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

[Asher]

Here's where my lessons have to get a bit more technical. 749/750W will sustain well over 20mph on most ebikes (in reality no 750W ebike can legally provide full power assist above 20mph which is soon going to impact a number of manufacturers but a separate subject). No where in the DC law does it state the motor must cease to provide assist above 20mph...it's just states that motor alone can not sustain a higher speed. The everyone you refer to is just the majority that don't even understand power/speed relationships on a device like an ebike. Per simulations, it takes somewhere around 300-350W for an ebike w/ rider to attain and sustain 20mph (please don't make me prove this as the "everyone" crowd will not understand the physics involved). So let's say a motor is providing 300W per throttle-assist control and the ebike is crusing along at 20mph. That is 100% compliant right? Yes. Now assume the rider does pedal and provides say an additional 100W (motor stays at 300W to remain compliant to the definition). Is everyone really saying the additional speed achieved via that extra 100W is not compliant to the DC law? Yes!

Why doesn't the DC law just state that assist must cease at 20mph like the class 1 and 2 of the 3 class system? Because these laws were written by lawyers/traffic engineers and not the bike industry. That results in the wonderful "assist wall" that I would say "everyone" universally does not like. You are INTERPRETING a cease of assist into the DC Law that is not there.

"A motor incapable of propelling the device at a speed of more than twenty miles per hour (20 mph) on level ground" That is a power limit for any speed above 20mph, not a cease of assist. Instead of going back into your everyone echo chamber, go to anyone that is really knowledgeable of physics and show them this thread entry and get their advice.

Let me add one more piece of information. If you think more than 1% of lawyers understand the simple physics involved in this discussion thrust me they do not. Sadly they will take on opinions that defy the laws of physics if they are paid to do so....money is their echo chamber, not knowledge, not common sense....just give them cash and get whatever opinion you want. I'm just trying to stick to the words in the DC law.

Lol man you're saying that lawyers don't understand this but then who do you think wrote and administers the DC law? You are the only one who understands it this way and at the same time you expect the law on your side?

You don't like the answer I told you, citing everyone else, and refuse to accept it, because the law doesn't mention motor assist. Yes, assist to a rider above 20 mph makes it a moped or motorcycle. Pretend you are a lawyer, and not Ken M E-Bike Physics Genius, and understand the law that way, and you will have the right answer. Also, regulators don't care that the 20 mph assist wall sucks. That's not a legal reason.

My answers added to the quote above in bold italics.

 

[Ken M]

Lol man you're saying that lawyers don't understand this but then who do you think wrote and administers the DC law? You are the only one who understands it this way and at the same time you expect the law on your side?

You don't like the answer I told you, citing everyone else, and refuse to accept it, because the law doesn't mention motor assist. Yes, assist to a rider above 20 mph makes it a moped or motorcycle. Pretend you are a lawyer, and not Ken M E-Bike Physics Genius, and understand the law that way, and you will have the right answer. Also, regulators don't care that the 20 mph assist wall sucks. That's not a legal reason.

My answers added to the quote above in bold italics.

From Stinson Law: "Washington and Connecticut are the only states that expressly require electric bicycle manufacturers and distributors to comply with applicable Consumer Product Safety Commission (“CPSC”) regulations. Are you then aware that the CPSC has clarified that motor and human power can combine to achieve higher than 20mph speeds (I actually have that in writting from the CPSC and it's stated on the PFBs website.

From the League of American Bicycleists: E-bikes that have assisted speeds higher than 20 mph are only lawfully e-bikes for the purpose of federal regulations if they require pedaling for assist at those higher speeds.

Are they part of your everyone ... or do they agree with my interpretation?

A bit more from a legal analysis: 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.

Asher maybe you can help me out and cite even a single example from "everyone" that supports your interpretation. You claim you "cited" everyone else but don't see any cited evidence like I just noted.

 

[Ken M]

The states are regulating use by using the 3 classes and so is the Federal Government through the DOI. The Department of the Interior did open park land to ebikes and the law follows the state and local laws where the park land is located. As a matter of fact the Fed explicitly notes the 3 classes in the final rule. A National Park in one state will have different ebike regulations than a NP in another state.

General Provisions; Electric Bicycles

The National Park Service promulgates regulations governing the use of electric bicycles, or e-bikes, within the National Park System. This rule defines the term ``electric bicycle'' and establishes rules for how they may be used. This rule implements Secretary of the Interior Order 3376,...

www.federalregister.gov

So a Cabinet level department has acknowledged the 3 classes. The Fed tends to yield to settled law on state's rights.

There are plenty of documents on the DOT archives about the takeover by CPSC of ebike specifications. I would agree to the DOT allowing it after the fact, but it wasn't handed over. The DOT is another cabinet level department. It was a headache for the DOT to rule on a case by case basis. I've had this conversation with you on an older chapter of this book.


Sorry, I didn't say anything about commercial trucks. My personal pickup truck is a PA Class 2 pickup truck. If I was in any other state it would not apply.

Strangely the DOI order combines both the CPSC definition and 3-class. I acknowledge that but I think it was a mistake.

The CPSC general counsel could decide to change the federal definition to align with 3-class state law (and the strangely detailed DOI order) but I just don't think they can do that without opening a huge legal issue for themselves (they will forever loose preemptive power is what I believe would be the result and I don't think that is likely but it is possible).

You do understand the DOI order says all 3 classes are to be allowed where bikes are allowed. In other words pretty much all CPSC compliant ebikes (even with throttles and assist higher than 20mph).

 

[Ken M]

From the American League of Bicycleists: "The European equivalent of Class 3 e-bikes is subject to more regulations (insurance is a current subject of debate)." When the mentioned this issue on their site the insurance requirement was just being considered in Europe ... it is now reality in Europe and has a lot of ebikers non too happy (maybe what happens when you let trail concern groups drop assist speeds to 15.5mph).

I believe the insurance industry will eventually shift their greedy attention to class 3 in the US if we don't eliminate that foothold. Just saying....this is history that will repeat itself.

 

[Asher]

From Stinson Law: "Washington and Connecticut are the only states that expressly require electric bicycle manufacturers and distributors to comply with applicable Consumer Product Safety Commission (“CPSC”) regulations. Are you then aware that the CPSC has clarified that motor and human power can combine to achieve higher than 20mph speeds (I actually have that in writting from the CPSC and it's stated on the PFBs website.

From the League of American Cycleists: E-bikes that have assisted speeds higher than 20 mph are only lawfully e-bikes for the purpose of federal regulations if they require pedaling for assist at those higher speeds.

Are they part of your everyone ... or do they agree with my interpretation?

It's LAB not LAC, and they're talking about federal law, ie the CPSC. We never disputed your interpretation of CPSC law. We said the CPSC isn't the final authority.

As for Stinson... WA and CT have the class laws! The class laws don't violate the CPSC, they supersede them by being stricter. As local laws invariably do. It's like if the feds set a national maximum speed limit of 90 mph on highways, and Vermont set a limit of 80. Vermont would not be violating the federal rule, it would be complying with it.

UPDATE #2: It's a Bicycle, It's a Motorcycle, It's a Motor Vehicle...No, It's an Electric Bicycle

Three more states - Washington (March 13, 2018), Arizona (May 16, 2018) and Connecticut (June 14, 2018) - have adopted specific electric bicycle…

www.lexology.com

You're almost there

It's funny how you're so proud of your physics knowledge but your understanding of probability is such that you find the concept of insurance an odious conspiracy against the people.

 

[Ken M]

It's LAB not LAC, and they're talking about federal law, ie the CPSC. We never disputed your interpretation of CPSC law. We said the CPSC isn't the final authority.

As for Stinson... WA and CT have the class laws! The class laws don't violate the CPSC, they supersede them by being stricter. As local laws invariably do. It's like if the feds set a national maximum speed limit of 90 mph on highways, and Vermont set a limit of 80. Vermont would not be violating the federal rule, it would be complying with it.

UPDATE #2: It's a Bicycle, It's a Motorcycle, It's a Motor Vehicle...No, It's an Electric Bicycle

Three more states - Washington (March 13, 2018), Arizona (May 16, 2018) and Connecticut (June 14, 2018) - have adopted specific electric bicycle…

www.lexology.com

You're almost there

It's funny how you're so proud of your physics knowledge but your understanding of probability is such that you find the concept of insurance an odious conspiracy against the people.

Washington is not 3-class based on what I researched. I believe CPSC is absolutely the final authority on what can be sold in all 50 states legally. Again that does not imply that states do not have the power to regulate the use of those products including a complete ban of those products (but that tends to create legal challenges when they do).

Can you send where Washington has the 3-class system outlined into law? Please send that. I simply do not believe you are correct.

Have you read the explicit preemptive statement in HR727 (states can not be more stringent....they must be less stringent if CPSC regulates that product).

 

[Asher]

Washington is not 3-class based on what I researched.

False

Washington State Legislature

app.leg.wa.gov

PDF http://lawfilesext.leg.wa.gov/bienn...on Laws/Senate/6434-S.SL.pdf?q=20210405163414

 

[Asher]

Have you read the explicit preemptive statement in HR727 (states can not be more stringent....they must be less stringent if CPSC regulates that product).

I just read it now, and you are correct about it, as far as it goes, and I was wrong about the Vermont example in this specific instance (though usually that's how it works, the feds set minimum standards).

The problem is, none of the states care, and the CPSC can't or won't do anything about it, and members of Congress aren't going to disarm their own states with laws already on the books.

If the law wasn't so flawed, for reasons enumerated in this thread, it might have stood the test of time. States pass laws that challenge federal authority all the time, and those challenges get mediated. But here, no one is even standing up for the feds rule, not even the feds themselves.

 

[Ken M]

False

Washington State Legislature

app.leg.wa.gov

PDF http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session Laws/Senate/6434-S.SL.pdf?q=20210405163414

Earlier you mention DC ... as in Washington DC....not the state of Washington. They are not the same. What you sent proved Washington states in 3-class but I'm pretty sure Washington DC is not. I would prefer to find the actual DC statute but I believe this is an accurate legal statement on their ebike law (it's not 3-class).

Washington DC Bicycle Laws | Bike Law

We are a network of independent bicycle accident lawyers across the United States and Canada.

www.bikelaw.com

The wording of the preemptive clause clearly sets the bar that states can not be more stringent than the federal definition. So ask yourself if Class 1 is more or less stringent. Is requiring a class sticker changing the ebike prior to entry into interstate commerce? I suggest you also read about the interstate commerce enumerate federal right over the states and the history of preemption when the states have tried to go around the CPSC and adopt more stringent regulations on the products that the CPSC or other agencies regulate. I think you will be very surprised.

Don't be so sure that the CPSC will not just shut down all 28 3-class state laws. I think they have to to retain their legal standing given the precedent case statements in my petition.

 

[Asher]

Earlier you mention DC ... as in Washington DC....not the state of Washington. They are not the same. What you sent proved Washington states in 3-class but I'm pretty sure Washington DC is not.

The wording of the preemptive clause clearly sets the bar that states can not be more stringent than the federal definition. So ask yourself if Class 1 is more or less stringent. Is requiring a class sticker changing the ebike prior to entry into interstate commerce?

Don't be so sure that the CPSC will not just shut down all 28 3-class state laws. I think they have to to retain their legal standing given the precedent case statements in my petition.

Lol dude you mentioned Washington as in the state, in citing Stinson.

The CPSC is notoriously toothless. That could change under Biden, but even then, they aren't going to do this. You think the law matters independent of what people want, but it doesn't. Almost no one wants what you want. If Biden or one of his appointees like Buttigieg tried to do this, they'd get a ton of advocate and industry pushback, all for what? For your personal white whale? Transport secretary Buttigieg likes bikes and has grand ambitions, and he's not going to squander his political capital over a fight that no one wants except you. The CPSC supersession is an impotent legal curiosity at this point. Your unanswered letters to State AGs is a testament to that.

 

[Ken M]

I just read it now, and you are correct about it, as far as it goes, and I was wrong about the Vermont example in this specific instance (though usually that's how it works, the feds set minimum standards).

The problem is, none of the states care, and the CPSC can't or won't do anything about it, and members of Congress aren't going to disarm their own states with laws already on the books.

If the law wasn't so flawed, for reasons enumerated in this thread, it might have stood the test of time. States pass laws that challenge federal authority all the time, and those challenges get mediated. But here, no one is even standing up for the feds rule, not even the feds themselves.

The CPSC does not have to get approval from the members of congress to preempt the state ebike laws when their conflict with the CPSC.

Test of time??? The federal definition dates back to 2002. Wasn't California the first 3-class state in 2014/2015? That means the federal definition was doing fine for 12+ years and is still used by over 20 states to define a compliant ebike.

The CPSC is not going to like this position but it is what it is. They must follow their precedent or risk a rush of problems which could impact their ability to have responsibility for product safety. I think this has been kind of hiding under the radar because PFBs has been so effective at convincing states that 3-class is consistent with the federal definition while provided clarity for the "use" laws but that was just flavored koolaid.

 

[Ken M]

Lol dude you mentioned Washington as in the state, in citing Stinson.

The CPSC is notoriously toothless. That could change under Biden, but even then, they aren't going to do this. You think the law matters independent of what people want, but it doesn't. Almost no one wants what you want. If Biden or one of his appointees like Buttigieg tried to do this, they'd get a ton of advocate and industry pushback, all for what? For your personal white whale? Transport secretary Buttigieg likes bikes and has grand ambitions, and he's not going to squander his political capital over a fight that no one wants except you. The CPSC supersession is an impotent legal curiosity at this point. Your unanswered letters to State AGs is a testament to that.

Dude...you brought up DC claiming they were 3-class. I never said Washington DC was a state which is why it's not so easy to find their ebike law.

The CPSC is far from toothless. My gut tells me they may actually enjoy the decision to slap down 28 states on this. Given the push-n-pull between the feds and states when the feds have explicit preemption (kind of rare per the lawyers I talked to about it) and a long standing product definition I think this will be fun for the feds. I honestly did reach out to PFBs to discuss this (I live like 20 minutes from the headquarters in Boulder CO) but the first time I even hinted there could be a problem with 3-class I got pounded that they were the experts. Kind of hard to want to cooperate when you get what I perceived was a response telling me to go away. That's OK. I was still nice enough to share the petition document submitted to the CPSC so my guess is they are doing what they can to make sure they don't preempt but I don't think they have any say with the general counsel at the CPSC.

If this is my personal white whale the CPSC will not preempt and they'll have other problems. I have patents for ebike tech that I believe benefits regardless which way this goes (this was mentioned in the petition for preemption but my guess is no one even noticed it). I did this to set in stone what the regulations are going to be either way. I do prefer the idea of one simple federal definition for a low speed electric bicycle that establishes compliance as just another bike (that is what we had before 3-class tossed in the harmonizing monkey wrench). What benefits me is one winner so I'm pushing for the one I feel is best but don't care really which one wins - I just don't have the patience for the renaming 20+ states to adopt 3-class. If the CPSC doesn't preempt they will have to review the federal definition as the interstate commerce issue is ABSOLUTE. I guess you could call this good old conservative winner take all capitalism...not my general attitude about things and I truly believe ebikes can have a huge impact on the world if not messed up by lawmakers.

What we should hope for is that Biden ends the ridiculous tariffs on ebikes consider no one in this country wants to get their hands dirty making anything anymore. I worked in high tech for 20+ years and I witness sr. management getting bonuses for outsourcing products to China. I understood it but really didn't like it. But since we just gave it all away to China it's a bit odd that we want to tariff the cheaper products when we really don't even make most of products the tariffs are applied to (how many ebike manufacturers are being protected by the tariffs).

 

[Asher]

From Stinson Law: "Washington and Connecticut are the only states that expressly require electric bicycle manufacturers and distributors to comply with applicable Consumer Product Safety Commission (“CPSC”) regulations. Are you then aware that the CPSC has clarified that motor and human power can combine to achieve higher than 20mph speeds (I actually have that in writting from the CPSC and it's stated on the PFBs website.

This is where you cited WA state.

 

[Ken M]

One more test for everyone since it's fresh in the Washington State ebike law just discussed. They require a speedometer on Class 3 ebikes.

(3) "Class 3 electric-assisted bicycle" means an electric6 assisted bicycle in which the motor provides assistance only when the rider is pedaling and ceases to provide assistance when the bicycle reaches the speed of twenty eight miles per hour and is equipped with a speedometer.

Is that requirement an impact on interstate commerce given the vast majority of other states (even most of the states that have adopted 3-class) do not have this requirement and CPSC certainly does not have this in their safety regulation for low speed electric bicycles. Washington could claim that it's a unique "use" law for their state but by including it in with the 3-class structure it clearly implies it must be on the LSEB prior to introduction into interstate commerce (even though the bike manufacturers don't want to make a special bike just for the uptight lawmakers in Washington STATE). What if Washington wanted integrated blinkers and brake light on ebikes sold in that state? Who complies with that (no one is actually allowed to alter the product prior to 1st sale in reality so there are some issues when states just wing it on what they want)? There is a process to get something important for safety on a product but just flipping a legislative lever at the state does not work given the supremacy clause of the constitution, especially on interstate commerce.

 

[Ken M]

This is where you cited WA stat

No....I believe Stinson was referring to Washington DC because Washington state is 3-class. DC is not. Regardless you claimed DC was 3 class and it's not.

 

[J.R.]

One more test for everyone since it's fresh in the Washington State ebike law just discussed. They require a speedometer on Class 3 ebikes.

(3) "Class 3 electric-assisted bicycle" means an electric6 assisted bicycle in which the motor provides assistance only when the rider is pedaling and ceases to provide assistance when the bicycle reaches the speed of twenty eight miles per hour and is equipped with a speedometer.

Is that requirement an impact on interstate commerce given the vast majority of other states (even most of the states that have adopted 3-class) do not have this requirement and CPSC certainly does not have this in their safety regulation for low speed electric bicycles. Washington could claim that it's a unique "use" law for their state but by including it in with the 3-class structure it clearly implies it must be on the LSEB prior to introduction into interstate commerce (even though the bike manufacturers don't want to make a special bike just for the uptight lawmakers in Washington STATE). What if Washington wanted integrated blinkers and brake light on ebikes sold in that state? Who complies with that (no one is actually allowed to alter the product prior to 1st sale in reality so there are some issues when states just wing it on what they want)? There is a process to get something important for safety on a product but just flipping a legislative lever at the state does not work given the supremacy clause of the constitution, especially on interstate commerce.

Speedometer for class 3 is in every 3 class state law I've read from across the country. From California (first 3 class) to Colorado to Maryland. I've probably read a dozen just to see if any were different. They all follow the same primer.

State Electric Bicycle Laws | A Legislative Primer

This primer deals with low speed electric bicycles as defined by the Consumer Product Safety Commission.

www.ncsl.org

 

[jabberwocky]

Speedometer for class 3 is in every 3 class state law I've read from across the country. From California (first 3 class) to Colorado to Maryland. I've probably read a dozen just to see if any were different. They all follow the same primer.

State Electric Bicycle Laws | A Legislative Primer

This primer deals with low speed electric bicycles as defined by the Consumer Product Safety Commission.

www.ncsl.org

Its part of the PFB model legislation I think. 28 is above the base speed limit in almost all urban areas (25mph) so its not totally weird to make that a requirement. Every mfg that sells class 3 bikes that I've seen comes with some sort of screen that displays speed.

 

[J.R.]

Its part of the PFB model legislation I think. 28 is above the base speed limit in almost all urban areas (25mph) so its not totally weird to make that a requirement. Every mfg that sells class 3 bikes that I've seen comes with some sort of screen that displays speed.

That's a great explanation. Now that you mention it, a lot of neighborhoods in the suburbs have 25mph limits.

Ken, it's not unreasonable for any state to require equipment on any bike. Many communities require lights at night. Reflectors are required. It's a safety requirement.

 

[Asher]

No....I believe Stinson was referring to Washington DC because Washington state is 3-class. DC is not. Regardless you claimed DC was 3 class and it's not.

False and false. I said DC allowed Class 1 and 2 ebike use (ie up to 20 mph) without moped registration. It's functionally equivalent to the Class 1&2 regulations elsewhere. No one except you cares whether they specifically call it Class 1 and 2 or motor assisted bicycle or whatever.

Stinson says WA state.

 

[J.R.]

We can't expect the clock to stop in 2002 when HR727 was adopted. The obvious explanation is the states have challenges with the ever growing ebike sector and HR727 is too vague for commuter needs and it didn't address concerns of off road. Local governments addressed those voids and I expect more refinement in the laws going forward. The National Traffic and Motor Vehicle Safety Act was enacted in 1966 and it's been refined as needed ever since. Nothing stands still. I wouldn't want to ride today the ebikes that existed 19 years ago. Surprise, the feds didn't move with the times and states that had to deal with the results needed to act. If anything changes it will be the feds adopting the regs the states have adopted. The dog still wags the tail.