Interpretation ID: 08-002289as

Damian J. Pelegrino, President

Top Cargo Inc.

9869 NW 79^th Avenue

Miami, FL 33016

Dear Mr. Pelegrino:

This responds to your letter, in which you inquired about the classification of vehicles. Specifically, you requested this agencys opinion of whether certain electric scooters would be considered motor vehicles and subject to the regulatory requirements of this agency. Our answer is that, based on the information you provided in your letter and subject to the caveats included below, none of the vehicles you described would appear to be classified as a motor vehicle.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

To begin, the definition of a motor vehicle is provided in 49 U.S.C. 30102, and reads:

[M]otor vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

All six of the vehicles that you described in your letter are two-wheeled, electric scooters that, according to your letter, have a rated speed of less than 20 mph.

Congress has created a special category of vehicles called low-speed electric bicycles that is relevant to the classification of one of your vehicles. In the Consumer Product Safety Act (Pub. L. 107-319, December 4, 2002; codified at 15 U.S.C. 2085), Congress defined a low speed electric bicycle as a:

[T]wo- or three-wheeled vehicle with fully operable pedals and electric motor of less than 750 watts (1 HP), 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.

Based on the information in your letter, one of the vehicles you described (the Model TDR48k41) would likely be classified as a low speed electric bicycle under this statute. Your letter stated that this vehicle has a 350 watt electric motor and a rated speed of 19.8 mph. While you did not indicate exactly how you calculated the rated speed, if its top speed was attained using the method indicated by Congress, it would be classified as a low speed electric bicycle, and therefore not a motor vehicle.

The other vehicles you described do not have pedals, and so would not be classified as low speed electric bicycles. However, based on your descriptions, we do not believe that any of those vehicles would be considered motor vehicles either. In a draft notice of interpretation (70 FR 34810, copy enclosed) addressing low speed two- and three-wheeled vehicles, NHTSA articulated a method to distinguish those vehicles that fall under the statutory definition of motor vehicle from other vehicles. In that notice, we stated:

Consistent with the Congressional definition of low speed electric bicycle, we have tentatively concluded that if a two- or three-wheeled vehicle were to have a maximum speed capability of less than 20 mph (32 km/h), regardless of on-road capabilities, it would not be a motor vehicle, except in very limited circumstances[1].

We have examined the information you sent us regarding the other five vehicles. All of them appear to be electric two-wheeled vehicles, with top speeds ranging from 18.64-19.8 mph (30-32 km/h). Therefore, based on our draft notice of interpretation referenced above, we would likely not consider any of them to be motor vehicles under 49 U.S.C. 30102, and therefore not subject to regulation by NHTSA (this assumes that the rated speed you identified is consistent with the method we described in our draft notice of interpretation). We note, however, that all six of these vehicles would be regulated by the Consumer Product Safety Commission (CPSC). Furthermore, the vehicles are subject to State laws.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

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