Federal Register, Volume 76 Issue 93 (Friday, May 13, 2011)

[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Rules and Regulations]
[Pages 28132-28163]
From the Federal Register Online via the Government Publishing 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,

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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