[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Rules and Regulations]
[Pages 28131-28163]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11367]



[[Page 28131]]

Vol. 76

Friday,

No. 93

May 13, 2011

Part II





Department of Transportation





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National Highway Traffic Safety Administration



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49 CFR Part 571



Federal Motor Vehicle Safety Standards; Motorcycle Helmets; Final Rule

Federal Register / Vol. 76 , No. 93 / Friday, May 13, 2011 / Rules 
and Regulations

[[Page 28132]]


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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.

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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 quasi-static 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,

[[Page 28133]]

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.
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    \1\ See Final Regulatory Evaluation (FRE), which is in the 
docket for this rulemaking action.
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    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\
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    \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.
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    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.
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    \4\ Ibid.
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    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\
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    \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.
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    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\
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    \6\ Motorcycle Helmet Effectiveness Revisited, March 2004, DOT 
HS 809 715, Technical Report, National Center for Statistics and 
Analysis, NHTSA.
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    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 so-called ``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.
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    \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.
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    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.
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    \9\ 73 FR 57297, Docket NHTSA-2008-0157.
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    Specifically, we proposed enhancements to the certification label 
(attached to the helmet exterior), such as including the manufacturer's 
name, the

[[Page 28134]]

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.
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    \10\ As noted below, the final rule also adds the term ``FMVSS 
No. 218'' between ``DOT'' and ``Certified'' on the certification 
label.
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     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 
1\1/8\-1\3/8\ 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 non-
manufacturer 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

[[Page 28135]]

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\
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    \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.
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    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\
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    \14\ Available at http://www.ntsb.gov/alerts/SA_012.pdf.
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     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.

[[Page 28136]]

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 across-the-board declines in 
all categories of traffic fatalities coincide with the current 
recession.\15\
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    \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.
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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 pre-recession 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\
---------------------------------------------------------------------------

    \16\ NHTSA, Benefits of Safety Belts and Motorcycle Helmets, 
Report to Congress, February 1996.
---------------------------------------------------------------------------

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 (I-Crash Prevention--Pre-Crash, II-Injury Mitigation--
During a Crash, and III-Emergency Response--Post-Crash), along with the 
three areas influencing each phase (A-Human Factors, B-Vehicle Role, 
and C-Environmental Conditions).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Effectively addressing motorcyclist head injuries or any other 
motor vehicle safety problem requires a multi-pronged, 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.
---------------------------------------------------------------------------

    \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.

                                  Table 1--NHTSA's Motorcycle Safety Program 19
----------------------------------------------------------------------------------------------------------------
                                                                                             C-Environmental
                                           A-Human factors           B-Vehicle role             conditions
----------------------------------------------------------------------------------------------------------------
I-Crash Prevention (Pre-Crash).......   Rider            Brakes, Tires,   Roadway
                                        Education & Licensing.   & Controls.              Design, Construction,
                                        Impaired         Lighting &       Operations &
                                        Riding..                 Visibility..             Preservation.
                                        Motorist         Compliance       Roadway
                                        Awareness..              Testing &                Maintenance.
                                        State Safety     Investigations..         Training for
                                        Program..                                         Law Enforcement.

[[Page 28137]]

 
II-Injury Mitigation (Crash).........   Use of           Occupant         Roadway
                                        Protective Gear.         Protection.              Design, Construction,
                                                                                          & Preservation.
III-Emergency Response (Post-Crash)..   Automatic        Education &
                                        Crash Notification.      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\
---------------------------------------------------------------------------

    \20\ ``Motorcycle Helmet Effectiveness Revisited, March 2004, 
DOT HS 809 715, Technical Report, National Center for Statistics and 
Analysis, NHTSA.
    \21\ Ibid.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \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.

              Table 2--Motorcycle Helmet Use Rates in 2009
------------------------------------------------------------------------
                                        States with a      States with
            Motorcyclists             universal helmet    partial or no
                                           use law       helmet use law
------------------------------------------------------------------------
Percentage using FMVSS No. 218-                     86                55
 compliant helmets..................
Percentage using noncompliant                       11                 8
 helmets............................
Percentage not using any helmet.....                 3                37
------------------------------------------------------------------------

    In 2010, these figures changed significantly for the worse.\25\
---------------------------------------------------------------------------

    \25\ Motorcycle Helmet Use in 2010, Overall Results, Traffic 
Safety Facts Research Note, DOT HS 811 419.

              Table 3--Motorcycle Helmet Use Rates in 2010
------------------------------------------------------------------------
                                        States with a      States with
            Motorcyclists             universal helmet    partial or no
                                           Uue law       helmet use law
------------------------------------------------------------------------
Percentage using FMVSS No. 218-                     76                40
 compliant helmets..................
Percentage using noncompliant                       22                 8
 helmets............................

[[Page 28138]]

 
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.
---------------------------------------------------------------------------

    \26\ Summary of Novelty Helmet Performance Testing, Traffic 
Safety Facts Research Note, DOT HS 810 752.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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://www-odi.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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 look-alike 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,''

[[Page 28139]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 [deg]F to and including 79 [deg]F (from 16 [deg]C to and 
including 26 [deg]C) and any relative humidity from 30 to and including 
70 percent. For the low temperature condition, the range was any 
temperature from 5 [deg]F to and including 23 [deg]F (from -15 [deg]C 
to and including -5 [deg]C). For the high temperature condition, the 
range was any temperature from 113 [deg]F to and including 131 [deg]F 
(from 45 [deg]C to and including 55 [deg]C). For the water immersion 
test, the range for the water temperature was from 61 [deg]F to and 
including 79 [deg]F (from 16 [deg]C to and including 26 [deg]C). In 
addition, NHTSA proposed that the 12 hour duration be specified as a 
minimum duration.

[[Page 28140]]

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.
---------------------------------------------------------------------------

    \33\ Docket NHTSA-2008-0157-0160.
    \34\ Docket NHTSA-2008-0157-0103.
    \35\ Docket NHTSA-2008-0157-0166.
    \36\ Docket NHTSA-2008-0157-0156.
---------------------------------------------------------------------------

    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 
not-for-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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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''

[[Page 28141]]

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 look-alike ``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.
---------------------------------------------------------------------------

    \43\ A brand can take any one of several forms, for example, a 
name, logo, trademark, or symbol.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \44\ Docket NHTSA-2008-0157-0051.
---------------------------------------------------------------------------

    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.

[[Page 28142]]

    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.
---------------------------------------------------------------------------

    \45\ See 73 FR at 57302.
---------------------------------------------------------------------------

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 FMVSS-
compliant 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 look-alike 
``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.
---------------------------------------------------------------------------

    \46\ 73 FR at 57302.
---------------------------------------------------------------------------

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

[[Page 28143]]

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.
---------------------------------------------------------------------------

    \47\ Docket NHTSA-2008-0157-0042.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \48\ Comment from Sachiko Jensen, Docket NHTSA-2008-0157-0053.
    \49\ An RFID reader costs several hundred dollars.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \50\ Anonymous comment, Docket NHTSA-2008-0157-0039.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \51\ Docket NHTSA-2008-0157-0021.
---------------------------------------------------------------------------

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 1\1/8\ inches (2.9 cm) 
and 1\3/8\ 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.

[[Page 28144]]

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       On separate label or labels
         to be on exterior)             (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
------------------------------------------------------------------------
                             ``CERTIF...................................
------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \52\ Helmets with a designated discrete size not exceeding 6\3/
4\ (European size: 54) are tested on a small headform, those with a 
size above 6\3/4\, but do not exceed 7\1/2\ (European size: 60) are 
tested on a medium headform, and those with a size exceeding 7\1/2\ 
are tested on a large headform. See S6.1.1.
---------------------------------------------------------------------------

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 increments.\53\ Both commenters 
recommended that the label refer to the circumference, instead of the 
diameter, because it would allow comparison to a measurement of a 
consumer's head or the test headform without multiplying by the 
mathematical operator, pi. Shoei stated that while it had no particular 
objection to the proposed change in the size labeling requirement, it 
believes that the indication of the helmet size is only for reference 
purposes. On the other hand, Shark commented that the discrete size 
would be confusing to customers, an idea that was seconded by David 
Morena,\54\ and that it would not reflect the actual headform sizes 
used for testing, although Shark did not explain why this latter 
statement would be so.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    With regard to enforceability concerns, ASTM suggested that recent 
enforceability problems would not necessarily be solved by use of a 
``discrete,'' rather than generic labeled size. ASTM noted the 2007 
instance in which an AFX TX-66 helmet, which

[[Page 28145]]

had been both generically and discretely mislabeled as being ``XL (62-
63 cm),'' failed the impact attenuation test when tested on a large 
headform, but was found to pass when tested on a medium headform. It 
stated that the proposed discrete labeling requirement would not have 
had an impact on enforcement in that case.
2. NHTSA Analysis and Conclusion
    After consideration of the comments received, NHTSA has decided to 
adopt the size labeling requirements largely as proposed in the NPRM. 
Despite statements by commenters, we reaffirm our belief that discrete 
size labeling requirements will both improve customer information 
regarding the size of the helmet and avert potential enforceability 
problems.
    First, we note that some commenters may have misinterpreted what is 
specifically required to meet the ``discrete size labeling'' 
requirement. The specific definition in the proposal is:

    Discrete size means a numerical value that corresponds to the 
diameter of an equivalent ( .25 inch or  .64 
cm) circle.

This proposed provision does not require that the numerical value 
listed on the helmet be given in quarter-inch increments. Instead, it 
only requires that the printed number indicate the diameter of an 
equivalent circle, and that circle's diameter can be rounded to the 
nearest quarter inch. Thus, comments that the NHTSA requirement is 
similar, but inferior to, ``hat sizes'' are incorrect. Instead, the 
regulation allows manufacturers to put exact hat sizes on their 
helmets. We also note that the requirement to include discrete sizes 
does not prevent manufacturers from also including a generic size 
marker on their helmets, if they choose to do so.
    In response to comments that the discrete size definition NHTSA 
proposed should be based on the circumference instead of the diameter 
of the helmet, NHTSA is modifying its definition of ``discrete size'' 
to reflect industry convention. The industry convention has been 
recognized in S6.1.1 of the standard since the 1988 (Reference: 53 FR 
11288, Apr. 6, 1988) amendment to the rule. When manufacturers of 
helmets sold in the United States (U.S.) designate a helmet's discrete 
size using the American convention, the discrete size is a numerical 
value that corresponds to the diameter of an equivalent circle and is 
reported in inches; however, the same helmet can be designated using a 
European size convention. Using the European size convention, the 
discrete size is a numerical value that corresponds to the 
circumference of an equivalent circle and is reported in centimeters. 
The intention of defining ``discrete size'' was not to change industry 
convention or how discrete sizes are used in the standard, but rather 
to explain the term. Specifying the inner diameter of the helmet in 
inches is equivalent to the U.S. hat size designation and specifying 
the interior circumference of the helmet in centimeters is equivalent 
to the European hat size designation. We believe that consumers are 
familiar with these two methods of hat size designations and thus will 
not be confused. For these reasons, we are amending the definition of 
discrete size to read:

    Discrete size means a numerical value that corresponds to the 
diameter of an equivalent circle representing the helmet interior in 
inches ( 0.25 inch) or to the circumference of the 
equivalent circle in centimeters ( 0.64 centimeters).

    We also believe that ASTM's suggestion that the proposed discrete 
size labeling requirement will not aid enforcement procedures is 
incorrect. As stated above, the reason NHTSA considered requiring 
manufacturers to be more precise in their size designation is because 
the requirement in paragraph S6.1 states that the designated size is 
used for testing purposes. As some manufacturers now use only generic 
size labeling, this can lead to questions of which headform must be 
used by the agency. ASTM argues that in one case, a manufacturer 
mislabeled a helmet both generically and discretely, and that 
therefore, the discrete labeling did not help NHTSA select the 
appropriate headform. While this is true, this is not a fault 
attributable to the standard, but an act of technical noncompliance by 
the manufacturer. The agency believes that for compliant and 
accurately-labeled helmets, this amendment will improve enforceability.

c. Impact Attenuation Test

    The impact attenuation test is designed to ensure that a motorcycle 
helmet is capable of absorbing sufficient energy upon impact with a 
fixed hard object. Under paragraph S5.1, Impact attenuation, the peak 
acceleration of the test headform is required not to exceed 400g, 
accelerations above 200g not to exceed a cumulative duration of 2.0 
milliseconds, and accelerations above 150g not to exceed a cumulative 
duration of 4.0 milliseconds.
    The current impact attenuation test is specified in paragraph S7.1, 
Impact attenuation test. In this test, the helmet is first fitted on a 
test headform. The helmet/headform assembly is then dropped in a guided 
free fall onto two types of steel anvils, one flat and the other 
hemispherical. The first part of the test specifies two identical 
impacts onto the flat steel anvil, and the second part of the test 
requires two identical impacts onto the hemispherical steel anvil. The 
performance requirement is that the headform acceleration profile must 
be less than the specified accelerations given in S5.1.
    In our 2008 proposal, NHTSA identified two aspects of the impact 
attenuation test that we believed needed modification. The first was 
the definition of the term ``identical impacts,'' which is currently 
not defined in the text of the regulation. We believed that this could 
lead to substantial confusion for manufacturers. The second issue was 
the range of acceptable velocities of the impacts. This issue arose 
when the agency attempted to determine whether certain helmets, 
manufactured by NexL, complied with the impact attenuation 
requirements.\55\ To summarize the NPRM, the agency indicated that in 
the absence of both a minimum and maximum acceptable velocity, it could 
be difficult to take enforcement action against a helmet in the event 
that NHTSA testing revealed a noncompliance.
---------------------------------------------------------------------------

    \55\ See 73 FR at 57306.
---------------------------------------------------------------------------

1. Definition of ``Impact Site''
    The ``identical impacts'' requirement was originally derived from 
American National Standards Institute (ANSI) Z90.1-1971, 
``Specifications for Protective Headgear for Vehicular Users,'' which 
defined the term as impacts centered not more than \1/4\ inch (0.6 cm) 
apart.\56\ However, because NHTSA neither adopted the ANSI definition 
nor incorporated it by reference, the term is undefined in the agency's 
standard. The standard currently reads as follows:
---------------------------------------------------------------------------

    \56\ See, ANSI Z90.1, 9.3.1.

    S7.1.2 Each helmet is impacted at four sites with two successive 
identical impacts at each site. Two of these sites are impacted upon 
a flat steel anvil and two upon a hemispherical steel anvil as 
specified in S7.1.10 and S7.1.11. The impact sites are at any point 
on the area above the test line described in paragraph S6.2.3, and 
separated by a distance not less than one-sixth of the maximum 
---------------------------------------------------------------------------
circumference of the helmet in the test area.

    Due to the lack of a specific definition, we believe there may be 
two reasonable interpretations of this term. The first is that 
``identical impacts'' means two successive impacts on the exact same 
spot of the test helmet, or

[[Page 28146]]

separated by not more than a reasonable tolerance (such as the ANSI 
Z90.1 tolerance of \1/4\ inch (0.64 cm)). The second is that 
``identical impacts'' has a broader meaning, implying the exact same 
test conditions (i.e., velocity, location, and conditioning of the 
helmet) for the successive impacts, regardless of whether the helmet/
headform assembly actually impacted the fixed anvil at or near the same 
location on the helmet on the subsequent drop. In order to clarify the 
test procedure, the agency proposed to drop the term and replace it 
with a more defined specification. For reasons discussed in detail in 
the NPRM, the agency proposed that the standard specify that the 
locations of the two impacts on the helmet be no more than \3/4\ inch 
(1.9 cm) apart.
    We also proposed to define the term ``impact site'' to mean ``the 
location where the helmet contacts the center of the anvil.'' This was 
in response to questions raised by MIC and ASTM regarding the precise 
meaning of the term impact site. The proposed provision reads as 
follows:

     S7.1.2 Each helmet is impacted at four sites with two 
successive impacts at each site. For each site, the location where 
the helmet contacts the center of the anvil on the second impact 
shall not be greater than 0.75 inch \57\ (1.9 cm) from the location 
where the helmet contacts the center of the anvil on the first 
impact. Two of these sites are impacted upon a flat steel anvil and 
two upon a hemispherical steel anvil as specified in S7.1.10 and 
S7.1.11. The impact sites are at any point on the area above the 
test line described in paragraph S6.2.3, and separated by a distance 
not less than one-sixth of the maximum circumference of the helmet 
in the test area.
---------------------------------------------------------------------------

    \57\ Due to a typographical error, this was incorrectly 
published as .075 inch in the NPRM. The correct value is 0.75 inch. 
The error has been corrected in this document.

    The agency received three comments relating to the proposal to 
eliminate the term ``identical impacts'' and define the term ``impact 
sites,'' from ASTM, MIC, and Shark. Shark stated that it agreed with 
the 0.75 inch (1.9 cm) tolerance between the two impacts, but requested 
that ``both impacts should remain above the test line.'' While we agree 
with the idea, we believe that this is already clear from the language 
of S7.1.2, so we are not making a change from the wording of the 
proposed language. ASTM and MIC suggested different definitions for the 
term impact site, which are discussed below.
    ASTM and MIC requested clarification of the term ``impact site.'' 
ASTM stated that there were three possible interpretations of the 
proposed definition, which as stated above, is ``the location where the 
helmet contacts the center of the anvil.'' These were: (1) The literal 
``point'' where the curved helmet shell first contacts the test anvil 
before the test; (2) a point projected from the headform center of 
gravity to the center of the impact anvil; or (3) the dynamic impact 
``footprint'' created during the impact test. Similarly, MIC suggested 
two similar readings: (1) The exact point where the curved helmet shell 
first contacts the test anvil before the test; or (2) the dynamic 
impact ``footprint'' created during the impact test. For reasons 
described below, we have decided to clarify the definition, and believe 
that the first reading provides the clearest description of what the 
agency intends.
    NHTSA agrees that the proposed definition can be made clearer. As 
stated above, the proposed definition of ``impact site'' was ``the 
location where the helmet contacts the center of the anvil.'' In the 
context of the proposed regulation, the term was used as follows:

     The impact sites are at any point on the area above the 
test line described in paragraph S6.2.3, and separated by a distance 
not less than one-sixth of the maximum circumference of the helmet 
in the test area.\58\
---------------------------------------------------------------------------

    \58\ 49 CFR 571.218, S7.1.2.

Our intention in proposing the revised regulation was to replace the 
term ``identical impacts,'' which was comparatively vague, with a term 
that would be more precise and enforceable. We believe that the first 
reading of the definition, suggested by the commenters, is a more 
effective means of communicating that intent. With this new language, 
it should be clear that the NHTSA test requires that the headform 
assembly impact the anvil in two locations on the shell of the helmet. 
Those two locations must be located no more than 0.75 inches apart from 
each other. For this reason, we are amending the definition of impact 
---------------------------------------------------------------------------
site to read:

    Impact site means the point on the helmet where the helmet shell 
first contacts the test anvil during the impact attenuation test.

    NHTSA does not believe that the other interpretations offered by 
ASTM and MIC to define the impact site based on the dynamic footprint 
are appropriate for the standard. The dynamic footprint, which refers 
to the total area on the helmet shell that contacts the anvil during 
the attenuation tests, is a function of helmet design and not known 
until the test is complete.\59\ Because the ``impact site'' must remain 
above the test line pursuant to S7.1.2, adopting this definition of 
impact site would require that testers limit their choice of impact 
sites to those well above the test line, given the uncertainty about 
the full extent of the deformation. We believe that this reading would 
introduce the very element of uncertainty into our test procedures that 
this rulemaking action is designed to eliminate.
---------------------------------------------------------------------------

    \59\ This is because the helmet deforms slightly when it impacts 
the steel anvil, so that an area larger than the initial point of 
contact makes contact with the anvil. Depending on how much the 
helmet deforms, the dynamic footprint can be a larger or smaller 
area.
---------------------------------------------------------------------------

    NHTSA also does not believe the reading of the term ``impact site'' 
as ``the point projected from the headform center of gravity to the 
center of the impact anvil'' is accurate. This is because such a 
reading would conflict with paragraph S7.1.8. That paragraph, which 
specifies the locations of the centers of gravity of the test headform 
and drop assembly, allows substantially more leeway than ASTM's second 
suggested definition of ``impact site.'' This definition would remove 
that flexibility, and impose additional burdens on testers and 
manufacturers without demonstrable safety benefits.
2. Specification of Test Velocity Tolerance Range
    Specifying a range of acceptable speeds for the impact attenuation 
test was a central consideration in undertaking this rulemaking. As 
evidenced by the NexL case, NHTSA's current procedure for the impact 
attenuation test led to several difficulties with enforcement. The 
first was that, by testing slightly below the threshold velocity, NexL 
was able to claim that the test did not conclusively show that the 
helmet would have failed at the required velocity. Second, the 
specification of a minimum, but no maximum speed created a situation in 
which NHTSA could test at any speed above the stated minimum, leading 
to compliance difficulties for manufacturers. NHTSA believes that by 
specifying a tolerable range of speeds, and requiring that helmets be 
able to meet the requirements of the impact attenuation test at every 
speed within that range, we will provide better guidance to 
manufacturers and better grounds for enforcement proceedings in the 
event a noncompliance is demonstrated.
    As stated in the NPRM, the impact attenuation requirement was 
adopted from ANSI Z90.1. NHTSA did not intend for its test to be 
markedly different from the ANSI test. The ANSI standard specifies a 
specific height from

[[Page 28147]]

which the assembly should be dropped. The agency translated this height 
requirement into the aforementioned impact velocities. Since the intent 
of the agency was to adopt a similar test to that of ANSI Z90.1, and 
since ANSI Z90.1 specified drop heights that would result in a 
specified velocity in a guided free fall drop, it is the agency's 
intent that the impact attenuation be performed close to the converted 
ANSI speeds for the respective tests, and not at undefined impact 
speeds above these respective values. The agency therefore proposed to 
set the tolerance for the impact attenuation velocity at  
1.2 ft/s (0.4 m/s) from the nominal values of either 19.7 ft/s (6.0 m/
s) or 17.1 ft/s (5.2 m/s) depending on the anvil test. The tolerance 
was based on typical calibration limits and the uncertainty associated 
with the test system and test setup, and was described in detail in the 
NPRM.\60\
---------------------------------------------------------------------------

    \60\ See 73 FR at 57307.
---------------------------------------------------------------------------

    In response to the proposal, NHTSA received a number of comments. 
Comments received from Snell, Shoei, Shark, Arai, MIC, and ASTM all 
stated that the proposed velocity tolerance was too large. The concern 
expressed by these commenters was that if tested at the extreme upper 
end of the tolerance range (for example, 6.4 m/s on the flat anvil), a 
helmet that would comply at the nominal value of 6.0 m/s would not meet 
the impact attenuation requirements at the higher speed. Most 
commenters offered specific alternative suggestions for velocity 
tolerances, ranging from  0.15 m/s to 3 percent overall 
tolerances. Specifically, Arai and Shark suggested a velocity tolerance 
of  0.15 m/s, ASTM and MIC suggested a velocity tolerance 
of  3 percent (which would equal  0.156 m/s on 
the hemispherical anvil test, and  0.18 m/s on the flat 
anvil), and Shoei stated that it was capable of achieving tolerances 
under  0.2 m/s. The agency has carefully considered the 
comments received, and for the reasons described below, has decided to 
narrow the range of acceptable tolerances from  0.4 m/s to 
 0.2 m/s.
    There are two major factors that NHTSA considered when evaluating 
the range of acceptable tolerances. First, the agency considered impact 
energy with respect to helmet design. Commenters generally prefer the 
smallest tolerance possible because increasing the allowable tolerance 
can subject helmets to more force upon impact, thereby having a 
substantial effect on helmet performance. This could cause some 
currently-compliant helmets to become noncompliant based merely on a 
change in testing procedures, a result we hope to avoid to the extent 
practicable. On the other hand, the agency is also constrained in how 
narrow a tolerance band it can specify due to the limitations on its 
own testing capabilities. Because the agency tests a large number of 
helmets and uses a variety of laboratories to do so, it is subject to 
somewhat more test variability than an individual manufacturer may be. 
Therefore, in the sections below, we analyze both factors.
A. Impact Energy
    As stated above, the concern of most commenters was that the 
proposed tolerance range of  0.4 m/s was too great, and 
that many helmets that meet the acceptable limits imposed by the 
standard at 6.0 m/s would not pass if tested at the upper limit of 6.4 
m/s. For example, ASTM stated simply that ``[f]rom a practical 
standpoint, the NPRM would increase the test velocity and energy by a 
significant amount without any analysis of the effect on current 
helmets''.\61\ The reason for this statement is that, in order to 
ensure that a helmet could pass a NHTSA performance test, a 
manufacturer would need to ensure that it would pass if tested at the 
upper extreme of the tolerance range.\62\ ASTM and Snell provided 
information in their comments about the problems the impact attenuation 
test could cause, as well as recommended narrower ranges that would not 
present problems ( 3 percent).\63\ In a similar fashion, 
Shark and Arai suggested that the tolerance be reduced similarly, to a 
range of  0.15 m/s. Based on the comments received, as well 
as further analysis of the issue, we believe that reducing the 
permitting tolerance to  0.2 m/s would alleviate as many of 
the concerns regarding this final rule as the values suggested by the 
commenters. The  0.2 m/s figure was selected because it is 
similar to the figures recommended by the commenters ( 0.15 
m/s and 3 percent, which is  0.18 m/s for the flat anvil 
test), but rounded to the nearest tenth of a meter per second.
---------------------------------------------------------------------------

    \61\ Docket NHTSA-2008-0157-0150, p. 6.
    \62\ While the tolerance range would apply to both the flat and 
hemispherical anvil tests, the flat anvil test is generally where 
one would expect any failures to occur. Therefore, this notice 
generally refers to the velocities specified in the flat anvil tests 
(6.0 m/s plus a tolerance interval), instead of those in the 
hemispherical test (5.2 m/s plus a tolerance interval).
    \63\ This translates to a range of  0.18 m/s for the 
flat anvil test, and  0.156 m/s for the hemispherical 
anvil test.
---------------------------------------------------------------------------

    MIC and ASTM both raised the argument that, in order to assure 
compliance, a helmet would need to meet the standard at the upper end 
of the tolerance range, and therefore in lab testing the helmet would 
need to be able to absorb significantly more energy than the current 
standard requires. Specifically, both commenters noted that the impact 
energy imparted to the helmet in the attenuation test could vary by as 
much as 30 percent between the low and high ends of the proposed  0.4 m/s tolerance range. They also pointed out that in a recent 
study,\64\ when tested at significantly higher speeds (+0.9 m/s for the 
flat anvil, and +0.8 m/s for the hemispherical anvil), up to 60 percent 
of helmets failed some portion of the impact attenuation test. While 
the agency did not propose to test helmets at nearly that level of 
velocity, we are aware that by requiring that helmets meet the 
performance specifications at any speed in the tolerance range, some 
manufacturers may change their protocol for self-certifying their 
helmets. As ASTM and MIC stated, the 3 percent tolerance range used by 
the Consumer Product Safety Commission (CPSC) in its helmet testing 
guidelines would require a lesser and reasonable increase in imparted 
energy.
---------------------------------------------------------------------------

    \64\ Thom, Hurt, Ouellet & Smith, ``Modernization of the DOT 
Motorcycle Helmet Standard,'' Proceedings of the International 
Motorcycle Safety Conference, 2001.
---------------------------------------------------------------------------

    Using figures from ASTM's comment,\65\ it is clear that the energy 
levels from the  0.2 m/s tolerance range the agency is 
considering are very similar to those proposed by ASTM and MIC. ASTM 
indicated that an increase from the currently-required 6.0 m/s to the 
highest-possible speed of 6.4 m/s would increase the imparted energy 
(using a large headform on the flat anvil) from 110 Joules to 125 
Joules. Using the 6.18 m/s figure suggested by the commenters, the 
helmet would be subjected to only 116.5 Joules, compared to 117.2 
Joules at a velocity of 6.2 m/s. We believe that there would be no 
substantial difference in terms of which helmets have difficulty 
complying with the impact attenuation requirements and wish to 
highlight the fact that the current text of the Standard specifies a 
minimum speed of 6.0 m/s.
---------------------------------------------------------------------------

    \65\ Docket NHTSA-2008-0157-0150, p. 6.
---------------------------------------------------------------------------

    In its comments, Snell presented a mathematical formula \66\ by 
which one could calculate the amount of time a helmet's acceleration 
exceeded 200g. Snell used the formula to indicate that of six 
hypothetical helmets that would

[[Page 28148]]

meet the requirements if tested at 6.0 m/s (ranging from marginal to 
exceptional compliance with the S5.1(b) requirement), three would not 
pass if tested at 6.4 m/s.\67\ The performance of the six hypothetical 
helmets, if tested at a velocity of precisely 6.0 m/s, is shown in 
Table 5 below. Note that helmet 1 barely meets the performance 
requirement when tested at this speed, as paragraph S5.1(b) limits the 
duration above 200g to 2.0 milliseconds or less.
---------------------------------------------------------------------------

    \66\ The formula for computing the amount of time a helmet's 
acceleration is at or above 200g is (T@200g) = 1.25 * (1-
2 * arcsin(200/PG)/[pi]) se * TL where PG is the peak 
acceleration of the impact pulse (quarter sine wave) and 
TL is the time duration during the loading phase. Details 
provided in docket NHTSA-2008-0157-164.3.
    \67\ Pursuant to paragraph S5.1(b), accelerations in excess of 
200g shall not exceed a cumulate duration of 2.0 milliseconds. It is 
this requirement that is most likely to cause a helmet to fail to 
comply with FMVSS No. 218.

                                                     Table 5
----------------------------------------------------------------------------------------------------------------
                                                                                                   Pulse time at
       Velocity (6.0 m/s)             Peak G        Pulse time-     Pulse time-    Pulse  time-   or above 200 G
                                                      loading        unloading         total         (T@200g)
                                             (G)          (msec)          (msec)          (msec)          (msec)
----------------------------------------------------------------------------------------------------------------
helmet 1...............             250            3.84            0.96            4.80             2.0
helmet 2...............             240            4.00            1.00            5.00             1.9
helmet 3...............             230            4.18            1.04            5.22             1.7
helmet 4...............             220            4.37            1.09            5.46             1.5
helmet 5...............             210            4.57            1.14            5.72             1.1
helmet 6...............             201            4.78            1.19            5.97             0.4
----------------------------------------------------------------------------------------------------------------

    Using this formula, Snell calculated that half of the helmets would 
not comply with the standard if tested at 6.4 m/s. The calculations for 
an impact velocity of 6.4 m/s are shown in Table 6.

                                                     Table 6
----------------------------------------------------------------------------------------------------------------
                                                                                                   Pulse time at
       Velocity (6.4 m/s)             Peak G        Pulse time-     Pulse time-    Pulse  time-   or above 200 G
                                                      loading        unloading         total         (T@200g)
                                             (G)          (msec)          (msec)          (msec)          (msec)
----------------------------------------------------------------------------------------------------------------
helmet 1...............           266.7            3.84            0.96            4.80             2.2
helmet 2...............           256.0            4.00            1.00            5.00             2.1
helmet 3...............           245.0            4.18            1.04            5.22             2.1
helmet 4...............           234.7            4.37            1.09            5.46             1.9
helmet 5...............           224.0            4.57            1.14            5.72             1.7
helmet 6...............           214.4            4.78            1.19            5.97             1.4
----------------------------------------------------------------------------------------------------------------

    In order to assess whether the  0.2 m/s tolerance 
interval would not cause undue burdens for helmet manufacturers, we 
employed the mathematical model of helmet impact testing used by Snell. 
We measured whether the compliance burdens would be more difficult 
using the  0.2 m/s than the  0.15 m/s tolerance 
recommended by Shark, Arai, and Shoei, as well as the  0.18 
m/s tolerance recommended by MIC and ASTM.\68\ The peak G (peak 
acceleration of the impact pulse) at the different impact velocities 
examined (6.15 m/s, 6.18 m/s, and 6.2 m/s) were determined by linearly 
interpolating between the peak G values in Table 5 for the 6 m/s impact 
velocity and those in Table 6 for the 6.4 m/s impact velocity. The 
calculations for  0.15 m/s and  0.18 m/s impact 
velocity tolerance are shown in Tables 7 and 8, respectively. The 
calculations for a  0.2 m/s impact velocity tolerance 
(impact velocity at 6.2 m/s) are shown in Table 9. As shown, only one 
of the hypothetical helmets in Snell's analysis (helmet 1, 
which marginally complied with the standard S5.1(b) when tested at 
exactly 6.0 m/s) showed only a marginal failure when tested at the 
other three impact velocities.
---------------------------------------------------------------------------

    \68\ Docket NHTSA-2008-0157-0164.3.

                                                     Table 7
----------------------------------------------------------------------------------------------------------------
                                                                                                   Pulse time at
       Velocity (6.15 m/s)            Peak G        Pulse time-     Pulse time-    Pulse  time-   or above 200 G
                                                      loading        unloading         total         (T@200g)
                                             (G)          (msec)          (msec)          (msec)          (msec)
----------------------------------------------------------------------------------------------------------------
helmet 1...............           256.3            3.84            0.96            4.80             2.1
helmet 2...............           246.0            4.00            1.00            5.00             2.0
helmet 3...............           235.8            4.18            1.04            5.22             1.9
helmet 4...............           225.5            4.37            1.09            5.46             1.7
helmet 5...............           215.3            4.57            1.14            5.72             1.4
helmet 6...............           206.0            4.78            1.19            5.97             0.9
----------------------------------------------------------------------------------------------------------------


[[Page 28149]]


                                                     Table 8
----------------------------------------------------------------------------------------------------------------
                                                                                                   Pulse time at
       Velocity (6.18 m/s)            Peak G        Pulse time-     Pulse time-    Pulse  time-   or above 200 G
                                                      loading        unloading         total         (T@200g)
                                             (G)          (msec)          (msec)          (msec)          (msec)
----------------------------------------------------------------------------------------------------------------
helmet 1...............           257.5            3.84            0.96            4.80             2.1
helmet 2...............           247.2            4.00            1.00            5.00             2.0
helmet 3...............           236.9            4.18            1.04            5.22             1.9
helmet 4...............           226.6            4.37            1.09            5.46             1.7
helmet 5...............           216.3            4.57            1.14            5.72             1.4
helmet 6...............           207.0            4.78            1.19            5.97             1.0
----------------------------------------------------------------------------------------------------------------


                                                     Table 9
----------------------------------------------------------------------------------------------------------------
                                                                                                   Pulse time at
        Velocity 6.2 m/s              Peak G        Pulse time-     Pulse time-    Pulse  time-   or above 200 G
                                                      loading        unloading         total         (T@200g)
                                             (G)          (msec)          (msec)          (msec)          (msec)
----------------------------------------------------------------------------------------------------------------
helmet 1...............           258.3            3.84            0.96            4.80             2.1
helmet 2...............           248.0            4.00            1.00            5.00             2.0
helmet 3...............           237.7            4.18            1.04            5.22             1.9
helmet 4...............           227.0            4.37            1.09            5.46             1.7
helmet 5...............           217.0            4.57            1.14            5.72             1.4
helmet 6...............           207.7            4.78            1.19            5.97             1.0
----------------------------------------------------------------------------------------------------------------

    Based on these calculations, we do not believe that there is a 
significant difference if a helmet is tested at the outer limits of a 
 0.2,  0.18, or  0.15 m/s tolerance 
range. Further, as discussed above, we believe that the energy 
differential is small enough at a  0.2 m/s tolerance that 
there will be little if any difference in the marginal number of 
helmets that may experience compliance difficulty if tested at the 
outermost extremes of the tolerance range.
B. Achievable Tolerances
    While the agency's desire to limit the potential increased impact 
energy brings the tolerance down, we are also careful to make sure the 
tolerances we specify are readily achievable by testing laboratories. 
In the NPRM, NHTSA used a statistical analysis of calibration error and 
non-calibration errors (derived from uncertainties in the test setup 
and testing variability) to determine the overall maximum possible 
error resulting from all variations combined. Based on our statistical 
analysis, we determined that in 95 percent of trials, a maximum error 
of 0.4 m/s was possible given the compound effect of all errors. 
Therefore, we proposed that the impact speed be specified as 5.2 m/s 
(6.0 m/s for the flat anvil)  0.4 m/s.\69\
---------------------------------------------------------------------------

    \69\ 73 FR 57306.
---------------------------------------------------------------------------

    As explained above, numerous commenters took issue with the  0.4 m/s figure, stating that if a helmet were tested at the 
upper end of the tolerance range, the significant amounts of extra 
energy gained could cause it to not meet the requirements of the impact 
attenuation test. Therefore, we have taken a new look at the available 
data to determine if a narrower tolerance range is practical given the 
limitations of testing equipment. After having performed an analysis of 
statistical data collected on 2,496 impact attenuation tests done by 
two test labs during 2007 and 2008, the agency has determined that it 
is feasible to narrow the tolerance to  0.2 m/s and still 
have nearly all tests fall within the bounds of the required tolerance. 
The goal was to ensure that whatever tolerance was adopted would 
capture at least 99 percent of the potential total test variability.
    In determining a suitable interval of velocities for the helmet 
drop test, NHTSA examined a wide variety of factors that could 
contribute to test variability.\70\ These included the velocity of the 
helmet, between-lab variability in velocity measurement, the effect of 
helmet conditioning, the location of the drop on the anvil, the 
difference between the first and second drops on the same location on 
the anvil, and a ``random error'' variable. After performing a 
statistical analysis of all variables, NHTSA determined that only 
helmet velocity (a standard deviation of 0.045 m/s for the 
hemispherical anvil, and 0.048 m/s for the flat anvil) and between-lab 
variability (a standard deviation of 0.017 m/s for the hemispherical 
anvil, and 0.020 m/s for the flat anvil) showed statistically 
significant differences in overall test performance. Combining these 
two independent sources of variability by the Root Sum Square method, 
NHTSA derived the following ranges for the 99 percent confidence 
interval:
---------------------------------------------------------------------------

    \70\ The analysis is presented in more detail in ``Analysis of 
Helmet Impact Velocity Experimental Data and Statistical Tolerance 
Design,'' NHTSA, DOT HS 811 305, April 2010. Available at http://www-nrd.nhtsa.dot.gov/Pubs/811305.pdf.

[[Page 28150]]



                                                    Table 10
----------------------------------------------------------------------------------------------------------------
                                                                                               Nominal velocity
           Anvil type              Nominal velocity     99% confidence       3%    0.2 m/
                                                           interval            velocity                s
----------------------------------------------------------------------------------------------------------------
Hemispherical...................  5.2 m/s...........  5.06-5.34 m/s.....  5.04-5.36 m/s.....  5.0-5.4 m/s.
Flat............................  6.0 m/s...........  5.84-6.16 m/s.....  5.82-6.18 m/s.....  5.8-6.2 m/s.
----------------------------------------------------------------------------------------------------------------

    As shown in the table, the maximum possible allowable tolerance 
needed to ensure 99 percent of tests fall within the allowable range is 
 0.16 m/s. This is larger than the  0.15 m/s 
proposed by Shoei, Shark, and Arai, but just within the  3 
percent velocity tolerance proposed by MIC and ASTM. Therefore, we 
believe that this is a feasible tolerance to use for testing purposes. 
We note that we have increased the maximum tolerance slightly to  0.2 m/s for rounding purposes, but do not believe that that will 
have a significant effect on the test, as shown in the section above.

d. Penetration Test

    In addition to the impact attenuation and retention tests, the 
helmet standard also requires that compliant helmets meet a penetration 
test. The penetration test, described in paragraphs S7.2 through S7.2.8 
of FMVSS No. 218, specifies that a penetration striker makes two 
separate blows to the exterior of the helmet, with the striker on a 
guided free fall. In the NPRM, NHTSA described the penetration test and 
proposed modifications to the helmet conditioning procedure that 
precedes it and the other two performance tests in paragraph S7. While 
NHTSA did not specifically propose adding test tolerances for the 
penetration test, several commenters suggested that the need for 
tolerances in this test was no different than the need for tolerances 
in the other performance specifications. The commenters recommended 
that, similar to other modifications in this rulemaking, small 
tolerances be added to the various specified dimensions of the striker 
and the drop height.
1. Comments Received
    Four commenters discussed the penetration test. Two commenters, 
Andy F. Malinowski and ASTM, recommended that the penetration test be 
removed from the standard. Mr. Malinowski stated that it was 
unnecessary because ``in an accident a helmet will normally hit a flat 
surface.'' ASTM cited research on helmet performance in Europe (the 
COST 327 study),\71\ which recommended that penetration testing be 
deleted from standards. The commenter also stated it believes the 
epidemiology of U.S. accidents supports this position. Two helmet 
manufacturers, Shark and Arai, recommended that tolerances be added to 
the specifications for the drop height, mass, angle, cone height, and 
tip radius of the penetration striker. While Arai did not provide a 
specific rationale for its recommendations, Shark stated that its 
recommendations were made ``in order to harmonize the equipment and 
repeatability of tests.'' \72\ The recommendations made by the two 
manufacturers were nearly identical (with a slight difference in the 
cone height recommendation), and are reproduced below:
---------------------------------------------------------------------------

    \71\ Chinn B., Canaple B., Derler S., Doyle D., Otte D., 
Schuller E., Willinger R. (2001) COST 327 Motorcycle Safety Helmets. 
Final Report of the Action.
    \72\ Docket NHTSA-2008-0157-0166.

                                                    Table 11
----------------------------------------------------------------------------------------------------------------
 Test specification (current requirement)       Arai recommendation                Shark recommendation
----------------------------------------------------------------------------------------------------------------
Drop height of penetration striker (3 m).   0.015 m........   0.015 m.
Mass of penetration striker (3 kg).......   0.05 kg........   0.05 kg.
Included angle of penetration striker (60   0.5 degrees....   0.5 degrees.
 degrees).
Cone height of penetration striker (3.8     0.38 mm........   0.35 mm.
 cm).
Tip radius of penetration striker (0.5      0.1 mm.........   0.1 mm.
 mm).
----------------------------------------------------------------------------------------------------------------

2. NHTSA Analysis and Conclusion
    After carefully considering the comments, NHTSA has decided to add 
the recommended tolerances to the penetration test standard.\73\ Given 
that the purpose of this rulemaking action is to increase the 
repeatability and enforceability of FMVSS No. 218,\74\ we believe that 
the addition of these tolerances to the penetration test procedures is 
well within the scope of this rulemaking. Further, we believe that the 
specific test tolerances proposed by the two manufacturers are 
reasonable. We note that, with the exception of the suggested tip 
radius tolerance, no suggested tolerance is more than  2 
percent of the total requirement. Even the tip radius tolerance, which 
is  20 percent of the total radius requirement, is still 
only 0.1 mm, and we do not believe that a difference of this magnitude 
would significantly alter the test. The agency believes that the 
tolerances suggested are appropriate for the manufacturing capabilities 
of test equipment manufacturers, and the calibration abilities of test 
laboratories, and notes that the values are similar to those expressed 
in NHTSA's test procedure.\75\ Further, we do not believe that 
adjusting any or all of the properties of the penetration striker by 
the limit of the proposed tolerances would substantially alter the test 
results or have a deleterious effect on safety.
---------------------------------------------------------------------------

    \73\ With regard to the small difference in the recommended cone 
height tolerances, we have decided to use Arai's recommendation of 
0.38 mm, rather than Shark's recommendation of 0.35 mm, so that the 
tolerance is exactly 1 percent of the 3.8 cm cone height 
requirement. With regard to the recommendation to adopt the  0.5 kg tolerance to the mass of the penetration striker, 
FMVSS No. 218 uses English units as the primary units cited in the 
standard and due to rounding, we have decided to use  2 
ounces as the tolerance.
    \74\ See 73 FR at 57308, which reads ``[i]n keeping with the 
theme of providing more clearly defined, enforceable testing 
procedures for FMVSS No. 218 * * *''
    \75\ NHTSA test procedure TP-218-06, available at http://www.nhtsa.gov.
---------------------------------------------------------------------------

    NHTSA is not following the suggestion of those commenters who 
requested that the penetration test be removed from the standard. To 
begin, we believe that such an action would be well outside of the 
scope of this rulemaking, which is designed to

[[Page 28151]]

increase enforceability and clarity and make minor updates to the 
standard. Removing one of three performance tests would be a major 
modification to the substantive safety requirements and a major 
deviation from the NPRM. Second, we do not agree with the commenters 
that the penetration test is not meaningful. In 1997, an agency study 
on the feasibility of upgrading FMVSS No. 218 suggested that the agency 
retain the current penetration tests, describing them as 
meaningful.\76\ The agency relied on this study in 2006, in its denial 
of a petition of inconsequential noncompliance for Fulmer Helmets.\77\ 
While we recognize that ASTM submitted a 2007 petition for rulemaking 
regarding substantive updates to the helmet standard, including, among 
other issues, removing the penetration test, we will address that 
subject in response to ASTM's original petition at a later date. 
Therefore, in this final rule, we are not removing the penetration test 
requirement from the standard.
---------------------------------------------------------------------------

    \76\ D.R. Thom, H.H. Hurt, T.A. Smith, J.V. Ouellet, 
``Feasibility Study of Upgrading FMVSS No. 218, Motorcycle 
Helmets,'' Head Protection Research Laboratory, University of 
Southern California, DTNH22-97-P-02001. See conclusions, p. 54.
    \77\ 71 FR 77092, December 22, 2006.
---------------------------------------------------------------------------

    For the reasons above, we are amending paragraphs S7.2.4, S7.2.6, 
and S7.2.7 to reflect the addition of tolerances for the penetration 
test.

e. Quasi-Static Retention Test

    FMVSS No. 218 specifies a static retention test as part of the 
performance specifications. The purpose of the test is to demonstrate 
that the retention system has the structural integrity necessary to 
help ensure that a motorcyclist's helmet stays on his or her head in 
the event of a crash. The test was originally adopted from the ANSI 
Z90.1 standard, which applied a static tensile load to the retention 
assembly of a complete helmet. Currently, the retention test, described 
in paragraphs S7.3 through S7.3.4 of the standard, specifies that a 50-
pound (22.7 kg) preliminary load, followed by a 250-pound (113.4 kg) 
test load, is applied to the retention assembly. However, testing 
laboratories must apply the load at some rate, and the current 
regulation does not specify how this load is applied to the retention 
assembly.\78\ Without that specification, there is some latitude as to 
what rate a test laboratory should increase the force until the full 
300-pound load is applied to the retention assembly. Such latitude is 
what led to the dispute between NexL and NHTSA, described above, over 
whether certain NexL helmets complied with the retention requirements.
---------------------------------------------------------------------------

    \78\ While the regulation does not specify it, NHTSA's test 
procedures specify that the load is applied at 1.0-3.0 cm/min. See 
NHTSA TP-218-06.
---------------------------------------------------------------------------

    In order to increase the clarity and enforceability of the 
retention specification, the NPRM proposed adding a specific load 
application test to the requirements, and recharacterizing the test as 
a ``quasi-static'' test, to reflect the new dynamic aspect. There were 
three reasons for proposing a rate. First, NHTSA believed that 
specifying the rate would help helmet manufacturers self-certify their 
products with a greater degree of certainty. Second, providing a load 
application rate would prevent manufacturers from using a significantly 
different rate from NHTSA's compliance laboratories, and thus attaining 
different results, as occurred in the NexL case.
    The proposed load application rate was 0.4 to 1.2 inches (1 to 3 
cm) per minute, the same rate as was specified in NHTSA's test 
procedures. We believe that this rate is reasonable and consistent with 
what the agency and the majority of manufacturers have been using in 
their compliance testing.
    NHTSA received three comments that discussed the load application 
rate. Arai, ASTM, and MIC all agreed with the specification of a quasi-
static load application rate, all of them stating that specifying such 
a rate would be appropriate and that they have no objections to the 
0.4-1.2 inches (1-3 cm) per minute value proposed by the agency. The 
agency also received numerous comments, discussed below, that helmet 
retention strength can cause neck injuries, although without supporting 
information.
    Based on our analysis and the comments received, we are adopting 
the load application rate proposed in the NPRM. We are not altering the 
proposal in response to comments suggesting that increased retention 
system strength may cause neck injuries. First, we note that this 
change does not increase the retention strength; it merely clarifies 
how it is to be measured. Second, as noted in the NPRM, our research 
indicates that helmets do not change injury rates to any areas of the 
body, and the commenters provided no data to indicate otherwise. 
Therefore, we are amending paragraphs S7.3.1 and S7.3.2 to reflect the 
specified load application rate.

f. Helmet Conditioning Tolerances

    In order to ensure repeatability of testing, FMVSS No. 218 requires 
that helmets be conditioned in a certain manner before testing. These 
conditioning specifications are laid out in paragraph S6.4.1. This 
paragraph describes four conditions to which a helmet must be exposed 
for a 12-hour period of time before being subjected to the testing 
sequences described in paragraph S7 of the regulation; and specifies 
temperatures, relative humidity, and the time periods for which the 
helmet must be exposed.
    As described in the NPRM, the agency proposed to modify the 
temperatures to include a range of temperatures and relative humidity. 
The NPRM also proposed that the current 12-hour time period be 
specified as a minimum time period for conditioning. Similar to the 
rationale for proposing tolerances throughout FMVSS No. 218, we stated 
that this would enable NHTSA to undertake legally enforceable testing 
of helmets at the conditions specified within the tolerances. The 
specific values proposed in the NPRM \79\ were:
---------------------------------------------------------------------------

    \79\ It should be noted that there was a discrepancy in the 
preamble and proposed regulatory text of the NPRM. While the 
preamble cited a temperature range for the water immersion test of 
68-86 degrees F, the regulatory text specified a range of 61-79 
degrees. The figures for the water immersion test in the preamble 
are a clerical error, and we note that the tests should be conducted 
at ambient temperatures, and the range of 61-79 degrees corresponds 
to the dry ambient temperature range given in the NPRM.
---------------------------------------------------------------------------

    (a) Ambient conditions. Expose to any temperature from 61 [deg]F to 
and including 79 [deg]F (from 16 [deg]C to and including 26 [deg]C) and 
any relative humidity from 30 to and including 70 percent for a minimum 
of 12 hours.
    (b) Low temperature. Expose to any temperature from 5 [deg]F to and 
including 23 [deg]F (from -15 [deg]C to and including -5 [deg]C) for a 
minimum of 12 hours.
    (c) High temperature. Expose to any temperature from 113 [deg]F to 
and including 131 [deg]F (from 45 [deg]C to and including 55 [deg]C) 
for a minimum of 12 hours.
    (d) Water immersion. Immerse in water at any temperature from 61 
[deg]F to and including 79 [deg]F (from 16 [deg]C to and including 26 
[deg]C) for a minimum of 12 hours.
    Comments received on the matter of helmet conditioning were 
received from ASTM, MIC, Arai, Shoei, and Shark. Two issues were raised 
by commenters that warrant reconsideration of the proposed values by 
the agency. Many groups suggested that the conditioning time proposed 
by the agency be substantially revised, from the proposed 12-hour 
minimum period to a range of 4 to 24 hours. Additionally, while some 
commenters agreed with NHTSA's proposed temperature and humidity 
tolerances, several suggested narrowing the limits.

[[Page 28152]]

    With regard to helmet conditioning time, the basic argument cited 
by multiple commenters is that the values in this range would permit 
helmets to be conditioned during normal business hours, thereby 
reducing the burden of testing. Further, they argued that the helmet is 
in a steady state during this entire range, so that additional 
conditioning time beyond four hours does not affect the ability of the 
helmet to meet the performance specifications. Finally, commenters 
requested that a maximum conditioning time be specified, to prevent a 
situation where a helmet is subject to indefinite conditioning.
    Based on our analysis of the comments and further research into the 
subject, in this final rule NHTSA is modifying the conditioning times 
based on suggestions from the commenters and further analysis done by 
the agency. Given the commenter's arguments, we investigated the claims 
that a four-hour conditioning period would adequately condition a 
helmet, and note the statement in ASTM's comment that a 1997 study 
commissioned by NHTSA stated, ``The data * * * show no statistically 
significant effect of reducing the pre-test environmental conditioning 
time from 12 to 4 hours.'' \80\ Based on this more recent study, and 
the comments received by multiple sources, NHTSA has agreed to adopt a 
minimum helmet conditioning time of no less than four hours for all 
helmet conditions. Additionally, to address concerns of helmets being 
conditioned indefinitely, we are adopting a maximum helmet conditioning 
time of 24 hours for the low and high temperature conditions, and water 
immersion procedures. In addition to preventing indefinite 
conditioning, this figure will permit overnight conditioning of helmets 
and the agency does not believe that it will affect compliance at all. 
It also aligns NHTSA's standard with other helmet standards that use 4-
24 hour conditioning periods.
---------------------------------------------------------------------------

    \80\ Thom, Hurt, Smith & Ouellet, ``Feasibility Study of 
Upgrading FMVSS No. 218, Motorcycle Helmets,'' Head Protection 
Research Laboratory, University of Southern California, Final 
Report, September 1977.
---------------------------------------------------------------------------

    With respect to the conditioning temperature and relative humidity, 
the agency received comments that both supported the proposed values as 
well as those that suggested alternative values for these conditions. 
ASTM and MIC supported the values proposed in the NPRM, stating that 
there has never been any evidence that ambient humidity affects helmet 
performance, as well as supporting the proposal to equalize ambient 
room and water temperatures.
    Foreign-based motorcycle helmet makers suggested that the agency 
adopt different values. Arai suggested the following test conditions:
    Ambient Condition: temperature 25  5 [deg]C; relative 
humidity 60  20%.
    Hot Condition: temperature 50  2 [deg]C.
    Cold Condition: temperature -10  2 [deg]C.
    Water Immersion: temperature 25  5 [deg]C.
    In its comment, Arai argued that these conditioning values would 
make NHTSA's condition nearly identical to other national standards, 
including JIS T8133: 2007; \81\ BS6658: 1985; \82\ and ECE R22-05.\83\ 
Shark recommended the same values as Arai, except that it recommended a 
cold condition of -20  2 [deg]C. Similarly, Shoei 
recommended narrower  2 [deg]C tolerances for hot and cold 
temperature tolerances, stating that their current conditioning unit 
controls temperature very precisely, and that it is possible to 
maintain this narrow range. It also specifically commented that the 
range for the cold condition was problematic due to the sensitivity of 
plastics to cold temperatures, and stated that it had experience that a 
product not affected at -5 [deg]C was broken at -15 [deg]C.
---------------------------------------------------------------------------

    \81\ Japan.
    \82\ United Kingdom.
    \83\ UN Economic Commission for Europe.
---------------------------------------------------------------------------

    After carefully considering the comments and issues involved, NHTSA 
has decided to adopt the temperature and humidity values and tolerances 
proposed in the NPRM. While we are cognizant of the desire by some 
manufacturers to use the tolerances they use for foreign testing, we do 
not believe that the use of such narrow tolerance ranges is necessary 
to ensure safety or produce repeatable results. Further, based on the 
equipment familiar to the agency, and contrary to Shoei's comment, the 
equipment necessary to maintain this tight tolerance across all 
conditions is cost prohibitive and would be an additional burden on 
helmet testers. For these reasons, the agency declines to alter the 
proposed values and will maintain a  5 [deg]C tolerance for 
each of the conditioning procedures.

g. Other Tolerances

    While not discussed in the NPRM, NHTSA received comments regarding 
several other parts of FMVSS No. 218 where tolerances could provide 
additional flexibility and/or guidance. Two helmet manufacturers, Arai 
and Shark, suggested adding tolerances to the values in Table 1 of the 
standard, which specifies weights for the impact attenuation test drop 
assembly for small, medium, and large test headforms. According to 
paragraph S7.1.7, the drop assembly weights listed in Table 1 consist 
of the weight of the test headform and the supporting assembly.
    Both Arai and Shark commented that NHTSA should specify a tolerance 
for the drop assembly weights in Table 1 of the standard. Currently, 
the weights specified are 3.5, 5.0, and 6.1 kg, for the small, medium, 
and large test headform drop assemblies, respectively. The commenters 
(specifically Arai) stated that it is not realistic for test labs to 
provide  0.0 kg drop assembly mass, as this degree of 
precision is nearly impossible for test equipment manufacturers. Arai 
requested that NHTSA add tolerances of  0.1 kg to the 
weights in Table 1, while Shark requested a  0.15 kg 
tolerance be added to these values. While not specifically proposed in 
the NPRM, this minor clarification is closely related to the goals of 
adding reasonable and enforceable tolerances to FMVSS No. 218.
    After considering the comments, NHTSA is adding a tolerance of 
 0.1 kg ( 0.2 lb) to the weights specified 
Table 1. We believe that because the weight of the supporting assembly 
\84\ is specified as a range of 0.9-1.1 kg (i.e., 1.0  0.1 
kg), in paragraph S7.1.7, a tolerance level is appropriate for the 
combined weight of the drop assembly. NHTSA examined the increase in 
impact energy for the upper bound of allowable drop assembly weight 
(3.6 kg for small headform, 5.1 kg for medium headform and 6.2 kg for 
large headform) and found that it only increased by 1.5 to 3 percent 
from that currently in the standard. The change in impact energy due to 
the allowable tolerance in drop assembly weight is significantly 
smaller than that due to the allowable tolerance in impact velocity. 
Therefore, we believe the drop assembly weight tolerance of  0.1 kg is practicable and will have little, if any, effect on 
helmets that currently comply with the standard. The addition of the 
 0.1 kg tolerances will be added to the drop assembly 
weights in Table 1.
---------------------------------------------------------------------------

    \84\ The supporting assembly weight is defined as the drop 
assembly weight minus the combined weight of the test headform, the 
headform's clamp down ring, and its tie down screws. See S7.1.7.
---------------------------------------------------------------------------

h. Other Issues Addressed in the NPRM

    As discussed in the NPRM, the agency is updating the standard to 
include a more recent version of the SAE Recommended Practice currently 
incorporated by reference in the standard. Paragraph S7.1.9 currently

[[Page 28153]]

specifies that ``the acceleration data channel complies with SAE 
Recommended Practice J211 JUN 80, Instrumentation for Impact Tests, 
requirements for channel class 1,000.'' SAE Recommended Practice J211 
has been revised several times since June of 1980 and the agency 
proposed to update the cited practice to SAE Recommended Practice J211/
1, revised March 1995, ``Instrumentation for Impact Test--Part 1--
Electronic Instrumentation.'' This version is consistent with the 
current requirements for the regulation's filter needs, and it is also 
consistent with other recently updated standards and regulations. As 
the agency did not receive any comments regarding this part of the 
proposal, the new updated version of J211 is being incorporated into 
the standard.
    The agency is also correcting a typographical mistake regarding the 
labeling of Figures 7 and 8 in the standard. We noted that Figures 7 
and 8 in FMVSS No. 218 were inadvertently switched at some time in the 
past. To correct this error, NHTSA proposed to keep the titles the same 
for each Figure, and to switch the diagrams so the diagrams for the 
medium and large headforms properly correspond to the figure titles. 
This change is being made to the standard.

i. Other Issues Raised by Commenters

    In addition to the issues specifically addressed in the NPRM, many 
commenters addressed matters that were not central to the issues of 
helmet labeling or changing the tolerances for test procedures. 
Nonetheless, we will address those issues briefly in this section.
1. Necessity of Universal State Helmet Use Laws and Specifications
    Many commenters, including many of the individual commenters who 
submitted their statements to the docket, took the opportunity to argue 
for or against State helmet use laws. Given the substantial 
contributions by helmets to reducing deaths and injuries, and the 
inability of other measures to reduce substantially the need for those 
contributions, NHTSA strongly encourages the use of motorcycle helmets 
by all motorcyclists while riding, and the enactment of State laws 
requiring such use.
    In addition, NHTSA seeks to ensure that helmets sold for use by 
motorcyclists are safe and effective. To that end, NHTSA promulgated 
FMVSS No. 218, which provides a minimum set of performance requirements 
that all motorcycle helmets must meet. To aid in the enforcing of State 
helmet use laws, we are adopting improved labeling requirements in this 
rule so that law enforcement officers can better distinguish compliant 
motorcycle helmets from noncompliant helmets or other headwear that 
riders may be wearing or purchasing.
    MRF also asked questions about existing helmets. They asked whether 
existing helmets would continue to be legal, or whether riders would 
need to purchase new helmets after the final rule becomes effective. 
MRF also asked what would become of unsold older helmets. Questions 
regarding State helmet use laws need to be directed to the States. As 
to FMVSS No. 218, it applies to newly-manufactured motorcycle helmets. 
Manufacturers may continue to produce helmets and certify them to the 
current version of FMVSS No. 218 until the effective date of this final 
rule. Those older certified helmets may be sold even after the 
effective date of this rule.
2. Recent Actions by the National Transportation Safety Board and 
American Academy of Orthopaedic Surgeons in Support of Universal State 
Motorcycle Helmet Use Laws
    In November 2010, NTSB updated its Most Wanted List of 
Transportation Safety Improvements by adding motorcycle safety to it 
and urging all States to require that all persons shall wear a FMVSS 
No. 218-compliant motorcycle helmet while riding (operating), or as a 
passenger on, any motorcycle.\85\ NTSB released a map of the United 
States detailing \86\ which States have full and effective laws and 
which States do not.
---------------------------------------------------------------------------

    \85\ http://www.ntsb.gov/Recs/mostwanted/motorcycle_safety.htm.
    \86\ http://www.ntsb.gov/Recs/mostwanted/motorcycle_helmet_laws_map_2010.pdf.
---------------------------------------------------------------------------

    In addition, it issued a safety alert \87\ documenting the extent 
of the motorcycle safety problem and the contributions that helmets can 
make to address that problem. It published the following information 
and urged States to enact universal helmet use laws:
---------------------------------------------------------------------------

    \87\ The full safety alert is available at http://www.ntsb.gov/alerts/SA_012.pdf.

    The grim facts:
     Deaths from motorcycle crashes had more than doubled in 
the past decade--from 2,294 in 1998 to 5,290 in 2008--Another 96,000 
people were injured in motorcycle crashes in 2008.
     Although there was a decline in 2009, 4,462 
motorcyclists, or an average of 12 motorcyclists everyday, were 
still lost! Another 90,000 motorcyclists were injured.
     The number of motorcycle deaths in 2009 is more than 
double the total number of people killed in 2009 in all aviation, 
rail, marine and pipeline accidents combined.
     Head injuries are a leading cause of death in 
motorcycle crashes.
     Motorcyclists who crash without a helmet are three 
times more likely to have brain injuries than those wearing a 
helmet.
     In addition to the tragic loss of life, the economic 
cost to society is enormous. In 2005, motorcyclists without helmets 
were involved in 36 percent of all motorcycle crashes, but 
represented 70 percent of the total cost of all motorcycle crashes--
$12.2 billion.
     Medical and other costs for unhelmeted riders involved 
in crashes are staggering, estimated at $310,000 per crash-involved 
motorcyclist. That's more than four times the overall cost of 
accidents involving helmeted riders.

Helmets save lives

     DOT-compliant helmets (DOT FMVSS 218) are extremely 
effective. They can prevent injury and death from motorcycle 
crashes.
     Wearing a helmet reduces the overall risk of dying in a 
crash by 37%.
     In addition to preventing fatalities, the use of 
helmets reduces the need for ambulance service, hospitalization, 
intensive care, rehabilitation, and long-term care as a result of 
motorcycle crashes.
     Wearing a helmet does not increase the risk of other 
types of injury.

Motorcycle helmet laws

     20 states, D.C., and 4 territories require all riders 
and passengers to wear helmets; 27 states and 1 territory have 
partial laws requiring minors and/or passengers to wear helmets; 
currently 3 states, Illinois, Iowa and New Hampshire have no helmet 
use requirement.
     States that have repealed laws requiring all riders and 
passengers to wear helmets have seen dramatically lower helmet usage 
rates and significant increases in deaths and injuries.
     Partial laws do not protect younger riders. Only 
universal helmet laws significantly reduce fatality rates for riders 
aged 15-20.

    In September 2010, the American Academy of Orthopaedic Surgeons 
(AAOS) revised its position statement urging the States to enact laws 
requiring the use of motorcycle helmet use laws.\88\ The statement 
says, in part:
---------------------------------------------------------------------------

    \88\ http://www.aaos.org/about/papers/position/1110.asp.

    Orthopaedic surgeons, the medical specialists most often called 
upon to treat injuries to cyclists, believe a significant reduction 
in fatalities and head injuries could be effected through the 
implementation of laws mandating the use of helmets by all 
motorcycle and bicycle drivers and passengers. The AAOS strongly 
endorses such mandatory helmet laws.
    Numerous studies in various parts of the United States have 
shown that helmet use reduces the severity and cost associated with 
injuries to motorcycle riders. Federal efforts beginning with the 
Highway Safety Act of 1966 achieved the passage of state laws

[[Page 28154]]

mandating helmet use and by 1975, 47 states had enacted such laws. 
With the Highway Safety Act of 1977, however, Section 208 of which 
relaxed the pressure on states to have helmet laws, the federal 
government created the opportunity to measure the effectiveness of 
helmet use when 27 states repealed their helmet laws in the 
following three years.
    Objective analysis of data from the mid 1990s (when helmet laws 
were widespread) and the late 1990s (when more than half the states 
had repealed such laws) shows clearly that head injuries and 
fatalities of motorcycle riders are reduced when motorcyclists wear 
helmets.
    Moreover, the costs associated with treating motorcycle riders 
head injuries have been demonstrated to be significantly reduced--up 
to 80 percent in one university study--when helmet laws are in 
effect.
    Recent studies again confirmed that the use of helmets reduces 
the risk of mortality and severe head injury with motorcycle riders 
who crash, although the former effect may be modified by other crash 
factors such as speed.
3. Role of Rider Education
    Another issue raised extensively in comments is rider education. 
Many commenters argued that education could play a far larger role in 
creating benefits than the current rulemaking action. We agree that 
education and safe operating and riding practices are important. 
However, for the reasons discussed above near the beginning of this 
preamble, such education and practices do not and cannot reduce the 
need for enactment and implementation of up-to-date universal State 
helmet use laws. Even with education and safe operating and riding 
practices, there will continue to be substantial numbers of motorcycle 
crashes. As we have shown above, in the event of a crash, wearing a 
compliant helmet produces significant benefits at a relatively modest 
cost. NHTSA encourages motorcycle operators and riders and drivers of 
other motor vehicles to be cognizant of all road traffic and to drive 
in a safe manner.
4. Allegations of Potential for Helmets To Cause Harm
    A number of opponents of mandatory helmet use argued that helmets 
cause injuries, rather than, or in addition to, alleviating others. 
Some commenters stated that helmet use has been linked to neck and 
spinal injuries. One commenter \89\ submitted a report describing how 
full face helmets have been linked to basal skull fractures due to the 
transmission of impact energy from the face bar through the chin strap 
and into the skull.
---------------------------------------------------------------------------

    \89\ Comment from Dennis Salter, Docket NHTSA 2008-0157-0025.
---------------------------------------------------------------------------

    The overwhelming preponderance of data and research demonstrates 
the positive effectiveness of compliant helmets. NHTSA has determined 
that motorcycle helmets are 37 percent effective in preventing 
fatalities \90\ and 35 percent effective in preventing head injuries 
\91\ to motorcycle riders. The agency estimates that motorcycle helmets 
have saved 1,800 lives in 2008 and an additional 823 lives would have 
been saved in that year had helmet use been 100 percent.\92\
---------------------------------------------------------------------------

    \90\ Motorcycle Helmet Effectiveness Revisited, March 2004, DOT 
HS 809 715, Technical Report, National Center for Statistics and 
Analysis, NHTSA.
    \91\ Motorcycle Helmet Use and Head and Facial Injuries: Crash 
Outcomes in CODES-Linked DATA, DOT HIS 811 208, NCSA Technical 
Report, NHTSA, October 2009.
    \92\ Lives Saved in 2008 by Restraint Use and Minimum Drinking 
Age Laws, DOT HS 811 153, May 2010.
---------------------------------------------------------------------------

    Using the Crash Outcome Data Evaluation System (CODES) data files 
from 18 States, the agency examined the relationship between motorcycle 
helmet use and motorcycle crash outcomes in terms of head/face injuries 
and societal costs. In this data set, 6.6 percent of unhelmeted 
motorcyclists suffered a moderate to severe head or facial injury 
compared to 5.1 percent of helmeted motorcyclists. Unhelmeted 
motorcyclists sustained more severe head injuries than helmeted 
motorcyclists and as a result incurred higher hospital charges and 
societal costs associated with rehabilitation and lost work time. This 
study estimated that motorcycle helmets are 35 percent effective at 
preventing head injuries and 27 percent effective at preventing 
traumatic brain injury. While helmets were found to effectively 
mitigate head and face injuries, their use was not found to increase 
neck, thorax, or other body injuries. There were very few neck injuries 
in this data set with 0.04 percent unhelmeted motorcyclists and 0.07 
percent helmeted motorcyclists sustaining moderate to severe neck 
injuries. There was also no significant difference in injury rate and 
severity levels between unhelmeted and helmeted motorcyclists for the 
neck, thorax, abdomen, and extremity regions.
    An analysis of linked data files of FARS and Multiple Cause of 
Death (MCOD) \93\ for the years 2000-2002 showed that among 8,539 
motorcyclists (4,412 helmeted motorcyclists, 3,829 unhelmeted 
motorcyclists, and 298 motorcyclists with unknown helmet use) 51 
percent of unhelmeted riders suffered a head injury as compared to 
about 35 percent of the helmeted riders. In addition, 83 percent of 
unhelmeted motorcyclist fatalities were attributed to head injuries, 
while 63 percent of helmeted motorcyclist fatalities were attributed to 
head injuries. Neck, thorax, and abdomen injuries were attributed to 
the cause of death in 3, 9, and 4 percent of fatally injured unhelmeted 
motorcyclists, respectively and to 7, 21, and 8 percent of fatally 
injured helmeted motorcyclists, respectively. This data shows that head 
injury is the predominant cause of death among motorcyclists and that 
death due to head injuries is 20 percent lower among helmeted 
motorcyclists than among unhelmeted motorcyclists. The higher 
proportion of injuries to other body regions that are attributed to the 
cause of death among helmeted motorcyclists is due to the concomitant 
lower proportion of fatalities attributed to head injuries and is not 
an indication that helmet use causes injuries to these other body 
regions, including the neck, thorax, and abdomen. Instead, helmet use 
increases the survival rate to the point that more neck, thoracic, and 
abdominal injuries are detected.
---------------------------------------------------------------------------

    \93\ Subramanian, R., Bodily Injury Locations in Fatally Injured 
Motorcycle Riders, DOT HS 810 856.
---------------------------------------------------------------------------

    Contrary to the claims of helmet opponents, helmeted motorcyclists 
are less likely than unhelmeted motorcyclists to suffer a cervical 
spine (neck) injury as a result of a motorcycle crash. These claims are 
based on a single, well-refuted study. The Insurance Institute for 
Highway Safety addressed \94\ that study as follows:
---------------------------------------------------------------------------

    \94\ ``Q&As: Motorcycle Helmet Use Laws, Insurance Institute for 
Highway Safety,'' available at http://www.iihs.org/research/qanda/helmet_use.html (Last accessed March 16, 2011).

    Claims have been made that helmets increase the risk of neck 
injury and reduce peripheral vision and hearing, but there is no 
credible evidence to support these arguments. A study by J.P. 
Goldstein often is cited by helmet opponents as evidence that 
helmets cause neck injuries, allegedly by adding to head mass in a 
crash. More than a dozen studies have refuted Goldstein's findings. 
A study reported in the Annals of Emergency Medicine in 1994 
analyzed 1,153 motorcycle crashes in four Midwestern states and 
determined that ``helmets reduce head injuries without an increased 
---------------------------------------------------------------------------
occurrence of spinal injuries in motorcycle trauma.''

(Footnotes omitted.)
    More recent information further refutes that single study. Based on 
a retrospective analysis of all registered cases (62,840) of motorcycle 
collision in the National Trauma Data Bank that occurred between 2002 
and 2006, the authors of a 2010 study found that helmeted motorcyclists 
had lower adjusted odds and a lower proportion of cervical spine injury 
than unhelmeted ones.\95\
---------------------------------------------------------------------------

    \95\ Crompton, J. G., Bone, C., Oyetunji, T., Pollack, K., 
Bolorunduro, O., Villegas, C., Stevens, K., Cornwell III, E. E., 
Efron, D., Haut, E. R.. ``Motorcycle Helmets Associated with Lower 
Risk of Cervical Spine Injury: Debunking the Myth.'' Journal of the 
American College of Surgeons, 2011; DOI: 10.1016/
j.jamcollsurg.2010.09.032. Available at http://www.dor.state.ne.us/nohs/pdf/HelmetsSpine.pdf (Last accessed March 15, 2011).

---------------------------------------------------------------------------

[[Page 28155]]

    The agency evaluated the effect of motorcycle helmet law repeal on 
motorcyclist fatalities in Florida,\96\ Kentucky, Louisiana,\97\ Texas, 
and Arkansas.\98\ The evaluation showed a significant drop in helmet 
use and concomitant increase in fatalities and head injuries among 
motorcyclists after the repeal of helmet use laws in each of these 
States. Motorcyclist fatalities increased by 81 percent and 
motorcyclist hospital admissions for head injuries increased by 82 
percent in Florida after the repeal. This increase in motorcyclist 
fatalities after the repeal of helmet laws in Florida was more than 40 
percent higher than the national average for those years and was 
greater than the increase in motorcycle registrations and the vehicle 
miles travelled. Similar results were observed in Kentucky, Louisiana, 
Texas, and Arkansas after helmet laws were repealed.
---------------------------------------------------------------------------

    \96\ Evaluation of the Repeal of the All-Rider Motorcycle Helmet 
Law in Florida, DOT HS 809 849, August 2005. http://www.nhtsa.gov/staticfiles/nti/motorcycles/pdf/809849.pdf
    \97\ Evaluation of the Repeal of Motorcycle Helmet Laws in 
Kentucky and Louisiana, DOT HS 809 530, October 2003, http://www.nhtsa.gov/people/injury/pedbimot/motorcycle/kentuky-la03/index.html
    \98\ Evaluation of Motorcycle Helmet Law Repeal in Arkansas and 
Texas, September 2000, http://www.nhtsa.gov/people/injury/pedbimot/motorcycle/EvalofMotor.pdf.
---------------------------------------------------------------------------

    The data presented in this section clearly demonstrate that the 
predominant cause of motorcyclist fatalities is injury to the head and 
that helmet use significantly reduces the risk of head injuries. The 
effect of helmet use on the risk of injury to other body regions is 
small or nonexistent. As a result, the benefits of helmet use far 
outweigh any disbenefits that may arise.
5. Allegations That Helmets Reduce Vision and Hearing
    Some opponents of helmet use allege that helmets reduce vision and 
hearing. Neither of these allegations have merit.
    Regarding claims that helmets obstruct vision, full-coverage 
helmets create only very minor and inconsequential restrictions in 
horizontal peripheral vision. Normal peripheral vision is between 
100[deg] and 110[deg] to the left, and 100[deg] and 110[deg] to the 
right, of straight ahead.\99\ Standard No. 218 requires that helmets 
provide 105[deg] of vision to the left and 105[deg] to the right.\100\ 
Since over 90 percent of crashes happen within a range of 80[deg] to 
the left or to the right (with the majority of the remainder occurring 
in rear-end collisions), it is clear that helmets do not affect 
peripheral vision or contribute to crashes. Further, a 1994 study found 
that wearing helmets does not restrict the likelihood of seeing a 
vehicle in an adjacent lane prior to initiating a lane change.\101\ The 
test subjects compensated for the slight narrowing of the field of 
vision due to helmet use by rotating their heads slightly farther prior 
to making a lane change with no resulting reduction in the likelihood 
of their detecting a vehicle in an adjacent lane.
---------------------------------------------------------------------------

    \99\ ``Without Motorcycle Helmets We all Pay the Price.'' 
National Highway Traffic Safety Administration, 2005. http://www.nhtsa.gov/people/injury/pedbimot/motorcycle/safebike/. (Last 
accessed March 16, 2011.)
    \100\ S5.4 Configuration of Standard No. 218 provides: * * * The 
helmet shall provide peripheral vision clearance of at least 
105[deg] to each side of the mid-sagittal plane, when the helmet is 
adjusted as specified in S6.3. * * *
    \101\ McKnight, A. J. and McKnight, A. S., ``The Effects of 
Motorcycle Helmets Upon Seeing and Hearing.'' February 1994 (DOT HS 
808 399).
---------------------------------------------------------------------------

    The allegation regarding effects on hearing is also contradicted by 
the 1994 study. In addition to examining the effect of wearing a helmet 
on the ability of motorcycle riders operating at normal highway speeds 
to visually detect the presence of vehicles in adjacent lanes before 
changing lanes, it also examined the effect on riders' ability to 
detect traffic sounds. While helmet use had no significant effect on 
hearing, wind speed did. As motorcycle speed and thus wind speed 
increased, the ability of both helmeted and unhelmeted riders to detect 
auditory signals was reduced.
6. Impact of Traumatic Brain Injury on Family, Friends and Co-Workers
    Helmet use opponents argue that they are willing to bear the risks 
of their non-use of helmets and therefore should be given the freedom 
to do so.
    However, no man is an island. The wish of helmet opponents to ride 
unprotected should be weighed together with the impact of traumatic 
brain injury on family, friends and co-workers. Helmet opponents do not 
alone bear the consequences of the risks they wish to assume, i.e., 
suffering traumatic brain injury as a result of riding unhelmeted. The 
interrelatedness of the brain-injured persons, regardless of the 
sources or circumstances of injury, was addressed at a conference held 
under the auspices of the National Institutes of Health: \102\

    \102\ National Institutes of Health Consensus Development 
Conference Statement, Rehabilitation of Persons with Traumatic Brain 
Injury, October 26-28, 1998. Available at http://www.nichd.nih.gov/publications/pubs/TBI_1999/NIH_Consensus_Statement.cfm. (Last 
visited March 15, 2011)
---------------------------------------------------------------------------

    Traumatic brain injury (TBI), broadly defined as brain injury 
from externally inflicted trauma, may result in significant 
impairment of an individual's physical, cognitive, and psychosocial 
functioning. In the United States, an estimated 1.5 to 2 million 
people incur TBI each year, principally as a result of vehicular 
incidents, falls, acts of violence, and sports accidents. The number 
of people surviving TBI with impairment has increased significantly 
in recent years, which is attributed to faster and more effective 
emergency care, quicker and safer transportation to specialized 
treatment facilities, and advances in acute medical management. TBI 
affects people of all ages and is the leading cause of long-term 
disability among children and young adults.
    Each year, approximately 70,000 to 90,000 individuals incur a 
TBI resulting in a long-term, substantial loss of functioning. The 
consequences of TBI include a dramatic change in the individual's 
life-course, profound disruption of the family, enormous loss of 
income or earning potential, and large expenses over a lifetime. 
There are approximately 300,000 hospital admissions annually for 
persons with mild or moderate TBI, and an additional unknown number 
of traumatic brain injuries (TBIs) that are not diagnosed but may 
result in long-term disability.
    Although TBI may result in physical impairment, the more 
problematic consequences involve the individual's cognition, 
emotional functioning, and behavior. These impact interpersonal 
relationships, school, and work. Cognitive-behavioral remediation, 
pharmacologic management, assistive technology, environmental 
manipulation, education, and counseling are among currently used 
treatments of these sequelae. These treatments are provided in 
freestanding rehabilitation hospitals, rehabilitation departments in 
general hospitals, a variety of day treatment or residential 
programs, skilled nursing facilities, schools, the community, and 
the home.
7. Recommended Changes to the Helmet Standard
    Several commenters, including MIC, ASTM, and Snell, provided 
extensive recommendations on suggested improvements to the motorcycle 
helmet standard. These issues included:
     Reduction of the peak allowable headform acceleration from 
400 to 300g.
     Impact attenuation tests for full-facial coverage helmets.
     Adoption of face shield tests, based on VESC-8 
specifications.\103\
---------------------------------------------------------------------------

    \103\ Vehicle Equipment Safety Commission, Regulation VESC-8, 
``Minimum Requirements for Motorcyclists' Eye Protection,'' July 
1980.
---------------------------------------------------------------------------

     Elimination of penetration resistance requirements.
     Test procedures for external rigid projections.
     Addition of a positional stability test.

[[Page 28156]]

     New means to measure helmet velocity.
     Reconsideration of the time duration criteria of the 
impact attenuation test.

Further, several commenters requested that a FMVSS No. 218 Advisory 
Committee should be created to confer with NHTSA and to facilitate more 
regular updates of the standard.
    Because this rulemaking action is limited in scope to labeling 
upgrades and minor clarifications of test conditions and procedures for 
purposes of improving testing and enforceability, we are not making any 
of the substantive changes that these commenters requested at this 
time. We will continue to assess whether additional improvements should 
be made to the standard in the future.
8. Compliance Date
    In the NPRM, the agency proposed a lead time of two years for the 
new requirements to become effective. We noted that the changes were 
such that helmet manufacturers should not have to purchase new test 
equipment or make any structural changes to their helmets to ensure 
compliance with the revised tests or updated SAE Recommended Practice 
J211. As the only changes being made to the standard are moderate 
changes to the labeling requirements and slight clarifications to test 
conditions and procedures to facilitate enforcement, we continue to 
believe that two years is adequate lead time. In response, MIC 
requested that the final rule be clarified to state that it will apply 
to helmets manufactured two years after publication of the final rule. 
MIC has correctly stated how the amended standard will apply. We do not 
believe the regulatory text needs to be modified to provide additional 
clarity on this point.

IV. Estimated Costs and Benefits

    The total benefits deriving from this final rule depends upon how 
many motorcycle riders in States having motorcycle helmet use laws 
(``Law States'') will change from using noncompliant helmets (novelty 
helmets) to FMVSS No. 218-certified helmets. As NHTSA does not have a 
reliable method of estimating how many riders may switch based on this 
final rule, we have created three reference scenarios, reflecting 
conditions where different numbers of users switched from novelty 
helmets to FMVSS No. 218-compliant helmets. Because we expect that most 
of the effects of this rule will come from the improved enforcement due 
to the labeling changes, we have limited the potential pool of 
switching riders to those in States with universal helmet laws. As the 
three scenarios show, while the scale of the overall costs and benefits 
changes dramatically depending on how many riders switch, the net cost 
per life saved remains relatively constant in all scenarios.
    The estimated benefits are as follows. If 5 percent of the novelty 
helmet users in universal helmet law States make a switch (i.e., the 5-
percent scenario), the rule would save 22 to 38 lives. Under the 10-
percent scenario, the final rule would save 44 to 75 lives. The rule 
would potentially save a maximum of 438 to 754 lives if all novelty 
helmet users in States with universal helmet laws switched to compliant 
helmets. Due to relatively small sample of non-fatal head injuries to 
fatal head injuries, the impact of the rule on non-fatal head injuries 
would be negligible.
    There are two components to the total cost of the final rule. These 
are the incremental cost to manufacturers for implementing the 
recommended labeling requirements and the incremental cost to novelty 
helmet users who switch to use a FMVSS No. 218-certified helmet. With 
regard to the increased costs of labeling, the cost to manufacturers is 
estimated to be two cents per helmet. We do not believe that the other 
changes to the standard will result in significant costs to 
manufacturers or testers of helmets. For a total estimate of 5.2 
million certified helmets manufactured per year, the cost translates to 
$0.1 million.
    With regard to the costs to consumers, the incremental cost per 
replaced novelty helmet is estimated to be $46.02. Annually, an 
estimated 45,979, 91,958, and 919,579 novelty helmets sold in States 
with universal helmet laws would be replaced by compliant helmets for 
the 5-, 10-, and 100-percent scenarios, respectively. The corresponding 
total cost to novelty helmet users who switch to compliant helmets 
would be $2.1, $4.2, and $42.3 million. Considering the two factors, 
the total costs of the final rule would be:
     $2.2 million for the 5-percent scenario (= $0.1 + $2.1 
million)
     $4.3 million for the 10-percent scenario (= $0.1 + $4.2 
million)
     $42.4 million for the 100-percent scenario (= $0.1 + $42.3 
million).
    No matter what scenario is used, the net cost per equivalent life 
saved, discounted at a 3 percent and 7 percent discount rate, is less 
than $150,000. The net cost per equivalent life saved is estimated to 
range from $62,479 to $110,998 at a 3 percent rate and $71,180 to 
$130,586 at a 7 percent discount rate. The higher bound is from the 
100-percent scenario and the lower bound is from the 5-percent 
scenario. These figures are well below the $6.23 million per life saved 
threshold that the agency generally takes into consideration when 
promulgating rulemaking.

                         Table 12--Net Cost per Equivalent Life Saved by Three Scenarios
                                                 [2008 dollars]
----------------------------------------------------------------------------------------------------------------
                                                         3% Discount rate                7% Discount rate
                    Scenarios                    ---------------------------------------------------------------
                                                        Low            High             Low            High
----------------------------------------------------------------------------------------------------------------
5-Percent.......................................         $65,293        $110,998         $73,998        $130,586
10-Percent......................................          63,763         108,398          73,490         123,883
100-Percent.....................................          62,479         107,673          71,180         122,610
----------------------------------------------------------------------------------------------------------------

    NHTSA has also conducted a net benefit analysis for this final 
rule. A net benefit analysis differs from a cost effectiveness analysis 
in that it requires that benefits be assigned a monetary value. This 
benefit value is compared to the monetary value of costs to derive a 
net benefit. The net benefits can range from $103.8 to $4,190.8 
million. The lower range of the net benefits represents the benefit of 
the final rule for the 5-percent scenario using a 7 percent discount 
rate and the high end represents the maximum potential benefits using a 
3 percent discount rate. Both of these are based on a $6.1 million 
comprehensive value for preventing a fatality, adjusted to $6.23 
million to account for inflation.

[[Page 28157]]



                         Table 13--Net Benefits With $6.23 M Comprehensive Cost per Life
                                          [In millions of 2008 dollars]
----------------------------------------------------------------------------------------------------------------
                                                        At 3% discount rate             At 7% discount rate
                    Scenarios                    ---------------------------------------------------------------
                                                        Low            High             Low            High
----------------------------------------------------------------------------------------------------------------
5-Percent.......................................        $122.5 M        $209.8 M        $103.8 M        $184.8 M
10-Percent......................................         245.0 M         419.6 M         213.9 M         363.5 M
100-Percent.....................................       2,414.0 M       4,190.8 M       2,114.7 M       3,673.3 M
----------------------------------------------------------------------------------------------------------------

V. Related Issues for Future Action

    While this final rule will make it easier for State and local law 
enforcement officials to enforce State laws requiring the use of FMVSS 
No. 218-compliant helmets, the agency anticipates that only a low 
percentage of motorcyclists using novelty helmets in States that have a 
universal helmet use law will switch to using compliant helmets. The 
agency's survey data indicates that in 2010, 22 percent of 
motorcyclists in States with a universal helmet use law wore novelty 
helmets while this was 11 percent in 2009. The popularity of novelty 
helmets may be related to a variety of factors, including opposition of 
some motorcyclists to helmet use laws, the lower cost of novelty 
helmets compared to compliant helmets, marketing strategies, and the 
ease of purchasing novelty helmets. Even in states with universal 
helmet use laws, motorcyclists are purchasing novelty helmets for on-
road use despite disclaimers by retailers and manufacturers of novelty 
helmets stating that they are not intended for on-road use and are not 
protective gear and despite general knowledge among most motorcyclists 
in those states that wearing a novelty helmet does not meet those laws. 
As the Governors Highway Safety Association noted in its comments,

    [T]there is a growing problem with evasion of mandatory 
motorcycle laws in all states. Novelty helmets use is popular among 
a large segment of motorcycle riders, and these helmets do not meet 
FMVSS 218 standards, nor are they in compliance with a state's 
motorcycle helmet law. Many of these riders use the novelty helmets 
as a means of expressing displeasure with mandatory motorcycle 
helmet laws. They are also using counterfeit ``DOT'' stickers on 
these helmets so as to appear to be in compliance with the federal 
standards when, in fact, they are not in compliance. * * *
* * * * *
    GHSA applauds the National Highway Traffic Safety Administration 
for promulgating this NPRM and directly addressing a problem that is 
a growing and pervasive one. Developing a regulation in the face of 
a vocal minority that opposes helmet laws and flagrantly violates 
those laws is not an easy task. We encourage the Agency to move 
forward and finalize this NPRM as quickly as possible so that helmet 
manufacturers can begin to produce helmets that meet the new 
standards and law enforcement officers will have the information 
they need to enforce improper helmet use.

    Therefore, in order to increase further the percentage of 
motorcyclists who wear helmets that provide adequate head impact 
protection, the agency is assessing other actions that should be taken 
to address the marketing and selling of novelty helmets to 
motorcyclists for on-road use. In making that assessment, the agency is 
considering a variety of issues, including the following ones.

a. Are there examples of novelty ``safety'' equipment other than 
novelty helmets?

    The agency is unaware of any motor vehicle equipment manufacturers 
that produce both compliant and ``novelty'' noncompliant versions of 
those items of equipment. For example, manufacturers of seat belts that 
comply with FMVSS No. 209, ``Seat belt assemblies,'' or child seats 
that comply with FMVSS Nos. 213, ``Child restraint systems,'' and 225, 
``Child restraint anchorage systems,'' do not also produce ``novelty'' 
seat belts or child seats that they declare, explicitly or implicitly, 
are not intended to provide protection, are not motor vehicle equipment 
subject to the FMVSSs and do not comply with them. Likewise, the agency 
is unaware of any manufacturers that produce only novelty safety belts 
or child seats. In either case, it is difficult to imagine any 
manufacturer, importer or seller of seat belts or child seats arguing 
that their seat belts or child seats are not motor vehicle equipment 
and making statements similar to the following disclaimer about their 
seat belts--

    Novelty seat belts are intended for display. They are not 
intended to be used in motor vehicles and are not designed to 
provide protection in a crash. Their use in a crash may result in 
serious injury. Use this seat belt at your own risk.

or child seats--

    Novelty child seats are intended for display. They are not 
intended to be used in motor vehicles and are not designed to 
provide protection in a crash. Their use in a crash may result in 
serious injury. Use this child seat at your own risk.

b. Where are novelty helmets manufactured?

    Although novelty helmets are typically not labeled with either the 
name or location of their manufacturer, the agency believes that few of 
the novelty helmets are manufactured in the United States. NHTSA 
believes that a very high percentage of them are, instead, manufactured 
in South Asia or Southeast Asia.

c. How do novelty helmet manufacturers, importers and dealers attempt 
to rationalize their manufacture, importation and sale of noncompliant, 
non-protective helmets?

    Despite widespread knowledge among motorcyclists that novelty 
motorcycle helmets do not meet federal safety performance requirements 
and are used nevertheless primarily by motorcyclists while riding on 
public roads and highways, importers and sellers of novelty helmets 
continue to produce, import and sell novelty motorcycle helmets. 
Although novelty motorcycle helmets are--
    (1) Often either sold online on the same Web sites, even the same 
webpages, as FMVSS No. 218 compliant helmets, or by businesses that 
also sell motorcycles or motorcycle related products,
    (2) documented by NHTSA as being used by as many as 22 percent 
(2010) of motorcyclists in States with motorcycle helmet use laws, and
    (3) only minimally used for any purpose other than while riding a 
motorcycle, sellers of novelty helmets provide disclaimers like the 
following one to consumers:

    Novelty motorcycle helmets are for display or show purposes 
only. They are not intended to be used in motor vehicles and are not 
designed to provide protection in a crash. Their use in a crash may 
result in serious injury. Use at your own risk.

    At least some novelty helmet manufacturers affix to their helmets a 
label bearing similar statements. Novelty helmet manufacturers do not,

[[Page 28158]]

however, typically affix any sort of label identifying themselves as 
the manufacturers. In contrast, manufacturers of compliant helmets 
attach a label to each of their helmets clearly identifying themselves, 
as required by FMVSS No. 218.

d. Is it permissible to sell noncompliant helmets in a state that does 
not have a law requiring the use of helmets?

    If a type of equipment is an item of ``motor vehicle equipment'' 
within the meaning of the Vehicle Safety Act \104\ and is subject to a 
FMVSS, but does not comply with that standard, it is impermissible to 
manufacture, import or sell that equipment in any state in the United 
States, regardless of whether that state requires the use of such 
equipment for some or all motorcyclists.
---------------------------------------------------------------------------

    \104\ 49 U.S.C. 30102(a)(7).
---------------------------------------------------------------------------

VI. Rulemaking Analyses and Notices

a. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This rulemaking action amends FMVSS No. 218 to help reduce the use 
of novelty helmets and improve enforceability of that Standard. This 
action was not reviewed by the Office of Management and Budget under 
E.O. 12866 and E.O. 13563. The agency has considered the impact of this 
action under the Department of Transportation's regulatory policies and 
procedures (44 FR 11034; February 26, 1979), and has determined that it 
is not ``significant'' under them.
    NHTSA has prepared a final regulatory evaluation for this action 
that discusses its potential benefits, costs, and other impacts. A 
summary of those impacts appears immediately before this section. A 
copy of the evaluation has been placed in the docket for this 
rulemaking action.
    The evaluation suggests several aspects of this action that could 
directly or indirectly result in costs to consumers or industry. First, 
the agency believes that this rule will indirectly induce 5 to 10 
percent of novelty helmet users, in States that have a universal helmet 
use law, to make a switch to purchase and use FMVSS No. 218-compliant 
helmets. We believe this is a reasonable assumption given that this 
rule will make it easier for law enforcement personnel to distinguish 
between helmets that have been certified to FMVSS No. 218 and novelty 
helmets to which misleading look-alike ``certification'' labels have 
been attached by users to create the misleading appearance of a 
certified helmet. This greater ease of identification is expected to 
lead to greater enforcement efforts and thus increased compliance with 
State motorcycle helmet use laws.
    Second, this action amends labeling requirements that will cause 
helmet manufacturers to bear minimal costs and will not necessitate any 
changes to existing designs. The agency estimates that the cost of the 
labeling requirement will not exceed $0.02 per helmet.
    Third, this rule adds tolerances to the compliance tests of FMVSS 
No. 218 and clarifies language in the standard to provide clear 
guidance to manufacturers on conducting compliance tests and to enable 
the agency to better undertake enforcement actions when a noncompliance 
is discovered. However, we do not believe that it will result in 
significant expenses or changes in helmet design or manufacture or 
testing procedures. Further information about the benefits and costs of 
this rulemaking action may be found above in Section IV of this 
preamble.

b. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of proposed rulemaking or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
The Small Business Administration's regulations at 13 CFR part 121 
define a small business, in part, as a business entity ``which operates 
primarily within the United States.'' (13 CFR 121.105(a)). No 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities.
    NHTSA has considered the effects of this final rule under the 
Regulatory Flexibility Act. This rule imposes minimal cost burdens on 
helmet manufacturers, on the order of 2 cents per helmet. While the 
costs of designing a unique certification label for each model of 
helmet depend on the number of units of the model manufactured and sold 
(and therefore may cost more on a per-helmet basis for small 
manufacturers), the costs are still minimal compared to the overall 
cost of manufacturing a compliant motorcycle helmet. I certify that 
this proposed rule would not have a significant economic impact on a 
substantial number of small entities.

c. Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order 
13132 (64 FR 43255, August 10, 1999) and concluded that no additional 
consultation with States, local governments or their representatives is 
mandated beyond the consultation already conducted and the rulemaking 
process.
    The agency's proposals regarding the issue of misleading labels on 
novelty helmets are based on substantial analysis of the needs of law 
enforcement personnel and the concerns of manufacturers. In 2005, 
NHTSA's Office of Traffic Injury Control and Office of Vehicle Safety 
Compliance conducted an informal telephone survey of seven law 
enforcement offices,\105\ a law enforcement organization,\106\ and five 
motorcycle helmet manufacturers to discuss the problem of misleading 
``DOT'' symbols. Respondents were asked their opinion on various 
approaches to the problem, the advantages and disadvantages of 
suggested approaches, and on other changes in the requirements that 
could help identify noncompliant helmets. Additionally, NHTSA published 
a Motorcycle Safety Program Plan on July 3, 2006. This plan discussed--
among other topics--proposed initiatives to amend FMVSS No. 218 to 
address the problem of misleading labeling.
---------------------------------------------------------------------------

    \105\ The seven law enforcement offices surveyed were Pittsburgh 
Bureau of Police; Louisiana State Police; Pennsylvania Department of 
Transportation; Canadian Officers; Riverside, California Police 
Department; Nebraska State Police; and the Maryland Department of 
Transportation.
    \106\ The law enforcement organization surveyed was the American 
Association of Motor Vehicle Administrators, Law Enforcement 
Committee.
---------------------------------------------------------------------------

    In addition, in response to the NPRM, the agency received 
supportive comments from the Governors Highway Safety Association and 
the Washington Association of Sheriffs and Police Chiefs. The Governors 
Highway Safety Association said: \107\
---------------------------------------------------------------------------

    \107\ Docket NHTSA-2008-0157-0021.

    One of the most effective strategies for reducing motorcycle 
fatalities is to encourage the use of motorcycle helmets. As noted 
in the NPRM, motorcycle helmets are 37% effective in reducing 
fatalities. Few other countermeasures can boast such a high level of 
effectiveness. GHSA strongly supports mandatory motorcycle helmet 
laws for all riders and encourages the thirty states without such 
laws to enact them.

[[Page 28159]]

    Not only do many states fail to have the most protective 
motorcycle helmet laws, there is a growing problem with evasion of 
mandatory motorcycle laws in all states. Novelty helmets use is 
popular among a large segment of motorcycle riders, and these 
helmets do not meet FMVSS 218 standards, nor are they in compliance 
with a state's motorcycle helmet law. Many of these riders use the 
novelty helmets as a means of expressing displeasure with mandatory 
motorcycle helmet laws. They are also using counterfeit ``DOT'' 
stickers on these helmets so as to appear to be in compliance with 
the federal standards when, in fact, they are not in compliance.
    NHTSA has recently conducted testing of these noncompliant 
helmets and found that they do not provide the rider with adequate 
coverage. The analysis indicated that the novelty helmets provide 
``minimal protection during a crash.'' GHSA is also unaware of any 
evidence to support claims that fake DOT labels are being used for 
any purposes other than counterfeiting. In short, novelty helmets 
are dangerous, and bogus DOT stickers are misleading.
    It is GHSA's position that all states with mandatory motorcycle 
helmet laws should enforce them and ensure that motorcycle riders 
are using DOT-compliant helmets. The Association also strongly 
supports any changes to FMVSS 218 that would make it easier for law 
enforcement personnel to enforce their states' motorcycle helmet 
laws.
    Accordingly, GHSA strongly supports the changes in the 
motorcycling helmet labeling requirements proposed in this NPRM. By 
requiring a water decal beneath the clear coating for the helmet, 
the label is more likely to be tamper-proof. It will be easier for 
law enforcement to determine whether the label was part of the 
manufacturing process or simply a decal affixed afterwards. By 
specifying that the manufacturer's name or brand and model 
designation be included in the outside label and by allowing the 
manufacturers to use several different formats, it will be more 
difficult for counterfeit label producers to develop a single bogus 
decal. By requiring the word ``certified,'' it will put the onus on 
legitimate manufacturers of helmets to stand by their products and 
will clarify that ``certified'' is a modifier to ``DOT'' and that 
the ``DOT'' does not have some other meaning.

The Washington Association of Sheriffs and Police Chiefs provided 
similarly supportive comments: \108\
---------------------------------------------------------------------------

    \108\ Docket NHTSA-2008-0157-0161.

    * * * WASPC believes the proposed rule changes for FMVSS 218 are 
reasonable and if approved will help reduce misleading labeling of 
novelty helmets that creates the impression that uncertified, non-
compliant motorcycle helmets have been properly certified as 
compliant.
    The new motorcycle helmet rule changes would help realize the 
full potential of compliant helmets by assisting law enforcement 
officers in Washington State with enforcing the state helmet use 
laws, thereby increasing the percentage of motorcycle riders wearing 
compliant helmets.
    The use of the motorcycle safety helmet is the single most 
critical factor in the prevention and reduction of head injuries for 
motorcycle riders. Safety helmets that comply with FMVSS 218 are a 
significantly effective injury countermeasure.

    The agency has concluded that the rulemaking would not have 
sufficient federalism implications to warrant further consultation with 
State and local officials or the preparation of a federalism summary 
impact statement. The final rule would not have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    NHTSA rules can preempt in two ways. First, the National Traffic 
and Motor Vehicle Safety Act contains an express preemption provision: 
When a motor vehicle safety standard is in effect under this chapter, a 
State or a political subdivision of a State may prescribe or continue 
in effect a standard applicable to the same aspect of performance of a 
motor vehicle or motor vehicle equipment only if the standard is 
identical to the standard prescribed under this chapter. 49 U.S.C. 
30103(b)(1). It is this statutory command by Congress that preempts any 
non-identical State legislative and administrative law addressing the 
same aspect of performance.
    The express preemption provision described above is subject to a 
savings clause under which ``[c]ompliance with a motor vehicle safety 
standard prescribed under this chapter does not exempt a person from 
liability at common law.'' 49 U.S.C. 30103(e) Pursuant to this 
provision, State common law tort causes of action against motor vehicle 
manufacturers that might otherwise be preempted by the express 
preemption provision are generally preserved. However, the Supreme 
Court has recognized the possibility, in some instances, of implied 
preemption of such State common law tort causes of action by virtue of 
NHTSA's rules, even if not expressly preempted. This second way that 
NHTSA rules can preempt is dependent upon there being an actual 
conflict between an FMVSS and the higher standard that would 
effectively be imposed on motor vehicle manufacturers if someone 
obtained a State common law tort judgment against the manufacturer, 
notwithstanding the manufacturer's compliance with the NHTSA standard. 
Because most NHTSA standards established by an FMVSS are minimum 
standards, a State common law tort cause of action that seeks to impose 
a higher standard on motor vehicle manufacturers will generally not be 
preempted. However, if and when such a conflict does exist--for 
example, when the standard at issue is both a minimum and a maximum 
standard--the State common law tort cause of action is impliedly 
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
    Pursuant to Executive Order 13132 and 12988, NHTSA has considered 
whether this rule could or should preempt State common law causes of 
action. The agency's ability to announce its conclusion regarding the 
preemptive effect of one of its rules reduces the likelihood that 
preemption will be an issue in any subsequent tort litigation.
    To this end, the agency has examined the nature (e.g., the language 
and structure of the regulatory text) and objectives of today's rule 
and finds that this rule, like many NHTSA rules, prescribes only a 
minimum safety standard. As such, NHTSA does not intend that this rule 
preempt state tort law that would effectively impose a higher standard 
on motor vehicle manufacturers than that established by today's rule. 
Establishment of a higher standard by means of State tort law would not 
conflict with the minimum standard announced here. Without any 
conflict, there could not be any implied preemption of a State common 
law tort cause of action.

d. Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The preemptive 
effect of this rule is discussed above. NHTSA notes further that there 
is no requirement that individuals submit a petition for 
reconsideration or pursue other administrative proceeding before they 
may file suit in court.

[[Page 28160]]

e. National Technology Transfer and Advancement Act

    Under the National Technology Transfer and Advancement Act of 1995 
(NTTAA) (Pub. L. 104-113), ``all Federal agencies and departments shall 
use technical standards that are developed or adopted by voluntary 
consensus standards bodies, using such technical standards as a means 
to carry out policy objectives or activities determined by the agencies 
and departments.'' Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies, such as the Society of Automotive 
Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, 
explanations when we decide not to use available and applicable 
voluntary consensus standards.
    FMVSS No. 218 is largely based on ANSI Z90.1-1971, ``Specifications 
for Protective Headgear for Vehicular Users,'' and incorporates the SAE 
Recommended Practice J211/1, revised March 1995, ``Instrumentation for 
Impact Test--Part 1--Electronic Instrumentation,'' both of which are 
voluntary consensus standards. While the Snell Memorial Foundation also 
produces helmet specifications (e.g., the 2005 and 2010 Helmet 
Standards for use in Motorcycling), the agency continues to base its 
standard on the ANSI specification, as the purpose of this rulemaking 
action is to make minor changes and clarifications to the standard for 
labeling and enforcement purposes, and we have not analyzed the 
effectiveness of the Snell standard.

f. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits and other effects 
of proposed or final rules that include a Federal mandate likely to 
result in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of more than $100 million annually 
(adjusted for inflation with base year of 1995). This final rule would 
not result in expenditures by State, local or tribal governments, in 
the aggregate, or by the private sector in excess of $100 million 
annually.

g. National Environmental Policy Act

    NHTSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. The agency has determined that 
implementation of this action would not have any significant impact on 
the quality of the human environment.

h. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a person is not 
required to respond to a collection of information by a Federal agency 
unless the collection displays a valid OMB control number. This final 
rule does not contain any new reporting requirements or requests for 
information.

i. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

List of Subjects in 49 CFR Part 571

    Imports, Incorporation by reference, Motor vehicle safety, 
Reporting and recordkeeping requirements, Tires, Motorcycle helmets.

    In consideration of the foregoing, NHTSA is amending 49 CFR part 
571 as follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of Title 49 continues to read as 
follows:

    Authority:  49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.50.

0
2. Amend Sec.  571.5 by revising paragraph (l)(4) to read as follows:


Sec.  571.5  Matter incorporated by reference.

* * * * *
    (l) * * *
    (4) SAE Recommended Practice J211/1, revised March 1995, 
``Instrumentation for Impact Test--Part 1--Electronic Instrumentation'' 
into Sec. Sec.  571.202a; 571.208; 571.218; 571.403.
* * * * *

0
3. Sec.  571.218 is amended by adding two definitions in alphabetical 
order in S4, by adding S5.6.2, by revising S5.6.1, S6.4.1, S7.1.2, 
S7.1.4(a) and (b), S7.1.9, S7.2.4, S7.2.6, S7.2.7, S7.3.1, and S7.3.2, 
and by revising Table 1, Figure 7, and Figure 8 to read as follows:


Sec.  571.218  Standard No. 218; Motorcycle Helmets.

* * * * *
    S4 Definitions
* * * * *
    Discrete size means a numerical value that corresponds to the 
diameter of an equivalent circle representing the helmet interior in 
inches ( 0.25 inch) or to the circumference of the 
equivalent circle in centimeters ( 0.64 centimeters).
* * * * *
    Impact site means the point on the helmet where the helmet shell 
first contacts the test anvil during the impact attenuation test.
* * * * *
    S5.6.1 On a label or labels separate from the certification label 
required by S5.6.2, each helmet shall be labeled permanently and 
legibly, in a manner such that the label(s) can be read easily without 
removing padding or any other permanent part, with the following:
    (a) Manufacturer's name.
    (b) Discrete size.
    (c) Month and year of manufacture. This may be spelled out (for 
example, June 2010), or expressed in numerals (for example, 6/10).
    (d) Instructions to the purchaser as follows:
    (1) ``Shell and liner constructed of (identify type(s) of 
materials).''
    (2) ``Helmet can be seriously damaged by some common substances 
without damage being visible to the user. Apply only the following: 
(Recommended cleaning agents, paints, adhesives, etc., as 
appropriate).''
    (3) ``Make no modifications. Fasten helmet securely. If helmet 
experiences a severe blow, return it to the manufacturer for 
inspection, or destroy it and replace it.''
    (4) Any additional relevant safety information should be applied at 
the time of purchase by means of an attached tag, brochure, or other 
suitable means.
    S5.6.2 Certification. Each helmet shall be labeled permanently and 
legibly with a label, constituting the manufacturer's certification 
that the helmet conforms to the applicable Federal motor vehicle safety 
standards, that is separate from the label(s) used to comply with 
S5.6.1, and complies with paragraphs (a) through (c) of this section.
    (a) Content, format, and appearance. The label required by 
paragraph S5.6.2 shall have the following content, format, and 
appearance:
    (1) The symbol ``DOT,'' horizontally centered on the label, in 
letters not less than 0.38 inch (1.0 cm) high.
    (2) The term ``FMVSS No. 218,'' horizontally centered beneath the 
symbol DOT, in letters not less than 0.09 inches (0.23 cm) high.
    (3) The word ``CERTIFIED,'' horizontally centered beneath the term

[[Page 28161]]

``FMVSS No. 218,'' in letters not less than 0.09 inches (0.23 cm) high.
    (4) The precise model designation, horizontally centered above the 
symbol DOT, in letters and/or numerals not less than 0.09 inch (0.23 
cm) high.
    (5) The manufacturer's name and/or brand, horizontally centered 
above the model designation, in letters and/or numerals not less than 
0.09 inch (0.23 cm) high.
    (6) All symbols, letters and numerals shall be in a color that 
contrasts with the background of the label.
    (b) Other information. No information, other than the information 
specified in subparagraph (a), shall appear on the label.
    (c) Location. The label shall appear on the outer surface of the 
helmet and be placed so that it is centered laterally with the 
horizontal centerline of the DOT symbol located a minimum of 1 inch 
(2.5 cm) and a maximum of 3 inches (7.6 cm) from the bottom edge of the 
posterior portion of the helmet.
* * * * *
    S6.4.1 Immediately before conducting the testing sequence specified 
in S7, condition each test helmet in accordance with any one of the 
following procedures:
    (a) Ambient conditions. Expose to any temperature from 61 [deg]F to 
and including 79 [deg]F (from 16 [deg]C to and including 26 [deg]C) and 
any relative humidity from 30 to and including 70 percent for a minimum 
of 4 hours.
    (b) Low temperature. Expose to any temperature from 5 [deg]F to and 
including 23 [deg]F (from -15 [deg]C to and including -5 [deg]C) for a 
minimum of 4 hours and no more than 24 hours.
    (c) High temperature. Expose to any temperature from 113 [deg]F to 
and including 131 [deg]F (from 45 [deg]C to and including 55 [deg]C) 
for a minimum of 4 hours and no more than 24 hours.
    (d) Water immersion. Immerse in water at any temperature from 61 
[deg]F to and including 79 [deg]F (from 16 [deg]C to and including 26 
[deg]C) for a minimum of 4 hours and no more than 24 hours.
* * * * *
    S7.1.2 Each helmet is impacted at four sites with two successive 
impacts at each site. Two of these sites are impacted upon a flat steel 
anvil and two upon a hemispherical steel anvil as specified in S7.1.10 
and S7.1.11. The impact sites are at any point on the area above the 
test line described in paragraph S6.2.3, and separated by a distance 
not less than one-sixth of the maximum circumference of the helmet in 
the test area. For each site, the location where the helmet first 
contacts the anvil on the second impact shall not be greater than 0.75 
inch (1.9 cm) from the location where the helmet first contacts the 
anvil on the first impact.
* * * * *
    S7.1.4(a) The guided free fall drop height for the helmet and test 
headform combination onto the hemispherical anvil shall be such that 
the impact speed is any speed from 16.4 ft/s to and including 17.7 ft/s 
(from 5.0 m/s to and including 5.4 m/s).
    (b) The guided free fall drop height for the helmet and test 
headform combination onto the flat anvil shall be such that the impact 
speed is any speed from 19.0 ft/s to and including 20.3 ft/s (from 5.8 
m/s to and including 6.2 m/s).
* * * * *
    S7.1.9 The acceleration transducer is mounted at the center of 
gravity of the test headform with the sensitive axis aligned to within 
5[deg] of vertical when the test headform assembly is in the data 
impact position. The acceleration data channel complies with the SAE 
Recommended Practice J211/1, revised March 1995 (incorporated by 
reference, see Sec.  571.5) requirements for channel class 1,000.''
* * * * *
    S7.2.4 The height of the guided free fall is 118.1  0.6 
in (3  0.015 m), as measured from the striker point to the 
impact point on the outer surface of the test helmet.
* * * * *
    S7.2.6 The weight of the penetration striker is not less than 6 
pounds, 8 ounces and not more than 6 pounds, 12 ounces (2.95 to 3.06 
kg).
    S7.2.7 The point of the striker has an included angle of 60  0.5[deg], a cone height of 1.5  0.015 in. (3.8 
 0.038 cm), a tip radius of 0.02  0.004 in. 
(0.5  0.1 mm), and a minimum hardness of 60 Rockwell, C-
scale.
* * * * *
    S7.3.1 The retention system test is conducted by applying a quasi-
static tensile load at any rate from 0.4 to and including 1.2 inch/min 
(from 1.0 to and including 3.0 cm/min) to the retention assembly of a 
complete helmet, which is mounted, as described in S6.3, on a 
stationary test headform as shown in Figure 4, and by measuring the 
movement of the adjustable portion of the retention system test device 
under tension.
    S7.3.2 The retention system test device consists of both an 
adjustable loading mechanism by which a quasi-static tensile load is 
applied at any rate from 0.4 to and including 1.2 inch/min (from 1.0 to 
and including 3.0 cm/min) to the helmet retention assembly and a means 
for holding the test headform and helmet stationary. The retention 
assembly is fastened around two freely moving rollers, both of which 
have a 0.5 inch (1.3 cm) diameter and a 3 inch (7.6 cm) center-to-
center separation, and which are mounted on the adjustable portion of 
the tensile loading device (Figure 4). The helmet is fixed on the test 
headform as necessary to ensure that it does not move during the 
application of the test loads to the retention assembly.
* * * * *

    Table 1--Weight Ranges for Impact Attenuation Test Drop Assembly
------------------------------------------------------------------------
            Test headform size                Weight range \1\--lb kg)
------------------------------------------------------------------------
Small.....................................  7.6-8.0 (3.4-3.6)
Medium....................................  10.8-11.2 (4.9-5.1)
Large.....................................  13.2-13.6 (6.0-6.2)
------------------------------------------------------------------------
\1\ Combined weight of instrumented test headform and supporting
  assembly for drop test.

* * * * *
BILLING CODE 4910-59-P

[[Page 28162]]

[GRAPHIC] [TIFF OMITTED] TR13MY11.000


[[Page 28163]]


[GRAPHIC] [TIFF OMITTED] TR13MY11.001


    Issued: May 3, 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-11367 Filed 5-12-11; 8:45 am]
BILLING CODE 4910-59-C