Federal Highway Safety Regulation and Micromobility Devices

Pursuant the National Traffic and Motor Vehicle Safety Act of 1966, a federal agency, the National Highway Traffic Safety Administration (NHTSA), has, for over half a century, set safety standards for most new motor vehicles sold in or imported into the U.S.  (That authority is now codified at 49 U.S.C. § 30111, and NHTSA's standards are set forth in 49 C.F.R. Part 571.)  In 1981 NHTSA also standardized the previously haphazard system of assigning unique identification numbers to motor vehicles sold in the U.S.  (See 49 C.F.R. §§ 565.1 – 565.16.)

NHTSA does have standards potentially applicable to some micromobility devices, namely those governing low speed motorcycles - "motor-driven cycles" to use the agency's terminology. (See 49 C.F.R. § 571.3.)  But in a series of steps, NHTSA has withdrawn or been removed from regulating most, if not all, contemporary forms of low speed powered personal mobility devices on the ground that they are not "motor vehicles" covered by the agency's statutory mandate.

As defined in 49 U.S.C. § 30102(a)(7), a "motor vehicle" is "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways."  The concluding phrase is critical. The agency does not set standards for power mowers, construction equipment, or off-road recreational vehicles.  An agency interpretation, issued in 1969, (34 Fed. Reg. 15416) concluded that powered “mini-bikes” were not “motor vehicles.”  That interpretation set out a multi-factor test. By its terms neither the manufacturer’s intent that mini-bikes be used off-road nor the fact that they possessed the operational capability of being ridden on public thoroughfares was determinative.  So long as the "mini-bikes" failed to meet the requirements of nearly all states for lawful operation on “public streets, roads, and highways” and were not, in fact, being operated on them in significant numbers, NHTSA did not view them as subject to its authority.  Subsequent, advisory opinions concerning motorized kick scooters qualified the second factor, taking the position that even if such vehicles “regularly use the public roads” they would “not be considered 'motor vehicles' if [they] have a maximum attainable speed of 20 miles per hour (mph) or less and an abnormal configuration which readily distinguishes them from other vehicles.”  [1995 NHTSA letter.]  Subsequent, advisory opinions concerning motorized kick scooters qualified the second factor, taking the position that even if such vehicles “regularly use the public roads” they would “not be considered 'motor vehicles' if [they] have a maximum attainable speed of 20 miles per hour (mph) or less and an abnormal configuration which readily distinguishes them from other vehicles.”  [2003 NHTSA letter.]  Adding a seat created a problem, however: "[A seat makes the scooter] indistinguishable from a moped, which is an on-street vehicle that we have long interpreted as a motor vehicle." [1995 NHTSA letter.]