Federal Motor Vehicle Safety Standards; Motorcycle Helmets amendment..

OFF THE WIRE
Attached for your information - This final rule amends the Federal motor vehicle safety standard for motorcycle helmets...
Every time a law is passed, we lose a little more freedom!!!!!!!!!!!!!!!

 The National Highway Traffic Safety Administration (NHTSA) / Department of Transportation (DOT)  released a final ruling yesterday in changes to FMVS 218 which regards motorcycle helmet regulations.  At some point in the near future helmet manufacturers will be required to change the markings of helmets in several ways....the major change will be to permanently mark the back of a helmet with the words "FMVS 218  DOT  CERTIFIED".    The stated reason for this is so that the police can spot alleged "fake" stickers used on some riders helmets.
28132 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
[Docket No. NHTSA–2011–0050]
RIN 2127–AK15
Federal Motor Vehicle Safety
Standards; Motorcycle Helmets
AGENCY: National Highway Traffic
Safety Administration (NHTSA), DOT.
ACTION: Final rule.
SUMMARY: This final rule amends the
Federal motor vehicle safety standard
that specifies performance requirements
for motorcycle helmets to reduce
traumatic brain injury and other types of
head injury. Some of the amendments
will help to increase the benefits of that
standard by making it easier for State
and local law enforcement officials to
enforce State laws requiring the use of
helmets meeting that standard. Some
motorcyclists use noncompliant helmets
known as novelty helmets. These
helmets are not certified to the agency’s
helmet standard and have been shown
in testing to fail all or almost all of the
safety performance requirements in that
standard. Some novelty helmet users
attempt to make their helmets appear to
law enforcement agencies and the courts
to be compliant by misleadingly
attaching labels that have the
appearance of legitimate ‘‘DOT’’
certification labels. This final rule
revises the existing requirements for the
‘‘DOT’’ certification label and other
labels and adds new requirements to
make it more difficult to label novelty
helmets misleadingly.
The other amendments will aid
NHTSA in enforcing the standard by
setting reasonable tolerances for certain
test conditions, devices and procedures.
Specifically, this final rule sets a quasistatic
load application rate for the
helmet retention system; revises the
impact attenuation test by specifying
test velocity and tolerance limits and
removing the drop height test
specification; provides tolerances for the
helmet conditioning specifications and
drop assembly weights; and revises
requirements related to size labeling and
location of the DOT symbol.
DATES: The final rule is effective May
13, 2013. The incorporation by reference
of certain publications listed in the rule
is approved by the Director of the
Federal Register as of May 13, 2013.
Petitions for Reconsideration: If you
wish to submit a petition for
reconsideration of this rule, your
petition must be received by June 27,
2011.
ADDRESSES: Petitions for reconsideration
should refer to the docket number above
and be submitted to: Administrator,
National Highway Traffic Safety
Administration, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
See the SUPPLEMENTARY INFORMATION
portion of this document (Section V;
Rulemaking Analyses and Notices) for
DOT’s Privacy Act Statement regarding
documents submitted to the agency’s
dockets.
FOR FURTHER INFORMATION CONTACT: For
non-legal issues, you may call Ms.
Shashi Kuppa, Office of
Crashworthiness Standards (Telephone:
202–366–6206) (Fax: 202–366–7002).
For legal issues, you may call Mr. Steve
Wood, Office of the Chief Counsel
(Telephone: 202–366–2992) (Fax: 202–
366–3820). You may send mail to both
of these officials at National Highway
Traffic Safety Administration, 1200 New
Jersey Avenue, SE., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
a. Background
b. Summary of Final Rule and Differences
Between Final Rule and NPRM
c. Estimated Benefits and Costs
II. Background and Notice of Proposed
Rulemaking
a. Background
1. Motorcycle Fatalities
A. There Were 11 Consecutive Years of
Motorcycle Fatality Increases Beginning
in 1998
B. There were Sharp Decreases in 2009 in
All Categories of Motor Vehicle
Fatalities, Including Motorcycle
Fatalities
C. Motorcycle Training Is an Unlikely
Cause for the Sudden Decline in
Motorcycle Fatalities
D. The 2009 Fatalities Decreases Coincided
With the Current Recession
E. The Two Other Sharp Decreases in
Motor Vehicle Fatalities in the Last 35
Years Also Coincided With Recessions
and Were Mostly Temporary
F. Regardless of the 2009 Decreases and the
Reasons for Those Decreases, Motorcycle
Fatalities Remain Far Above the 1997
Levels
2. Motorcyclist Head Injuries
3. NHTSA’s Comprehensive Motorcycle
Safety Plan and the Indispensable Role
Played by Helmet Use
A. Haddon Matrix and Motorcycle Safety
Program Planning
B. Training’s Place in the Matrix; Not a
Substitute for Helmet Use
C. Key Contributions by Helmets
D. Motorcyclists Who Either Wear
Noncompliant Helmets or Do Not Wear
Any Helmet
3. Enforceability Concerns
A. Novelty Helmets and Enforcement of
Helmet Use Laws
i. Are Novelty Helmets Safe?
ii. How are novelty helmets used in an
attempt to avoid being ticketed and fined
for violating state requirements to wear
a FMVSS No. 218-certified helmet?
B. Enforcement of FMVSS No. 218
b. Notice of Proposed Rulemaking
1. Labeling Revisions to Reduce Misleading
Labeling of Novelty Helmets
2. Size Labeling and Location of the ‘‘DOT’’
Certification Label
3. Retention Test
4. Impact Attenuation Test
5. Helmet Conditioning Tolerances
III. The Final Rule and Responses to
Comments
a. Certification Labeling
1. Addition of the Terms ‘‘Certified’’ and
‘‘FMVSS No. 218’’
2. Manufacturer Name and Model
Designation
3. Water Decal and Application of a Clear
Coating
A. Comments Received
B. NHTSA Analysis
C. Alternatives Considered
4. Location of the Certification Label
5. Size of Letters/Numbers
6. Current and New Certification Labels
7. Information Required on New
Certification and Other Labels
b. Size Labeling
1. Comments Received
2. NHTSA Analysis and Conclusion
c. Impact Attenuation Test
1. Definition of ‘‘Impact Site’’
2. Specification of Test Velocity Tolerance
Range
A. Impact Energy
B. Achievable Tolerances
d. Penetration Test
1. Comments Received
2. NHTSA Analysis and Conclusion
e. Quasi-Static Retention Test
f. Helmet Conditioning Tolerances
g. Other Tolerances
h. Other Issues Addressed in the NPRM
i. Other Issues Raised by Commenters
1. Necessity of Universal Helmet Use Laws
and Specifications
2. Recent Actions by the National
Transportation Safety Board and
American Academy of Orthopaedic
Surgeons in Support of Universal State
Motorcycle Helmet Use Laws
3. Role of Rider Education
4. Allegations of Potential for Helmets to
Cause Harm
5. Allegations that Helmets Reduce Vision
and Hearing
6. Impact of Traumatic Brain Injury on
Family, Friends and Co-Workers
7. Recommended Changes to the Helmet
Standard
8. Compliance Date
IV. Estimated Costs and Benefits
V. Related Issues for Future Action
a. Are there examples of novelty ‘‘safety’’
equipment other than novelty helmets?
b. Where are novelty helmets
manufactured?
c. How do novelty helmet manufacturers,
importers and dealers attempt to
rationalize their manufacture,
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 28133
1 See Final Regulatory Evaluation (FRE), which is
in the docket for this rulemaking action.
2 ‘‘Determining Estimates of Lives and Costs
Saved by Motorcycle Helmets,’’ Traffic Safety Facts
Research Note March 2011 DOT HS 811 433,
available at http://www-nrd.nhtsa.dot.gov/Pubs/
811433.pdf. (Last accessed March 16, 2011).
3 Ibid.
4 Ibid.
5 Longthorne, Anders, Subramanian, Rajesh and
Chen, Chou-Lin, ‘‘An Analysis of the Significant
Decline in Motor Vehicle Traffic Fatalities in 2008,’’
pp. 1–2 and 15–17, DOT HS 811 346 June 2010.
Available at http://www-nrd.nhtsa.dot.gov/Pubs/
811346.pdf:
In the past, similar significant declines in
fatalities were seen during the early 1980s and the
early 1990s. Both of these periods coincided with
significant economic recessions in the United
States. During both these time periods, fatalities in
crashes involving younger drivers (16 to 24)
declined significantly as compared to drivers in the
other, older age groups. Both of these periods of
traffic fatality decline were followed by periods of
increasing fatalities and the magnitude of the
increase was the greatest in crashes involving the
younger drivers. This trend was also observed in
multiple-vehicle fatal crashes. However, during
each period of increase following a period of
decline, the annual fatality counts did not rise back
to the level they were at prior to the decline.
Pp. 1–2.
6 Motorcycle Helmet Effectiveness Revisited,
March 2004, DOT HS 809 715, Technical Report,
National Center for Statistics and Analysis, NHTSA.
7 In 2010, 54 percent of motorcyclists wore a
FMVSS No. 218-compliant helmet, 14 percent wore
novelty helmets, and 32 percent wore no helmet at
all. These figures represent a significant reduction
in FMVSS No. 218-compliant helmet use compared
to 2009 when the comparable figures were 67
percent, 9 percent and 24 percent. (2010 figures
from ‘‘Motorcycle Helmet Use in 2010—Overall
Results,’’ Traffic Safety Facts Research Note
December 2010 DOT HS 811 419, available at
http://www-nrd.nhtsa.dot.gov/Pubs/811419.pdf.
2009 figures from Traffic Safety Facts Research Note
December 2010 DOT HS 811 254, available at
http://www-nrd.nhtsa.dot.gov/Pubs/811254.pdf.)
This reduction in FMVSS No. 218-compliant
helmet use is especially significant in the
jurisdictions (20 States and the District of
Columbia) with universal helmet use laws where
the use of compliant helmets dropped from 86
percent in 2009 to 76 percent in 2010 and the use
of novelty helmets increased from 11 percent in
2009 to 22 percent in 2010. This 11 percentage
point increase in novelty helmet use in jurisdictions
with universal helmet use laws between 2009 and
2010 is evidence of the difficulty encountered by
law enforcement officials in enforcing helmet use
laws.
8 ‘‘Summary of Novelty Helmet Performance
Testing,’’ Traffic Safety Facts Research Note, April
2007 DOT HS 810 752. Available at http://
www.nhtsa.gov/DOT/NHTSA/
Traffic%20Injury%20Control/
Studies%20&%20Reports/Associated%20Files/
Novelty_Helmets_TSF.pdf.
9 73 FR 57297, Docket NHTSA–2008–0157.
importation and sale of noncompliant,
non-protective helmets?
d. Is it permissible to sell noncompliant
helmets in a state that does not have a
law requiring the use of helmets?
VI. Rulemaking Analyses and Notices
a. Executive Orders 12866 and 13563 and
DOT Regulatory Policies and Procedures
b. Regulatory Flexibility Act
c. Executive Order 13132 (Federalism)
d. Executive Order 12988 (Civil Justice
Reform)
e. National Technology Transfer and
Advancement Act
f. Unfunded Mandates Reform Act
g. National Environmental Policy Act
h. Paperwork Reduction Act
i. Regulation Identifier Number (RIN)
I. Executive Summary
a. Background
The National Highway Traffic Safety
Administration (NHTSA) is very
concerned about the sharp and steady
increases in injuries and fatalities
among motorcyclists that occurred prior
to the current recession. Beginning with
1998, motorcycle rider fatalities
increased every year through 2008. They
more than doubled, according to the
Fatality Analysis Reporting System
(FARS), from 2,116 deaths in 1997 to
5,290 deaths in 2008.1 These increases
are all the more significant because the
total number of deaths involving all
types of motor vehicle occupants
remained fairly unchanging during most
of that time and then began declining in
2007.
This means that motorcycle occupant
deaths were also steadily increasing as
a percentage of all motor vehicle
occupant deaths. In 2008, motorcycle
fatalities accounted for 14 percent of all
traffic fatalities.2 This total is
particularly concerning given the fact
that motorcycles make up less than 3
percent of all registered vehicles in the
United States, and account for only 0.4
percent of all vehicle miles traveled.3
Over the past decade, the age group
with the largest increase in motorcyclist
fatalities (from 760 in 1998 to 2,687 in
2008) was not the under 21 age group,
the only group covered by the
motorcycle helmet use laws of many
states, but the 40-and-older age group.4
The 40-and-older age group accounted
for half of the total motorcycle fatalities
in the United States that year.
While 2009 FARS data indicate that
deaths among motorcyclists and other
categories of highway users decreased in
2009, the agency is concerned that the
current death toll remains far above the
level in 1997. Further, the 2009
reductions seem likely in large measure
to be temporary as they coincide with
the current recession with its attendant
heightened levels of unemployment.5
To reduce motorcyclist deaths from
traumatic brain injury and other types of
head injury, NHTSA long ago (1973)
issued Federal Motor Vehicle Safety
Standard (FMVSS) No. 218, ‘‘Motorcycle
helmets.’’ This standard specifies
performance (e.g., energy attenuation,
penetration resistance, and retention
system (chin strap) structural integrity)
and labeling requirements for on-road
motorcycle helmets. The safety value of
those requirements is shown by
NHTSA’s research finding that wearing
a helmet certified as conforming to the
FMVSS No. 218 reduces the risk of
dying in a motorcycle crash by 37
percent.6
However, not all of the helmets worn
by motorcycle riders are FMVSS No.
218-compliant. NHTSA estimates that a
significant portion 7 of riders wear socalled
‘‘novelty’’ helmets when riding,
despite warnings that those helmets are
not safe for on-road use. When NHTSA
tested these novelty helmets under
FMVSS No. 218, the agency found that
they failed all or almost all of the safety
performance requirements in the
standard.8 Based on these tests, the
agency concluded that novelty helmets
will not protect motorcycle riders
during a crash from either impact or
penetration threats, and will not likely
be retained on motorcycle riders’ heads
during crashes.
Some sellers and users of novelty
helmets take advantage of the very
simple design of the current
certification label, which merely bears
the letters ‘‘DOT,’’ to create the
superficial appearance of a FMVSS No.
218-compliant helmet. Various
individuals and organizations sell or
distribute labels bearing the letters
‘‘D.O.T.,’’ claiming that those letters
stand for something other than
‘‘Department of Transportation’’ and that
the labels only coincidentally closely
resemble legitimate certification labels.
Examples of online sellers of these
misleading labels can readily be found
through Internet searches. People who
obtain these labels can simply attach
them to their novelty helmets to create
the appearance of compliant helmets.
As a result, they impair the ability of
State and local law enforcement officials
to establish probable cause for stopping
motorcyclists and to prove violations of
their State motorcycle helmet use laws.
On October 2, 2008,9 NHTSA
published a notice of proposed
rulemaking (NPRM) in the Federal
Register proposing to amend FMVSS
No. 218 to address these and other
issues. The notice proposed several
changes to encourage the use of
compliant helmets, require more
informative certification labels (thereby
making the production of misleadingly
similar labels more difficult), and
improve testing procedures for better
enforcement of the performance
requirements.
Specifically, we proposed
enhancements to the certification label
(attached to the helmet exterior), such as
including the manufacturer’s name, the
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
28134 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
10 As noted below, the final rule also adds the
term ‘‘FMVSS No. 218’’ between ‘‘DOT’’ and
‘‘Certified’’ on the certification label.
model number, and the term ‘‘certified’’
on the label, to make more difficult
protestations of innocent intent in
producing, selling and attaching labels
that misleadingly resemble legitimate
certification labels. We also proposed
that a clear coating be applied over the
certification label. We proposed that
information on the discrete size of the
helmet, as opposed to a simple general
size designation such as ‘‘small’’ or
‘‘large,’’ be included on the information
and instruction label (typically attached
to the helmet interior). Finally, we also
proposed slight changes to some of the
test specifications in order to aid
NHTSA’s enforcement efforts.
b. Summary of Final Rule and
Differences Between Final Rule and
NPRM
After having considered the more
than 160 public comments on the
NPRM, the agency is publishing this
final rule. It adopts many of the
proposals in the NPRM, with some
differences. As the NPRM proposed, the
final rule will:
• Require an enhanced certification
label, which will bear the
manufacturer’s name and helmet model,
as well as the word ‘‘Certified.’’ 10 We
believe that this will discourage the
production, sale and attachment of
labels that misleadingly resemble
legitimate certification labels and
thereby facilitate the enforcement of
State helmet use laws. This effect will
be strengthened if the States make it
clear that their requirements to use
helmets that comply with Standard No.
218 include the requirement that the
helmets bear a label affixed by the
helmet manufacturer. This effect will be
further strengthened if the States decide
that, at some appropriate point in the
future after the implementation of the
new certification label requirements,
only helmets bearing the new
certification labels will be considered
compliant.
• Permit the certification label to be
located on the helmet exterior between
1 and 3 inches (2.5 to 7.6 centimeters
(cm)) from the lower rear edge of the
helmet, instead of the current limit of
between 11⁄8–13⁄8 inches (2.9–3.5 cm),
increasing manufacturer flexibility in
label placement.
• Require that the size label state the
helmet size in discrete, numerical terms,
instead of generally stating that the
helmet is ‘‘small,’’ ‘‘medium,’’ or ‘‘large,’’
for example.
• Amend the test procedure for the
retention system by specifying a load
application rate of 0.4 to 1.2 inches per
minute (1–3 cm per minute), and
recharacterizing it as a quasi-static test,
instead of a static test. Specifying the
application rate will aid enforceability
of the standard.
• Amend the impact attenuation test
by specifying a test velocity and
tolerance limits to the test velocity
(although the final tolerances have been
altered from those proposed in the
NPRM) and removing the drop height
specification, which is not needed given
the new specifications.
• Define ‘‘impact site’’ and clarify the
meaning of ‘‘identical impacts’’ for the
impact attenuation tests.
• Adopt helmet conditioning
tolerances (although one of the final
tolerances has been altered from that
proposed in the NPRM).
• Update the reference to Society of
Automotive Engineers (SAE)
Recommended Practice J211,
‘‘Instrumentation for Impact Test—Part
1—Electronic Instrumentation,’’ to use a
more current version, as well as fix a
clerical error where Figures 7 and 8
were inadvertently swapped.
While NHTSA has made some
changes to what it proposed in the
NPRM, we believe that these changes
are relatively minor, and note that they
were made in response to reasoned
arguments in the comments. The most
significant differences between the
NPRM and the final rule involve the
labeling requirement.
As one measure to discourage the
producing and attaching of labels that
misleadingly resemble legitimate
certification labels, the agency had
proposed requiring the application of a
clear coating to the exterior shell of a
FMVSS No. 218-compliant helmet after
the manufacturer attached a valid
certification label to it. The agency
believed that such a measure would
make it more difficult for a nonmanufacturer
to attach a label that
misleadingly resembles a certification
label to a novelty helmet and attempt to
pass the helmet off as a compliant
helmet.
However, commenters responded to
the clear coating proposal with three
counter-arguments that the agency
found convincing. First, commenters
stated that such a requirement would
not pose a significant obstacle to
attaching a misleading label since a
post-manufacture clear coat could be
readily applied to most helmets by
anyone. Second, commenters stated that
a clear coating requirement was
incompatible with certain helmet
designs, including those with matte
finishes or cloth or leather exteriors.
Third and finally, the commenters
submitted information indicating that
many helmets with solid exterior colors
such as white, red, and yellow, are not
manufactured with clear coating.
Requiring clear coating for these
helmets would cost significantly more
than the agency originally believed
($0.60 to $1.00 per helmet compared to
the $0.02 that the agency estimated).
The agency found merit in these
arguments and accordingly has not
included the clear coat requirement for
any helmets in the final rule.
Nonetheless, we believe that the
requirements we have adopted for
improved labeling will help to deter the
attaching of misleading labels to
helmets even without the adoption of
the clear coat proposal.
Other differences between the NPRM
and final rule are listed below, and are
explained in detail in the later sections
of this preamble:
• In response to comments, the final
rule adds the term ‘‘FMVSS No. 218’’
between ‘‘DOT’’ and ‘‘Certified’’ on the
certification label. The addition clarifies
that what is being certified is a helmet’s
compliance with the standard.
• The final rule modifies the
proposed definition of ‘‘impact site’’ for
the anvil test as the point on the helmet
where the falling helmet shell first
contacts the test anvil during the impact
attenuation test. We believe that this
change will reduce any current potential
for misinterpretation of the test
requirements.
• This final rule narrows the
specified velocity tolerance ranges for
the impact attenuation tests in response
to comments. The final values are 16.4
feet/second (ft/s) to 17.7 ft/s (5.0 to 5.4
meters/second (m/s)) on the
hemispherical anvil, and 19.0 ft/s to
20.3 ft/s (5.8 to 6.2 m/s) on the flat anvil
(a tolerance of ± 7.9 inch/second (in/s)
(± 0.2 m/s) for each test). Several
commenters argued that the proposed
tolerance levels of 15.8 in/s (0.4 m/s)
resulted in potentially up to 30 percent
energy variation, which could cause
some helmets to fail the impact
attenuation requirements. The final
tolerance levels permit much less
variation, but are still within the
capability limits of common test
equipment.
• The final rule adds a test tolerance
of ± 0.22 pound (lb) (± 0.1 kilogram (kg))
for the drop assembly weights for all
headform sizes, as part of our efforts to
improve test procedures. These
tolerances will provide test laboratories
with a slight measure of leeway on their
headform weights and will aid
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 28135
11 Traffic Safety Facts, 2008 Data—Motorcycles,
DOT HS 811 159, National Center for Statistics and
Analysis, NHTSA.
12 The Federal Highway Administration (FHWA)
recognizes the need to improve the accuracy of their
VMT estimate for motorcycles and is currently
implementing new requirements for motorcycle
VMT data.
13 Traffic Safety Facts, 2008 Data—Motorcycles,
DOT HS 811 159.
14 Available at http://www.ntsb.gov/alerts/
SA_012.pdf.
enforceability of the standard. The final
rule adds test tolerances for the
penetration test parameters (drop
height) and striker properties (striker
mass, striker point included angle, cone
height, and tip radius).
• The final rule also changes the
ranges for helmet conditioning time,
allowing helmets to be conditioned for
periods of between 4 and 24 hours. It
will also allow indefinite conditioning
time for the ambient condition. These
changes will allow helmets to be
conditioned during normal business
hours as well as prevent indefinite
conditioning for non-ambient
conditions.
NHTSA believes that the effect of
these changes will be to improve
significantly the enforceability of the
helmet standard, specify clearer
instructions for compliance laboratories,
as well as help to reduce the number of
novelty helmets being used by
motorcycle riders. We believe that these
changes will, in turn, increase the
effectiveness of the standard and
produce important safety benefits at
marginal costs to legitimate, reputable
helmet manufacturers, as summarized
in the next section.
c. Estimated Benefits and Costs
The benefits and costs of the rule
would depend on how many motorcycle
riders will change from using novelty
helmets to FMVSS No. 218-certified
helmets. Behavior change among
motorcycle riders as a result of the rule
is difficult to predict. However, the
agency believes that 5 to 10 percent of
the novelty helmet users in States that
have a universal helmet use law would
make a switch, and that this is a modest
and achievable projection. Therefore,
the agency estimated benefits and costs
of the rule for the 5 and 10 percent
projected switch from novelty helmet to
compliant helmet use.
The total equivalent lives saved
ranges from a low estimate of 22 lives
(scenario where 5 percent of the riders
convert from novelty helmets to
compliant helmet use) to a high estimate
of 75 lives (scenario where 10 percent
of the riders convert from novelty
helmets to compliant helmet use). The
costs come from two sources—the direct
increased costs of labeling for
manufacturers due to the improved
certification label requirements, and the
indirect cost to motorcyclists, in States
with helmet use laws, of replacing a
novelty helmet with a FMVSS No. 218-
compliant motorcycle helmet.
We believe that the additional
labeling costs are extremely low. We
estimate the marginal cost difference
between the old certification labels and
the new ones to be approximately 2
cents per helmet. As approximately 5.2
million helmets are sold annually, we
expect the industry-wide effect of this
increase to be $0.1 million.
A greater cost will be incurred if a
motorcycle rider, as a result of this rule,
discards a novelty helmet and purchases
a new FMVSS No. 218-compliant
helmet. We estimate the average
difference in cost between a new
compliant helmet and a new novelty
helmet to be $46.02. The total costs
range from $2.2 million (if 5 percent of
these riders convert to compliant
helmets) to $4.3 million (if 10 percent
convert). The commonly-used metric of
net costs per equivalent life saved
(NCELS) ranges from $63,763 to
$130,586 for the scenario when 5 to 10
percent of the riders convert to
compliant helmets. These figures are
very low compared to the figure of $6.31
million currently used by the agency to
justify issuance of a rule.
II. Background and Notice of Proposed
Rulemaking
a. Background
1. Motorcycle Fatalities
A. There Were 11 Consecutive Years of
Motorcycle Fatality Increases Beginning
in 1998
There is a pressing need for
improvements in motorcycle safety. For
eleven straight years, from 1998 through
2008, motorcycle rider fatalities
increased every year. Fatalities more
than doubled in that time, according to
FARS, from 2,116 deaths in 1997 to
5,290 deaths in 2008. In 2006,
motorcycle rider fatalities exceeded the
number of pedestrian fatalities for the
first time since NHTSA began collecting
fatal motor vehicle crash data in 1975,
and in 2009 accounted for 13 percent of
all annual motor vehicle fatalities.
A number of explanations have been
offered for the steady increase from
1998 through 2008, including increases
in motorcycle sales, increases in the
percentage of older riders, and increases
in engine size. However, as shown in
research by NHTSA’s National Center
for Statistics and Analysis (NCSA) 11
and discussed in the Final Regulatory
Evaluation (FRE), the increase in the
number of deaths resulting from
motorcycle crashes has been
disproportionately large and fast
compared to the increases in the
number of motorcycles on the road and
the distance they are driven. In 2007,
motorcycles accounted for only about 3
percent of all registered vehicles and 0.4
percent of all vehicle miles traveled
(VMT), but accounted for 14 percent of
all traffic crash fatalities in 2008,
compared to 5 percent in 1997. This
represents a significant increase in their
proportion of the annual loss of life in
traffic crashes. In recent years, fatality
rates for motorcycle riders have
increased faster than the increase in
motorcycle exposure (VMT on
motorcycles as well as the number of
registered motorcycles). The number of
fatalities per 100 million VMT on
motorcycles has almost doubled,
increasing from 21 in 1997 to 38 in
2007.12 Similarly, the number of
fatalities per 100,000 registered
motorcycles increased from 59 in 1998
to 72 in 2007. Compared with a
passenger car occupant, a motorcycle
rider is 37 times more likely to die in
a crash and 9 times more likely to be
injured, based on VMT.13
The National Transportation Safety
Board (NTSB) has also made a similar
assessment of the motorcycle safety
problem. The assessment appeared in a
safety alert, ‘‘Motorcycle Deaths Remain
High,’’ issued in November 2010, and
included the following findings:14
• Deaths from motorcycle crashes
have more than doubled in the past 10
years—from 2,294 in 1998 to 5,290 in
2008—an alarming trend. Another
96,000 people were injured in
motorcycle crashes in 2008.
• The yearly number of motorcycle
deaths is more than double the annual
total number of people killed in all
aviation, rail, marine and pipeline
accidents combined.
• Head injuries are a leading cause of
death in motorcycle crashes.
B. There Were Sharp Decreases in 2009
in All Categories of Motor Vehicle
Fatalities, Including Motorcycle
Fatalities
In 2009, overall traffic fatalities fell by
almost 10 percent compared to 2008.
Occupant fatalities fell by 11 percent in
passenger cars, almost 5 percent in light
trucks, 26 percent in large trucks and 16
percent on motorcycles. In addition,
fatalities fell by 7.3 percent for
pedestrians and 12 percent for
pedalcylists.
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
28136 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
15 Longthorne, Anders, Subramanian, Rajesh and
Chen, Chou-Lin, ‘‘An Analysis of the Significant
Decline in Motor Vehicle Traffic Fatalities in 2008,’’
DOT HS 811 346 June 2010. Available at http://
www-nrd.nhtsa.dot.gov/Pubs/811346.pdf.
16 NHTSA, Benefits of Safety Belts and
Motorcycle Helmets, Report to Congress, February
1996.
17 The program can be found at http://
www.nhtsa.gov/DOT/NHTSA/Communication
%20&%20Consumer%20Information/Articles/
Associated%20Files/4640-report2.pdf. See also
Countermeasures that Work: A Highway Safety
Countermeasure Guide for State Highway Safety
Offices, Fifth Edition, pp. 5–1 through 5–28, DOT
HS 811 258, January 2010.
18 Office of Behavioral Safety Research, National
Highway Traffic Safety Administration, Approaches
to the Assessment of Entry-Level Motorcycle
Training: An Expert Panel Discussion, DOT HS 811
242, March 2010. http://www.nhtsa.gov/staticfiles/
nti/motorcycles/pdf/811242.pdf. The report
concluded:
While basic rider courses teach important skills,
the effectiveness of training as a safety
countermeasure to reduce motorcycle crashes is
unclear. Studies conducted in the United States and
abroad to evaluate rider training have found mixed
evidence for the effect of rider training on
motorcycle crashes.
19 Activities shown in italics are either
implemented jointly with, or conducted by, the
Federal Highway Administration.
C. Motorcycle Training Is an Unlikely
Cause for the Sudden Decline in
Motorcycle Fatalities
Some commenters suggested that
motorcyclist training produced the
decline. This explanation for the decline
seems highly questionable. As
explained below in the discussion of
NHTSA’s comprehensive motorcycle
safety plan, the results of studies of such
training are mixed as to whether the
training has any measurable effect on
fatalities. In addition, even if the results
were not mixed and instead uniformly
demonstrated that training had a
significant effect on fatalities, there is no
indication that there has been a recent
substantial increase in the number of
trained motorcyclists that could explain
the sudden significant decline in
motorcycle fatalities.
D. The 2009 Fatalities Decreases
Coincided With the Current Recession
The more likely explanation can be
found in the fact that the relatively
sudden, significant and almost acrossthe-
board declines in all categories of
traffic fatalities coincide with the
current recession.15
E. The Two Other Sharp Decreases in
Motor Vehicle Fatalities in the Last 35
Years Also Coincided With Recessions
and Were Mostly Temporary
There have been three periods,
including the current one, since the
early 1970’s in which there were the
most significant across-the-board
declines in overall traffic fatalities. The
declines coincided with the three most
significant recessions since the early
1970’s. After the first and second
recessions, the overall number of
fatalities rebounded to nearly the prerecession
levels. The agency anticipates
that fatalities will likewise rebound this
time. Thus, the agency remains
concerned about the trend in motorcycle
death totals in future years.
F. Regardless of the 2009 Decreases and
the Reasons for Those Decreases,
Motorcycle Fatalities Remain Far Above
the 1997 Levels
The essential facts are that motorcycle
fatalities remain far above the 1997
levels and that use of motorcycle
helmets is the single most effective way
of preventing motorcyclist fatalities.
2. Motorcyclist Head Injuries
The main function of motorcycle
helmets is to reduce injuries to the head
and, especially, the brain. Brain injury
is more likely to result in expensive and
long-lasting treatment, sometimes
resulting in lifelong disability, while
other head injuries, concussions and
skull fractures (without damage to the
brain itself), are more likely to result in
full recovery.16
3. NHTSA’s Comprehensive Motorcycle
Safety Plan and the Indispensable Role
Played by Helmet Use
A. Haddon Matrix and Motorcycle
Safety Program Planning
NHTSA’s comprehensive motorcycle
safety program 17 seeks to: (1) Prevent
motorcycle crashes; (2) mitigate rider
injury when crashes do occur; and (3)
provide rapid and appropriate
emergency medical services response
and better treatment for crash victims.
As shown in Table 1 below, the
elements of the problem of motorcycle
fatalities and injuries and the initiatives
for addressing them can be
systematically organized using the
Haddon Matrix, a paradigm used for
systematically identifying opportunities
for preventing, mitigating and treating
particular sources of injury. As adapted
for use in addressing motor vehicle
injuries, the matrix is composed of the
three time phases of a crash event (ICrash
Prevention—Pre-Crash, II-Injury
Mitigation—During a Crash, and IIIEmergency
Response—Post-Crash),
along with the three areas influencing
each phase (A-Human Factors, BVehicle
Role, and C-Environmental
Conditions).
Effectively addressing motorcyclist
head injuries or any other motor vehicle
safety problem requires a multipronged,
coordinated program in all of
the areas of the Haddon matrix, as
shown in Table 1. As no measure in any
of the nine areas is a panacea or even
remotely approaches being one, the
implementation of a measure in one
area does not eliminate or reduce the
need to implement measures in the
other areas.
B. Training’s Place in the Matrix; Not a
Substitute for Helmet Use
For example, while NHTSA
encourages efforts in all areas of the
motorcycle safety matrix below,
including the offering of training for
motorcyclists, such training cannot
substitute for the wearing of helmets
complying with FMVSS No. 218. This is
particularly true because the results of
studies regarding the effectiveness of
such training in actually reducing crash
involvement are, at best, mixed.18 To
use an example more closely related to
the experiences of most people who
travel on the Nation’s roadways, arguing
that taking a motorcycle operating
course eliminates the need for using
motorcycle helmets is akin to arguing
that taking a driver’s education course
for driving a passenger vehicle
eliminates the need for people to use
seat belts or to place children in safety
seats or even for vehicle manufacturers
to install seat belts, air bags, padding
and other safety equipment and features
in motor vehicles.
TABLE 1—NHTSA’S MOTORCYCLE SAFETY PROGRAM 19
A-Human factors B-Vehicle role C-Environmental conditions
I-Crash Prevention (Pre-Crash) ..... • Rider Education & Licensing.
• Impaired Riding.
• Motorist Awareness.
• State Safety Program.
• Brakes, Tires, & Controls.
• Lighting & Visibility.
• Compliance Testing & Investigations.
• Roadway Design, Construction,
Operations & Preservation.
• Roadway Maintenance.
• Training for Law Enforcement.
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 28137
20 ‘‘Motorcycle Helmet Effectiveness Revisited,
March 2004, DOT HS 809 715, Technical Report,
National Center for Statistics and Analysis, NHTSA.
21 Ibid.
22 Rajesh Subramanian, Technical Report: Crash
Stats, Bodily Injury Locations in Fatally Injured
Motorcycle Riders, National Center for Statistics &
Analysis, National Highway Traffic Safety
Administration, DOT HS 810 856, October 2007.
Available at http://www-nrd.nhtsa.dot.gov/Pubs/
810856.pdf.
23 The partial laws typically require helmet use
only by persons 17 years of age or younger, even
though 70 percent of the teenagers killed on
motorcycles are 18 or 19 years of age and even
though teenagers of all ages account for only about
4.5 percent of all motorcycle fatalities. Insurance
Institute for Highway Safety, Fatality Facts 2008,
Teenagers. Available at http://www.iihs.org/
research/fatality_facts_2008/teenagers.html.
24 Motorcycle Helmet Use in 2009—Overall
Results, Traffic Safety Facts Research Note, DOT HS
811 254.
25 Motorcycle Helmet Use in 2010, Overall
Results, Traffic Safety Facts Research Note, DOT HS
811 419.
TABLE 1—NHTSA’S MOTORCYCLE SAFETY PROGRAM 19—Continued
A-Human factors B-Vehicle role C-Environmental conditions
II-Injury Mitigation (Crash) ............. • Use of Protective Gear. • Occupant Protection. • Roadway Design, Construction,
& Preservation.
III-Emergency Response (Post-
Crash).
• Automatic Crash Notification. • Education & Assistance to
EMS.
• Bystander Care.
• Data collection & analysis.
C. Key Contributions by Helmets
Mitigating rider injury in crashes
through the use of motorcycle helmets
is a highly effective measure for
improving motorcycle safety. The
steadily increasing toll of motorcyclist
fatalities would have been significantly
lower had all motorcyclists been
wearing motorcycle helmets that meet
the performance requirements issued by
this agency. In potentially fatal crashes,
helmets have an overall effectiveness of
37 percent in preventing fatalities.20
Based on the data for 2008, the agency
estimates that helmets saved 1,829 lives
in that year. If there had been 100
percent helmet use among motorcycle
riders, an additional 823 lives could
have been saved that year.21
Again, in its November 2010 Safety
Alert, the NTSB came to similar
conclusions about the value in
increasing the use of helmets that
comply with FMVSS No. 218:
• DOT-compliant helmets are
extremely effective. They can prevent
injury and death from motorcycle
crashes.
• If you are in a crash without a
helmet, you are three times more likely
to have brain injuries.
• Wearing a helmet reduces the
overall risk of dying in a crash by 37%.
• In addition to preventing fatalities,
helmets reduce the need for ambulance
service, hospitalization, intensive care,
rehabilitation, and long-term care.
• Wearing a helmet does not increase
the risk of other types of injury.
The value of helmet use can be
demonstrated in other ways. Data from
the agency’s Fatality Analysis Reporting
System (FARS) for the period 1995–
2004 also show the importance of
motorcycle helmet use. Even though the
percentage of riders who use motorcycle
helmets is larger than the percentage of
riders who do not, non-users suffer
more fatal head injuries. For example,
from 2000 to 2002, an average of 35
percent of helmeted riders who died
suffered a head injury, while an average
of 51 percent of the non-users who died
suffered a head injury.22
D. Motorcyclists Who Either Wear
Noncompliant Helmets or Do Not Wear
Any Helmet
Unfortunately, a significant
percentage of motorcyclists either wear
noncompliant helmets or do not wear
any helmet at all. In 2009, 20 States and
the District of Columbia had universal
helmet use laws, i.e., ones requiring all
motorcyclists to wear helmets. In those
21 jurisdictions, FMVSS No. 218-
compliant helmets were used by 86
percent of motorcyclists; noncompliant
helmets were used by 11 percent of
motorcyclists; and no helmets were
used by an estimated 3 percent of
motorcyclists. Comparatively, in the 30
States with partial 23 or no helmet use
laws, only 55 percent of motorcyclists
used FMVSS No. 218-compliant
helmets; 8 percent used noncompliant
helmets; and 37 percent did not use a
helmet at all.24 These data are presented
below in tabular form:
TABLE 2—MOTORCYCLE HELMET USE RATES IN 2009
Motorcyclists
States with a
universal
helmet use law
States with
partial or no
helmet use law
Percentage using FMVSS No. 218-compliant helmets ................................................................................... 86 55
Percentage using noncompliant helmets ........................................................................................................ 11 8
Percentage not using any helmet .................................................................................................................... 3 37
In 2010, these figures changed
significantly for the worse.25
TABLE 3—MOTORCYCLE HELMET USE RATES IN 2010
Motorcyclists
States with a
universal helmet
Uue law
States with
partial or no
helmet use law
Percentage using FMVSS No. 218-compliant helmets ................................................................................... 76 40
Percentage using noncompliant helmets ........................................................................................................ 22 8
VerDate Mar<15>2010 18:44 May 12, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
28138 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
26 Summary of Novelty Helmet Performance
Testing, Traffic Safety Facts Research Note, DOT HS
810 752.
27 Compliance test data on novelty helmets
showed that they failed almost all of the FMVSS
No. 218 performance requirements. (Compliance
test results can be found at http://wwwodi/.
nhtsa.dot.gov/tis/index.cfm). In fact, in all tests
performed by the Office of Vehicle Safety
Compliance (OVSC), novelty helmets were found to
be inadequate in offering their users even minimal
protection during a crash.
28 ‘‘Summary of Novelty Helmet Performance
Testing,’’ Traffic Safety Facts Research Note, April
2007 DOT HS 810 752. Available at http://
www.nhtsa.gov/DOT/NHTSA/
Traffic%20Injury%20Control/
Studies%20&%20Reports/Associated%20Files/
Novelty_Helmets_TSF.pdf.
29 Using the search term ‘‘DOT helmet labels’’ or
‘‘DOT helmet stickers,’’ sellers of these labels can be
readily found, for example, on eBay or via Google.
Various Web sites also sell novelty helmets with a
free DOT label.
TABLE 3—MOTORCYCLE HELMET USE RATES IN 2010—Continued
Motorcyclists
States with a
universal helmet
Uue law
States with
partial or no
helmet use law
Percentage not using any helmet .................................................................................................................... 2 52
These data show that a considerable
number of motorcyclists both in States
with universal helmet use laws and
States with partial or no helmet use
laws are wearing noncompliant helmets.
As briefly discussed immediately below
and at greater length under
‘‘Enforceability Concerns,’’ such helmets
do not provide adequate protection.
The noncompliant helmets are
commonly called ‘‘novelty’’ helmets.
They are not designed or manufactured
for highway use, and lack the strength,
energy absorption capability, and size
necessary to protect their users. They do
not meet the safety requirements of
FMVSS No. 218 and are not certified as
doing so. In fact, recent compliance test
data on novelty helmets showed that
they failed all or almost all of the
FMVSS No. 218 performance
requirements.26 Manufacturers of these
helmets frequently make disclaimers
that contend the helmets are not
intended for protecting the persons who
wear them from injury, despite the fact
that helmets for all types of recreational
activities (including sporting ones)
generally have a protective purpose and
the novelty helmets, labeling aside,
likewise appear to have a protective
purpose. These manufacturers further
claim that the helmets are not intended
for highway use, despite the fact that the
helmets are predictably used precisely
and primarily for that purpose. As the
above tables show, a significant
proportion of motorcyclists use novelty
helmets on the highway, especially in
states with universal helmet use laws.
3. Enforceability Concerns
This rulemaking seeks to increase the
benefits of FMVSS No. 218 in two ways.
The first way is improve the exterior
certification label to reduce the
attaching of labels that misleadingly
resemble legitimate certification labels
to novelty helmets and encourage more
use of compliant helmets and assist
State law enforcement officers in
enforcing helmet use laws. The second
is to add tolerances to the test
conditions and procedures and clarify
language in the standard. This will
provide clear guidance to manufacturers
for conducting compliance tests and
will increase the ability of the agency to
bring successful enforcement actions
when a noncompliance is discovered.
A. Novelty Helmets and Enforcement of
Helmet Use Laws
In order to reap the benefits of
compliant helmets more fully, changes
to the labeling requirements are needed
to make it easier for State and local law
enforcement officials to enforce State
motorcycle helmet use laws against
motorcyclists using novelty helmets.
Novelty motorcycle helmets are not
certified by their manufacturers as being
compliant with FMVSS No. 218 and in
fact offer the wearer little or no
protection against injury.27
i. Are novelty helmets safe?
No. When NHTSA tested novelty
helmets under FMVSS No. 218, the
agency found that they failed all or
almost all of the safety performance
requirements in the standard.28 Based
on these tests, the agency concluded
that novelty helmets will not protect
motorcycle riders during a crash from
either impact or penetration threats.
Likewise, their chin straps are incapable
of keeping the helmets on the heads of
their users during crashes.
ii. How are novelty helmets used in an
attempt to avoid being ticketed and
fined for violating state requirements to
wear a FMVSS No. 218-certified helmet?
Some motorcyclists who wear novelty
helmets have been affixing labels
bearing the symbol ‘‘DOT’’ to their
helmets in order to create the
misleading appearance of properly
certified, compliant helmets.29 These
labels closely and not simply
coincidently resemble the ‘‘DOT’’
certification symbol required by FMVSS
No. 218. They can be readily purchased
from stores selling novelty helmets or
from online retailers. States report that
when these motorcyclists are stopped by
law enforcement officers, they falsely
claim that the label was on their helmet
when they bought it and that the label
led them to believe that their helmet
was certified to FMVSS No. 218. Other
motorcyclists do not add a label that
misleadingly resembles a legitimate
‘‘DOT’’ certification label to their novelty
helmets and instead falsely claim they
assumed that there must have been a
legitimate certification label on the
helmet originally and that that label
must have fallen off or been removed by
a prior owner.
The ability of novelty helmet users to
attach inexpensive, easy-to-produce and
easy-to-obtain labels having essentially
the same appearance of legitimate
certification labels has complicated the
efforts of State and local law
enforcement personnel to enforce
requirements for the use of properly
certified helmets. The availability and
use of these labels make it difficult for
law enforcement officials in States with
helmet use laws to determine whether
or not a rider is wearing a helmet
certified to FMVSS No. 218. The
misleading look-alike ‘‘DOT’’ labels
make it difficult to prove that a
motorcyclist is deliberately flouting
helmet use laws by wearing a novelty
helmet with a look-alike ‘‘DOT’’ label
that falsely suggests the helmet is
certified. More importantly, the use of
noncompliant helmets puts
motorcyclists at much greater risk of
head injury or death in the event of a
crash.
In some cases, the use of these lookalike
labels has enabled motorcyclists
either to assert successfully in court that
he or she believed in good faith that the
helmet he or she was using had been
certified to the Federal standard and/or
to put State authorities to the time and
expense of conducting tests to prove
that the helmet is noncompliant.
Further, sellers and distributors of these
labels, which bear the letters ‘‘DOT,’’
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 28139
30 Examples of such attributes include adequate
thickness and composition of the shock absorbing
liner and the presence of the interior label required
by FMVSS No. 218. Any layman can determine that
a thick liner composed of easily compressed sponge
rubber would have no protective value in a crash.
31 If NexL’s helmets fell short of the required level
of performance in tests below 19.7 ft/s, they would
almost certainly have fallen farther short of that
level in tests at 19.7 ft/s, given that the difficulty
of compliance increases as speed increases.
32 There were some discrepancies between the
proposals as described in the NPRM preamble and
the proposals as set forth in the NPRM regulatory
text. For example, the preamble stated that the
agency was proposing that the certification label be
a water decal and that it be placed under a clear
coating. The regulatory text made no mention of a
water decal. Also, the preamble proposed one set
of tolerances for the water temperature specified in
the water immersion procedure and the regulatory
text set forth a slightly different set of tolerances.
attempt to avoid any responsibility for
their sale and use. They assert that the
labels are not counterfeit or misleading
look-alike ‘‘certification’’ labels, but
merely labels that coincidentally
resemble legitimate ‘‘DOT’’ certification
labels and whose letters stand for
‘‘Doing Our Thing,’’ not ‘‘Department of
Transportation.’’ The agency notes its
understanding that these look-alike
labels appeared only after the
implementation of FMVSS No. 218. As
a result, application of these labels to
noncompliant helmets enables
motorcyclists to avoid conviction and
penalties in situations in which State
and local helmet laws require the use of
a certified FMVSS No. 218-compliant
motorcycle helmet.
In NHTSA’s judgment, the mere
presence of a ‘‘DOT’’ label on a helmet
that otherwise lacks the construction
and appearance of a FMVSS No. 218-
compliant helmet cannot reasonably be
thought to be indicative that the helmet
is a compliant helmet. The plausibility
of that indication is negated by the
helmet’s lack of the visible physical
attributes 30 typically possessed by a
compliant helmet. The presence of a
label on such a helmet is instead
actually indicative that the label is a
misleading look-alike label applied by a
helmet seller or user, not by its
manufacturer.
In addition to the enforcement
problems, improper use of the ‘‘DOT’’
symbol on noncomplying helmets has
the additional undesirable effect of
placing legitimate motorcycle helmet
manufacturers that responsibly design,
test, and certify their helmets to FMVSS
No. 218 requirements at a financial
competitive disadvantage. Novelty
helmets are made of inferior materials
and based on inferior designs. Further,
they are not subjected by their
manufacturers to any testing to assure a
suitable level of safety performance.
B. Enforcement of FMVSS No. 218
The other main issue concerns the
enforceability of determinations of
noncompliance with the performance
requirements in FMVSS No. 218. During
fiscal year (FY) 2002 and 2003
compliance testing, the agency
discovered ambiguities in the language
of the impact attenuation test and the
retention test when testing helmets
manufactured by NexL Sports Products
(NexL). NHTSA compliance testing
indicated that NexL’s helmets failed to
meet the performance requirements of
FMVSS No. 218 on helmet impact
attenuation, penetration, and retention.
In its response to the agency’s finding
of noncompliance, NexL claimed that
the agency’s impact attenuation tests
were invalid because the agency
violated S7.1.4(b) of the standard by
testing the helmets at velocities lower
than the minimum required 19.7 ft/s (6
m/s). NHTSA found that the helmets
did not comply with the impact
attenuation requirements of FMVSS No.
218 during agency testing, which is
typically conducted at speeds somewhat
less than 19.7 ft/s. Because the impact
attenuation test, as written, requires a
minimum impact speed of 19.7 ft/s, the
agency tentatively concluded that there
was arguably merit of a technical, not
substantive, nature to NexL’s
arguments 31 and that this language
should therefore be clarified.
With regard to the retention test, NexL
stated that it tested its helmets at the
required static load condition, and that
its testing did not result in any
displacement failures. In its
investigation, NHTSA found that NexL
was able to achieve passing results by
adjusting the load application rate of the
test equipment until a passing
displacement result (less than one inch,
or 2.54 cm, of displacement) was
achieved. In other words, by applying
the required tensile load to the helmet
at one rate, NexL was able to achieve a
passing result, while in a similar test
where the load was applied at a
different rate, NHTSA results showed a
noncompliance. Because the rate of
application of the static load was
unspecified in the standard, NHTSA
decided not to undertake an
enforcement action.
b. Notice of Proposed Rulemaking
1. Labeling Revisions to Reduce
Misleading Labeling of Novelty Helmets
We proposed three requirements for
helmet certification labeling: 32 (1) The
application of a FMVSS No. 218
certification label to the helmet beneath
a clear coating; (2) lettering on the label
indicating the manufacturer’s name
and/or brand and the helmet model
designation in the space above the
‘‘DOT’’ symbol; and (3) the word
‘‘certified’’ in a horizontally centered
position beneath the ‘‘DOT’’ symbol on
that label.
2. Size Labeling and Location of the
‘‘DOT’’ Certification Label
The agency proposed that helmets be
labeled with a ‘‘discrete size,’’ which
would be used to select the appropriate
headform for compliance testing
purposes. In addition, the agency
proposed that the required certification
label on the exterior surface of helmets
be positioned such that the horizontal
centerline of the DOT symbol is located
between one and three inches (2.5–7.6
cm) from the lower edge of the helmet.
3. Retention Test
The agency proposed specifying a
load application rate for the retention
test of 1.0 to 3.0 cm/min and
reclassifying the test as a quasi-static
test instead of the current static test.
4. Impact Attenuation Test
NHTSA proposed to specify test
velocity and tolerance limits for the
impact attenuation test. Specifically, we
proposed that the test velocity be any
speed between 15.7 ft/s to and including
18.4 ft/s (from 4.8 m/s to and including
5.6 m/s) for the impact on the
hemispherical anvil, and any speed
from 18.4 ft/s to and including 21.0 ft/
s (from 5.6 m/s to and including 6.4 m/
s) for the impact on the flat anvil. In
addition, we proposed to remove the
drop height requirement from the
impact attenuation test.
5. Helmet Conditioning Tolerances
NHTSA proposed to set tolerances for
the helmet conditioning procedures. For
the ambient condition, the range was
any temperature from 61 °F to and
including 79 °F (from 16 °C to and
including 26 °C) and any relative
humidity from 30 to and including 70
percent. For the low temperature
condition, the range was any
temperature from 5 °F to and including
23 °F (from ¥15 °C to and including ¥5
°C). For the high temperature condition,
the range was any temperature from 113
°F to and including 131 °F (from 45 °C
to and including 55 °C). For the water
immersion test, the range for the water
temperature was from 61 °F to and
including 79 °F (from 16 °C to and
including 26 °C). In addition, NHTSA
proposed that the 12 hour duration be
specified as a minimum duration.
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
28140 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
33 Docket NHTSA–2008–0157–0160.
34 Docket NHTSA–2008–0157–0103.
35 Docket NHTSA–2008–0157–0166.
36 Docket NHTSA–2008–0157–0156.
37 Docket NHTSA–2008–0157–0129 and 0164.
38 Docket NHTSA–2008–0157–0161.
39 Docket NHTSA–2008–0157–0021.
40 Docket NHTSA–2008–0157–0157.
41 Docket NHTSA–2008–0157–0143.
42 Docket NHTSA–2008–0157–0058 and 0088.
III. The Final Rule and Responses to
Comments
NHTSA received 162 comments in
response to NPRM. Three international
manufacturers of FMVSS No. 218-
compliant motorcycle helmets provided
comments: Shoei Co., Ltd (Shoei),33
Arai Helmet, Limited (Arai),34 and
Shark Helmets (Shark).35 The agency
also received comments from the
Motorcycle Industry Council (MIC),36 a
trade association representing
manufacturers of, among other things,
motorcycles and motorcycle parts and
accessories, including many helmet
distributors in the United States.
Various organizations with a focus on
vehicle or helmet safety and
enforcement submitted comments to the
docket. One entity that provided
extensive information is the Snell
Memorial Foundation (Snell),37 a notfor-
profit organization that promotes the
development, manufacture, and use of
effective helmets for a variety of
purposes. NHTSA also received
comments from the Washington
Association of Sheriffs and Police Chiefs
(WASPC),38 the Governors Highway
Safety Association (GHSA),39 the
Insurance Institute for Highway Safety
(IIHS),40 and one independent
governmental entity, the NTSB,41
organizations which generally promote
safety and law enforcement interests.
The Motorcycle Riders Foundation
(MRF),42 an organization representing
interests of some motorcycle riders, also
submitted comments.
Finally, this rulemaking action
elicited comments from a wide variety
of individual commenters expressing
personal or professional views,
including some anonymous comments.
People expressed a wide variety of
thoughts to this agency, with many
people praising the agency for its efforts
to regulate motorcycle helmets, and
others questioning the value of such
efforts. Where individual comments are
discussed in this document, a docket
citation for the specific comment is
provided.
The following sections address all of
the issues raised by the various
comments and the agency’s response to
each of them. While each comment is
not discussed individually in this
document, we have attempted to group
many of the common ideas, questions,
and arguments in the comments
together and respond to issues as a
whole where possible instead of each
comment individually.
a. Certification Labeling
One of the central purposes of the
proposal to update FMVSS No. 218 was
to improve the exterior label in an
attempt to reduce the number of
motorcyclists who wear novelty
helmets. We believe that fewer
motorcyclists will use novelty helmets if
it is harder to produce and obtain
misleading look-alike ‘‘certification’’
labels, and thus harder for novelty
helmet users to continue to claim falsely
that their helmet bears a valid FMVSS
No. 218 certification label and the
helmet was sold to them as a FMVSS
No. 218-compliant helmet. Further, we
believe that improved labels can make
it easier for law enforcement officers to
identify novelty helmets on the road.
Currently, due to the use by novelty
helmet users of misleading look-alike
‘‘certification’’ labels, law enforcement
officers must try and use other
characteristics to determine if a rider is
wearing a FMVSS No. 218-compliant
helmet. By making the producing and
obtaining of misleading look-alike
‘‘certification’’ labels harder, we hope to
facilitate State law enforcement.
As stated above, due to the simplicity
of the current certification label, it is
easy to produce and acquire misleading
look-alike ‘‘certification’’ labels. Because
the label bears only the letters ‘‘DOT,’’
label manufacturers can manufacture
them cheaply and in large quantities.
The labels are available online, and
sometimes available for a nominal or no
fee at shops that sell novelty motorcycle
helmets. Label manufacturers and label
distributors or sellers claim that the
labels are merely novelty labels and that
DOT stands for ‘‘Doing Our Thing.’’ It is
also easy for riders to affix a label, as
they merely need attach one of these
easily-available labels to the outside of
their novelty helmet.
The NPRM proposed several elements
that would make it more difficult for
label manufacturers to manufacture, and
novelty helmet users to obtain a
misleading look-alike ‘‘certification’’
label. First, we proposed to add the
word ‘‘Certified’’ to the label. This, we
believed, would eliminate any
plausibility to the argument that the
‘‘DOT’’ labels they manufactured are
mere novelty labels. Second, we
proposed that the label contain the
manufacturer’s name and model
designation. This would require a
different certification label for each
helmet model, and make manufacture of
misleading look-alike ‘‘certification’’
labels far more complicated than merely
manufacturing generic ‘‘DOT’’ labels that
can be used on any novelty helmet.
Third, NHTSA examined a variety of
means to make application of the
certification label more difficult than
merely attaching a label to the exterior
of the helmet. In the NPRM, NHTSA
examined numerous alternative means
of accomplishing this, including using a
hologram, embossing the certification
onto the helmet, sewing the certification
mark on the chinstrap, and applying a
clear coating above the certification
label. Ultimately, NHTSA proposed
regulatory text requiring that the
certification label be applied by the
manufacturer under a clear coating,
believing that this would make it more
difficult for end-users to apply
misleading look-alike ‘‘certification’’
labels. In addition, it sought comment
on adopting the alternatives in the final
rule.
1. Addition of the Terms ‘‘Certified’’ and
‘‘FMVSS No. 218’’
While most commenters supported
the addition of the word ‘‘Certified’’ to
the certification label, there was some
disagreement. On the one hand, many
commenters suggested that the addition
of the word ‘‘Certified’’ was not enough,
and that the agency should also require
the addition of some iteration of the
term ‘‘FMVSS No. 218’’ to make clear
that the label conveys certification of a
Federal motor vehicle safety standard.
On the other hand, some commenters
did not support the change to the label,
believing that it would add cost and be
of no value to safety.
Some commenters expressed concern
that the term ‘‘certified’’ was ambiguous.
Shoei commented that introduction of
the word ‘‘certified’’ would imply that
the Department of Transportation had
certified the helmet itself, which would
be incorrect, as NHTSA relies on
manufacturer self-certification. Shoei
stated that, even with just the current
label, some customers request to see
documentation indicating that the DOT
has approved of or certified the helmet.
While we sympathize with Shoei, we do
not believe that use of a term other than
‘‘certified’’ (e.g., ‘‘compliant’’) would
completely eliminate confusion. Other
commenters stated that ambiguity could
be lessened by a reference to FMVSS
No. 218, which could be added to the
label in addition to or in lieu of the
word ‘‘certified.’’ These commenters
included IIHS, Arai, and Shark. IIHS
stated that a reference to FMVSS No.
218 would deny producers of
misleading look-alike ‘‘certification’’
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 28141
43 A brand can take any one of several forms, for
example, a name, logo, trademark, or symbol. 44 Docket NHTSA–2008–0157–0051.
labels the plausible argument that their
labels have any other meaning besides
referencing and indicating compliance
with the Federal standard. Shark and
Arai also both stated that a reference to
FMVSS No. 218 would better convey
the intent of the certification label.
MRF argued against the necessity of
adding language to the certification
label. It stated that the label is the least
important part of the helmet, and that
changing it will only force producers of
misleading look-alike ‘‘certification’’
labels to become more creative and
eventually circumvent the standard.
While we disagree with MRF’s
conclusion, we are heartened that it
states the changes will make it more
difficult to produce misleading lookalike
‘‘certification’’ labels. It is our hope
that this marginal increase in difficulty
will translate into a decrease in on-road
use of novelty helmets.
After considering the comments, we
have decided to retain the word
‘‘Certified’’ on the helmet, but also add
the phrase ‘‘FMVSS No. 218.’’ The goal
of this part of the proposal was to
clearly indicate compliance with
Federal standards, and we believe the
addition of ‘‘FMVSS No. 218’’ makes this
abundantly clear.
2. Manufacturer Name and Model
Designation
We believe that addition of the helmet
manufacturer’s name and/or brand 43
and precise model designation on the
certification label is one of the most
important parts of this rulemaking.
Requiring this information would force
producers of misleading look-alike
‘‘certification’’ either to fabricate
information or to use a legitimate
manufacturer’s existing name and/or
brand, thereby likely infringing upon a
trademark. The manufacturer whose
trademark has been infringed could take
action against the infringing party under
trademark law. Should the producer of
the misleading look-alike ‘‘certification’’
labels produce a label bearing a
fabricated manufacturer name and/or
brand name or should a motorcyclist
attach such label to his or her novelty
helmet, law enforcement officials may
be able to identify these labels as
misleading look-alike ‘‘certification’’
labels.
NHTSA received several comments
relating to this requirement. The
American Society for Testing and
Materials (ASTM), MIC, and Shark all
recommended dropping the model
designation requirement (but not the
manufacturer’s designation) from the
label. They claimed that requiring
manufacturers to produce a different
label for each helmet model would
increase costs, and that the
manufacturer designation alone would
have a similar effect at lower costs. Arai
suggested allowing manufacturers to use
trademarks as their manufacturer
designation. Finally, one commenter,
Max Rettig,44 stated that the
manufacturer’s name should be
removed from the outer label to reduce
variability between helmets.
After considering the comments, we
are amending the standard to require the
manufacturer name and/or brand name
as well as the model designation on the
certification label. With regard to the
comments that such a requirement
could increase costs, we believe that
those costs are so low as to be far
outweighed by the safety benefits. As
shown in more detail below, we believe
that the total incremental cost for this
final rule is on the order of two cents
per helmet. We believe that requiring
helmet manufacturers to design and
produce a unique label for each helmet
model is a very small and reasonable
burden. We estimate that the costs to
label design will be minimal, as only
one design is needed for each helmet
model, and most helmet manufacturers
produce a relatively small number of
helmet models, on the order of 10.
On the other hand, including both the
helmet manufacturer’s designation, i.e.,
name or brand name, and model
designation makes the label far more
difficult to produce than just including
the helmet manufacturer’s designation.
As noted above, several commenters
requested that we require only the
manufacturer’s designation on the
helmet, as our doing so would allow
them to continue to produce only one
label design for all their helmets.
However, the cost of preserving that
relatively small convenience would be
greatly facilitating the work of
producers of misleading look-alike
‘‘certification’’ labels. These producers
could similarly simply produce such
labels with the designations of any
known novelty helmet manufacturers. If
there are any known novelty
manufacturers and if they have any
intellectual property rights, we would
not expect them to act to protect those
rights in this instance.
With regard to Mr. Rettig’s comment
that the manufacturer’s designation
should be removed from the exterior
(i.e., certification) label, we do not agree
with the suggestion. The commenter
suggested that this would reduce
variability between authentic helmet
labels and allow easier enforcement
against novelty helmets. We do not
agree. One main rationale for this
change is to make labels somewhat
unique to each helmet model, so that
producing and obtaining misleading
look-alike ‘‘certification’’ labels suitable
for a particular helmet model are more
difficult. While the commenter believes
that the manufacturer’s designation on
the interior label would be sufficient,
we note that law enforcement officers
can only be certain of having the
opportunity to see the exterior
certification label. Mr. Rettig’s
suggestion would not make enforcement
any easier. Further, if the
manufacturer’s designation were
eliminated, that step would make it
easier to produce misleading look-alike
‘‘certification’’ labels. In his comment,
Mr. Rettig also suggested that NHTSA
create a serial number system that
would correspond to the make and
model of the helmet, in order to identify
helmets containing manufacturing
defects more quickly. We decline to do
so, because such a system is
unnecessary given NHTSA’s
enforcement procedures, and would
impose additional costs on
manufacturers.
3. Water Decal and Application of a
Clear Coating
As stated above, in addition to
proposing additional and more distinct
information on the certification label,
NHTSA also considered a variety of
requirements that would make it
physically more difficult to apply a
misleading look-alike ‘‘certification’’
label after the helmet had been
manufactured. Among the alternatives
considered in the NPRM were requiring
a hologram, a trademarked DOT symbol,
etching the DOT symbol into the outer
surface of the helmet, and sewing the
certification into the chinstrap.
Ultimately, NHTSA decided not to
propose regulatory text for these
approaches due to tentative concerns
about cost, practicability, safety, or
other concerns. It stated in the preamble
of the NPRM that it was proposing that
the certification label be a water decal
and that a clear coat be applied over it,
but included in the proposed regulatory
text only a requirement for clear coating
on the exterior of the helmet. The
agency believed that this would provide
a fast and reliable way for law
enforcement officers to detect
misleading look-alike ‘‘certification’’
labels applied by end users, because
these labels would present a different
tactile feel than those located under the
manufacturer’s clear coating.
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
28142 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
45 See 73 FR at 57302. 46 73 FR at 57302.
The rationale for requiring the
certification label to be located
underneath a clear coating was
described in the NPRM.45 The proposal
was based on three assumptions. First,
NHTSA stated that it believed that all
current FMVSS No. 218-compliant
motorcycle helmets already had a clear
coat, and that it did not know of any
compliant helmet model of a type for
which clear coats would be
impracticable (e.g., leather-shelled
helmets). Second, because clear coats
with water decals beneath were
assumed to be universal, the agency
believed that the application of a water
decal under the clear coat would be
essentially ‘‘costless’’ for manufacturers,
as they would essentially add only the
one-time cost of designing the decal.
Third, the agency believed that it would
be extremely difficult or costly for end
users to duplicate the effect of a
certification underneath a clear coat.
A. Comments Received
NHTSA received comments on the
issue of clear coating from Shoei, Arai,
Shark, ASTM, MIC, and three members
of the general public on this issue. The
comments made several points that
directly impacted the agency’s analysis
of the issue. First, several commenters
pointed out that, contrary to NHTSA’s
assumption, there were several FMVSScompliant
helmets available on the
market with finishes that rendered clear
coating impracticable. These included
helmets with matte finishes, leather or
cloth coverings, and some dyed resin
plastics. Commenters stated that
requiring a clear coating would, at the
least, add substantial cost to some of
these helmets, and be impossible for
others (e.g., leather or cloth-covered
helmets).
Helmet manufacturers all stated that,
contrary to NHTSA’s belief, many
helmets do not use a clear coat finish.
Shark was the only manufacturer to
support the proposed clear coating
requirement, even as it noted two
models it produced without one. Arai
stated that many types of helmets,
including non-glossy colors and matte
finishes, do not have a clear coating
applied, and that the requirement that
all helmets have a clear coat would
thereby limit consumer choice with
regard to helmet styles. Shoei did not
support the requirement either, stating
that the clear coat imposes design
restrictions on manufacturers, and
arguing that the cost of the clear coating
was much higher than NHTSA
anticipated, in the range of 60 cents to
one dollar per helmet.
ASTM and MIC made similar remarks
in their comments. ASTM, in addition
to stating that a clear coat would be
inappropriate for helmets with matte or
cloth finishes, pointed out that many
plastic helmets are made of color
impregnated thermoplastic and are not
painted, and that a water decal would
not be appropriate for those helmets
either. ASTM argued that the labeling
requirement must not restrict available
exterior finishes and must allow greater
flexibility to allow manufacturers to
provide the requested information on
the exterior of helmets. MIC listed ‘‘flat
or matte finishes, polycarbonate,
vacuum thermoforming finish, and
[helmets with] leather or cloth exteriors’’
as examples where a clear coat
requirement would be inappropriate,
and provided Web sites where examples
of those helmets could be seen. It
instead requested that the proposed rule
be modified to permit non clear-coat
finished helmets. In the alternative, MIC
requested that if a clear coat amendment
is adopted, the final rule could also
permit any of the ‘‘alternatives
considered’’ in the NPRM (i.e., etching,
hologram, or sewn into the chinstrap) as
alternative means of compliance.
B. NHTSA Analysis
As stated above, the proposed
requirement for using a water decal as
the certification label and placing it
under clear coating rested on three
assumptions. First, it assumed that the
requirement was practicable, meaning
that all helmet manufacturers could
comply with the requirement. Second, it
assumed that because all FMVSS No.
218-compliant helmets already had a
clear coat, affixing a water decal
certification label under the coating
would be essentially costless, but for the
cost of the decal itself and a change in
the manufacturing process. Third, it
assumed that the requirement would be
effective in preventing users from
attaching a misleading look-alike
‘‘certification’’ label to a helmet that
could confuse a law enforcement officer.
However, after considering the
comments, re-analyzing the market, and
conducting further testing, we have
changed our position on all three of
these assumptions. For the reasons
described below, we are not adopting
the water decal or clear coating
requirement.
First, using the information supplied
by the commenters, NHTSA was able to
locate several examples of helmets
certified to comply with FMVSS No.
218 on the market with leather or matte
finishes, for which a clear coating
would be an impracticable addition.
Second, considering that it is now
evident that there are many helmets that
do not have a clear coat, we would need
to revise our cost estimates. We have
concluded that Shoei’s estimate of $0.60
to $1.00 per helmet is a reasonably
accurate measurement of the cost to add
a clear coat and water decal to a helmet
that does not already have these
features.
Third and finally, NHTSA undertook
additional in-house testing to verify the
claims of commenters that the clear coat
requirement would not be as effective a
deterrent to attaching misleading lookalike
‘‘certification’’ labels as originally
believed. The agency investigated the
Web site doingourthing.com, which
purported to describe a step-by-step set
of instructions on how to affix a DOT
label to a motorcycle helmet and apply
a clear coating over the top of it. Based
on the instructions on the Web site, we
applied a DOT label purchased from the
internet to the back of a test helmet and
applied two coats of spray-on clear coat
(polyurethane). This was a relatively
simple process, and the results, while
not so good as a manufacturer-applied
water decal, were judged sufficient to
allow a user to avoid arousing the
suspicions of a law enforcement officer.
As a result of our testing, we no
longer believe that using a water decal
and placing it under a clear coating
would be an effective means of
thwarting the production and
application of misleading look-alike
‘‘certification’’ labels. We note that in the
NPRM, we reasoned that applying a
‘‘[c]lear coating over the ‘‘DOT’’ symbol
would result in a smooth surface that is
visually and tactilely different from a
label applied to the surface after the
clear coating process is completed.’’ 46
Based on our experience, however, we
have seen that an end user can create
the look and tactile feel of a clear
coating with minimal cost and
difficulty. Combined with the
impracticality of applying clear coats to
some helmets, and substantial cost of
adding it to the other helmets, we have
decided not to require the certification
label on any helmet to be placed under
a clear coating.
C. Alternatives Considered
Despite deciding, ultimately, to not
adopt the clear coat requirement, we
have also decided not to adopt any of
the alternative methods discussed in the
NPRM for making the certification to
make it more tamper-resistant. As stated
above, in the NPRM, the agency
analyzed three alternative methods of
applying the DOT symbol: sewing the
symbol into the chinstrap, etching the
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 28143
47 Docket NHTSA–2008–0157–0042.
48 Comment from Sachiko Jensen, Docket
NHTSA–2008–0157–0053.
49 An RFID reader costs several hundred dollars.
50 Anonymous comment, Docket NHTSA–2008–
0157–0039.
51 Docket NHTSA–2008–0157–0021.
symbol into the helmet, and using a
hologram to make the symbol more
difficult to duplicate and thus make the
misleading labeling of novelty helmets
more difficult. The reasons that the
agency is declining to adopt any of these
alternatives, in lieu of the unadopted
proposal of a clear coat requirement, are
unchanged from the reasons cited in the
NPRM. As discussed below, we did
invite public comments on whether any
or all of the alternatives should be
adopted in the final rule. Our reasons
for not adopting any of them are
summarized below.
The agency considered each
alternative to clear coating, but
ultimately did not propose regulatory
text for any of them because of tentative
concerns regarding effectiveness or cost.
Sewing the symbol onto the chinstrap
was tentatively rejected because law
enforcement personnel stated that it
would be difficult for officers to see the
symbol in that location.
Etching or embossing the symbol into
the material of the helmet was
tentatively rejected because the
manufacturers claimed that it would be
a significant economic burden to them
due to higher manufacturing costs and
to substantially higher scrap rates, up to
5 percent for plastic constructed
helmets and 15 percent for fiberglass
constructed helmet shells. The
manufacturers claimed further that
sharp radii, which would exist at the
interface between the molded surface of
the shell and the raised or recessed
letters of the ‘‘DOT’’ symbol, would
cause production problems in the
molding and finishing, leading to higher
manufacturing costs. Therefore, etching
and embossing the DOT symbol on the
helmet was tentatively judged to be an
unjustified economic cost. Finally,
using a hologram was tentatively
rejected given the agency’s belief that it
would add 70 cents to the cost of a label
(and thus to the cost of FMVSS No. 218-
compliant helmets) and that there are
other effective methods to reduce the
production and application of
misleading look-alike ‘‘certification’’
available that impose a lower burden on
manufacturers.
Several commenters discussed these
alternatives, or presented additional
alternatives. One commenter from the
law enforcement community, Mr.
Steven Rust, said that a molded symbol
would greatly benefit officers’ ability to
distinguish compliant helmets.47 While
we agree that a molded DOT symbol
would make identification of novelty
helmets easier, we do not believe it
would be foolproof, as novelty helmet
manufacturers or end users could also
etch a reasonable facsimile into
noncompliant helmets. Further, as
explained above, this option could be
very costly, due to the reported increase
in manufacturing costs and scrappage
rates of some helmet types.
Another commenter suggested
replacing the exterior compliance label
with a radio-frequency identification
(RFID) tagging system,48 which would
allow law enforcement officers to
simply ‘‘scan’’ a helmet to determine if
it is compliant. A third commenter
suggested replacing the manufacturer
and model designation with a bar code.
With regard to these two options, we
believe that they would also impose
disproportionate costs as they would
make it necessary for law enforcement
officers to purchase and carry additional
equipment.49
One commenter suggested
trademarking the DOT symbol to
prevent label manufacturers from
producing misleading look-alike
‘‘certification’’ labels.50 We did not
pursue this course of action because
first, and most importantly, the agency
is not able to license a trademark for
manufacturers to use at their discretion.
Second, trademarks are easily
counterfeited and the agency has
limited resources to enforce trademark
rights against the printers, sellers and
distributors of labels inappropriately
bearing a trade-marked symbol.
Therefore, we do not believe that
trademarking the DOT symbol would
pose an obstacle for unscrupulous
producers of misleading look-alike
‘‘certification’’ labels.
Finally, GHSA suggested
incorporating the month and year of
manufacture into the information on the
exterior label.51 We are not adopting
that suggestion, because it would
require helmet manufacturers to update
their designs monthly, at some cost,
while makers of misleading look-alike
‘‘certification’’ labels could simply
include any month and date on their
designs, which would necessarily not be
detectable by law enforcement.
Therefore, the agency concluded that
this was not an effective method for
reducing the producing and applying of
misleading look-alike ‘‘certification’’
labels.
4. Location of the Certification Label
Another change proposed in the
NPRM was to widen the range of
acceptable locations for the certification.
Currently, paragraph S5.6.1(e) requires
that the certification label be located
with the horizontal centerline of the
DOT symbol between 11⁄8 inches (2.9
cm) and 13⁄8 inches (3.5 cm) from the
bottom edge of the posterior of the
helmet. The reason for this requirement
is to prevent the certification label from
being mounted in an area that would be
difficult for a law enforcement officer to
see easily, such as the top of a helmet.
However, due to issues of practicality,
such as having large edge rolls, some
manufacturers have judged it necessary
to mount the certification labels a little
higher than the maximum allowed
distance in order to assure complete
label-to-helmet contact. We note that the
certification labels at issue met all other
requirements. However, to address such
circumstances, the agency proposed to
extend the range of allowable locations
for the certification label to anywhere
from 1 to 3 inches (2.5 to 7.6 cm). This
change would allow manufacturers
more flexibility in their label placement,
while still allowing law enforcement
officers to observe the labels easily in
the course of their duties.
Commenters universally supported
the expansion of the permitted range.
ASTM noted that it had petitioned the
agency to make a similar change in an
earlier petition for rulemaking. MIC said
that for years, the current label position
requirement has been problematic for
any helmet with an edge cover or trim
more than one inch vertically or other
design feature influencing label
position. Arai supported the proposal,
stating that this change would give
manufacturers more flexibility. Shoei
also had no objections to the change.
Shark supported the proposal, but
requested that there be an allowance
that enables manufacturers to position
the DOT label slightly off the vertical.
Currently, paragraph S5.6.1(e) of the
standard specifies that the DOT label be
‘‘centered laterally’’ and with the
‘‘horizontal centerline of the symbol
located * * * [2.9 to 3.5 cm] * * *
from the posterior portion of the
helmet.’’ Shark argued that in some
instances, the design of a helmet
precludes positioning the certification
label in the center of the helmet, and
that there should be an allowance for
the label to be located slightly to the
sides, as indicated in the photographs in
Shark’s comment.
Despite Shark’s comment, we are not
adopting a horizontal allowance for
positioning the DOT label. We believe
that the centered position of the exterior
DOT label is important because law
enforcement officers need to be able to
spot the DOT label quickly and easily.
VerDate Mar<15>2010 18:26 May 12, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2 mstockstill on DSKH9S0YB1PROD with RULES2
28144 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations
52 Helmets with a designated discrete size not
exceeding 63⁄4 (European size: 54) are tested on a
small headform, those with a size above 63⁄4, but do
not exceed 71⁄2 (European size: 60) are tested on a
medium headform, and those with a size exceeding
71⁄2 are tested on a large headform. See S6.1.1.
53 ASTM noted that traditional hat sizes are
unitless numbers in 1⁄8 [inch] increments
corresponding to the average diameter of the hat.
See Docket NHTSA–2008–0157–0149, p. 4.
54 Docket NHTSA–2008–0157–0106.
That is why there is a specified position
location, as well as a requirement that
the symbol shall appear in a color that
contrasts with the background, and a
minimum requirement for letter size.
5. Size of Letters/Numbers
Regarding the lettering for the
certification label, the NPRM proposed
a minimum lettering height of 0.09 inch
(.23 cm) for the manufacturer and model
designations, as well as the word
‘‘certified.’’ As the agency received no
comments on this issue, we are adopting
the requirement as proposed in the
NPRM.
6. Current and New Certification Labels
Figure 1—Current Certification Label
DOT
Figure 2—New Certification Label
(Example)
Mfr. Name and/or Brand
Model Designation
DOT
FMVSS No. 218
CERTIFIED
7. Information Required on New
Certification and Other Labels
TABLE 4
Required information
On certification label
(required to be on exterior)
On separate label or labels
(typically placed in interior)
Manufacturer’s name and/or brand Manufacturer’s name
Model designation Discrete size
‘‘DOT’’ Month and year of manufacture
‘‘FMVSS No. 218’’ Instructions to the purchaser regarding construction, handling, cleaning,
use, modifications, and damage
‘‘CERTIFIED’’
b. Size Labeling
In the NPRM, the agency indicated in
the preamble it was proposing to replace
the current requirement in paragraph
S5.6.1(c) to specify the ‘‘size’’ with a
requirement to specify the ‘‘discrete size
or discrete size range.’’ However, in the
proposed regulatory text (S5.6.1(b)), the
agency proposed simply to change
‘‘size’’ to ‘‘discrete size.’’
The reason for the proposal was to
preclude FMVSS No. 218 enforcement
difficulties that could arise under the
existing standard which requires that
helmets be labeled only with a generic
size specification (e.g., Small, Medium,
or Large). Enforceability problems can
arise because while S6.1 specifies which
headform is used to test helmets with a
particular ‘‘designated discrete size or
size range,’’ 52 a helmet’s labeled generic
size may not correspond to the same
size ranges that the agency uses to
determine which headform to use for
testing. To ensure that this issue does
not cause problems in the future, the
agency proposed to require the label to
specify the ‘‘discrete size’’ of the helmet.
The agency further proposed to define
‘‘discrete size’’ as meaning ‘‘a numerical
value that corresponds to the diameter
of an equivalent (± .25 inch or ± .64 cm)
circle.’’ The agency said that this
definition would have two benefits.
First, it would provide certainty as to
the headform on which the helmet
would be tested by NHTSA, thereby
improving the enforceability of the
standard. Second, it would provide
more precise information to customers.
Further, we note that the requirement
would in no way preclude the
manufacturer from specifying a generic
size in addition to the discrete size on
the size label.
1. Comments Received
NHTSA received numerous comments
on the issue of size labeling. Several
commenters questioned whether the
proposed labeling requirements would
improve the information given to
consumers or aid in resolving
enforceability concerns.
With regard to customer information,
commenters generally stated that either
the proposed labeling was not
necessary, or that the discrete size
information should refer to the
circumference of the helmet, rather than
the diameter, as proposed in the NPRM.
MIC and ASTM stated that use of the
diameter is essentially another way to
use ‘‘hat sizes’’ as a means to indicate the
helmet size, albeit with the precision
reduced to 1⁄4 inch