January 24, 2014

Legal analysis: Confusion over electric bike regulations

Published July 29, 2013 in Bicycle Retailer and Industry News
Republished with permission

by Steven W Hansen

After reading two articles in BRAIN’s June 15, 2013 issue (“Speedy e-bikes trouble industry” and “NYC e-bike crackdown exposes legal morass”) as well as a follow up letter to the editor in the July 1, 2013 edition, I was compelled to respond to some apparent misunderstanding by some as to what the “laws and regulations” are with respect to electric bikes and how they do and don’t work together.

First of all there is quite a bit of confusion regarding terminology. I am going to use the phrase “electric bikes” to cover all “bicycles” (not stand on scooters without a seat) which have an “electric motor” to (help) propel them. The industry has evolved into “low speed” electric bikes and “high speed” electric bikes and various configurations which require no pedaling (or may not even have pedals) to the various “pedal assist” varieties, in which the motor wont help you unless you help it. But I digress.

Before 2003 there was really very little in the way of laws or regulations dealing with electric bikes. California passed a few laws in 1998 dealing with what at the time was a new phenomenon and those laws still exist today (more on that later). But the main event that started the ball rolling was when the bicycle industry was able to get Congress to pass a law amending the Consumer Product Safety Commission’s (CPSC) definition of a “bicycle” to include “low speed electric bicycles” which is defined as 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.

This did help clarify the CPSC’s jurisdiction. Before 2003 there was a legitimate question if CPSC had “regulatory” authority over all electric bikes (as “consumer products”, its generally mandated scope of authority) or if it overlapped the Dept. of Transportation (DOT) and its sub agency the National Highway Transportation Safety Administration (NHTSA). NHTSA defined (and regulated) “motor vehicles” (and still does today) as a “vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways…”

From the 2003 change in the regulations it was clear that the CPSC only wanted to carve out a small(er) part of the “electric bike” market to similarly regulate as “bicycles” (no new regulations were adopted to deal with the manufacture of electric bikes, just the definition).

Unfortunately this still left NHTSA holding the bag sort of speak on what to do with all the “other” electric “devices” not regulated under CPSC’s new 2003 “carve out”. Before 2005 NHTSA had taken a somewhat ad hoc approach to requests for clarifications from electric or “motorized” bicycle manufacturers (and others) as to whether specific devices were “motor vehicles” or not. But after the CPSC acted in 2003 NHTSA then began a “notice of draft interpretation and request for comments” (aka “rulemaking” without intervention by Congress) in 2005 to help clarify when certain two and three wheeled motorized devices would be deemed “vehicles” and regulated by NHTSA and when they would not be. The problem of course is that one agency can only determine the scope of its own regulatory authority, not that of another agency. NHTSA placed great emphasis on the 20 mph limit that CPSC focused on. They also differentiated a ‘‘Motor-driven cycle’’ previously defined as “motorcycle” “with a motor that produces 5-brake horsepower or less.’’ NHTSA adopted the 20 mph limit as a more decisive factor as opposed to previous rulings as it concluded “that the maximum speed of a vehicle with on-road capabilities is largely determinative of whether the vehicle was manufactured to operate on a public road, in normal moving traffic, and therefore a ‘‘motor vehicle.’’

Unfortunately the method to determine that speed was much more involved than the CPSC’s method and could yield slightly different results. Also the “draft interpretation” remained vague for two and three-wheeled vehicles with a speed capability of 20 mph or greater. Those vehicles would be excluded from the definition of ‘‘motor vehicle’’ if they were manufactured primarily for off-road use. To determine that question NHTSA would again revert to the case by case approach of looking at the physical features of the vehicle to see if was intended for on or off road use. Again NHTSA does not regulate any off road vehicles like off road motorcycles for instance. Those all fall under CPSC jurisdiction (by default, if it’s a “consumer product”), yet there are no CPSC regulations specifically for such electrically powered devices (if they don’t meet the CPSC definition of a “low speed electric bicycle”). Finally, the NHTSA 2005 “draft interpretation” is still in “draft” stage and is no more binding that any opinion letter from NHTSA. It is not a regulation like CPSC’s electric bike definition and from discussing the matter with the NHTSA legal department there is nothing indicating that will change any time soon.

The electric bike manufacturers and distributors are for the most part satisfied with the way the laws are currently written (or at least interpreted) at the federal level. However some would like to see better and more clear regulation of the over 20 mph category as they apparently are trying to do in the EU with “fast or speed pedelecs.”

The trickier issue of course was raised once again in the article “NYC e-bike crackdown exposes legal morass” which brings to light what many fail to realize about the federal regulations. First none of the electric bikes that fall within the regulations (under 20 mph) have any specific regulations directed at electric bikes other than simply defining what is and to some extent what is not an electric bike (neither NHTSA or CPSC have regulations covering the motors or throttle devices, for example).

Over the years states have basically borrowed NHTSA’s definition of a motor vehicle along with all the regulations governing their manufacture and have incorporated those into their state laws. States have similarly regulated bicycles utilizing the 1973 CPSC bicycle standard as a basis. But with electric bicycles the process seemed to happen in reverse. Electric bicycles popped up and states, caught by surprise, felt they needed to deal with them on their roads and sidewalks, as CPSC and NHTSA failed to timely regulate their manufacture. Some of these laws unfortunately also had to define what the state felt an electric bike was and was not and in some cases this can conflict with federal law.

The other problem is that these federal regulations only affect the manufacture and first sale of these devices, not where, when, how, who and under what other conditions (age limits, licenses, insurance, registration etc.) they can be operated. The federal law has no “preemptive effect” over such state laws. These issues have always traditionally been regulated by state laws and in some cases even county and city laws. This is also true for cars, trucks and traditional non-powered bikes. CPSC mandates how bicycles must be tested and sold and what standards bicycle helmets must meet in their testing and construction but it does not mandate that riders must use the helmets while riding bicycles. That is left up to states or cities to regulate. The same was true for bicycle headlights and tail lights. CPSC does not require them on bikes but most state laws do if riding on road at night. This issue was hotly contested in a serious injury case some years back.

I approached the electric bike industry in 1995-2000 with a two pronged approach; Try to develop some voluntary standards for electric bikes that could be adopted by NHTSA or CPSC (much like they adopted the ASTM bicycle helmet standard) and then try to use model “use” legislation at the state level incorporating the ASTM standards and classifications. The proposal drew interest but was not acted upon by enough influential companies at the time. This legislative approach was somewhat followed by Google with it driverless car legislation passed in California and Nevada recently. Segway also tried a similar approach to pave the way for sales of its totally new type of device.

But the electric bike industry is following the traditional, difficult and time consuming approach. Let consumers buy the products and once a critical mass of the devises is in use there will be legislative “fixes” to accommodate the safe use of mainstream devices. The problem of course is that this is a car centric country, where drivers don’t like bikes of any kind on “their” roads, and many state legislators don’t really like Washington DC’s approach to anything. This was clear in the comments from states to NHTSA’s proposed regulation in 2005. Hopefully this method will work as it may be too late for the “pave the way with legislation first” method. The EU also tried to get a regulatory framework in place before the market was flooded with various devices and in some respects it worked as the EU market is much larger than the US market right now for electric bikes. There are other reasons as well.

Another issue to keep in mind are what some refer to as “fast” electric bicycles, which can travel over 20 mph solely on motor power. The fact that these “fast” electric bikes can travel over 20 mph solely on motor power takes them outside the scope of the CPSC definition of a “low speed electric bicycle”. Some sellers of these “fast” electric bikes claim that these bikes are designed for “off road” use. However, this may be a way to get around the CPSC and NHTSA regulations (and possibly some state laws), since some of these bikes appear to be designed for road use, as opposed to “off road” use (using the NHTSA interpretations). These “fast” e-bikes are causing debates in some states, notably in New York as noted in the article “NYC e-bike crackdown exposes legal morass”.

As pointed out above, the CPSC’s definition of an electric bike centers around a 20 mph limit, with the caveat that this 20 mph must not be exceeded if the electric bike is solely powered by its motor. Accordingly, this definition permits an electric bike which is powered by its rider (with the possible assistance of a motor, making the electric bike what some call a “pedelec”) to travel faster than 20 mph. The distinction is key to a correct interpretation of the CPSC’s definition.

Lastly, on a related topic altogether, some people appear to be confused about where the regulations fit in to the overall scheme of things in terms of liability. If a rider is injured by or on an electric bike, compliance with a regulation or standard (mandatory or otherwise) is not going to be of much help other than possibly being persuasive. (read more on that here). However failure to comply with a regulation (that is applicable) really can create an uphill battle in court. But again the facts of each specific case will be vastly different and drawing conclusions from specific cases will be difficult.

In the meantime it will be interesting to see what develops out of New York and if there is a state or city wide solution. As most in the industry know trying to lobby government officials to your point of view is a tricky business and fraught with pitfalls.

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

The information in this column is subject to change and may not be applicable in your state. 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 1996-2013 Conditions of Use