Mr. Gary Starr
ZAP Electric Bikes
117 Morris Street
Sebastopol, CA 95472
Dear Mr. Starr:
This is in reply to your letters of August 27, 1997, to Secretary Slater and to myself, seeking a determination that the ZAP electric bicycle is not a "motor vehicle." We deferred responding to your letter in order to receive additional information from Dale Kardos, who provided it to us on September 30, 1997. This letter, then, responds to the arguments you raised in your letters of August 27 and September 30.
Your first argument and third arguments, in essence, are that the agency should exclude from regulation the ZAP, which has a maximum speed of 18 miles per hour, because NHTSA does not regulate vehicles with a top speed of less than 20 miles per hour with "abnormal" configurations.
These arguments are based upon the agency's interpretative policy under which motor vehicles with a top speed of 20 miles per hour or less and with an abnormal configuration have been excluded from regulation. Under this policy, as you note, NHTSA has excluded the TWIP electric scooter (letter of October 6, 1993), and the Trans2 Neighborhood Electric Vehicle (letter of April 1, 1994), but included a "super golf car" (letter of January 4, 1995). You also say, without identifying the source, that on April 16, 1995, NHTSA said that the policy would apply to on-road golf carts.
You are correct that NHTSA, by interpretation, has excluded "motor vehicles" from compliance with the Federal motor vehicle safety standards if they had an "abnormal" configuration and if their maximum speed was no greater than 20 miles per hour. However, NHTSA stated in 1996 that it considered the "abnormal" test subjective and arbitrary, and announced its intent to abandon this line of interpretations. In its place, the agency has proposed a regulation that would apply to all four-wheeled motor vehicles with a maximum speed of up to 25 miles per hour, and for faster golf vehicles with a maximum speed between 15 and 25 miles per hour.
As you note, this rulemaking does not cover two-wheeled vehicles. We have reviewed our letter of October 6, 1997, to Peer Enterprises which you cited. This letter concluded that the TWIP electric scooter was not a motor vehicle because it was not intended to be used on the public roads (i.e., in warehouses and for off-road recreational purposes). However, the letter further opined that the TWIP would not be a motor vehicle if the interpretative test was applied to it. It had a maximum speed of 9 miles per hour and the scooter could be folded to make it portable. Thus, the agency concluded that "this configuration readily distinguishes it from motorcycles and other two-wheeled vehicles." The ZAP with a top speed of 18 miles per hour and a configuration similar to that of small motorcycles and mopeds is not "abnormal" under these interpretations. Therefore, the agency cannot apply this interpretation to excuse the ZAP from compliance with the Federal motor vehicle safety standards.
We do not believe that the low-speed vehicle rulemaking unfairly discriminates between two and four-wheeled vehicles. NHTSA has always considered bicycles with full time motors to be "motor vehicles," (specifically, a two-wheeled motorcycle with 5 horsepower or less), regardless of their maximum speed, and required their compliance with Federal motor vehicle safety standards applicable to motor driven cycles. To grant your request would be to deregulate a category of motor vehicle which to all intents and purposes has had no difficulties in complying with the Federal motor vehicle safety standards.
Your second argument is that, if a state does not license a vehicle for on-road use the vehicle should not be considered a "motor vehicle," in accordance with a NHTSA remark of May 17, 1993 (source not cited). Mr. Kardos informs us that 22 states now do not define motorized bicycles as "motor vehicles" and that 21 of these do not require registration of the operator. Similar legislation is said to be pending in New York and six additional states. You also cite NHTSA's exclusion from regulation of mini-bikes as pertinent to your argument, saying that "it must be presumed . . . that this exclusion was based on the fact that many states do not require licenses for mini-bikes and that they travel at speeds less than 20 mph, and not primarily manufactured for highways."
We do not find this argument persuasive. You cited the State of California as one of those that does not consider a motorized bicycle to be a motor vehicle. For whatever purpose California may have decided to exclude motorized bicycles from registration and licensing requirements (perhaps to be used on trails forbidden to motor vehicles), it does not prohibit their use on the public roads. In fact Cal. Veh, Code Sec. 21200 makes motorized bicycles subject to the rules of the road. Most importantly, motorized bicycles must conform to NHTSA's requirements for motor driven cycles (or those of the Consumer Product Safety Commission (CPSC) for bicycles).
Cal. Veh. Code Sec. 24016(a)(1) requires a motorized bicycle to
"Comply with the equipment and manufacturing requirements for bicycles adopted by the Consumer Product Safety Commission (18 C.F.R. 1512.1, et seq.) or the requirements adopted by the National Highway Traffic Safety Administration (49 C.F.R. 571.1, et seq.) in accordance with the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. Sec. 1381, et seq.) for motor driven cycles."
Under the Safety Act's preemption provisions (49 U.S.C. 30103(b)), a state may not establish or continue in effect a state standard applicable to the same aspect of performance as a Federal motor vehicle safety standard unless it is identical to the Federal standard. Thus, California law is consistent with NHTSA's present line of interpretations that distinguish between bicycles with a power assist, which are not motor vehicles under Federal law but subject to the regulations of the CPSC, and motorized bicycles which are motor vehicles under Federal law and subject to the Federal motor vehicle safety standards. Although Sec. 24016(a)(1) is expressed in the disjunctive, it cannot be read as affording manufacturers of motorized bicycles the option of meeting either NHTSA or CPSC standards, since this is inconsistent with NHTSA interpretations of Federal law and is therefore preempted by Sec. 30103(b). This state law must be interpreted as following Federal law, and as requiring motorized bicycles (but not bicycles with power assists) to meet Federal standards applicable to motor driven cycles if they are to be used on California roads, even if they are not motor vehicles for purposes of other California laws.
Further, we do not consider mini-bike safety apposite to the question of the safety of motorized bicycles. Mini-bikes are smaller vehicles driven by younger operators. The agency has cogently expressed its concerns, in a letter of February 23, 1971 to Thomas Ferlito:
"One dilemma this agency faced in formulating its decision on mini-bikes was the possibility that prescribing Federal safety standards would lead to an increased use of these vehicles on the public roads. The imposition of safety standards might create a false sense of security in the vehicle operator, encouraging him to drive his mini-bike on the street. Because of their small size and slow speed mini-bikes are inherently unsafe in a traffic environment which includes heavier and faster vehicles and their use on the public roads is to be discouraged under any circumstances.
It is our conclusion that the problem of mini-bike safety is one which can be best met at the local rather than Federal level, through enactment and strict enforcement of laws prohibiting the registration and use of mini-bikes on the public ways, and through adequate parental supervision."
Your fourth argument is that the ZAP is not a motor vehicle because it is not manufactured for use on highways. According to your letter "they are allowed on some public roads but not highways. And the definition clearly says primarily for public streets, roads and highways." We do not agree with this argument either. It would be contrary to the mission of NHTSA to reduce crashes, deaths, and injuries if NHTSA parsed the statutory definition to exclude from regulation those motor vehicles manufactured primarily for use on the "public streets and roads," but which were not allowed on "highways", particularly since the definition of these terms may vary among the states.
There are other aspects of your letter that deserve a reply. You believe that "it is important to note that most prior sales were ZAP kits, that is motor systems, that the user applied to their own bikes and not complete vehicles." Under the agency's kit car interpretations, if the kit supplier provides all parts necessary for the vehicle, and all parts are new, the kit supplier is regarded as the manufacturer of the kit car and required to ensure that, when assembled, it conforms to all applicable Federal motor vehicle safety standards. Similarly, if ZAP is providing the engine to a purchaser of a bicycle at the time of its sale, for later installation by the purchaser, we would regard ZAP as the manufacturer of a motor driven cycle that must meet Federal requirements. However, if ZAP sells the motor alone and not as part of a transaction involving the sale of a new bicycle, there would be no compliance responsibility imposed by Federal law on ZAP.
You have also commented that the CPSC specifies that bicycles have the rear brake control on the right handlebar "yet motor vehicle standards require the front brake control by the left-hand control." You have been misinformed. If a motorcycle has a front brake control, Federal Motor Vehicle Safety Standard No. 123 "Motorcycle Controls and Displays" requires it to be on the right handlebar (Item 10, Table 1).
Finally, you argue that "if the government requires pedaling, this will clearly be discrimination against the disabled," in contravention of "The American Disability Act." What the government is requiring is that motorized bicycles be provided the same level of safety performance as motor driven cycles. This protects all citizens, regardless of whether they are or are not disabled.
While this letter was being prepared, we also received your letter of November 3, 1997, to Taylor Vinson, titled "Supplemental information for ZAP indicating that ZAP should not be a motor vehicle." We were interested to learn of the requirements of the CPSC for bicycles but we continue to believe that the Federal motor vehicle safety standards are more appropriate for bicycles that are motor driven.
We appreciate the offer of Mr. Kardos to provide a ZAP for our inspection, but it will not be required at this time. If you have any further questions, you may refer them to Taylor Vinson 202-366-5263).
Acting Chief Counsel
cc: Senator Feinstein
Rep. Lynn Woolsey