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Staff Editorial: Who’s going to regulate Class 3 e-bikes? There’s little doubt.

Published January 6, 2023

(BRAIN) — Do Class 3 e-bikes fall into a black hole of product categories, neither bicycles nor motorcycles, able to charge about the landscape unplugged and unregulated, with no government safety oversight?

Practically speaking, no. The fact that the Consumer Product Safety Commission has conducted several recalls of Class 3 e-bikes as recently as 2020 confirms it for us: Class 3 e-bikes are bikes and the CPSC is regulating them. 

Even though they say they are not. 

Let us explain: 

First, Class 3 e-bikes are pedal-assist (no throttle), with a motor that helps until you hit 28 mph. Some 39 states have passed laws codifying the three-class system with that definition. Most of the industry, and its trade association, PeopleForBikes, proceed on the understanding that Class 3 e-bikes are bicycles and have to meet CPSC bicycle standards. 

Because if they are not e-bikes, then they are something else. And that something else is an electric motorcycle. And electric motorcycles — at least those ridden on the roads — are regulated by the National Highway Transportation Safety Administration, not the CPSC. And NHTSA requires electric motorcycles to meet standards for things like lights, brakes, mirrors and more. Standards that most Class 3 e-bikes do not meet. Selling an electric motorcycle that does NOT meet NHTSA standards is potentially a major, costly, bankrupting no-no. 

If they are not e-bikes, then they are something else — an electric motorcycle.

A 2002 federal regulation, 16 CFR 1512.2(a)(2 defines e-bikes as a type of bicycle with a motor no larger than 750 watts and “whose maximum speed on a paved level surface, when powered solely by such a motor … is less than 20 mph.” The regulation was an early key to developing the e-bike category outside NHTSA regulations.

But Class 3s go to 28 mph, you recall. To quote Jon Lovitz’s character in "A League of Their Own," “Well then, this would be more, wouldn't it?

In a story published in our January print issue, we quoted some well-known industry consultants who are of the opinion that Class 3 bikes don’t meet the federal definition of a bike. They said the industry should be concerned that the CPSC or NHTSA will crack down on them. 

But PeopleForBikes insists there is no need for concern. The group reads the federal e-bike definition differently, and we think logically. They point to the word solely, which we italicized in the definition above. Because Class 3 e-bikes use pedal assist, motors are never the sole source of power, at 20 mph, 28 mph, or any other speed. Therefore, these are bicycles we're talking about.

In a discussion with BRAIN editors Thursday, PeopleForBikes Policy Counsel Matt Moore said CPSC told the group years ago, when the three-class system was first being promoted, that the Commission considers Class 3 e-bikes bikes.

All good, except: 

  1. No one seems able to point to a document that confirms CPSC and NHTSA officially agree with PeopleForBikes’ reading of the law. We trust PeopleForBikes when they say they were told this, but we also note that as recently as Wednesday, in a meeting between PeopleForBikes and CPSC representatives, Moore asked the CPSC to clarify the issue publicly. "We’d like some help here, to have the CPSC formally recognize the three-class system and we’d like a public statement that electric bikes meet one of these three classes as we define them and as they are defined in 39 states that they are regulated as electric bikes,” Moore said at the meeting. Of course he made this request after having to respond to our article. But it's notable that he couldn't simply point to a CPSC policy. The CPSC representatives in the meeting did not respond to his request.
  2. The consultants we quoted in the January article are trusted experts we've relied on for decades.
  3. For our January article, BRAIN emailed with a CPSC spokesperson who said Class 3s “fall under NHTSA.” To clarify and make sure the spokesperson didn’t misspeak, we asked again. On Friday, the same spokesperson told us in an email “I’ve confirmed that Class 3 e-bikes are not within our regulatory jurisdiction.” 
  4. A NHTSA representative didn't say if they are regulating Class 3 machines, but said e-bike safety is being studied. "Due to emerging e-bike designs that can vary in speed capability, in how they combine motor power and pedal power, and in other design factors, NHTSA is gathering information on, and discussing with CPSC, how best to oversee the safety of e-bikes," the NHTSA source said. 

We trust PeopleForBikes’ opinion and it’s clear that Class 3 bikes have traditionally been regulated by CPSC. Makers of Class 3 e-bikes shouldn’t expect a NHTSA raid. But it's also clear that uncertainty remains. It's even possible that the CPSC and NHTSA are in the middle of re-considering their policy on Class 3. 

As for the two quotes to us from the CPSC spokesperson, it could be, as Moore told us, “Sometimes it matters who you talk to over there.” Or it could be that the Class 3 policy is under discussion or already changed internally. 

BRAIN needs to have a more complete conversation with CPSC and NHTSA; their statements surprised us and we need to make sure they are accurate. Why are we publishing this before we have those conversations? Because we hoped to add some perspective to the article in our print magazine that spurred PeopleForBikes’ statement Monday.  

Unclassified bikes a larger concern 

While the Class 3 confusion is probably just some miscommunication, what's more certain is that there are many e-bikes being sold and ridden in the U.S. that are clearly outside the Class 3 system and appear eligible for NHTSA regulation. These bikes have throttles and are capable of more than 20 mph by motor power only. They are not rare. Some might be limited to a 20 mph assist when sold but can be modified to go much faster. 

There’s a gray area: NHTSA does not regulate vehicles used exclusively offroad — the word highway is in the Administration's name, after all. Off-highway vehicles are regulated by the CPSC. And while PeopleForBikes points to marketing showing some of these suspect machines on paved roads, the manufacturers might be able to claim they are made for offroad use, and therefore outside NHTSA’s purview. 

PeopleForBikes' letter called these machines "a threat to the industry." In addition to its meeting with CPSC this week, the organization also recently met with NHTSA officials to discuss the out-of-category vehicles. 

As we’ve reported in multiple articles in recent weeks, the CPSC and NHTSA are clearly paying attention to e-bike safety this winter. We agree with PeopleForBikes that regulation of non-classified e-bikes is necessary. We also agree with the group’s request on Wednesday for a definitive public statement clarifying CPSC’s position on e-bikes that comply with the three-class system.

In 2020, the CPSC conducted a recall of the Cannondale Canvas NEO, which comes in Class 1 and Class 3 versions.
Topics associated with this article: Electric bike

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