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

[Ken M]

Y'know, I think I've tried to make an effort to understand the points advocated in this thread. And what I've understood I honestly haven't liked.

Any advocacy for a rule change is inevitably going to be political. Getting anything done politically is inevitably hard, and getting something done politically when the message and objectives behind it are difficult to understand is harder still. Actually, I'll make that even more explicit: getting anything done politically when the message and objectives aren't easily understood by a 5-year-old is pretty much impossible.

One person, or even many people with one viewpoint, is unlikely to advance any such rule change. In order to advance it you'll need to bring along a lot of other stakeholders with diverse viewpoints and explain clearly what is in it for them. It doesn't matter how brilliant the reasoning (or how just the cause) is, unless there is a large and diverse group advocating for the cause (whatever that cause might be) your advocacy will go nowhere.

It would help me a lot if there was a clear statement of what problem is being solved here. And how solving it will benefit me. From what I've seen and read the most likely result will be there will be fewer places I can ride my fully compliant class I e-bike.

I would be more charitably inclined towards this effort if an attorney involved in consumer products law and individuals involved in access issues for bikes and e-bikes had weighed in and were positive about it. The sense I've gotten is that effort is just too difficult for the people advocating for this and such people wouldn't understand what is being advocated here anyway. Which doesn't impress me at all.

What I am left with is that while I do not doubt the technical brilliance and likely merits on a purely technical basis, this whole thing makes no sense at all either from a business standpoint or a political standpoint. So it is unlikely to go anywhere constructive.

I don't think you understand that the CPSC has the legislative power to preempt the 3-class legislation in all 28 adopted states if they agree that it impacts interstate commerce. While mildly complex I do believe I could explain that to a 5 year old - these guys big & can change what they want.

Your class 1 ebike is fully CPSC / federal definition compliant. You will loose no ridding privileges. I have no idea why that keeps coming up when nothing in this tread hints at that except for some expressing that as concern with no basis presented. If a CPSC / federally compliant "low speed electric bicycle" is just defined as a "bike" (ie equivalent to any other bike type like road/mtn/cruiser/recumbent/trike/etc.) and never to be consider a motor vehicle, then the only way anyone looses access is by some land manager having his/her feelings hurt and banning all "bikes" and I don't think that happens.

 

[McCorby]

Ken, please correct me if I’m wrong, but haven‘t you mentioned at some point that you have a gas powered ”bicycle” that is no longer legal to ride on streets in Colorado? If so, is this the true reason you’re pushing for this? If so, I doubt many states if any will ever allow this type of ”bicycle” on bike paths/trails and MUPs. But I don’t think you care about that or that what you’re petitioning for could impact access to these areas for ebikes.

I apologize in advance if I’m mistaken regarding you owning a gas powered “bicycle” and your motivation being to be able to ride it legally on streets.

 

[McCorby]

Your class 1 ebike is fully CPSC / federal definition compliant. You will loose no ridding privileges. I have no idea why that keeps coming up when nothing in this tread hints at that except for some expressing that as concern with no basis presented. If a CPSC / federally compliant "low speed electric bicycle" is just defined as a "bike" (ie equivalent to any other bike type like road/mtn/cruiser/recumbent/trike/etc.) and never to be consider a motor vehicle, then the only way anyone looses access is by some land manager having his/her feelings hurt and banning all "bikes" and I don't think that happens.

So you don’t know for sure that what you’re petitioning for won’t impact access to bike trails, paths and MUPs.........

 

[J.R.]

I can say without a shadow of doubt that if this proposal were adopted and included throttles, that trails/mups in PA and MD would be closed to all ebikes.

Not to worry, it won't be adopted. Use of consumer products is the purview of state and local government. When the Consumer Product Safety Commission did a power grab from USDOT and defined ebikes as consumer products, the federal government gave up control of use regs. An ebike is the same as a stove, a consumer product. The CPSC can define a stove, but the state and local government tells us where and how it can be used.

End of story.

 

[Asher]

It was congressman Earl Blumenauer who I believe helped write the CPSC federal definition - he is a true visionary. Recently, he sponsored a bill for rebates on E-Bikes, but withdrew his support (someone warned him...lol) when PFB drafted the law so that ONLY states that had adopted the 3-Class would receive the rebate (again - shady business by P4B), it was their last effort to try and FORCE all the other 22 states to comply. I imagine, once all the P4B laws are preempted you will see the bill be reintroduced so that ALL states qualify for the rebate. So all you people in those 22 states should message congressman Blumenauer and thank him.

The federal HR727 was partly based on the state laws in Oregon. If it has worked so good in Oregon, it makes sense to adopt that standard in all states. The 3-Class only added confusion in interstate commerce (additional requirements), created legislative confusion and is leaving the door wide open for insurance and registration on Class 3 - just like what happened in Europe. I think many people are refusing to admit this, because they are entrenched into their positions. I'm wrong all the time about many things, that's how you learn and develop.

False. Blumenauer is (still) a sponsor.

Also false, about insurance: the 3 class system has created a lot of momentum against insurance requirements.

Without the class 3 system, ebikes could be conflated with mopeds and subjected to the same requirement (since reaching 30+ mph is doable with 750w assist). Given 51+ sets of lawmakers, some might have chosen to impose more requirements. (Personally, I think requiring a driver or motorcycle license and setting an 80-100 lb vehicle weight limit alongside a 30 mph speed limit and throttle optional would have made more sense, instead of 28, no throttle, no license requirement.)

All Info - H.R.1019 - 117th Congress (2021-2022): E-BIKE Act

All Info for H.R.1019 - 117th Congress (2021-2022): E-BIKE Act

www.congress.gov

 

[Mr. Coffee]

I don't think you understand that the CPSC has the legislative power to preempt the 3-class legislation in all 28 adopted states if they agree that it impacts interstate commerce. While mildly complex I do believe I could explain that to a 5 year old - these guys big & can change what they want.

I know that the actual legal status with respect to the CPSC and preemption is complex and confusing and kind of ambiguous. I doubt that anything could be decided without further legislation or further litigation. So call me skeptical of your claims here.

The following article, which you no doubt have researched, indicates to me that the whole issue about the CPSC and preemption is very confused:

https://cpr-assets.s3.amazonaws.com/documents/Truth_About_Torts_CPSC_807.pdf

So I do not share your certainty about the CPSC's "legislative" power in this area. I doubt many lawyers experienced in this admittedly obscure area of law would be either.

Your class 1 ebike is fully CPSC / federal definition compliant. You will loose no ridding privileges. ...

So what I hear you saying is that you don't think this rule change would affect me at all? Then why would I support it? You are saying that in the very best case it would make no difference to me personally. But I strongly suspect that the worst-case outcome would have an adverse effect. So why should I support such a complex and confusing proposal when it won't help me and might hurt?

 

[PM Cycles]

Yeah, I mean I’d agree with that. I don’t get the point of throttles, but I don’t really see their use on class 3 as an access issue (anywhere that’s ok with the higher speed bikes probably doesn’t care about low speed throttle use either). Or maybe do a class 4 that is pedal assist and throttle to 28mph. Or just admit you want a moped. Mopeds are cool.

All this dancing around one definition that doesn’t have a speed cap but is based on what a certain weight rider can go with a certain motor, it makes sense just let me get my excel spreadsheet to show you... I don’t really get, and nowhere in this thread has anyone made a compelling case for why it’s actually better.

You sure seem to know a lot, what do you do for a living? Why has the bill been delayed?

 

[PM Cycles]

So you don’t know for sure that what you’re petitioning for won’t impact access to bike trails, paths and MUPs.........

Seems to work great in Oregon.

 

[Asher]

I know that the actual legal status with respect to the CPSC and preemption is complex and confusing and kind of ambiguous. I doubt that anything could be decided without further legislation or further litigation. So call me skeptical of your claims here.

The following article, which you no doubt have researched, indicates to me that the whole issue about the CPSC and preemption is very confused:

https://cpr-assets.s3.amazonaws.com/documents/Truth_About_Torts_CPSC_807.pdf

So I do not share your certainty about the CPSC's "legislative" power in this area. I doubt many lawyers experienced in this admittedly obscure area of law would be either.


So what I hear you saying is that you don't think this rule change would affect me at all? Then why would I support it? You are saying that in the very best case it would make no difference to me personally. But I strongly suspect that the worst-case outcome would have an adverse effect. So why should I support such a complex and confusing proposal when it won't help me and might hurt?

He cited a law review article, on the first page of this thread which I skimmed today, that says much as what you said - it's very ambiguous and subject to whatever the latest CPSC decision is. It specifically mentions a case around bike regulation, wrt lights on the bike, and the CPSC changed it's tune after industry complained, so it's all very ad hoc and arbitrary. (I personally don't care about the legal merits one way or the other, and I imagine most others don't, it's more about the practical benefits of one vs the other)

Also, that law review article mentions in passing how the CPSC is a joke defined by the fact it does nothing, i.e. little meaningful enforcement. Traffic laws, especially motorized traffic laws, are something state and local governments care a lot about. Between the porosity of the CPSC regulation (which is why Ken likes it and land managers don't), the attention of local govs and the fecklessness of the CPSC, this was probably never going to fall at the CPSC's feet to handle. It's possible the fed DOT could take a more active role, but it will be in tandem with what states are doing.

 

[PM Cycles]

He cited a law review article, on the first page of this thread which I skimmed today, that says much as what you said - it's very ambiguous and subject to whatever the latest CPSC decision is. It specifically mentions a case around bike regulation, wrt lights on the bike, and the CPSC changed it's tune after industry complained, so it's all very ad hoc and arbitrary. (I personally don't care about the legal merits one way or the other, and I imagine most others don't, it's more about the practical benefits of one vs the other)

Also, that law review article mentions in passing how the CPSC is a joke defined by the fact it does nothing, i.e. little meaningful enforcement. Traffic laws, especially motorized traffic laws, are something state and local governments care a lot about. Between the porosity of the CPSC regulation (which is why Ken likes it and land managers don't), the attention of local govs and the fecklessness of the CPSC, this was probably never going to fall at the CPSC's feet to handle. It's possible the fed DOT could take a more active role, but it will be in tandem with what states are doing.

Ok, I guess we shall see what the CPSC decides. This is really out of everyones power now. Someone would have eventually petirioned them, I'm assuming industry would have, because 6 different standards now exist in the country. Thanks for the respose.

 

[Ken M]

Ken, please correct me if I’m wrong, but haven‘t you mentioned at some point that you have a gas powered ”bicycle” that is no longer legal to ride on streets in Colorado? If so, is this the true reason you’re pushing for this? If so, I doubt many states if any will ever allow this type of ”bicycle” on bike paths/trails and MUPs. But I don’t think you care about that or that what you’re petitioning for could impact access to these areas for ebikes.

I apologize in advance if I’m mistaken regarding you owning a gas powered “bicycle” and your motivation being to be able to ride it legally on streets.

Actually both the ebikes that I claimed are not compliant for use in Colorado are name brand ebikes and both were reviewed by EBR. One is the Polaris Diesel / PIM Archer (these are essentially same model that in both pedelec and throttle mode assist to around 24mph - essentially that where the Kv of the motor/battery is hit). The other is an Izip Express. This was a unique ebike with a belt drive for the motor on one side of the rear wheel and the standard cassette on the other. This was a cadence-based pedal-assist ebike that has no cease of assist so it continues to assist even past 30mph but it takes some good rider effort to cruise at that speed but the assist does not stop at 28mph. Ironically I think Larry Pizzi (most likely the guy that championed the 3-class legislation) was involved with Izip when this ebike was being sold.

These are just two examples of ebikes that are CPSC compliant (I do not want to debate this because you can easily search EBR reviews and see the ebikes) but are not 3-class compliant for use on any state infrastructure. There are other examples. The reason this happened is because People for Bikes did not understand that 3-class was not consistent with the federal definition. They needed to petition the CPSC for EXEMPTION to allow them to push this lobbied legislative capture attempt to the states and they simply failed to do that. I've kind of known this for a couple years but only recently did I understand what the standing was for the preemptive statement in HR727 and the overall interstate commerce balancing goals of the CPSC and their preemptive powers when the states try to control product definitions and safety regulations.

I can just say that if the 3-class legislation is preempted we will all benefit long term (at least there will be no foothold for the insurance industry to sneak in like they did in Europe on any ebike with assist higher than 15.5mph or for DMV to pad their pensions by requiring vehicle registrations on any ebike). No one will loose any trail access...that will not happen.

 

[Ken M]

So you don’t know for sure that what you’re petitioning for won’t impact access to bike trails, paths and MUPs.........

The only way the uptight trail managers will be able to limit trail access to a CPSC compliant ebike is by banning all bike access. That they will not do unless they have PROOF it's needed and rarely do they ever have data supporting positions.

 

[Ken M]

I know that the actual legal status with respect to the CPSC and preemption is complex and confusing and kind of ambiguous. I doubt that anything could be decided without further legislation or further litigation. So call me skeptical of your claims here.

The following article, which you no doubt have researched, indicates to me that the whole issue about the CPSC and preemption is very confused:

https://cpr-assets.s3.amazonaws.com/documents/Truth_About_Torts_CPSC_807.pdf

So I do not share your certainty about the CPSC's "legislative" power in this area. I doubt many lawyers experienced in this admittedly obscure area of law would be either.


So what I hear you saying is that you don't think this rule change would affect me at all? Then why would I support it? You are saying that in the very best case it would make no difference to me personally. But I strongly suspect that the worst-case outcome would have an adverse effect. So why should I support such a complex and confusing proposal when it won't help me and might hurt?

It will help you and the industry. Review the ebikes laws in Oregon and Mississippi. Oregon has had one class (same as CPSC but less stringent on power which is explicitly allowed by the CPSC and they have what some say is the highest ebike adoption rate in the country. The other 22 states without 3-class are doing fine without stickers and assist cut-offs and people still have access to trails.

PLEASE read HR727 as it has what is called "explicit / expressed preemption" for what I was told by a lawyer that is a direct message to states to not f*ck with this statute / regulation. Well guess what ... People for Bikes likely had no clue what preemptive power is and the state law makers just believe 3-class was consistent with the CPSC definition. Does anything think they are the same? Does anyone think that interstate commerce is not impacted by 3-class?

 

[Ken M]

He cited a law review article, on the first page of this thread which I skimmed today, that says much as what you said - it's very ambiguous and subject to whatever the latest CPSC decision is. It specifically mentions a case around bike regulation, wrt lights on the bike, and the CPSC changed it's tune after industry complained, so it's all very ad hoc and arbitrary. (I personally don't care about the legal merits one way or the other, and I imagine most others don't, it's more about the practical benefits of one vs the other)

Also, that law review article mentions in passing how the CPSC is a joke defined by the fact it does nothing, i.e. little meaningful enforcement. Traffic laws, especially motorized traffic laws, are something state and local governments care a lot about. Between the porosity of the CPSC regulation (which is why Ken likes it and land managers don't), the attention of local govs and the fecklessness of the CPSC, this was probably never going to fall at the CPSC's feet to handle. It's possible the fed DOT could take a more active role, but it will be in tandem with what states are doing.

Listen you must struggle with comprehension. The CPSC did not change their original decision on the state exemption request for requiring lights for night riding (you need to read the full footnotes as well). They did not preempt and allowed the requirement for "use." The industry was then concerned with the decision and filled a counter petition because they viewed this was going to lead to a requirement for all bikes to have lights. The CPSC came back with clarification that they assumed the lights would not be required prior to bikes entering interstate commerce which satisfied industry concerns. Please do not inject falsehoods into this thread ... that's not cool - we are not politicians and lawyers so lets try to be honest.

The CPSC is NOT a joke. They can literally remove a non-compliant product from the market and dispose of it as hazardous waste. Sure they cooperate with industry on the safety regulations and even accept voluntary compliance certificates in many cases but they have the federal power to preempt state for trying to adopt their own product definitions and safety standards. I think the agency balances a lot of factors as something like an ebike/bike will never be 100% safe. We have to all remember that.

The state and local government "use" (ie traffic laws for bikes) are not impacted at all by the CPSC power. We just don't want some state deciding that an ebike should not assist past 10mph because they don't like them. I have no clue why so many seemed so addicted to the 3-class system...it's like they have no clue that the federal definition was in place in 2002 and was fine for 12+ years before PFBs got that first lobby check.

 

[jabberwocky]

The only way the uptight trail managers will be able to limit trail access to a CPSC compliant ebike is by banning all bike access. That they will not do unless they have PROOF it's needed and rarely do they ever have data supporting positions.

You have a view of how access is handled that is untethered with reality. Truly, you would benefit greatly from some time working with actual advocacy groups. Nobody can tell land managers in local government what they have to do. They can ban all ebikes if they want, no matter what the CPSC says.

 

[Ken M]

You have a view of how access is handled that is untethered with reality. Truly, you would benefit greatly from some time working with actual advocacy groups. Nobody can tell land managers in local government what they have to do. They can ban all ebikes if they want, no matter what the CPSC says.

I sometimes wonder if people do this intentionally or just fail to clearly comprehend what other's write. Obviously trail access is not one of my main concerns because I see virtually zero chance a preemption results in any loss of trail access. I guess what I'm trying to say is that those worried about trail access are driving a false hysteria.

Do we want trail access to set the baseline for how an ebike is defined/designed/sold or should we focus more on the bigger picture potential of ebikes as defined by the federal definition (has a lot of legacy given getting close to 20 years as policy). Regardless of how low we set the speed bar on assist rider behavior is going to matter more on multi-use trails and paths.

I never said anyone can tell land managers what to do but that would not stop people from going nuts on them if they decided to ban all bike access to trails just arbitrarily. It is my opinion that they can't ban ebikes separately from bikes per the original intent of HR727 (keep in mind that was passed as a congressional law, not just a position or jurisdiction statement). A few have mentioned this as the confusing element of HR727 when it states a compliant "low speed electric bike" is not a motorized vehicle - it has a motor but as defined it should not be considered motorized, yet I hear time and time again the claim from the trail groups that they are motorized vehicles. They want to retain their view that they are just like throttle motorcycles running around tearing up the trails and scaring children and pets. Is that really happening with any compliant ebikes on any trail? Again has anyone seen and data proving that a view like that is remotely justified.

 

[nublar]

Ebikes/throttle mopeds are banned on some local trails with the verbiage "no motorized conveyances".

 

[PM Cycles]

Ebikes/throttle mopeds are banned on some local trails with the verbiage "no motorized conveyances".

What state are you talking about?

 

[Ken M]

Ebikes/throttle mopeds are banned on some local trails with the verbiage "no motorized conveyances".

OK. I fully understand that some trails are banning ebike access by claiming that they are motor vehicles. My view is that that is in conflict with HR727 stating they are not to be considered motor vehicles but there is some merit to the claim that is just to ensure NHTSA doesn't have definition/safety control of them. In my opinion if a statute states that a "low speed electric bicycle" is not a motor vehicle and is regulated as just a bike these local ordinances can not redefine as a motor vehicle to deny access. Until there is a precedence case, we can all have an opinion that really can't be considered proven/fact.

 

[antboy]

Without the class 3 system, ebikes could be conflated with mopeds and subjected to the same requirement (since reaching 30+ mph is doable with 750w assist). Given 51+ sets of lawmakers, some might have chosen to impose more requirements.

It reads like you don't realize the CPSC definition exists... how could one conflate an e-bike with a moped?

“(1) a two-wheeled vehicle having a rear drive wheel that is solely human-powered or (2) 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 (i.e., a low-speed electric bicycle).”

It's pretty clearly spelled out. Unlike a moped, under the CPSC definition an e-bike REQUIRES human input to surpass 20mph. Though there are state variances, mopeds are generally capped at 50cc or about 2.5-3hp (which would roughly be a 1500W e-bike motor), with a 30mph throttle limit.

Personally, I think requiring a driver or motorcycle license and setting an 80-100 lb vehicle weight limit alongside a 30 mph speed limit and throttle optional would have made more sense, instead of 28, no throttle, no license requirement.

Wait, what? Sounds like you're conflating e-bikes with mopeds. A 30mph throttle IS a moped definition in most states. Nothing is stopping you from getting a moped.