Recently, the Commission voted to adopt amendments to the outdated bicycle regulations (16 CFR 1512) issued decades ago. These technical amendments were needed to facilitate the testing and certification requirements of the CPSIA as they apply to bikes. Among other things, these amendments read out of portions of the regulations certain bikes used by professional racers and recumbent bikes that are becoming more popular among some riders.
This vote is of note because it again presents the issue of what regulations are “children’s product safety rules” and, therefore, require third party testing for the products regulated under them. The Commission had the opportunity to give some clarity to this issue but, unfortunately, chose to forgo the opportunity and kicked the can down the road.
The bicycle regulations were issued under the authority of the Federal Hazardous Substances Act (FHSA) in the mid-1970’s. The FHSA is used to regulate mechanical and other hazards to children. Because, back in the 1970’s, it was difficult to define the difference between children’s and adult bikes, all bikes were regulated under the FHSA as children’s products. With the passage of the CPSIA, which requires certifications of compliance for regulated products and third party testing for children’s products – that is products primarily for children 12 and under – the regulatory regime for bikes becomes more complicated. Why? Because CPSIA makes a distinction between children’s products and adult products but the bike regulation does not.
Since bikes are being regulated as children’s products under the FHSA, one could conclude that all bikes need to be tested by a third party lab. But, of course, that is a silly result since we know that not all bikes are for children. Given the CPSIA’s definition of “children’s product” it should be easier to distinguish between a child’s bike and an adult’s bike (and, indeed, we have done that for purposes of lead testing). Should “adult” bikes, however they are defined, be subject only to the certification requirement or perhaps these “adult” bikes are not subject to the current bike regulations at all, since they are not children’s products. What was once a simple regulation has now become a convoluted quagmire, thanks to the arbitrariness of the CPSIA, with its absolute third party testing requirement.
Our excellent staff understands that these and other issues are presented by the intersection between the FHSA and the CPSIA. They took a first step by proposing technical amendments to the bike regulation exempting from parts of the standard bikes used in velodromes and recumbent bikes. I proposed language for the preamble of the regulation acknowledging the issue of defining what is an adult bike and a children’s bike. I am both sorry and perplexed by my majority colleagues’ refusal to include this simple language acknowledging that we have a problem that needs to be fixed.
On a related issue, while the testing requirement for bike reflectors is now in place, there are no labs accredited to perform the test. Therefore, I am pleased that the majority did agree with my request that we reinstate a stay of enforcement on third party testing for bike reflectors. (Such a stay expired in November 2010.) Without this reinstatement of the stay, we are left with an awkward and messy regulatory situation. Though the reflector testing problem is temporarily addressed, what is an adult bike and when, if ever, an adult bike is required to be tested and by whom, remains unclear.