(h) “Housing authority,” for the purposes of this section, means a housing authority located within a county with a population of over 6,000,000 people, and any other housing authority that complies with the requirements of this section.

(i) “Public transportation agency,” for purposes of this section, means a public agency that provides public transportation as defined in paragraph (1) of subdivision (f) of Section 1 of Article XIX A of the California Constitution.

SEC. 4.5. Section 21113 of the Vehicle Code is amended to read:

21113. (a) A person shall not drive a vehicle or animal, or stop, park, or leave standing a vehicle or animal, whether attended or unattended, upon the driveways, paths, parking facilities, or the grounds of any public school, state university, state college, unit of the state park system, county park, municipal airport, rapid transit district, transit development board, transit district, public transportation agency, county transportation commission created pursuant to Section 130050 of the Public Utilities Code, joint powers agency operating or managing a commuter rail system, or any property under the direct control of the legislative body of a municipality, or a state, county, or hospital district institution or building, or an educational institution exempted, in whole or in part, from taxation, or any harbor improvement district or harbor district formed pursuant to Part 2 (commencing with Section 5800) or Part 3 (commencing with Section 6000) of Division 8 of the Harbors and Navigation Code, a district organized pursuant to Part 3 (commencing with Section 27000) of Division 16 of the Streets and Highways Code, or state grounds served by the Department of the California Highway Patrol, or any property under the possession or control of a housing authority formed pursuant to Article 2 (commencing with Section 34240) of Chapter 1 of Part 2 of Division 24 of the Health and Safety Code, except with the permission of, and upon and subject to any condition or regulation that may be imposed by, the legislative body of the municipality, or the governing board or officer of the public school, state university, state college, county park, municipal airport, rapid transit district, transit development board, transit district, public transportation agency, county transportation commission, joint powers agency operating or managing a commuter rail system, or state, county, or hospital district institution or building, or educational institution, or harbor district, or a district organized pursuant to Part 3 (commencing with Section 27000) of Division 16 of the Streets and Highways Code, or housing authority, or the Director of Parks and Recreation regarding units of the state park system or the state agency with jurisdiction over the grounds served by the Department of the California Highway Patrol.

(b) A governing board, legislative body, or officer shall erect or place appropriate signs giving notice of any special conditions or regulations that are imposed under this section and the governing board, legislative body, or officer shall also prepare and keep available at the principal administrative office of the governing board, legislative body, or officer, for examination by all interested persons, a written statement of all those special conditions and regulations adopted pursuant to this section.

(c) When a governing board, legislative body, or officer permits public traffic upon the driveways, paths, parking facilities, or grounds under their control then, except for those conditions imposed or regulations enacted by the governing board, legislative body, or officer applicable to the traffic, all the provisions of this code relating to traffic upon the highways shall be applicable to the traffic upon the driveways, paths, parking facilities, or grounds.

(d) A public transportation agency that imposes any condition or regulation upon a person who parks or leaves standing a vehicle, pursuant to subdivision (a), is authorized to do either of the following:

(1) Enforce that condition or regulation in the manner provided in Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of this code. The public transportation agency shall be considered the issuing agency for that purpose.

(2) Designate regularly employed and salaried employees, who are engaged in directing traffic or enforcing parking laws and regulations, for the purpose of removing any vehicle in the same manner as a city, county, or jurisdiction of a state agency pursuant to Chapter 10 (commencing with Section 22650) of Division 11 of this code.

(e) With respect to the permitted use of vehicles or animals on property under the direct control of the legislative body of a municipality, no change in the use of vehicles or animals on the property, that had been permitted on January 1, 1976, shall be effective unless and until the legislative body, at a meeting open to the general public, determines that the use of vehicles or animals on the property should be prohibited or regulated.

(f) A transit development board may adopt ordinances, rules, or regulations to restrict, or specify the conditions for, the use of bicycles, motorized bicycles, electric bicycles, skateboards, electrically motorized boards, and roller skates on property under the control of, or any portion of property used by, the board.

(g) A public agency, including, but not limited to, the Regents of the University of California and the Trustees of the California State University, may adopt rules or regulations to restrict, or specify the conditions for, the use of bicycles, motorized bicycles, electric bicycles, skateboards, electrically motorized boards, and roller skates on public property under the jurisdiction of that agency.

(h) “Housing authority,” for the purposes of this section, means a housing authority located within a county with a population of over 6,000,000 people, and any other housing authority that complies with the requirements of this section.

(i) “Public transportation agency,” for purposes of this section, means a public agency that provides public transportation as defined in paragraph (1) of subdivision (f) of Section 1 of Article XIX A of the California Constitution.

 

SEC. 5. Section 21207.5 of the Vehicle Code is amended to read:

 

21207.5. (a) Notwithstanding Sections 21207 and 23127 of this code, or any other law, a motorized bicycle or class 3 electric bicycle shall not be operated on a bicycle path or trail, bikeway, bicycle lane established pursuant to Section 21207, equestrian trail, or hiking or recreational trail, unless it is within or adjacent to a roadway or unless the local authority or the governing body of a public agency having jurisdiction over the path or trail permits, by ordinance, that operation.

(b) The local authority or governing body of a public agency having jurisdiction over a bicycle path or trail, equestrian trail, or hiking or recreational trail, may prohibit, by ordinance, the operation of a class 1 or class 2 electric bicycle on that path or trail.

 

SEC. 6. Section 21213 is added to the Vehicle Code, to read:

 

21213. (a) A person under 16 years of age shall not operate a class 3 electric bicycle.

(b) A person shall not operate a class 3 electric bicycle, or ride upon a class 3 electric bicycle as a passenger, upon a street, bikeway, as defined in Section 890.4 of the Streets and Highways Code, or any other public bicycle path or trail, unless that person is wearing a properly fitted and fastened bicycle helmet that meets the standards of either the American Society for Testing and Materials (ASTM) or the United States Consumer Product Safety Commission (CPSC), or standards subsequently established by those entities. This helmet requirement also applies to a person who rides upon a class 3 electric bicycle while in a restraining seat that is attached to the bicycle or in a trailer towed by the bicycle.

 

SEC. 7. Section 24016 of the Vehicle Code is amended to read:

 

24016. (a) An electric bicycle described in subdivision (a) of Section 312.5 shall meet the following criteria:

(1) Comply with the equipment and manufacturing requirements for bicycles adopted by the United States Consumer Product Safety Commission (16 C.F.R. 1512.1, et seq.).

(2) Operate in a manner so that the electric motor is disengaged or ceases to function when the brakes are applied, or operate in a manner such that the motor is engaged through a switch or mechanism that, when released or activated, will cause the electric motor to disengage or cease to function.

(b) A person operating an electric bicycle is not subject to the provisions of this code relating to financial responsibility, driver’s licenses, registration, and license plate requirements, and an electric bicycle is not a motor vehicle.

(c) Every manufacturer of an electric bicycle shall certify that it complies with the equipment and manufacturing requirements for bicycles adopted by the United States Consumer Product Safety Commission (16 C.F.R. 1512.1, et seq.).

(d) A person shall not tamper with or modify an electric bicycle described in subdivision (a) of Section 312.5 so as to change the speed capability of the bicycle, unless he or she appropriately replaces the label indicating the classification required in subdivision (c) of Section 312.5.

 

SEC. 8. Section 4.5 of this bill incorporates amendments to Section 21113 of the Vehicle Code proposed by both this bill and Assembly Bill 604. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 21113 of the Vehicle Code, and (3) this bill is enacted after Assembly Bill 604, in which case Section 4 of this bill shall not become operative.

SEC. 9. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

September 18, 2021

Amazon's new 'guarantee' policy seeks to mollify consumers, streamline claims process

Originally Published in Bicycle Retailer and Industry News 
Reprinted with permission 

August 17, 2021

Amazon just announced a new type of "guarantee" or "support" that it is calling the A-to-Z Guarantee (AZG). Actually, this is not new; it was introduced more than 20 years ago, but is now "improved." In Amazon's own words, from its full official press release:

"Now, in the unlikely event a defective product sold through Amazon.com causes property damage or personal injury, Amazon will directly pay customers for claims under $1,000 — which account for more than 80% of cases — at no cost to sellers, and may step in to pay claims for higher amounts if the seller is unresponsive or rejects a claim we believe to be valid."

Interestingly, in the fine print (A-to-z Claims Process Terms and Conditions), Amazon also states, "The Process is not insurance or a warranty, and it does not replace any applicable insurance or warranty that may be available to you."

As you can see there are a lot of loaded words in this AZG press release, what my contracts professor liked to call "weasel words." It's hard to imagine any personal injury or property damage claims being "resolved" for under $1,000. The other issue that is left somewhat in the dark is what would be in the release that Amazon surely would require a consumer to sign. I suspect it would be a global release barring any suit against anyone or any company from future claims. And of course, the issue of what to do with minors under 18 is not addressed. Those settlements require court approval. Further reading of the details notes that you would also have to assign all your claims rights to Amazon ... "so that we can pursue recovery from other sources in our discretion."

What is more interesting is how Amazon will fund this. One has to assume the money is not coming out of Jeff Bezos' yacht fund, given how many claims this would likely encompass. On the one hand, this is AZG is only for products sold through Amazon.com (presumably Fulfillment by Amazon) and apparently does not cover those items sold through any "third-party sites" (Fulfillment by Merchant). This will add confusion to the process, especially with consumers as most do not know if they are getting an FBA product or FBM product. Some aspects of the AZG cover FBM, but the new part regarding injury claims apparently does not. One has to assume this funding is being arranged through Amazon's insurance coverage, the suppliers' coverage (naming Amazon as "additional insured"), or perhaps through Amazon withholding payment to sellers for claims that it has deemed "bonafide" (or a combination of all three sources). Amazon insists this payment is at "no cost to sellers." However, upon further reading, Amazon only commits to "Pay valid claims less than $1,000 and not seek reimbursement from sellers who have valid insurance." We assume "valid" insurance would mean insurance that actually pays Amazon for the claim; if it does not pay the claim, then Amazon could go after the seller directly.

After further reading the Terms And Conditions, it states "Any offers of compensation made through the A-to-z Claims Process will be limited to (a) the purchase price of the product; and (b) compensation of up to $1 million for medical expenses, lost wages, and property damage approximately caused by a defective product. Amazon will not offer to compensate you for non-economic damages, business losses, consequential and incidental damages, attorney fees, punitive damages, or other losses." So it seems the payment limit is much higher than the $1,000 limit. But Amazon will only step in above that limit if the seller's insurance kicks in. It also appears that no "pain and suffering" amounts will be paid, which makes up the vast majority of most settlements and verdicts, and so the reality is for any sizable personal injury claims this process is not realistically going to resolve anything.

As a further restriction, you only have 90 days to make an AZG claim, whereas under most state laws, you would have 2-5 years to bring suit and typically for minors until they are 18. Also, all other terms and conditions apply to the AZG Claims process, including but not limited to choice of law and dispute resolution provisions. One would have to assume that it would be a binding arbitration proceeding and that the company providing the arbitrators would find itself out of business quickly if it were deciding against Amazon too often.

Again the more interesting part of this deal is the funding, administration and the entire claims process, which brings us to part two of the equation: liability insurance. Amazon partnered with Marsh McLennan, the largest insurance broker in the world, and a number of U.S. insurers to offer insurance to its sellers. Per the Amazon seller central site: "Effective September 1, 2021, once you reach $10,000 in gross proceeds in any month, you are required under your selling agreement with Amazon to carry commercial liability insurance with limits of at least $1 million in the aggregate and name Amazon as an additional insured" and of course the "stick" part: "If you do not obtain the required insurance, we will seek reimbursement for costs we incur in resolving claims, regardless of sales thresholds, unless we agree to waive our right to reimbursement. We may also restrict you from selling in a particular category or even suspend your account until you provide proof of insurance." Of course, Amazon sellers remain free to use their own insurance brokers and insurer to obtain the required insurance, and it remains to be seen if the Amazon consortium of brokers and insurers ends up being cheaper.

In addition to leaving out the FBM side of Amazon, the insurance program appears to be open only to U.S.-based sellers. This of course is a huge loophole in the entire process as most of what Amazon sells is from sellers outside the U.S. That of course is a much thornier problem that Amazon's AZG process does not seem to deal with at all. It's not clear what percentage of non-U.S. manufactured goods are actually sold to Amazon by third-party sellers within the U.S. on the FBA side.

Surely, the state court's assault — or rather plaintiff attorneys' assault on Amazon — in the last two years (with most of the anti-Amazon appellate rulings coming out in the last 12 months) has had some role in this new process being rolled out. As I and the courts predicted after the Bolger v Amazon case this would accelerate Amazon's process of passing the "product liability" cost along to its sellers and forcing them to get coverage. This is exactly what the courts in their rulings have stated; that a large player in the consumer products marketplace, like Amazon, has the financial clout and bargaining strength to require its millions of sellers to get the required insurance. The courts were right. Amazon is doing just what they predicted. Holding Amazon liable as a seller has forced it to push that liability back upstream.

Finally, there is Amazon's fight with the CPSC, which may also be somewhat related to this. Amazon may be using this new AZG accelerated claims process to burnish its image with the CPSC, portraying itself as a responsible company that cares about consumers and their safety. But again the recall responsibility is separate from the product liability responsibility (although the two are linked) and it remains to be seen who will win in the CPSC fight.

There are many unanswered questions on this process, and surely changes will be implemented as Amazon goes along or it might totally change the program. We also do not know to what extent the plaintiff's bar will create ancillary litigation just out of this process alone. I am sure that Walmart.com and other large platforms trying to compete with Amazon are watching closely. Infusing this much insurance coverage and related administration costs into the consumer goods market that was previously uninsured is not only going to cause consumer goods price inflation, as if we don't have enough already, but there will be a huge shift of money into insurance coffers. With increased prices we know who benefits. Amazon. We also do not know what percentage of FBA (or FBM) sellers are uninsured currently.

Another thing we know about Amazon is that it likes to take over many aspects related to consumer product sales (after watching third parties work in a market segment for years like FedEx). Look at Amazon Web Services and Amazon shipping for example. So the next question is when will Amazon get into the lucrative insurance brokerage market or claims administration business? Amazon has certainly upped its game in the consumer goods business. It will be very interesting to watch this play out over the next two years.

Steven W. Hansen is an attorney who represents product manufacturers, distributors and retailers in product liability and other lawsuits and provides consultation on all matters related to the manufacture and distribution of e-bikes and other consumer products. For further questions visit www.swhlaw.com or email legal.inquiry@swhlaw.com

The information in this column is subject to change and may not be applicable in your state or country. It is intended as a thought-provoking discussion of general legal principles and does not constitute legal advice. Any opinions expressed herein are solely those of the author.


Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use