Correspondence Between Bicycle Manufacturers and 
CPSC Regarding Lights at Night

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Judy Murphy discovered the following correspondence in the CPSC website, recently made available as a result of a Freedom of Information Act request. First, I give a bit of background history. Second, I quote the portions of these documents relevant to lights at night. Third, I provide my comments on that material. Fourth, I provide text copies of the documents themselves, converted from the images on the CPSC's site. 

Short History of the All-Reflector System and the CPSC Regulation 

The Bicycle Manufacturers Association invented the all-reflector system of bicycle nighttime protection in the 1960s, and wrote it into their specification for bicycles, BMA/6. During the same time, there was much outcry about the dangerous nature of many items that were sold to consumers. This outcry produced safety regulations for automobiles, issued by the Department of Transportation, and also for other consumer products, issued by the newly-created Consumer Product Safety Commission. Because bicycles were not considered to be vehicles, they were considered to be, and regulated as, "toys or other articles intended for use by children." The bicycle regulation was the first big project of the CPSC, because bicycles were considered the most dangerous consumer product in common use.  Many injuries were associated with bicycling, but few were caused by defects in bicycles. This distinction was overlooked in the hysteria about dangerous products. Because of the hurried nature of this startup, bicycles were regulated as if they were Hazardous Substances, rather than Consumer Products, which accounts for the reference to the Federal Hazardous Substances Act in the following material. During the preparation of the regulation, the Bicycle Manufacturers Association and Schwinn Bicycle Co. represented the industry before the CPSC. They managed to get the all-reflector system written into the regulation as the standard for nighttime protective equipment, because they were frightened that, without such a regulation, they would be required to supply headlamps on bicycles, as is the case in Holland and Germany. At that time, I obtained this information about their motive by clandestine means, but you can read the industry's own admission about their motive in these documents. I participated in all the discussions regarding the proposed bicycle regulation, and finally I sued the CPSC because its regulation still contained many absurd requirements that were contrary to standard engineering knowledge, in particular the superstition that an all-reflector system would alert motorists in time to avoid impending collisions with bicyclists. 

Fred De Long was a long-time club cyclist, one of the few who, in the 1930s before WW2, held a professional-level position, in his case as manufacturing engineer for SKF bearings. During and after WW2, Fred worked for the Philadelphia Naval Shipyard. Simultaneously, he wrote extensively in bicycling magazines, and was instrumental in converting Schwinn Bicycle Company's engineering and exclusive dealerships over to derailleur-equipped bicycles, the first general American application of the Ten-Speed Bicycle (as opposed to its ubiquity among club and racing cyclists for years before). When the first proposed CPSC bicycle regulation required that all bicycles sold in America be toy bicycles of the types made by the BMA (producing a flood of really obscene letters, from those who rode real bicycles, to the CPSC's bureaucrats, who weren't used to reading such foul language), Fred was dispatched to get the regulation fixed up so that it would not prohibit real bicycles. That he did, as best as he was able. Not a help to cyclists; we would have been better off had the CPSC's regulation continued to apply, as the CPSC's own officers had announced that it would, only to bicycles intended for children (indeed, it still does, for bicycles are legally regulated as "toys or other articles intended for use by children."). Of course, that's another of the numerous lies in this process. 

The CPSC's release that instigated this message from me contains four documents. While there are mentions of other subjects, the important subject is the use of headlamps. I won't bother to discuss the others, although you can read them in the text copies that follow (converted from the image copies on the CPSC website). 

1. Letter from Fred De Long to CPSC, 4 July 1978, below letterhead of Bicycling Magazine.
2. Advisory Opinion from CPSC in reply, dated 12 Sept 78
3. Petition to CPSC requesting withdrawal of that Advisory Opinion, submitted by the attorneys for Bicycle Manufacturers Association of America and for Schwinn Bicycle Company. 
4. Advisory Opinion from CPSC regarding the three previous documents, dated 16 Jan 79

De Long's initial letter inquires whether or not the CPSC's all-reflector rule prohibits the states from requiring the use of headlamps when cycling at night. "The statement has been made that since lighting isn't included in the CPSC specs, that the pre-emption makes the State laws that call for bicycle lighting at night are over-ruled. ... Can CPSC preemption overrule these important and necessary safety provisions of existing State laws?"

The CPSC replied with an official opinion. "The Commission believes that such a lighting requirement protects cyclists against at least two risks of injury. One is inadequate nighttime visibility of bicycles to cars. The other is obstacles in the road that may not be visible to a cyclist at night. Because the Commission's reflectivity requirements do not address the second risk, we believe that a state lighting requirement for bicycles ridden at night would not be preempted. Under the Federal Hazardous Substances Act, preemption applies only if (a) the Commission has established a requirement to protect against a risk of injury associated with a product and (b) a state's non-identical requirement is applicable to the same product and is designed to protect against the same risk. Although reflectors and lights address one risk of injury that is the same, the total risk addressed by lights is not the same as that addressed by reflectors." 

The Bicycle Manufacturers Association and the Schwinn Bicycle Co. were dissatisfied with this opinion. They instructed their attorneys to submit a petition to have it revised. 

Among other items, the manufacturers validated the CPSC's determination regarding this issue, by objecting to the force of the opinion: "That advisory opinion, dealing with the scope of federal preemption as to one aspect of bicycles, was specifically, albeit unusually, approved by the Commission itself thus giving it apparent status nor ordinarily attending advisory opinions." 

The manufacturers gave their fear of having to supply headlights as their reason for opposing the CPSC's opinion: "[T]he advisory opinion at issue could serve to encourage states to promulgate laws or regulations mandating headlight equipment at the point of sale to the consumer. While such promulgations would be preempted, the advisory opinion notwithstanding, the bicycle manufacturing industry could not absorb their substantive impact and would be hard-pressed to afford the litigation which would become necessary to negate that impact."

The manufacturers provided three arguments against the CPSC's official position that laws requiring headlamps were directed at illuminating the road ahead.

1. The manufacturers argued, correctly, giving numerous examples, that the state laws were always intended to make bicycles visible to other road users, including motorists, thus demonstrating that the CPSC's argument was totally false. One of the points that I had made in my suit against the CPSC, before this correspondence was written, described the CPSC's habit of deciding on some supposed safety feature and only later, when by legal means I required them to do so, inventing an imaginary reason for the requirement. The CPSC's excuses for various parts of its regulation became more and more ludicrous as I demonstrated the falsity of the previous excuses. This business of inventing the purpose of the headlamp laws to be so the cyclist could distinguish potholes and old mufflers in the roadway is just another example.
2. In fact, the manufacturers quoted the CPSC against itself. The CPSC regulation states: "Bicycles shall be equipped with reflective devices to permit recognition and identification under illumination from motor vehicle headlamps." In other words, the CPSC has officially stated opposite points of view, (1) that the primary purpose of the all-reflector system is to alert motorists, and (2) that that is not the legal purpose.
3. Furthermore, the manufacturers argued that a bicycle headlamp bright enough to satisfactorily illuminate the road ahead "would likely utilize an extremely large light and heavy battery which would add substantial weight to the bicycle. ... The Commission has done a disservice to the bicycle industry, state authorities, and consumers alike by gratuitously suggesting that it is feasible to adopt laws dealing with such a risk of injury."

  That petition produced another advisory opinion that was approved by the Commission, again directed to Fred De Long. "While we are not withdrawing that opinion, we believe that further discussion of the question you raised is needed."

The Commission repeated the validity of its other risk argument: "[W]e should have emphasized that the Commission's conclusion was based on the assumption that the state or local bicycle lighting requirement at issue would address a different risk(s) of injury than the one the Commission has addressed. [In other words, the risk of nighttime car-bike collision.] ... In addition, our advice does not necessarily apply to any existing state or local requirements or to the Uniform Vehicle Code requirement because we have not analyzed any of those provisions." So, the Commission argues that its other risk argument is valid, while in the same paragraph denying that the Commission had any information that would have justified that argument. 

Then the Commission goes on to argue for its other justification that it had used in the court case. "The requirement you described, for lighting on bicycles ridden at night, is clearly one which defines how a consumer must use a bicycle. In contrast, the Commission's regulation sets requirements which a bicycle must meet when introduced into interstate commerce. Because the Commission's regulation does not define how a consumer may or may not use a bicycle, the Commission believes that the Federal Hazardous Substances Act does not prohibit states or localities from issuing or enforcing a requirement that lighting be used on bicycles ridden at night."

My Comments

There you have the whole ugly business exposed in the official correspondence between the bicycle manufacturers and the federal government. This is the sequence of events.

1. The standard equipment for bicycles being ridden at night was, as it still is, a headlamp and a rear reflector. The traffic laws require this equipment and nobody used to question the need for it. I was cycling at the time that this standard was forty years old, often in darkness in early morning, sometimes in the evening, and nobody ever questioned the need for a headlamp; the need for it was unquestioned.
   
2. The American manufacturers of toy bicycles became concerned lest they be required to supply headlamps on the bicycles that they sold, as was the law in Holland and in Germany. The concern was both for initial cost and for liability if the headlamp failed to operate. Building a headlamp that would be reliable when used by children suggested a cost as high as the rest of the bicycle.
   
3. Therefore, the American manufacturers of toy bicycles invented the all-reflector system of nighttime protective equipment, and wrote it into their specification for toy bicycles, BMA/6. It is impossible to discover whether or not the inventors of this system thought that it would provide the required degree of protection. Well, of course, it did provide the required degree of protection for the manufacturers. My impression is that the inventors thought that it would also protect the cyclists, because their knowledge of the operation of their product was completely distorted by their superstitions, just as it was for most other Americans.
   
4. When the manufacturers saw that a federal regulation for the design of bicycles was inevitable, they insisted that that regulation require the all-reflector system. They apparently didn't care much about the other requirements, just so long as they were given time to sell off the non-conforming old inventory, but they insisted that the regulation require the all-reflector system, and they provided BMA/6 as the basis for the new federal regulation.
   
5. The CPSC complied with this insistence, provided that a few improvements were made to the system. The reflectors were made brighter at great distances, at the price of being less bright at the distances at which motorists would need to take collision avoidance action. Each reflector embodied a more complicated design, but with the advantage that fewer reflectors were required. That is, the design required "wide-angle" performance, so that four reflectors would provide reflection to car headlamps from anywhere around the azimuth circle. It was thought that this would ensure conspicuity to motorists at all possible collision angles. Of course, anyone who applied any reasonable traffic knowledge would recognize that this hypothesis was false, but it is apparent that very few people in America had any notion of applying traffic knowledge to the operation of bicycles.
   
6. During the issuance of the regulation, many of its requirements were challenged, first during the comments to proposed versions, then in court, by me, to the issued regulation. The challenges required the CPSC to provide justifications for specific requirements. That is, reasons why requirements X and Y would prevent injuries or deaths. The CPSC responded with the craziest collection of justifications for specific requirements. It was obvious that the regulators had copied requirements from BMA/6 without knowing the basis for those requirements, some of which were not intended to reduce accidents at all, but to benefit the manufacturers. Therefore, when challenged, the regulators had to invent reasons for requirements that they had never understood in the first place. However, the CPSC had no difficulty in identifying its justification for the all-reflector system. The CPSC stated officially in the Federal Register that its all-reflector system "provided adequate visibility to motorists under lowlight conditions." 
   
7. Furthermore, when my challenge progressed from the discussion over the proposed regulation to the court challenge of the issued regulation, the CPSC told the court that it had carefully studied the nighttime accident problem and had reached the conclusion that its all-reflector system was adequate and the result of careful balancing of the characteristics of cost, reliability, effectiveness, etc. That was a lie, because the CPSC made no study of either nighttime car-bike collisions or of the effectiveness of the all-reflector system in typical collision situations. Its total work in that field was one and one-half lines in a report saying that reflectors or lights might reduce nighttime collisions. Its members had also observed one test, in which a representative of either the reflector manufacturers or the bicycle manufacturers rode a bicycle in a circle on the CPSC's driveway, under the beams of car headlamps. However, I could not discover the facts until after the court had rendered its opinion, in which it followed the law by agreeing with whatever the CPSC said that was not absolutely and patently absurd. The court did throw out four requirements that it did find patently absurd, including the one that required that pedals either fall off or stop turning before their tread markings wore off. Four items of a federal regulation thrown out by courts on the basis of one amateur lawyer operating without any money at all? Yes! Attorneys say that that's impossible. That shows you that the CPSC's bicycle regulation was very faultily constructed. 
   
8. During all this time, different American states had picked up parts of the reflector system, requiring that different reflectors be supplied to the different states, which caused a distribution problem for the American manufacturers of toy bicycles. The American manufacturers of toy bicycles, with Schwinn Bicycle Co., worked on Congress to get the Consumer Product Safety Commission Improvement Act, which invalidated all state requirements that differed from federal regulations. To be specific, if a state law addressed the same risk of injury as did a federal regulation, then the only valid state law could be one that was identical with the federal regulation. (This enabled a manufacturer to be sued under either state or federal law, but prohibited being sued for disobeying the state law by obeying the federal law.)
   
9. This raised the question put to the CPSC by Fred De Long. Did the CPSC requirement for the all-reflector system invalidate the states' requirement for headlamps? By any reasonable interpretation of the law it did. The requirement for the all-reflector system was intended to prevent nighttime collisions between bicycles and motor vehicles. That's quite plain; there can be no doubt about that, because that is exactly what the CPSC declared about it, that its all-reflector system "provided adequate visibility to motorists under lowlight conditions." That could only mean that the safety purpose (every CPSC requirement was required to have only a safety purpose) was to prevent collisions between bicycles and motor vehicles. The states' requirements for headlamps were also intended to accomplish the same purpose. That principle the wording of the state statutes and several courts had made abundantly clear. Therefore, the CPSC all-reflector system preempted the states' requirements for headlamps. That's the law, folks. 
   
10. In fact, the BMA and Schwinn went to the National Committee for Uniform Traffic Laws and Ordinances with the proposal that the NCUTLO remove the requirement for headlamps from the Uniform Vehicle Code. I was there (intentionally, of course), and I heard them make their argument.  They told NCUTLO that  that was the law, and they were calling first on the NCUTLO to change the UVC to conform to the new law, only because that would make it easier for BMA and Schwinn to change the laws of the individual states. If NCUTLO chose not to act, BMA would go to the individual states in any case. I presented the opposite argument, that if the laws were so changed, the members of the NCUTLO, who were all motorists, would find themselves legally responsible for collisions with bicycles to which they were required to yield but whom they had no possibility of seeing. The NCUTLO voted unanimously against BMA's proposal.
    
11. I have just described the reasonable interpretation of the law and the regulation as they were written. However, the law doesn't have to be reasonable; the lawyer's cant for it is "rational." Rational means logically self-consistent, regardless of the facts of the real world, resulting sometimes, as in this case, in utterly unreasonable results. Now consider the situation. There occurs a nighttime car-bike collision in which, had it occurred in daylight, the motorist would be required to yield to the cyclist. For example, the motorist intends to turn left while a cyclist is approaching from the opposite direction. Or, the motorist has stopped at a stop sign, while a cyclist is approaching on the protected street. At night, without a bicycle headlamp, in neither case does the motorist see the cyclist, because his headlamp beams are not shining in the direction of the reflectors on the bicycle. So there's a collision. The cyclist cannot be held responsible for not having a headlamp, because the federal regulation and law have invalidated the former state requirement for a headlamp. What's the result? After the state courts and the federal courts have had to chew over the facts of this and similar cases, they come to the reasonable conclusion that the CPSC bicycle regulation is both wrong and is reasonably responsible for the collision. 
    That is a result that would be wholly unsatisfactory to the powers that be. The question is, how to avoid it? The CPSC, in its ignorance of the real world, first tried the excuse of saying that the safety purpose of the headlamp is to enable the cyclist to steer clear of potholes. If that were the legal purpose, then the bicycle manufacturers could be required to install lighting as powerful as a motorcycle's; at least, that is how they complained, as you can read below. And, as I said above, the state statutes and courts had already said otherwise. Therefore, the CPSC and the toy bicycle manufacturers worked out a different excuse. This excuse relies on the limitations of the interstate commerce clause of the Constitution. This is the excuse. The federal government may issue regulations for safe consumer products, but those regulations are valid only as long as the product is in interstate commerce from the manufacturer or importer to the consumer. During this time, of course, the regulation can have no effect in reducing deaths or injuries, either to the trucker or warehouser, for the product is still boxed up and unusable, or to the consumer, who hasn't yet received it. After the product has ceased to be in interstate commerce, any state can require that the reflectors on any bicycle used in that state be different in size, color, position than those required by the federal government, or even prohibit them entirely, without the federal government being able to do anything about that, so the federal regulation is useless, except to the extent that people are too lazy to modify the product.
    
12. Now consider the result of the combined efforts of the federal government and the toy bicycle manufacturers. The result is that the general bicycle-riding population, and the general population of motorists, believe that reflectors are all that is necessary for as much nighttime protection as is possible (believing that bicycling is extremely dangerous in any case). That is the result, and it is immoral, causing deaths and injuries nationwide.
    
13. Now consider whom the regulation protects. It doesn't protect the consumer; very few of the requirements of the regulation address any known causes of injury, and many address only invented causes, what I have referred to as excuses for the regulation. However, it does protect the toy bicycle manufacturers, for if they obey the regulation, no matter the danger of what it says, they have the powerful argument that they are obeying the accepted safety regulation. Not entirely. We nailed Derby Cycle in the Johnson case in New Jersey. But only by Derby's mischance. Derby put its advice to use a headlamp on the page for off-road cycling, not on the page for roadway cycling. Without that mistake, it would have been difficult to nail them, even though Derby's officers swore that they had no idea that the state laws required headlamps when cycling at night and that they believed that the all-reflector system was just what the CPSC had said it was, adequate for nighttime protection against car-bike collisions.
    
14. Where will this lead? I predict that only the Supreme Court will be able to sort out the conflict between state's statutes and federal regulations. That's the can of worms that somebody will open. 

The texts of the official correspondence are below.

BICYCLING!

FRED DE LONG, Technical Editor
Residence: Huntingdon at Terwood Rd.
Hatboro, Pennsylvania 19040
4 July, 1978

Mr. Joseph Fandey
Consumer Product Safety Commission
5401 Westbard Avenue,
Bethesda Md., 20207

Dear Mr. Fandey

Mr. Ken Edinger informs me that you will continue to work on Bicycle Safety Standards, and are considering Technical Guidelines to replace those portions of the CPSC regulations that were remanded by the court decisions.

Having worked with the Commission previously to try to present the viewpoint of the user as well as the serviceman, I would be glad to offer any assistance you might wish to review changes or guideline s in the f future.

I have spoken previously about the dangers of braking standards for wet and dry braking, that do not also include the effect of braking from higher speeds, and long continued braking on the block and rim combination. The 15 mph stop is by no means comparable to continuous braking on a hill., even a short hill of as little as 0.1 to 0.2 miles length. Also the dangerous effects of pitchover.

The protrusions guidelines should take into account items that, are normally fitted and have shown to have no effect on accidents. The remanded regulation went far overboard in lack of consideration of these items, resulting in much unneeded consumer and manufacturer costs with no advantage accruing. These recommendations had been presented to the Commission, but were ignored.

I enclose a letter to Dr. Venable concerning wheel reflector color, and would like to see a change in the color specification, to agree with the ISO proposed standards, the result of multi-nation examination.

Likewise, as also ignored protestations, the front and rear reflector specification for mounting does not take into account the fitment by the cyclist of the very common front .handlebar bag or basket, or rear saddlebags and panniers. This is a serious mistake that must -be corrected.

Your comments are invited. You will find that any comments I make-will be in a constructive, not an destructive agressive manner. As a 200,000 mile cyclist and member of ANSI-TAG and ISO TC/149 Technical Committees, you may find this helpful in your endeavors.

There appears to be a great question in many minds about the pre-emption position of the CPSC regulations in respect to bicycle lighting at night. The statement has been made that since lighting isn't included in the CPSC. specs, that the pre-emption makes the State Laws that call for bicycle lighting at night are overruled.

Since this understanding, or mis-understanding, whichever is correct is of concern-in the highest circles of those intensely interested and active in bicycle safety work in this country, I herby petition for a ruling in this regard.

In my initial discussions with CPSC personnel before the regulations were finally promulgated, it was flatly stated to me that this not mentioning of lighting in the original text of the proposed regulations was not meant in any manner to preclude lighting. Rather, amount of study needed to make a reasonable and effective lighting specification made it prudent to leave this item, if felt needed, for a future time.

However, these discussions were prior to the preemption period. Again, I request an Official Ruling on this question of extreme importance in the field of bicycle nighttime safety. It is a matter of record that almost all states presently, and the Uniform Vehicle Code also, require front lighting when a bicycle is ridden at night. Can CPSC preemption overrule these important and necessary safety provisions of existing State Laws?

Signed (A. Fred De Long)
A. Fred DeLong 
Technical Ed.Editor; Bicycling Magazine 
also American Bicyclist and Motorcyclist

U.S. CONSUMER PRODUCT SAFETY COMMISSION
WASHINGTON. D.C. 20207

September 12, 1978
Mr. A. Fred DeLong
Technical Editor
Bicycling Magazine
Huntingdon at Terwood Rd.
Hatboro, Pennsylvania 19040 '
Dear Mr. DeLong:

Your July 4, 1978 letter to Joseph Fandey of the Commission staff raised a question about bicycle preemption. (We understand that Mr. Fandey has already responded to the other portions of your letter.) You have asked whether the Commission's bicycle regulation would preempt a state requirement for lighting on bicycles ridden at night.

The Commission believes that such a lighting requirement protects cyclists against at least two risks of injury. One is inadequate nighttime visibility of bicycles to cars. The other is obstacles in the road that may not be visible to a cyclist at night.

Because the Commission's reflectivity requirements do not address the second risk, we believe that a state lighting requirement for bicycles ridden at night would not be preempted. Under the Federal Hazardous Substances Act, preemption applies only if (a) the Commission has established a requirement to protect against a risk of injury associated with a product and (b) a state's non-identical requirement is applicable to the same product and is designed to protect against the same risk. Although reflectors and lights address one risk of injury that is the same, the total risk addressed by lights is not the same as that addressed by reflectors.

Please note that the Commission has approved this advisory opinion.

Sincerely,
Signed: (Stephen Lemberg, for)
Margaret A. Freeston
Acting General Counsel

COLLIER, SHANNON, RILL, EDWARDS & SCOTT 
1055 THOMAS JEFFERSON STREET, N.W. 
SUITE 308
WASHINGTON, D.C. 20007 

KECK, CUSHMAN, MAHIN & CATE
8300 SEARS TOWER
233 SOUTH WACKER DRIVE
CHICAGO, ILLINOIS 60606

October 19, 1978

The Honorable Susan B. King
Chairperson -
Consumer Product Safety Commission
1111 Eighteenth Street, N.W. 
Washington, D.C. 20207

Re: Advisory Opinion No. 270

Dear Chairperson King:

This petition is submitted on behalf of our respective clients, the Bicycle Manufacturers Association of America, Inc. ("BMA") and Schwinn Bicycle Company ("Schwinn"), and requests rescission of the captioned advisory opinion issued to Mr. A. Fred DeLong on September 22, 1978. That advisory opinion, dealing with the scope of federal preemption as to one aspect of bicycles, was specifically, albeit unusually, approved by the Commission itself thus giving it apparent status not ordinarily attending advisory opinions. The opinion should be withdrawn for a variety of reasons including the fact that it gratuitously considers and then turns upon issues not presented to the Commission and, in addressing those issues, reaches incorrect conclusions.

Mr. DeLong inquired simply whether a state may mandate front lighting when a bicycle is ridden at night. The appropriate substantive response should have been that preemption would not pertain to a purely "use" requirement, but would pertain to an original equipment requirement. Instead, the Commission inexplicably responded by discussing a hypothetical proposition, namely whether the state provision dealt with a risk of injury associated with an obstacle in the road.

The ramifications of the Commission's action are far more than academic, for the advisory opinion at issue could serve to encourage states to promulgate laws or regulations mandating headlight equipment at the point of sale to the consumer. While such promulgations would be preempted, the advisory opinion notwithstanding, the bicycle manufacturing industry could not absorb their substantive impact and would be hard-pressed to afford the litigation which would become necessary to negate that impact.

Background

Because uniform regulation of this nationally marketed product is vital to the continued viability of the small bicycle manufacturing industry, the legislation incorporating federal preemption into the Federal Hazardous Substances Act was designed in large measure specifically to protect this industry. The joint BMA/Schwinn submission on the question of federal preemption dated July 15, 1978, which dealt with the related issue of sidewalk bicycle provisions, discussed in some detail the legislative history underlying the statute and the Congressional commitment to protect the bicycle manufacturing industry in particular from the ravages of non-identical, and possibly conflicting, dual regulation. Please refer to that prior submission for a detailed explanation of the legislative history underlying the statutory preemption provision.

The opinion to Mr. DeLong, unfortunately, is insensitive to the history of federal preemption insofar as it relates to the Federal Bicycle Regulation and is incorrect in its analysis of a hypothetical issue gratuitously supplied by the Commission. Compounding the situation, the advisory opinion erroneously "resolves" the hypothetical issue.

II.
The DeLong Inquiry Relates only to "Use" Requirements

Reduced to its essence, Mr. DeLong's inquiry is simply whether federal preemption overrules existing state and/or local provisions requiring "front lighting when a bicycle is ridden at night". This is the only question presented to the Commission by Mr. DeLong. Had the Commission responded directly to the question presented, it could have, and we submit should have, pointed out that federal preemption ordinarily would not defeat state use regulations because the Federal Bicycle Safety Regulation is limited to original equipment provisions. Therefore, so long as a bicycle use requirement does not translate itself, as a practical matter, into requiring original equipment not specified in the Federal Bicycle Safety Regulation at the point of sale, federal preemption would not pertain. [BMA and Schwinn ordinarily do not contend that states cannot promulgate "user" requirements for bicycles. It must be clearly understood, however, that certain user requirements can be of such a nature as to directly impact the bicycle as made and sold to consumers and thus, in our view and as supported by legal precedent, would be preempted.] Instead, however, in ostensibly responding to the DeLong inquiry, the Commission gratuitously and unnecessarily analyzed the risks of injury protected by lighting requirements. In turn, the opinion assumes that there are state or other provisions which have lighting requirements which not only respond to the need to illuminate the cyclist to other users of the road, but also respond to a supposed second risk of injury, i.e., obstacles in the road that may not be visible to the cyclist. This assumption is clearly erroneous. A review of existing state laws and pertinent Uniform Vehicle Code provisions reveals that all of them are "use" requirements - i.e., that they relate to use of the bicycle at night. [While Kentucky has a nearly 30-year old statute suggesting a relationship between a bicycle headlight and obstacles in the road, a recently added provision appears to negate such a concept by clearly recognizing that headlights and other bicycle illumination systems are intended expressly for the purpose of making the bicyclist's "presence known to other users of the road." Ky. Rev. Stats., SS 189.040(9), 189.287 (amended 1974).) See Department of Transportation, "Pedestrian and Bicycle Safety Study", pages 75-77, 88, 97 (March 1975); and Department of Transportation, "Bicycling Laws in the United States", pages 108-111 (September 1974)].

The simple response to the DeLong inquiry should have been that as a general proposition federal preemption does not interfere with state use requirements because the Federal Bicycle Safety Regulation deals only with original equipment of bicycles at the time of sale. As will be discussed below, the response could also have taken cognizance of existing laws and responded that the bicycle regulation preempts all existing state laws on front headlamps to the extent they are construed to be new equipment requirements.

III.
There Would Be Federal Preemption Of State New Equipment Requirements

The briefing materials submitted by the Office of General Counsel do not recognize the critical distinction between equipment and use requirements. At best, the response to Mr. DeLong was ambiguous as to whether the Commission was rendering an opinion on a use or an equipment requirement. For this reason alone, the response was not only inaccurate, but misleading and created more ambiguity and difficulty than even Mr. DeLong perceived exists at the present time. More importantly, the CPSC is completely wrong in concluding that there would be no preemption because the risk addressed by the federal provision is not the same as state lighting provisions. There was a fundamental misconception within the parameters of the briefing package regarding the issue raised and the Commission's obligations in responding to the DeLong inquiry. The briefing package states: "In order to provide a substantive response, the Commission must decide whether reflectors and headlights protect against the same risk of injury." This is incorrect. While it is true that federal preemption under the FHSA pertains only where the state and the federal bicycle regulations are regulating against the same risk of injury, the question presented by Mr. DeLong does not even suggest that the state regulations relate to a "different" risk of injury. The briefing package engaged in a long discussion about the different risks of injury which state and WC lighting provisions address. The memorandum contends that headlight requirements relate not only to the risk of insufficient nighttime visibility to a motorist, but: "What is important, however, is that a front lighting requirement also addresses the risk of injury presented by unseen obstacles in the road at night." This statement is speculative, unsupported by any evidence underlying promulgation of the Federal Bicycle Safety Regulation by the CPSC, and is thus nothing more than an unwarranted assumption.

Even assuming arguendo that determining the risk of injury involved was necessary to answer the DeLong inquiry, it is clear that the risk of injury addressed by state front bicycle lighting provisions is the same risk of injury addressed by the Commission in the Federal Bicycle Safety Regulation, namely, the risk posed by accidents between bicycles and motor vehicles. The state laws and the Uniform Vehicle Code provisions dealing with the use of headlights make obvious that their very purpose is to provide precisely the same protection against automobile and bicycle collisions as that offered by reflectors by assuring bicycle conspicuity. In support of this, one need go no farther than a review of the appropriate section of the Uniform Vehicle Code on which most if not all state lighting laws and regulations are predicated. Section 12-702 of the UVC provides: "Every bicycle in use at the times described in S12-201 shall be equipped with a lamp on the front emitting a white light visible from a distance of at least 500 feet to the front. [Prior to 1975, this provision was contained in s11-1207(a), which read in pertinent part as follows: "(a) Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least 500 feet to the front"]

That the purpose of the UVC headlamp requirement is to provide a method for a motorist to observe a bicycle being used at certain times is confirmed by S12-201, which provides: "Every vehicle upon a highway within this State at any time from a half hour after sunset to a half hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 1,000 feet ahead shall display lighted head and other lamps and illuminating devices as respectively required for different classes of vehicles . . . ." 

The state laws requiring the use of headlights at night are directed to the same end. The two Department of Transportation studies referenced previously summarize the existing state laws relating to bicycle equipment requirements. The study entitled "Bicycling Laws in the United States" reports (pp. 109-110) that the laws of 37 states duplicate the Uniform Vehicle Code in requiring bicycles used at night to be equipped with a front headlamp emitting a white light visible from a distance of 500 feet and that eleven other states have comparable laws which differ only slightly from the Code provisions. Two states have no laws on the subject. Thus, not only the UVC, but effectively all existing state bicycle laws are designed solely to deal with the conspicuousness of the bicycle to a motorist.

The court cases construing these state laws confirm that they are intended to deal only with the risk of injury relating to inadequate visibility of bicycles to cars, and that they are not intended to deal with the risk of injury relating to obstacles in the road that may not be visible to a cyclist at night. In Spence v. Rasmussen, 226 P.2d 819 (Ore. 1951), the court construed a similar Oregon provision as follows: "This provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle from the front and for the protection of the bicyclist from such. It in no way requires a light of such intensity as to render objects visible along the highway in front of the bicycle. The requirements of the statute respecting front lamps on motor vehicles have entirely different purposes than the statute respecting bicycle lamps. The front lights on motor vehicles are designed to render visible not only the road ahead and each side thereof, but also persons and objects thereon in the path of the vehicle. They are required to be of such specific intensity as to render persons and objects visible on the highway for certain established distances ahead of the vehicle." ` Id. at 826-827. See also Oxendine v. Lowry, 260 N.C. 709, 113 S.E.2d 687, 690-692 (1963); Albrecht v. Broughton, 6 Cal. App.3d 173, 85 Cal. Rptr. 659, 663-64 (1970). Thus, the existing state laws relating to front headlamps on bicycles deal with the risk of injury relating to the visibility of the bicycle to a motorist - the same risk of injury addressed by the UVC. Significantly, the risk addressed by the UVC and the state statutes is the very same risk addressed by the bicycle reflectivity provisions of the Federal Bicycle Safety Regulation. Section 1512.16 of the Federal Regulation provides as follows:"Bicycles shall. be equipped with reflective devices to permit recognition and identification under illumination from motor vehicle headlamps."

This provision of the Federal Bicycle Safety Regulation was challenged by Mr. John Forester in his suit against the CPSC. Although Mr. Forester and the Commission agreed "nighttime visibility to motorists is extremely important to cyclist safety", Mr. Forester wanted a mixed headlight-reflector system. The United States Court of Appeals in its decision concluded that the federal reflector system and the alternative front lighting system proposed by Mr. Forester were both designed to protect against the same risk of injury and pointed out that in fact the Commission had so considered the issue. The court clearly related the two systems to the single risk of injury and then upheld the Commission's mandate of a system of reflectivity to deal with that risk of injury as opposed to mandating lighting. In the process, the court acknowledged that existing state laws were dealing with the same risk of injury. Thus the court stated: ""The Commission developed an all-reflector system through a balancing of cost, durability, and effectiveness of alternative systems. See 40 Fed. Reg. 25485 (1975). It concluded that all-reflector system would be less expensive to install, would be less susceptible to malfunction and would require less maintenance than would a system involving lights. In addition, reflectors require no volitional act to render them effective, in contrast to lights. The Commission also determined that the reflector system would do little harm to the functioning of bicycles. Although it recognized that a light system would be somewhat more effective, it noted that the standard would in no way prevent bicyclists from installing lights. Forester's argument assumes that cyclists who ride at night would, but for the standard, purchase, maintain and use headlamps. The Commission could rationally have concluded that this was unlikely, and, that many unsophisticated or infrequent nighttime riders would otherwise do so without any protection at all. Although most states require use of headlights and rear reflectors when actually riding at night, there is in most jurisdictions no routine effort to enforce these requirements. Moreover, the regulation is not inconsistent with these state statutes. The Commission could also have rationally concluded that it should not, by federal regulation, require all bicycle purchasers, including those who seldom or never ride after dark, to pay the penalty in cost and weight of a headlamp system. Reflectors appear to provide a significant margin of added safety at a relatively small monetary cost and loss in bicycle efficiency. In view of the Commission's careful balancing of the relevant factors, we do not find this standard to be irrational."  Forester v. CPSC, 559 F.2d 774, 797-798 (D.C. Cir. 1977)

Not only do existing laws and regulations deal with visibility, but any bicycle light that would enable a bicyclist to see obstacles in the road ahead of him would likely utilize an extremely large light and heavy battery which would add substantial weight to a bicycle. As a practical matter, therefore, most riders would likely find such a system unduly expensive, aesthetically unpleasing and mechanically unsatisfactory. The Commission has done a disservice to the bicycle industry, state authorities and consumers alike by gratuitously suggesting that it is feasible to adopt laws dealing with such a risk of injury.

IV.
Conclusion

Perhaps the most unfortunate aspect of the advisory opinion to Mr. DeLong is that it is simply erroneous in concluding: "Because the Commission's reflectivity requirements do not address the second risk, we believe that a state lighting requirement for bicycles ridden at night would not be preempted."

It is clear error to conclude that state requirements relate to the "second" risk of injury. As to the "first" risk of injury, any state provision construed as a new equipment requirement would be federally preempted. In large measure, the inquiry on federal preemption presented by the National Committee on Uniform Traffic Laws and Ordinances relating to sidewalk bicycles (Advisory Opinion No. 269) and the DeLong inquiry relating to lighting are similar in concept in the sense that while the Commission may not have adopted certain requirements in its regulations, its conscious decision not to impose those regulations is sufficient to activate federal preemption. In dealing with the risk of injury of accidents between motor vehicles and bicycles and the question of how to assure bicycle conspicuity under nighttime conditions to mitigate against such accidents, the Commission consciously decided to utilize the reflector system as opposed to lights. See Forester, supra. Therefore, just as in the sidewalk bicycle situation, any state requirement mandating lighting as an equipment requirement, either directly or as a practical matter, would be federally preempted.

V.
Relief Requested

BMA and Schwinn respectfully request the Commission to withdraw the advisory opinion issued to Mr. DeLong. If the opinion is subsequently reissued, it should be limited to the question raised by Mr. DeLong and conclude simply that preemption would not pertain to purely use requirements.

Leaving the present advisory opinion intact without withdrawal or correction will encourage activity at the state level which BMA and Schwinn will have to address on an individual, case-by-case, basis. This will open a "Pandora's Box" and defeat the very purpose for which federal preemptive legislation was originally enacted: uniformity, rather than diversity, of regulation.

Respectfully submitted,
Signed (Ronald K. Kolins)
Ronald K. KOLINS, ESQ
Collier, Shannon, Rill, Edwards & Scott 
Suite 308 
1055 Thomas Jefferson Street, N.W. Washington, D.C. 20007
(202) 337-6000
Attorney for Bicycle Manufacturers Association of America, Inc.

Signed (John R. F. Baer)
JOHN R. F. BAER, ESQ,
Cushman, Mahin & Cate
8300 Sears Tower
233 South Wacker Drive 
Chicago, Illinois 60606 (
312) 876-3400
Attorney for Schwinn Bicycle Company

cc: All Commissioners 
Margaret A. Freeston, Esq.
Alan C. Shakin, Esq.

U.S. CONSUMER PRODUCT SAFETY COMMISSION
WASHINGTON D. C. 20207

January 16, 1979

Mr. A. Fred DeLong .
Technical Editor ;
Bicycling Magazine
Huntingdon at Terwood Rd. 
Hatboro, Pennsylvania 19040

Dear Mr. DeLong:

In a July 4, 1978 letter you raised a question about bicycle preemption. You asked whether the Commission's bicycle regulation would preempt a state requirement for lighting on bicycles ridden at night.

The Commission responded to your question in a September 12, 1978 advisory opinion. The opinion expressed the Commission's belief that the lighting requirement you described would protect bicyclists against at least two risks of injury ((1) inadequate nighttime visibility of bicycles to motorists and (2) obstacles in the road that may not be visible to bicyclists at night). The advisory opinion concluded that such a requirement would not be preempted since the Commission's regulation did not address the second risk of injury.

In an October 19, 1978 letter, the Bicycle Manufacturers Association of America and Schwinn Bicycle Company requested withdrawal of our September 12 advisory opinion to you. While we are not withdrawing that opinion, we believe that further discussion of the question you raised is needed.

In our September 12 opinion we should have emphasized that the Commission's conclusion was based on the assumption that the state or local bicycle lighting requirement at issue would address a different risk(s) of injury than the one the Commission has addressed. If a state or local requirement addresses only the same risk that the Commission's bicycle regulation addresses (that of inadequate nighttime visibility of bicycles to motorists), the preemption advice in our September 12 advisory opinion would not apply. In addition, our advice does not necessarily apply to any existing state or local requirements or to the Uniform Vehicle Code requirement because we have not analyzed any of those provisions.

Our September 12 opinion should have included some additional discussion about the preemption question that your letter raised. The requirement you described, for lighting on bicycles ridden at night, is clearly one which defines how a consumer must use a bicycle. In contrast, the Commission's regulation sets requirements which a bicycle must meet when introduced into interstate commerce. Because the Commission's regulation does not define how a consumer may or may not use a bicycle, the Commission believes that the Federal Hazardous Substances Act does not prohibit states or localities from issuing or enforcing a requirement that lighting be used on bicycles ridden at night.

Please note that this advice concerning a "use" requirement is based on an assumption. For the purpose of answering your question, we have assumed that the state or local requirement would not have the effect of setting any requirement which a bicycle must meet at the time it enters interstate commerce. In addition, since specific state bicycle lighting "use" requirements can vary, the preemption questions raised by each one should be evaluated on an individual basis.

This advisory opinion clarifies and supplements the one which we issued on September 12, 1978. It has been approved by the Commission.

Sincerely,
Signed (Andrew S. Krulwich)
Andrew S. Krulwich
General Counsel

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