As alluded to in last week’s post, Product Safety Regulations for Electric Bicycles and Scooters, micromobility products, such as e-bikes and scooters, fall at the intersection of jurisdiction between two distinct federal agencies: the Consumer Product Safety Commission (CPSC) and National Highway Traffic Safety Administration (NHTSA).
The CPSC is charged with protecting the public from unreasonable risks of injury or death associated with “consumer products.” “Consumer products” broadly defined includes any product for use in or around residences, schools and in recreation. CPSC’s jurisdiction expressly excludes “motor vehicles.”[1]
NHTSA, which is charged with ensuring safety on public road ways, has jurisdiction over “motor vehicles.” “Motor vehicles” are “vehicle[s] driven or drawn by mechanical power manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.”[2]
There is no hard-and-fast rule as to what constitutes a “motor vehicle” subject to NHTSA’s jurisdiction. Thus in determining whether a product is a “motor vehicle,” NHTSA typically considers such factors as:
- the product’s intended use;
- the product’s use of the public roadways and how incidental or predominant that use tends to be;
- how the product is marketed;
- the kinds of dealers that sell the product;
- how or whether dealers may certify or register the product; and
- the product’s speed.
Specifically with regard to certain “micromobility products,” NHTSA issued a draft interpretation in 2005, setting forth its considerations for determining whether a two and three-wheeled vehicle is a “motor vehicle” subject to its jurisdiction.[3] It is an individual determination whether an item is a motor vehicle. NHTSA considers the following in determining whether a two-wheeled vehicle is a “motor vehicle”:
- Whether the vehicle is capable of exceeding 20 mph (according to the ISO 7116 method of measuring maximum speed) in the absence of a governor.
- Whether the physical features of the vehicle indicate it is an “on-road” or “off-road” vehicle, including whether the vehicle has a VIN, mirrors, turn signal lamps, side marker lamps, and stop lamps.
As to the maximum speed, NHTSA’s interpretation deems this “largely determinative.” Though the draft interpretation never became final, by its own terms, industry may rely upon the draft with regard to vehicles that have a maximum speed capability less than 20 miles per hour. Since publishing this draft interpretation in 2005, NHTSA itself has continued to follow its guidelines. See National Highway Traffic and Safety Administration, Importation and Certification FAQs – Part II Group 2: Motorcycles and Scooters (stating that scooters that are incapable of a top speed of 20 mph or greater are not “motor vehicles”); see also NHTSA Interpretation 08-002289as, January 16, 2009.
For its part, in April of this year, CPSC released a report on micromobility products, and described its jurisdiction as those products not regulated by NHTSA:
CPSC has jurisdiction over consumer products, which include micromobility products that the National Highway Traffic Safety Administration (NHTSA) does not consider to be a ‘motor vehicle’ under its jurisdiction. NHTSA guidance advises that the following micromobility products are not considered ‘motor vehicles’: (1) scooters lacking seats that are operated in a stand-up mode; (2) scooters that are incapable of a top speed of 20 mph or greater; and (3) electric bicycles with operable pedals, and an electric motor of 750 watts or less, 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. Accordingly, these micromobility products fall within CPSC’s jurisdiction.[4]
As stated in both NHTSA’s 2005 draft interpretation and CPSC’s 2020 report, CPSC has jurisdiction over low-speed bicycles. This is codified in CPSC’s bicycle regulations.[5] Pedal-assisted micromobility products, even if they can exceed 20 miles per hour, that are not capable of continued self-propulsion, fall within CPSC’s jurisdiction.
Thus while there are a number of factors that inform the dividing line between CPSC and NHTSA jurisdiction as to any individual micromobility product, whether the product can or cannot exceed a speed of 20 miles per hour, as defined by ISO 7116, significantly influences which agency will govern.
[1] 15 U.S.C. § 2052(a)(5).
[2] 49 U.S.C. § 30102(a)(6).
[3] 70 FR 34812; see also NHTSA Interpretation 08-002289as, January 16, 2009 available at https://www.nhtsa.gov/interpretations/08-002289as.
[4] https://www.cpsc.gov/s3fs-public/Report-on-Micromobility-Products_FINAL-to-Commission.pdf?THHIorYXAZ.KiZnobh1o7.7.lN9nNCLo
[5] 15 U.S.C. § 2085; 16 CFR § 1512.2(a)(2).
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20 Miles Per Hour Divides NHTSA and CPSC Jurisdiction Over Micromobility Products - Retail & Consumer Products Law Observer
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