WHAT SHOULD WE DO ABOUT E-BIKE REGULATIONS?

By Steve Bina

You have probably heard or read about New Jersey Senate bill S-4834 and its impact on e-bike usage. I wrote on this subject in my last article in the Bicycle Business Reporter, so I won’t go over that all again. However, there is significant industry angst and commentary relative to that legislation. The primary concern is that this legislation consolidates all types of e-bikes and e-motos into a single product type. 

The Consumer Protection Safety Commission (CPSC) has defined what constitutes a bicycle through federal regulation, specifically 16 CFR 15512.2. This regulation states that a bicycle is a two-wheeled vehicle having a rear drive wheel that is solely human-powered. This regulation was expanded with the advent of e-bikes to include two and three-wheeled vehicles with fully operable pedals and an electric motor not to exceed 750 watts (1 horsepower) whose maximum speed on a level surface shall not exceed 20 m.p.h. These types of e-bikes are commonly known as Class 1 and Class 2.     

Some manufacturers are making e-bikes with higher-powered motors capable of speeds up to 28 m.p.h. These were commonly referred to as Class 3 but are not recognized by CPSC, and thus are not considered to be bicycles by the federal government. Sensing an opening to allow manufacturers making/distributing Class 3 product, the self-proclaimed bicycle industry trade association was an advocate for having individual jurisdictions make their own decisions, whether Class 3 products were bicycles or not, with the expectation being that most would say they were bicycles.

An article in the March edition of Bicycle Retailer and Industry News takes note of this issue and states this same bicycle industry trade association “… hired a full-time staffer to create a legal framework for electric bikes in America, resulting in a three-class system…” The article goes on to say the “…system has arguably been a success in creating a uniform national definition, with 46 states adopting it in some form.” 

Read that last sentence again, carefully. A uniform national standard would suggest all 46 states have the same definition and/or regulations regarding use for all three classes. In fact, there is still no national definition of Class 3 product from CPSC. There are 46 different, albeit similar, definitions. There is one that sticks out, included in New Jersey Senate Bill S-4834. 

This issue is now front and center with the addition of e-motos into the mix. To highlight this analysis, the article goes on to state that the attention being given to the New Jersey law enacted in January relative to e-motos now requires licensing, registration, and insurance for Class 1 and Class 2 e-bikes, including “out of class” products.

So, where does the Class 3 product fit in with this? 

It is acknowledged by the major industry trade groups that the New Jersey law needs to be amended to uncouple Class 1 and Class 2 products from higher-powered, higher-speed electrified vehicles. Along with this acknowledgement is an understanding that the Class 3 product still needs to be defined, as it remains outside 16 CFR 15512.2. Two of the three major industry trade groups agree that Class 3 needs to be addressed while working to amend the New Jersey legislation. The same bicycle industry trade group that wanted local jurisdictions to define Class 3 doesn’t believe now is the time.

That same industry association is saying to dealers that a unified message will help persuade New Jersey legislators to amend the law. The message is to protect Class 1 and Class 2 e-bikes in New Jersey and other states by preserving their status as bicycles and not motor vehicles. Notice Class 3 isn’t included in this messaging. So, would it be OK with this bicycle trade association to leave them classified with e-motos and the regulations New Jersey wants to apply to those products? If yes, then why not establish a definition for Class 3 now to avoid this problem in the future from another jurisdiction? 

Through all of this, I find it comical, if not hypocritical, that the association that lobbied to leave the Class 3 e-bike definition up to local jurisdictions is now hyper-ventilating when one of them does and they don’t like it; specifically, legislating Class 3, along with Class 1 and Class 2, as the same as e-motos. Perhaps if that association had taken a more proactive stance concerning Class 3 as something different than Class 1 and Class 2, this would not have happened.   

I’ll repeat, what is called a Class 3 product is not a bicycle according to CPSC. It has a motor with a power rating of 750 watts and is capable of speeds up to 28 m.p.h. That’s a 40 percent increase over Class 1 and Class 2. That makes them something different than a bicycle. 

In the same March issue, there is an open letter to the bicycle industry written by Hans Rey, an inductee in the Mountain Bike Hall of Fame. In the letter, Hans proposes three categories of two/three-wheel electric vehicles: e-bicycles (Class 1), e-mopeds (Class 2 and Class 3), and e-moto (high-powered electric motorcycles well beyond bicycle-level performance).  These categories are based more on the issue of throttles and speed, and do not appear to be contrary to the CPSC class definitions. 

Bringing clarity to the e-bike class discussion, Hans wrote this: “Class 1 e-bikes gained acceptance because they behave like bicycles: pedal assist only, no throttle, limited speed, and moderate power. If we allow power creep – higher torque, faster acceleration, motorcycle-like performance — we shouldn’t be surprised when access disappears, and regulations increase.” Agree with Hans or not, it is a perspective to be acknowledged and considered when discussing e-bike classifications.

What happens now? One thing harder than passing legislation and getting all involved to agree on the language to amend said legislation once it’s signed into law. There was a reason the law was written, in this case, because children were being killed. Finding the political will to soften the impact of this legislation, especially in an election year, will be an uphill battle. 

Another thing to consider is the public perception of what an electric bicycle is. It’s different from a regular bicycle in that it has an electric power source and a motor. Those two things create a much different reality from a regular bicycle. The general public reacts to this and to what they feel is necessary to protect not only the riders but the public from these ever more powerful and speedy devices sharing communal spaces. This plays to both why this legislation was enacted, along with Hans’ comment above.   

In the last issue of the Reporter, I wrote that there may have to be some compromise required on licensing and training for out-of-class products to differentiate them from the less powerful e-bikes. It may be time for the industry as a whole to stake a position that an e-bike, with or without a throttle, is limited to a top speed of 20 m.p.h. Anything faster is not an e-bike and should be subject to more stringent usage requirements. I submit it would be better for the industry to uniformly self-regulate than be confronted with well-intentioned but misguided regulations like the New Jersey law.

The National Bicycle Dealers Association (NBDA) has put out a policy statement entitled “Emoto two-wheeled Electric Vehicles.” I would encourage everyone reading this to contact the NBDA (nbda.com) for a copy. It outlines what retailers should do to navigate the uncertainty of e-motos versus e-bikes, how to better position their business to serve their customers, and protect themselves from potential liability exposure.   

What do you think?

Contact Steve Bina: steve@humanpoweredsolutions.com