Mopeds fall within NHTSA’s jurisdiction when they can go over 20 mph and are meant to be used primarily on roads.  They’re considered “motor-drive cycles,” which are a subset of motorcycles.  In NHTSA’s world, a motorcycle is “a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.”[1]  A motor-drive cycle is “a motorcycle with a motor that produces 5–brake horsepower or less.”[2]  Since these mopeds are regulated by NHTSA, they cannot be imported into or sold in the United States without complying with the FMVSS.[3]

Since NHTSA is focused on vehicles meant for road use, one might wonder whether the use of bike paths changes NHTSA’s jurisdiction over mopeds.  Ultimately, though, NHTSA is focused on speed.  According to NHTSA’s published interpretations of its regulations, the agency “believe[s] that vehicles with speeds of over 20 mph are capable of on-road operation,” and therefore fall within their purview.  NHTSA makes classifications for vehicles in interstate commerce.  The classifications are meant to be as applicable in California as they are in Tennessee or Maine.  Some cities may have ample bike lanes such that it would be reasonable for the bikes to never be used on roads, but most do not. NHTSA’s classifications will not change from location to location.

In April of this year, the Consumer Product Safety Commission (CPSC) released a report on micromobility products and described its jurisdiction as essentially any micromobility products that do not fall within NHTSA’s jurisdiction, including: “(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; (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[,]” and (4) “[p]edal-assisted micromobility products, even if they can exceed 20 mph, that are not capable of continued self-propulsion, fall within CPSC’s jurisdiction.”[4]  CPSC also has jurisdiction, by statute, over low-speed bicycles.[5]

A key issue for NHTSA’s role in micromobility regulation is their limited jurisdiction over vehicles that are rented.  NHTSA’s regulations are focused on manufacture and the first sale of products.  Thus, it’s not clear whether a company that rents or leases moped is within NHTSA’s purview.  CPSC regulations, on the other hand, squarely apply to rented or leased products.

 NHTSA Certification of Micromobility Products

The Safety Act, NHTSA’s enabling statute, requires motor vehicles covered by the agency and manufactured for sale in the U.S. to be self-certified to comply with applicable federal motor vehicle safety standards, known as “FMVSS.”[6]   NHTSA does not certify; the entity does so.[7]  It certifies by independent testing and evaluation and then affixing a label to its motor vehicle which certifies compliance with applicable FMVSS.  The Act requires “the exercise of ‘reasonable care’ in issuing a certification of compliance with safety standards.” [8]

Mopeds, if considered a type of motorcycle because they can sustain speeds of 20 mph and up, should comply with the following[9] standards:

  • FMVSS 106 – Brake hoses
  • FMVSS 108 – Lamps, reflective devices and associated equipment
  • FMVSS 111 – Rear visibility
  • FMVSS 116 – Motor vehicle brake fluids
  • FMVSS 119 – New pneumatic tires for vehicles with GVWR>4536 kg & MC
  • FMVSS 120 – Tire selection and rims for vehicles with GVWR> 4536 kg & MC
  • FMVSS 122 – Motorcycle brake systems
  • FMVSS 123 – Motorcycle controls and displays
  • FMVSS 205 – Glazing materials (if used)

Vehicle certification labels should contain key information such as vehicle identification numbers (VINs), date of manufacture, and vehicle type classification.[10]  Motor vehicles within NHTSA purview should have a VIN.[11]  Importers “shall utilize the VIN assigned by the original manufacturer of the motor vehicle.”[12]  Within 30 days of beginning manufacture, manufacturers must submit certain information to secure a 3-digit manufacturer code to be used in each VIN they produce.[13]

Importers are at times considered manufacturers for purposes of FMVSS.[14]  In some cases, importers may be independently responsible for the certification label if the motor vehicle is imported without it.[15]  In general, importers need not recertify vehicles which have been properly certified by foreign manufacturers.

Manufacturers of mopeds qualifying as motor vehicles must also comply with NHTSA’s record-keeping requirements.[16]

Applicability & Scope of the Graves Amendment Protections for Micromobility Products

Micromobility companies who rent mopeds that qualify as motor vehicles may wonder about their tort liability as lessors of motor vehicles.  The Graves Amendment offers limited protection to “[a]n owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner).”[17]  Under the Graves Amendment, an “owner” includes both “a record or beneficial owner, holder of title, lessor, or lessee of a motor vehicle” and “a lessor, lessee, or a bailee of a motor vehicle, in the trade or business of renting or leasing motor vehicles, having the use or possession thereof, under a lease, bailment, or otherwise.”[18]  These overlapping definitions suggest a flexible and inclusive approach to the definition of “owner” rather than a rigid and exclusive one.

Even if not considered an “owner,” a company may qualify as an “affiliate” of an owner.  The statute defines “affiliate” as “a person other than the owner that directly or indirectly controls, is controlled by, or is under common control with the owner.”[19]   In this context, “control” means “the power to direct the management and policies of a person whether through ownership of voting securities or otherwise.”[20]  This would depend on a more thorough analysis of the legal and day-to-day business relationships between the related businesses.

The Graves Amendment protects owners of leased vehicles from liability “under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).”[21]

The Amendment is primarily intended to protect a company that rents or leases motor vehicles from vicarious liability.  In other words, if a pedestrian is injured by customer’s use of a rented vehicle, the pedestrian can sue the customer but not the rental company.  A person[22] can sue a rental company if her injuries are caused by the rental company’s negligence or criminal conduct.[23]

At least at the pleading stage, it is not terribly difficult for plaintiffs to get around the Graves Amendment.  For example, in Whiston v. Curry, the Graves Amendment did not protect the defendant rental company where the plaintiff alleged that the rental company negligently leased the vehicle to a driver without inquiring as to whether he had the necessary insurance.[24]  In other words, the Graves Amendment may not keep claims that involve the rental company’s conduct, such as negligent entrustment, from potentially going before a jury.

[1] 49 CFR § 571.3.

[2] Id.  

[3] 49 U.S.C. § 30112.

[4] CPSC, Safety Concerns Associated with Micromobility Products, at 6 (Apr. 8, 2020).

[5] 15 U.S.C. § 2085; 16 CFR § 1512.2(a)(2).  Note that CPSC does not have jurisdiction over scooters and wheelchairs intended for medical uses.  They fall within FDA’s jurisdiction because of their intended use.  This is consistent with NHTSA’s approach, which focuses on what vehicles are primarily intended for and capable of.

[6] 49 USC § 30115; 49 CFR Part 567.

[7] See NHTSA, Manufacturer Handbook 5 (Aug. 25, 2020).

[8] Id.

[9] Id. at 60-63.

[10] 49 CFR § 567.4 (e)-(g).

[11] 49 CFR § 565.13(a).

[12] 49 CFR § 565.14(a).

[13] 49 CFR § 566.6.

[14] 49 USC § 30102(a)(6).

[15] See 49 CFR § 567.2(b).

[16] See generally NHTSA, Manufacturer Handbook 27 (Aug. 25, 2020).

[17] 49 U.S.C. § 30106(a).

[18] 49 U.S.C. § 30106(d)(2).

[19] 49 U.S.C. § 30106(d)(1).

[20] Id.

[21] 49 U.S.C. § 30106(a) (emphasis added).

[22] While we don’t believe we’ve exhausted this research, we have yet to find a case in which a rental company has invoked the Graves Amendment to shield itself from a suit brought by a driver of a rental vehicle.

[23] See Colon v. Bernabe, 07 CIV. 3369 AJP, 2007 WL 2068093, at *4 n. 4 (S.D.N.Y. July 19, 2007) (“The statutory language is quite clear.  The legislative history also makes clear that § 30106 means what it says, i.e., that the owner-lessor remains liable if at fault, such as for negligent maintenance.”) (finding that the particular allegations of a complaint brought a lessor within the statute’s exception).

[24] CV065004796, 2007 WL 125210, at *3 (Conn. Super. Jan. 4, 2007); see also Parker v. Auto-Owners Ins. Co., 19-CV-374-JDP, 2020 WL 488366, at *3 (W.D. Wis. Jan. 30, 2020) (Graves Amendment did not bar negligent entrustment claim against rental company, though claim is at least partly based on vicarious liability).