May 3, 2020

Opinion: Issue Of Ebikes On Federal Lands Far From Over [reprinted with permission from 4-20]

[reprinted with permission from April 2020; direct link to original article here]

Current rulemaking to raise more questions around access, attorney says.

Editor’s note: 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 ebikes and other consumer products. For further questions, visit or send an email to

As some of you may recall, back in 2003 the Consumer Product Safety Commission decided to regulate ebikes in much the same as they did “non-powered” bicycles by adding a provision to federal law defining a bicycle as “a two- or three-wheeled vehicle with fully operable pedals and an electric motor of less than 750 watts (1 horsepower), 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.” Now fast-forward to early 2015. At that point the then-titled Bicycle Products Suppliers Association—now merged with PeopleForBikes—decided to expand on the CPSC law and create three “classes” of ebikes, implicitly understanding that one day at least one or more classes would also be used off road.

The initial push with the three ebike classes was into large states like California, which adopted the framework in the fall of 2015. The idea was to start with a few key states and then see if all state legislatures would adopt the three-class structure. At that point the three classes could be relied upon by manufacturers nationwide.

But off-road use was a little less clear. The California state law (AB 1096), for example, specifically excluded Class 3 ebikes from being used on off-road “trails” (on state land) but did allow Class 1 and 2 to be used off road unless the “local authority or governing body of a public agency” decided to prohibit them “by ordinance.” This is still a very murky area of the state law. But even if we assume that the California state law applies to all “off-road trails” at state parks (public land) and county and city parks, it still does not apply to federal land of any type or land owned by nongovernmental entities (private property).

Now fast-forward again to August 2019. More than 20 states had adopted some form of the BPSA model legislation. The US Secretary of the Interior signed an order directing the Fish and Wildlife Service, National Park Service, Bureau of Land Management, and the Bureau of Reclamation to develop proposed rules to revise their own regulations to be consistent with the three classes of ebikes defined in the order. The “appropriate public guidance regarding the use of ebikes on public lands” was to be issued within 30 days.

In September 2019 the NPS did issue a four-page “policy memorandum” on the regulation of ebikes, outlining the three classes, prohibiting anything outside of those three classes, and also disallowing the use of ebikes where the motor was being used exclusively (like Class 2 bikes allow) or of course anything beyond the CPSC regulations. The memo encouraged park superintendents to not make park regulations more restrictive than the state’s laws where the national park was located—pointing out that many states had already adopted the three-class approach. Some 380 parks (out of a total of 419) within the national park system have already implemented their ebike policy as of today.

Now the four agencies above have posted their proposed official regulations (in the Code of Federal Regulations) to take the place of the “memorandums” put in place informally in late 2019. To read more detail on each as well as links for directly commenting on each regulation use the following links: NPS, BLM, FWS, BOR.

Much of this access being outlined is academic right now due to the COVID-19 pandemic, but the comment period for these proposed CFR rules is open now and expires in early June. What is not known is if this comment period will be extended or if, after the first comment period, the proposed rules are revised again and rereleased for comment. Also, it is not known at this time how many comments there will be, from who or what groups, and how long it will take for the government to review them and make changes, if any, to those proposed. If history is a guide, I would not expect significant changes to what has been “proposed” unless groups opposed to ebikes take control of the narrative or the 750-watt limit itself is challenged.

Much the same way we have local access issues and unanswered questions arising from the California state law, we will have local federal access issues under federal law. Park superintendents overseeing specific parks and national forest areas will have to deal with specific issues with Class 1, 2, and 3 bikes as they arise.

Focusing again just on the NPS proposal, the three classes of bikes are explicitly adopted and ebikes would be allowed on administrative roads and trails where bicycles are allowed without the need to undertake further action. But the proposed rules would also give park superintendents the authority to limit or restrict ebike use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives and then manage ebikes, or particular classes of ebikes, differently than traditional bicycles in particular locations. Every restriction or closure that limits the use of ebikes would have to be supported by a written record explaining the basis for such action.

The proposed rule seeks to restrict Class 2 ebikes to park roads or places motor vehicles can travel. It seeks comment on the workability of this restriction or suggests park superintendents deal with this in a location-by-location fashion.

Again the Fish and Wildlife Service, Bureau of Land Management, and the Bureau of Reclamation—the last of which primarily oversees federal dams and reservoirs west of the Mississippi River—have proposed similar regulations with some variations.

Much the same way we have local access issues and unanswered questions arising from the California state law, we will have local federal access issues under federal law. Park superintendents overseeing specific parks and national forest areas will have to deal with specific issues with Class 1, 2, and 3 bikes as they arise. So this is long from over. We also still have a small population of ebikes and users who don’t comply with the three classes. Additionally, there is lots of non-public land and a huge gap that will need to be filled to create correct signage for all these thousands of trails and spaces and effectively policing them so that renegade users/ebikes do not ruin access for the law-abiding users.

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.

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