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CPSC: The industry's 3-class e-bike framework is not part of our statutes

Published March 1, 2023

WASHINGTON (BRAIN) — Consumer Product Safety Commission Chair Alex Hoehn-Saric told BRAIN the agency doesn’t recognize the industry’s three e-bike classes but instead treats the regulation of e-bikes on a case-by-case basis.

When asked about regulating Class 3 e-bikes and e-MTBs, and “out-of-category” e-bikes, Hoehn-Saric said in a February email exchange with BRAIN that, “I know there have been questions and confusion around jurisdiction of these products, so I want to take this opportunity to provide some clarity about where CPSC stands. First of all, the Class 1, Class 2, Class 3 framework is not part of CPSC’s statutes, so any assertion about our jurisdiction over an entire category is not accurate. 

“Decisions about agency jurisdiction over e-bikes are made on a case-by-case analysis of the products.”

Hoehn-Saric, the CPSC chair since 2021, cited Section 3 of the Consumer Product Safety Act regarding all product definitions, and Section 38, which addresses the “low speed electric bicycle”:

“For the purpose of this section, the term low speed electric bicycle means 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.

“To further protect the safety of consumers who ride low-speed electric bicycles, the Commission may promulgate new or amended requirements applicable to such vehicles as necessary and appropriate.

“This section shall supersede any state law or requirement with respect to low-speed electric bicycles. …”

PeopleForBikes, which developed the model e-bike classification and shepherded legislation establishing the classes to passage in 39 states, asked the CPSC to clarify that Class 3 e-bikes are considered bikes, not electric motorcycles. When asked if that will happen, Hoehn-Saric said, “CPSC has no currently planned regulatory action on this topic.”

When informed about Hoehn-Saric’s comments, Matt Moore, PeopleForBikes policy counsel, said, “PeopleForBikes is confident that CPSC Chairman Alexander Hoehn-Saric has stated the position of the agency in a clear and forthright manner. His responses speak for themselves. These regulatory topics and others will be addressed by legal experts at the upcoming Bicycle Leadership Conference, March 14-16 in Dana Point, California.”

"First of all, the Class 1, Class 2, Class 3 framework is not part of CPSC’s statutes"  — CPSC  Chair Alex Hoehn-Saric

At the BLC “Electric Bicycle Regulations and Risk — 2.0” session on March 16, Erika Jones, Mayer Brown partner, and Moore will discuss CPSC’s changes in its approach to testing e-mobility products, the three-class system at the federal level, and risks with products that resemble e-bikes but are out of class. The session will be an update to a similar session that Jones led last March

“I expect there will be a lot of other informal discussions,” Moore said.

The Class 3 conundrum

Some confusion has existed recently regarding Class 3 e-bikes — defined as bikes that have pedal assist up to 28 mph. As recently as December, a CPSC spokesperson in the communications department told BRAIN that Class 3 falls under the National Highway Transportation Safety Administration regulation. When asked about that, a NHTSA spokesperson told BRAIN in December it was discussing with the CPSC how to best oversee e-bikes.

PeopleForBikes objected to the CPSC spokesperson’s declaration, saying sometimes it matters who you talk to at the agency. Moore told BRAIN that when PeopleForBikes discussed the class system about 10 years ago, the CPSC agreed that Class 3 fell under its regulation and that it complied with the Code of Federal Regulation 1512 Requirements for Bicycles.

Battery safety standards

In December, the CPSC issued a letter to manufacturers, importers, and retailers of lithium-ion battery-powered micromobility products, urging them to meet applicable safety standards, including UL 2849. This UL standard tests an e-bike’s complete electrical system, not just the battery.

“CPSC sent that letter to encourage all micromobility stakeholders to emphasize safety in their products in order to address a rise in fire incidents involving these products,” Hoehn-Saric told BRAIN. “One means to lessen this risk is for such products to demonstrate they can meet the voluntary standards cited in the letter. CPSC’s FY 2023 Operating Plan does not propose new mandatory regulations for these products, but if voluntary standards and industry compliance with voluntary standards fail to address the risk, the commission could consider mandatory rules.”

A ‘systems approach’

PeopleForBikes has asked the CPSC to require micromobility batteries be tested and certified to UL 2271, a standard for light electric vehicle battery packs. Hoehn-Saric said while its technical staff said the 2271 standard reduces risk, the CPSC continues to explore whether a broader standard is needed.

“More generally, staff recommends focusing on a systems approach for micromobility safety, allowing for an evaluation of all of the electrical system components together to assure safe and compatible operation during charging and use.”

Asked about aftermarket lithium-ion batteries entering the country, some at a greatly reduced cost compared to OEM batteries, he said the CPSC continues to monitor incidents and assist with compliance, future standards development, and developing educational materials to inform consumers.

“We have issued a number of recalls of micromobility products in the past and are monitoring the marketplace to determine whether manufacturers and retailers are responding to the agency’s December letter,” he said.

Hoehn-Saric said there is no exemption from compliance with CPSC requirements based on the value declared at import. “Imported products valued under $800 that are subject to a mandatory CPSC safety standard must be tested and certified just like similar products with a higher value. With that said, batteries found in micromobility devices are not subject to a mandatory CPSC requirement and, therefore, are not subject to certification to a safety standard.”

He said the rise in the de minimis threshold from $200 to the current $800 “has certainly made it more difficult for CPSC to monitor lower-value shipments entering the U.S. 

“There is no question that secondary market sales continue to be a problem as well. CPSC has an entire team dedicated to monitoring the marketplace and requesting that recalled and banned items be pulled down.”

Last year, more than 57,800 products were removed from e-commerce because of these efforts, said Hoehn-Saric, who added that while most platforms are responsive to CPSC requests, that is not enough. “Online retailers are in the best position to stop the listing of recalled product before they are posted. Platforms can and should do more to protect consumers.”

Regarding messaging …

When it comes to messaging, the agency often has had contradictory statements coming out of Washington. In addition to the Class 3 kerfuffle, a CPSC commissioner, Richard Trumka Jr., created a stir in January when he said gas stoves could be banned because they pose a “hidden hazard.”

“I’ll do my best to clarify,” Hoehn-Saric said. “The commission is a multi-member body, currently consisting of four commissioners who must vote to establish agency policies and priorities. The commission, as a body, speaks only through its decisions. Statements of an individual commissioner are their own views. CPSC staff does its best to reflect the decisions of the commission, but views expressed by staff also should not be taken as positions of the commission, or to constitute any action or plan on the part of the commission.”

CPSC Chair Alex Hoehn-Saric
Topics associated with this article: Electric bike, Bicycle Leadership Conference

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