Federal Motor Vehicle Safety Standards; Motorcycle Helmets, 29457-29487 [2015-11756]

Download as PDF Vol. 80 Thursday, No. 98 May 21, 2015 Part IV Department of Transportation tkelley on DSK3SPTVN1PROD with PROPOSALS3 National Highway Traffic Safety Administration 49 CFR Part 571 Federal Motor Vehicle Safety Standards; Motorcycle Helmets; Proposed Rule VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\21MYP3.SGM 21MYP3 29458 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA–2015–0045] Federal Motor Vehicle Safety Standards; Motorcycle Helmets National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: This document sets forth an interpretation of the definition of ‘‘motor vehicle equipment’’ in the United States Code, as amended by the Moving Ahead for Progress in the 21st Century (MAP–21) Act, and requests comments on two proposed changes to the motorcycle helmet safety standard, Federal Motor Vehicle Safety Standard (FMVSS) No. 218. Continued high levels of motorcycle related fatalities, the ongoing use of novelty helmets by motorcyclists and the poor performance of these helmets in tests and crashes have prompted the agency to clarify the status of such helmets under federal law to ensure that all relevant legal requirements are readily enforceable. All helmets that are sold to, and worn on the highway by, motorcyclists and that, based on their design and/or other factors, have the apparent purpose of protecting highway users are motorcycle helmets subject to the jurisdiction and standard of the National Highway Traffic Safety Administration (‘‘NHTSA’’ or ‘‘agency’’). NHTSA is simultaneously proposing to amend its helmet standard, FMVSS No. 218. First, NHTSA is proposing to add a definition of ‘‘motorcycle helmet.’’ Second, we are proposing to modify the existing performance requirements of the standard by adding a set of dimensional and compression requirements. These requirements and the associated test procedures would identify those helmets whose physical characteristics indicate that they likely cannot meet the existing performance requirements of the standard. Third, we are incorporating an optional alternative compliance process for manufacturers whose helmets do not comply with the proposed dimensional and compression requirements, but do comply with the performance requirements and all other aspects of FMVSS No. 218. NHTSA will publish a list of helmets that have complied with the alternative compliance process and can therefore be tkelley on DSK3SPTVN1PROD with PROPOSALS3 SUMMARY: 21:20 May 20, 2015 You should submit your comments to ensure that Docket Management receives them not later than July 20, 2015. The incorporation by reference of certain publications listed in the proposed rule is approved by the Director of the Federal Register as of May 22, 2017. ADDRESSES: You may submit comments to the docket number identified in the heading of this document by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. • Fax: 202–493–2251. Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. Please see the ‘‘Privacy Act’’ heading below. Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477–78) or you may visit http:// DocketInfo.dot.gov. Docket: For access to the docket to read background documents or comments received, go to http:// www.regulations.gov or the street address listed above. Follow the online instructions for accessing the dockets. See the SUPPLEMENTARY INFORMATION portion of this document (Section VII.; Public Participation) for DOT’s Privacy Act Statement regarding documents submitted to the agency’s dockets. DATES: RIN 2127–AL01 VerDate Sep<11>2014 certified by their manufacturers. This document is the result of the agency’s assessment of other actions that could be taken to increase further the percentage of motorcyclists who wear helmets that comply with the helmet standard. Jkt 235001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 For non-legal issues, you may contact Ms. Claudia Covell, Office of Vehicle Safety Compliance (Telephone: 202–366–5293) (Fax: 202–366–7002). For legal issues, you may contact Mr. Otto Matheke, Office of the Chief Counsel (Telephone: 202–366–5253) (Fax: 202–366–3820). You may send mail to these officials at: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: I. Executive Summary A. Purpose of the Regulatory Action B. Need for Regulation C. Summary of the Major Provisions of the Regulatory Action in Question D. Costs and Benefits II. Background A. Increased Motorcycle Related Fatalities and Injuries B. Recent Downturns in Motorcyclist Fatalities Do Not Appear To Be a Reversal of a Decade-Long Trend C. NHTSA’s Comprehensive Motorcycle Safety Program and Helmet Use D. Novelty Helmets 1. What is a novelty helmet? 2. Novelty Helmet Use E. Safety Consequences of Novelty Helmet Use 1. Helmet Effectiveness 2. Novelty Helmet Performance 3. Real World Injury Risks and Novelty Helmets F. Novelty Helmets and the Enforcement of State Helmet Laws G. Federal Motor Vehicle Safety Standard No. 218 H. Recent Amendments to FMVSS No. 218 I. NHTSA’s Compliance Test Program III. Interpretation—Novelty Helmets Are Motor Vehicle Equipment IV. Proposed Amendments to FMVSS No. 218 A. Adding a Definition for Motorcycle Helmet B. Proposed Amendments to Performance Requirements V. Effective Date VI. Benefits/Costs VII. Public Participation VIII. Rulemaking Analyses and Notices I. Executive Summary A. Purpose of the Regulatory Action The purpose of this regulatory action is to reduce fatalities and injuries resulting from traffic accidents involving use of motorcycle helmets that fail to meet Federal Motor Vehicle Safety Standard (FMVSS) No. 218, Motorcycle helmets. Motorcycle crashrelated fatalities are disproportionately high, compared as a measure of exposure, among all motor vehicle crash fatalities. In part, these fatalities can be attributed to the high number of motorcyclists wearing sub-standard motorcycle helmets. For example, NHTSA’s National Occupant Protection E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 Use Survey (NOPUS) has consistently shown that a portion of the motorcycling community wears novelty helmets. Specifically, in states where use is required for all motorcyclists, between 8–27% of motorcyclists have been observed wearing helmets that likely do not comply with FMVSS No. 218.1 2 These helmets, frequently marketed as ‘‘novelty’’ helmets, are seldom certified by the manufacturer as meeting Standard No. 218, but are sold to, and used by, on-road motorcycle riders and passengers.3 Data from a study of motorcycle operators injured in crashes and transported to a shock trauma center indicates that 56 percent of those wearing a novelty helmet received head injuries as compared to 19 percent of those wearing a certified helmet.4 These novelty helmets are frequently sold as ‘‘motorcycle novelty helmets’’ or otherwise marketed to on-road motorcycle riders. However, these novelty helmets are usually offered along with a disclaimer that the helmet does not meet Standard No. 218, is not a protective device or is not intended for highway use. In States where universal helmet use laws often require riders and passengers to wear helmets meeting Standard No. 218, helmet users wearing novelty helmets often affix labels to their helmets that mimic the certification labels applied by manufacturers of helmets that are certified as meeting the Standard. Consequently, officials attempting to enforce compulsory helmet use laws in those States requiring that riders use helmets meeting Standard No. 218 currently find it difficult to enforce these laws to prevent the use of these novelty helmets. In 2011, NHTSA attempted to make it easier for riders and law enforcement officials to identify non-compliant helmets by amending FMVSS No. 218 to require that all compliant helmets manufactured after May 13, 2013 have a certification decal which includes the 1 Motorcycle Helmet Use in XXXX—Overall Results, Traffic Safety Facts Research Notes, DOT HS 809 867, 809 937, 810 840, 811 254, 811 610, and 811 759 available at http:// www.nrd.nhtsa.dot.gov/cats/ listpublications.aspx?Id=7&ShowBy=Category (last accessed on 5/14/13). 2 Data represent an aggregation of sampling units located in states where use is required for all motorcyclists. 3 When NHTSA becomes aware that a manufacturer is fraudulently certifying noncompliant helmets, the agency can take legal action and impose fines on the manufacturer. 4 An Analysis of Hospitalized Motorcyclists in the State of Maryland Based on Helmet Use and Outcome, available at http://www.nhtsa.gov/ Research/Crashworthiness (last accessed on 04/08/ 13). VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 phrase ‘‘FMVSS No. 218’’, the helmet manufacturer’s name or brand name of the helmet and the word ‘‘certified.’’ The new requirements were intended to make decals more difficult to counterfeit. However, this regulatory change has not been sufficient to solve the problem. Prior to May 13, 2013, the certification label requirements of FMVSS No. 218 stated simply that the certification label must consist of the letters ‘‘DOT’’ printed in a specified size range and located in a designated area on the rear of helmet. Facsimiles of that earlier label are widely available and are often added by ‘‘novelty helmet’’ users in mandatory helmet law states to their helmets to give them the appearance of a compliant helmet certified before the May 2013 change to the labeling requirements. There are no regulatory limits on the age of motorcycle helmets that may be used to comply with a state motorcycle helmet use law. Therefore, a helmet user could assert that the wearing of a helmet manufactured prior to the May 2013 change to the certification label requirements meets the requirements of state helmet laws requiring use of an FMVSS No. 218 compliant helmet if the manufacturer properly certified the helmet with the three character ‘‘DOT’’ label. Until a sufficient period of time passes to establish that a helmet bearing the older certification label is likely to have not been certified as FMVSS No. 218 compliant by the manufacturer, a helmet with the older certification label would appear to be a compliant helmet. Novelty helmet users will be able to employ the counterfeit versions of the old certification label for many years into the future. To enhance NHTSA’s ability to restrict the sale and subsequent use of novelty helmets, as well as assisting State law enforcement officials in enforcing laws requiring use of compliant helmets, this document contains an interpretation of the definition of ‘‘motor vehicle equipment’’ as defined by the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), proposes adding a definition of ‘‘motorcycle helmet’’ to FMVSS No. 218 consistent with 49 U.S.C. 30102(a)(7)(C) as amended by the MAP–21 Act, and also proposes modifying the existing requirements of Standard No. 218. It is the agency’s view that adoption of these proposals will reduce fatalities and injuries attributable to the use of noncompliant helmets by increasing successful prosecutions in mandatory helmet law states, reducing the demand for novelty helmets and augmenting NHTSA’s ability to prevent the PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 29459 importation and sale of non-compliant helmets. B. Need for Regulation Novelty helmets are sold to be worn by motorcycle riders for road use. However, these helmets provide little or no head protection in crashes. The proposed rule would assist local enforcement agencies in determining compliance with their State helmet laws and mitigate the fatalities, injuries, and societal costs that are caused by the use of improper helmets. The deterrent intent of the proposed rule is similar to other enforcement improving approaches such as the improvement of counterfeit currency detection. NHTSA believes that at least some portion of novelty helmet use results from inadequate or asymmetric information, a major indication of market failure. Reasons for novelty helmet use may vary, but likely include some misjudgment regarding the risk associated with motorcycles and false expectations regarding the amount of protection that would be provided by some novelty helmet designs. In general, problems of inadequate information can be addressed by providing greater information to the public. NHTSA has attempted to do this through public education materials identifying the significant differences between novelty helmets and compliant helmets and expanded test programs identifying helmets that failed to meet the performance requirements of FMVSS No. 218. In the latter instance, NHTSA found that the difficulties and costs associated with attempting to test all the helmets in the marketplace could not be sustained. At the same time, critics of the expanded test program were quick to note that the results were incomplete. Efforts at increased public education regarding the risks and characteristics of novelty helmets also did not achieve desired results. Neither initiative resulted in any apparent reduction in the sale and use of novelty helmets. In addition to riders’ misperceptions, novelty helmets can be lower cost, and some consumers find them to be more comfortable or stylish. When consumers choose to wear novelty helmets, it unnecessarily reduces their safety and burdens society with an unnecessary diversion of economic resources. Roughly three quarters of all economic costs from motor vehicle crashes are borne by society at large through taxes that support welfare payment mechanisms, insurance premiums, charities, and unnecessary travel delay. These costs may be even higher for motorcycle riders, who often experience more serious injuries when colliding E:\FR\FM\21MYP3.SGM 21MYP3 29460 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules with larger vehicles and without protection from vehicle structures or seat belts. NHTSA also believes that this regulation is warranted by a compelling public need, specifically, the need for States to properly enforce the laws that they have passed in order to promote public safety. This proposed rulemaking is designed to enable both the identification of novelty helmets and enforcement of these laws. These requirements do not force individuals who do not currently wear complying helmets to wear complying helmets. Rather, by making it easier for law enforcement officials to enforce helmet laws, they make it more likely that riders will choose to purchase compliant helmets in order to avoid prosecution and fines. NHTSA has worked with state law enforcement and safety officials for decades. The agency has repeatedly received reports from these sources regarding the difficulty of enforcing state helmet laws when the state law provides that a helmet must meet FMVSS No. 218. A series of court decisions from Washington State illustrate the difficulties that local law enforcement agencies face in enforcing mandatory helmet laws. These decisions implied that FMVSS No. 218 is a complex performance standard intended to apply to helmet manufacturers and not to helmet users and did not address the difficulties of proof for law enforcement agency to show that a helmet does not meet FMVSS No. 218. This proposed rule seeks to remedy this problem by the adoption of objective physical criteria which can be employed by helmet users and law enforcement officials to determine if a helmet complies with FMVSS No. 218. tkelley on DSK3SPTVN1PROD with PROPOSALS3 C. Summary of the Major Provisions of the Regulatory Action in Question 1. Interpretation—Novelty Helmets Are Motor Vehicle Equipment NHTSA is issuing an interpretation of the statutory definition of ‘‘motor vehicle equipment’’ as amended by the MAP–21 Act. This interpretation sets forth the agency’s position on which helmets are subject to NHTSA’s jurisdiction and, therefore, must meet Standard No. 218. The original definition of ‘‘motor vehicle equipment’’ in the Vehicle Safety Act of 1966 did not include protective equipment such as motorcycle helmets. In 1970, Congress amended the Safety Act to substantially expand the foregoing definition. The 1970 amendment changed the definition of ‘‘motor vehicle equipment’’ to include ‘‘any device, article or apparel . . . VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 manufactured, sold, delivered, offered or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users from the risk of accident, injury or death.’’ In 2012, the MAP–21 Act modified this definition of ‘‘motor vehicle equipment’’ in two ways. First, the definition was amended by specifically adding the term ‘‘motorcycle helmet’’ to the description of regulated items. Second, the MAP–21 Act amended the definition of ‘‘motor vehicle equipment’’ by replacing the phrase ‘‘. . . manufactured, sold, delivered, offered or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users . . .’’ with ‘‘. . . manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding motor vehicles and highway users . . .’’ The agency’s interpretation of this definition, based on an examination of the text of the 2012 MAP–21 amendment and the evolution of the original 1970 definition before its enactment as well as its legislative history, concludes that Congress meant to grant NHTSA authority to regulate motorcycle helmets and that any determination of what constitutes motor vehicle equipment must be governed by an objective standard and not controlled by the subjective intent of a manufacturer or seller. This conclusion is supported by the explicitly pronounced Congressional goal of reducing fatalities and injuries resulting from the use of helmets that did not provide a minimum level of safety. The agency’s interpretation further notes the absence of any suggestion in the legislative history that Congress meant to have the definition negated by subjective declarations of intended use that are contrary to an objective measure of actual sale, use and ‘‘apparent purpose.’’ By applying the objective criterion of an ‘‘apparent purpose to safeguard’’ highway users, NHTSA concludes that novelty helmets are items of motor vehicle equipment. If a helmet is marketed and sold to highway users and has outward characteristics consistent with providing some level of protection to the wearer, such a helmet is a ‘‘motorcycle helmet’’ with the ‘‘apparent purpose’’ of protecting highway users from harm. It is, therefore, ‘‘motor vehicle equipment.’’ Under the foregoing circumstances, the addition of a label stating the manufacturer’s subjective intent that a helmet is ‘‘not protective equipment,’’ ‘‘not DOT certified,’’ or ‘‘not for highway use’’ PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 would, in NHTSA’s view, not be sufficient to conclude that a helmet is not ‘‘motor vehicle equipment.’’ 2. Defining ‘‘Motorcycle Helmet’’ This document also proposes adding a definition of ‘‘motorcycle helmet’’ to Standard No. 218 to effectuate the interpretation of the statutory definition of motor vehicle equipment described above. The proposed definition seeks to more clearly establish those helmets that are required to comply with FMVSS No. 218 by establishing conditions dictating which helmets will be considered as being intended for highway use. NHTSA’s proposed definition of ‘‘motorcycle helmet’’ establishes that ‘‘hard shell headgear’’ meeting any of four conditions are motorcycle helmets. The criteria relate to the manufacture, importation, sale, and use of the headgear in question. First, a helmet is a motorcycle helmet if it is manufactured or offered for sale with the apparent purpose of safeguarding highway users against risk of accident, injury, or death. Under the second criterion, a helmet is a motorcycle helmet if it is manufactured or sold by entities also dealing in certified helmets or other motor vehicle equipment and apparel for motorcycles or motorcyclists. The third proposed criterion states that a helmet is a motorcycle helmet if it is described or depicted as a motorcycle helmet in packaging, promotional information or advertising. The fourth criterion states that helmets presented for importation as motorcycle helmets in the Harmonized Tariff Schedule would also be motorcycle helmets. Because the second, third and fourth criteria may capture helmets sold legitimately for off-road use or nonmotor vehicle applications, NHTSA’s proposed definition exempts helmets labeled as meeting recognized safety standards for off-highway uses from the proposed definition. 3. Proposed Amendments to Performance Requirements NHTSA is also proposing modifications to the criteria helmets must meet in order to comply with Standard No. 218. The proposal seeks to establish in S5.1 (as proposed), a set of threshold requirements to distinguish helmets that qualify for testing to the existing performance requirements of the Standard in S5.2 through and including S5.4. These threshold requirements are hereafter called preliminary screening requirements. The preliminary screening criteria proposed in S5.1 are dimensional and E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules compression requirements that all helmets intended for highway use must meet. These preliminary screening requirements identify helmets which, under the current state of known technologies, are incapable of meeting the minimum performance requirements for impact attenuation currently incorporated in FMVSS No. 218. NHTSA is also proposing an alternative compliance process by which manufacturers of helmets that do not meet the foregoing preliminary screening requirements may submit a petition including information and test data to the agency, to establish that a particular helmet design is capable of meeting all the requirements of Standard No. 218, excluding the preliminary screening requirements. The agency proposes to add these preliminary screening requirements to alleviate the test burdens of NHTSA’s current compliance test program. By reducing the complexity of compliance testing, the proposal would allow the agency to test more helmet brands and models without increased costs. The proposed requirements also address concerns by test laboratories that their equipment will be damaged while testing sub-standard helmets. Moreover, by establishing a set of physical criteria that may be employed to identify noncompliant helmets, these proposed requirements will assist in the enforcement of helmet laws specifying that motorcycle riders must wear helmets meeting Standard No. 218. The proposed preliminary screening requirements specify that any helmet with an inner liner that is less than 0.75 inch (19 mm) thick would be considered incapable of complying with FMVSS No. 218. Similarly, any helmet with an inner liner and shell having a combined thickness less than 1 inch (25 mm) would also presumably not be able to comply with the standard. This document also proposes that any helmet, even those with an inner liner meeting the minimum thickness criteria or the liner and shell combination meeting the overall thickness, must also be sufficiently resistant to deformation to ensure that the liner is capable of some level of energy absorption. The document also sets forth proposals for measuring compliance with the preliminary screening requirements. Inner liner thickness could be measured with a thin metal probe. Measuring the combined thickness of the outer shell and inner liner could be taken using a large caliper or measuring the distance derived by noting the difference between the topmost point of a stand supporting the helmet and the topmost point of the helmet on the stand. The document also proposes that liner deformation be measured after applying force using a weighted probe or a dial indicator force gauge. To reduce the possibility of error caused by variations in helmet designs, NHTSA is proposing that the measurements of inner liner thickness, combined helmet/inner liner thickness and inner liner compression characteristics be conducted at the crown or apex of the helmet. To address concerns that the proposed preliminary screening requirements may adversely affect the adoption and development of new helmet technologies and materials, the proposed amendments also set forth an alternative compliance process, in a proposed Appendix. This alternative compliance process provides helmet manufacturers with a means to demonstrate that helmets that do not adhere to the preliminary screening requirements can otherwise be properly certified and are capable of meeting all of the other requirements of Standard No. 218. D. Costs and Benefits The benefits of the proposed rule are based on the use of the dimensional and compression requirements and the proposed Appendix as criteria to distinguish certified from non-certified motorcycle helmets. Behavioral change 29461 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 Law would eventually make a switch to avoid being ticketed or fined, and that this is a modest and achievable projection. As a result, the proposal would save 12 to 48 lives annually. In addition, the analysis also estimates the maximum potential benefit of the rule which corresponds to a hypothetical scenario of all novelty helmet users in States that have universal helmet laws becoming 218-certified helmet users (the 100-percent scenario). Under this hypothetical 100-percent scenario, 235 to 481 lives would be saved. Note that this 100-percent scenario is theoretical since some novelty-helmeted motorcyclists would still be expected to circumvent the helmet laws by continuing taking the risk of wearing novelty helmets. Therefore, the estimated costs and benefits for the 100percent scenario are not used (and not appropriate) for determining the effects of the proposed rule. However, they do indicate the potential savings in social costs that are offered by FMVSS No. 218-compliant helmets and the importance of educating the public to this potential. The discounted annualized costs and benefits are presented below. The numbers exclude benefits from nonfatal injuries prevented as well as private disbenefits to riders who prefer to wear novelty helmets, but switch to compliant helmets to avoid law enforcement. Since these benefits are obtained in violation of State law, their status is uncertain. A more detailed discussion of this issue is included in the Non-quantified impacts section of the PRIA. We are not assuming for this analysis that any novelty helmet users in States that do not have Universal Helmet Laws will switch to 218-certified helmets; however, we note that this may occur if users voluntarily make this switch. ANNUALIZED COSTS AND BENEFITS [In millions of 2012 dollars] Regulatory costs Benefits Net benefits * tkelley on DSK3SPTVN1PROD with PROPOSALS3 3 Percent Discount 5-percent scenario ....................................................................................... 10-percent scenario ..................................................................................... 100-percent scenario ................................................................................... 7 Percent Discount VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 $109.7–$219.3 219.3–438.3 2,146.3–4,392.7 $108.5–$218.1 217.5–436.5 2,133.8–4,380.3 1.2 1.8 5-percent scenario ....................................................................................... 10-percent scenario ..................................................................................... $1.2 1.8 12.5 95.9–192.2 192.2–384.4 94.7–191.0 190.4–382.6 E:\FR\FM\21MYP3.SGM 21MYP3 29462 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules ANNUALIZED COSTS AND BENEFITS—Continued [In millions of 2012 dollars] Regulatory costs 100-percent scenario ................................................................................... 12.5 Benefits 1,881.7–3,851.3 Net benefits * 1,869.2–3,838.8 * Excludes benefits from non-fatal injuries prevented and any utility lost by novelty helmet riders who switch to FMVSS 218 compliant helmets. Since any such utility is obtained in violation of State law, its status is uncertain. See ‘‘Non-quantified Impacts’’ section of the PRIA for further discussion. to 4,612 fatalities in 2011. During this time, motorcyclist fatalities as a percent of motor vehicle occupants and nonoccupants killed in traffic crashes nearly doubled from 8% to 14%. Refer to Figure 1. In contrast to the total number of passenger vehicle and pedestrian fatalities, which have decreased over the past decade, motorcyclist fatalities increased significantly. Some claim this is due to increased exposure; however, registrations for both motorcycle and passenger vehicles have increased over this time period, yet it is only motorcyclist fatalities which have risen. In 2011, motorcycles accounted for only about 3 percent of all registered vehicles and 0.6 percent of all vehicle miles traveled (VMT) 6 yet present themselves as a much larger proportion of the overall motor vehicle related fatalities due to traffic crashes. Compared with a passenger vehicle occupant, a motorcyclist is over 30 times more likely to die in a crash, based on VMT.7 Over the same time period, the number of motorcyclists injured increased from 65,000 in 2002 to 81,000 in 2011 accounting for 4 percent of all occupant injuries.8 Simultaneously, the number of passenger vehicle occupants injured decreased by 25 percent.9 5 ‘‘Motorcyclist’’ refers to both motorcycle drivers and motorcycle passengers. 6 In August 2011, starting with 2009 data, FHWA implemented an enhanced methodology for estimating registered vehicles and vehicle miles traveled by vehicle type. In addition, revisions were made to 2008 and 2007 data using the enhanced methodology. As a result, vehicle involvement rates may differ, and in some cases significantly, from previously published rates. 7 Motorcycles: 2011 Data, Traffic Safety Facts, DOT HS 811 765, available at http:// www.nrd.nhtsa.dot.gov/Pubs/811765.pdf (last accessed on 5/14/13). 8 Ibid. 9 Traffic Safety Facts 2011, Annual Report Overview, DOT HS 811 753, available at http:// tkelley on DSK3SPTVN1PROD with PROPOSALS3 A. Increased Motorcycle Related Fatalities and Injuries VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 EP21MY15.008</GPH> There is a pressing need for improvements in motorcycle safety. As shown in NHTSA’s research, motorcycle crash-related fatalities have been disproportionately high, compared as a measure of exposure, among all motor vehicle crash fatalities. According to the Fatality Analysis Reporting System (FARS), motorcyclist 5 fatalities increased from 3,270 fatalities in 2002 II. Background Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules Compared with a passenger vehicle occupant, a motorcyclist is 5 times more likely to be injured, based on VMT.10 The most common fatal injuries sustained by motorcyclists are injuries to the head.11 Head injuries are common among non-fatal injuries as well. A study of data from the Crash Outcome Data Evaluation System (CODES) indicates that median charges for hospitalized motorcyclists who survived to discharge were 13 times higher for those incurring a traumatic brain injury (TBI) compared to those who did not sustain a TBI ($31,979 versus $2,461).12 The National Transportation Safety Board (NTSB) has also made a similar assessment of the motorcycle safety problem. They issued a November 2010 safety alert titled ‘‘Motorcycle Deaths Remain High’’.13 B. Recent Downturns in Motorcyclist Fatalities Do Not Appear To Be a Reversal of a Decade—Long Trend Compared to 2010, overall traffic fatalities fell by 2 percent in 2011. Occupant fatalities fell by 4 percent in passenger cars and, 5 percent in light trucks. However, occupant fatalities increased by 20 percent in large trucks and 2 percent on motorcycles. In addition, pedestrian fatalities increased by 3 percent and pedalcyclist fatalities increased by 9 percent.14 tkelley on DSK3SPTVN1PROD with PROPOSALS3 www.nrd.nhtsa.dot.gov/pubs/811753.pdf (last accessed on 5/14/13). Based on calculations using data provided in Table 1. 10 Motorcycles: 2011 Data, Traffic Safety Facts, DOT HS 811 765, available at http:// www.nrd.nhtsa.dot.gov/Pubs/811765.pdf (last accessed on 5/14/13). 11 Bodily Injury Locations in Fatally Injured Motorcycle Riders Traffic Safety Facts, DOT HS 810 856, available at http://www.nrd.nhtsa.dot.gov/ Pubs/810856.pdf (last accessed on 2/1/12). 12 Motorcycle Helmet Use and Head and Facial Injuries: Crash Outcomes in CODES-Linked Data, DOT HS 811 208 available at http:// www.nrd.nhtsa.dot.gov/Pubs/811208.pdf (last accessed on 1/31/12). 13 Motorcycle Deaths Remain High, National Transportation Safety Board Safety Alert SA–012, November 2010, available at http://www.ntsb.gov/ doclib/safetyalerts/SA_012.pdf (last accessed on 1/31/12). 14 Traffic Safety Facts 2011, Annual Report Overview, DOT HS 811 753, available at http:// www.nrd.nhtsa.dot.gov/pubs/811753.pdf (last accessed on 5/14/13). See Table 2. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 The 2011 increase in motorcycle occupant fatalities followed a 3 year period of decline. The agency notes that the 2008, 2009 and 2010 reductions in fatalities and injuries coincided with a significant economic downturn. Past economic downturns have resulted in similar declines. The three most notable periods of across-the-board declines in overall traffic fatalities, including the current period, coincide with the three most significant economic downturns since the early 1970s. Following the first and second economic downturns, the overall number of fatalities nearly rebounded to the previous levels. The agency observes that motorcycle occupant fatalities increased slightly in 2011 and anticipates that they will likewise rebound as the economy improves. Even with the 2008–10 reductions in fatalities and injuries, motorcyclist fatalities remain far above 2002 levels. C. NHTSA’s Comprehensive Motorcycle Safety Program and Helmet Use NHTSA’s comprehensive motorcycle safety program15 16 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 motorcyclist fatalities and injuries and the initiatives for addressing them can be 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 15 US Department of Transportation Action Plan to Reduce Motorcycle Fatalities, October 2007, available at http://www.nhtsa.gov/DOT/NHTSA/ Communication%20&%20Consumer%20 Information/Articles/Associated%20Files/4640report2.pdf (last accessed on 1/31/12). 16 Countermeasures That Work: A Highway Safety Countermeasure Guide for State Highway Safety Offices, Sixth Edition (2011), February 2011: pp. 5–1 through 5–24, DOT HS 811 258, available at http://www.nhtsa.gov/staticfiles/nti/pdf/811 444.pdf(last accessed on 1/21/12). PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 29463 (I-Crash Prevention—Pre-Crash, II-Injury Mitigation—During a Crash, and IIIEmergency Response—Post-Crash), along with the three areas influencing each phase (A-Human Factors, BVehicle Role, and C-Environmental Conditions). While a number of factors are believed to account for this increase in fatalities, including expanding motorcycle sales, increases in the percentage of older riders, and increases in engine size, motorcyclist head injuries are a leading cause of death. Effectively addressing motorcyclist head injuries or any other motor vehicle safety problem requires a multipronged, coordinated program in all of the areas of the Haddon Matrix, as shown in Table 1. Because no measure in any of the nine areas is a complete solution, the implementation of a measure in one area does not eliminate or reduce the need to implement measures in the other areas. For example, while NHTSA encourages efforts in all areas of the motorcycle safety matrix below, including the offering of motorcyclist training, such training cannot substitute for wearing a helmet that complies with FMVSS No. 218. The results of studies examining the effectiveness of motorcyclist training in actually reducing crash involvement are mixed.17 To argue that taking a motorcycle operating course eliminates the need for motorcycle helmets is akin to arguing that taking a driver’s education course for driving a passenger vehicle eliminates the need for seat belts, air bags, padding, and other safety equipment in motor vehicles. 17 Approaches to the Assessment of Entry-Level Motorcycle Training: An Expert Panel Discussion, Traffic Safety Facts Research Note, February 2010, DOT HS 811 242, available at http:// www.nhtsa.gov/staticfiles/nti/motorcycles/pdf/ 811242.pdf (last accessed on 1/31/12). 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. E:\FR\FM\21MYP3.SGM 21MYP3 29464 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules TABLE 1—NHTSA’S MOTORCYCLE SAFETY PROGRAM 18 A-Human factors I-Crash Prevention (Pre-Crash) ..... II-Injury Mitigation (Crash) ............. III-Emergency Crash). Response (Post- • • • • • • B-Vehicle role C-Environmental conditions Rider Education & Licensing. Impaired Riding. Motorist Awareness. State Safety Program. Use of Protective Gear. Use of Protective Gear. • Brakes, Tires, & Controls. • Lighting & Visibility. • Compliance Testing & Investigations. • Roadway Design, Construction, Operations & Preservation. • Roadway Maintenance. • Training for Law Enforcement. • Occupant Protection (e.g., helmets, airbags). • Automatic Crash Notification. • Data Collection & Analysis. • Roadway Design, Construction, & Preservation. • Education & Assistance EMS. • Bystander Care. Mitigating rider injury in crashes through the use of motorcycle helmets is a highly effective measure for improving motorcycle safety. The steady 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. Additional information about helmet effectiveness and the real world risk of not using helmets is discussed later in this document. In November 2010, the NTSB issued a Safety Alert in which that agency expressed similar conclusions about the value of increased use of helmets that comply with FMVSS No. 218. The Safety Alert said: • FMVSS No. 218-compliant helmets are extremely effective. They can prevent injury and death from motorcycle crashes. • A motorcyclist without a helmet, who is involved in a crash, is three times more likely to sustain brain injuries. • Wearing a helmet reduces the overall risk of dying in a crash by 37%. • In addition to preventing fatalities, FMVSS No. 218-compliant 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. tkelley on DSK3SPTVN1PROD with PROPOSALS3 The value of helmet use has been demonstrated in studies of injuries resulting from crashes, as discussed below in the section titled ‘‘Real World Injury Risks and Novelty Helmets.’’ 18 Activities shown in italics are either implemented jointly with, or conducted by, the Federal Highway Administration. 19 Hot Leathers model Hawk. 20 Advanced Carbon Composites model Polo Novelty Helmet. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 to D. Novelty Helmets 1. What is a novelty helmet? Commonly sold with a disclaimer that they are not for highway use, certain helmets worn by motorcycle riders are marketed under a variety of helmet pseudonyms. Manufacturers and sellers’ market them under names such as ‘‘novelty motorcycle helmets,’’ ‘‘rain bonnets,’’ ‘‘lids,’’ ‘‘brain buckets,’’ ‘‘beanies,’’ ‘‘universal helmets,’’ ‘‘novelty helmets,’’ or ‘‘loophole lids,’’ and others. Typically, novelty helmets cover a smaller area of the head than compliant helmets and, because they usually have very thin liners, sit closer to a user’s head. These helmets lack the strength, size, and ability to absorb energy necessary to protect highway users during a crash. Yet, they are sold to highway users and used in great numbers by motorcyclists. Novelty helmets often display labels stating that they are not intended for highway use and are not protective gear. Some examples of labels found on novelty helmets NHTSA has examined include: • WARNING: This is a novelty item and not intended for use as safety equipment.19 • This helmet is a NOVELTY item only and was not made for, intended for, nor designated for use as protective headgear under any circumstances. The manufacturer disclaims all responsibility if used in any manner other than a novelty item.20 • Warning: This novelty helmet is not D.O.T. certified. It does not meet ANSI, SNELL or any other American or International Safety standards. Do not wear this helmet to operate motorized or non-motorized street legal or off-road 21 Biltwell Inc. model Novelty Helmet. Helmet Use in 2011—Overall Results, Traffic Safety Facts Research Note, DOT HS 811 610, available at http://www.nrd.nhtsa.dot.gov/ Pubs/811610.pdf (last accessed on 5/16/12). 22 Motorcycle PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 vehicles. Doing so could result in death.21 Throughout this document, we will refer to these types of helmets as novelty helmets. 2. Novelty Helmet Use Although use of a properly certified FMVSS No. 218-compliant motorcycle helmet can significantly reduce the possibility of death or injury in a crash, a significant percentage of motorcyclists either wear novelty helmets or do not wear any helmet at all. In fact, motorcyclists appear to be forsaking the use of compliant helmets in favor of novelty helmets in high numbers in States with universal helmet use laws. (See Table 2.) In 2011, 20 States and the District of Columbia had helmet use laws requiring all motorcyclists to wear helmets. According to a NHTSA survey, in States where use is required for all motorcyclists, FMVSS No. 218compliant helmets had an observed use rate of 84%; novelty helmets had an observed use rate of 12%; and no helmets were worn by an estimated 4 percent of motorcyclists. Comparatively, in the States with partial or no helmet use laws, the observed use rate of FMVSS No. 218-compliant helmets was 50%; 5 percent used novelty helmets; and 45 percent did not use a helmet at all.22 Partial helmet use 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 motorcyclist fatalities.23 Motorcycle helmet use rates in 2011 are presented below in tabular form: 23 Insurance Institute for Highway Safety, Teenagers: Fatality Facts 2008, available at http:// www.iihs.org/research/fatality_facts_2008/ teenagers.html (last accessed on 1/19/12). E:\FR\FM\21MYP3.SGM 21MYP3 29465 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules TABLE 2—MOTORCYCLE HELMET USE RATES IN 2011 States with a universal helmet use law Motorcyclists tkelley on DSK3SPTVN1PROD with PROPOSALS3 Percentage using FMVSS No. 218-compliant helmets ........................................................................................... Percentage using novelty helmets .......................................................................................................................... Percentage not using any helmet ............................................................................................................................ These data show that a considerable number of motorcyclists in all States are wearing novelty helmets and that novelty helmet use appears to be remaining steady over time in States with helmet laws. NHTSA believes that some portion of novelty helmet use results from inadequate or asymmetric information, a major indication of market failure. Reasons for novelty helmet use may vary, but likely include some misjudgment regarding the risk associated with motorcycles and false expectations regarding the protection that would be provided by some novelty helmet designs. In general, problems of inadequate information can be addressed by providing greater information to the public. As noted above, NHTSA has attempted to do this through the dissemination of rider education materials and by publishing the results of an intensive expanded compliance test program. The latter proved to be ineffective and unsustainable while the former has not produced any appreciable results. In addition to riders’ misperceptions, novelty helmets can be lower cost, and some consumers find them to be more comfortable or stylish. When consumers choose to wear novelty helmets, they unnecessarily reduce their safety and burden society with an unnecessary diversion of economic resources. Roughly three quarters of all economic costs from motor vehicle crashes are borne by society at large through taxes that support welfare payment mechanisms, insurance premiums, charities, and unnecessary travel delay. These costs may be even higher for motorcycle riders, who often experience more serious injuries when colliding with larger vehicles and without protection from vehicle structures or seat belts. NHTSA also believes that this regulation is warranted by a compelling public need, specifically, the need for States to properly enforce the laws that they have passed in order to promote public safety. This proposed rulemaking is designed to enable both the identification of novelty helmets and enforcement of these laws. These requirements do not force individuals VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 84 12 4 States with partial or no helmet use law 50 5 45 who do not currently wear complying helmets to wear complying helmets. Rather, by making it easier for law enforcement officials to enforce helmet laws, they make it more likely that riders will choose to purchase compliant helmets in order to avoid prosecution and fines. Data also suggest that unhelmeted motorcyclists suffer proportionately more fatal head injuries. A study of death certificate information about 8,539 motorcyclists who were fatally injured in 2000, 2001, and 2002 revealed a direct correlation between head injury and helmet use. While about 35 percent of the helmeted E. Safety Consequences of Novelty motorcyclists who died had a head Helmet Use injury, about 51 percent of the 1. Helmet Effectiveness unhelmeted motorcyclists who died had a head injury. This data was based on Motorcycle helmets are at least 37% the National Center for Health Statistics effective in preventing fatalities in (NCHS) Multiple Cause of Death 24 25 Based on the motorcycle crashes. (MCoD) data set that is linked to data for 2009, the agency estimates that helmets saved at least 1,483 lives in that NHTSA’s FARS. The data set includes data on all recorded fatalities that year. In order to employ a matched pair occurred in the United States during the method of analysis, the estimates were study period, excluding the 825 fatally derived by examining crashes in FARS injured motorcyclists whose death involving motorcycles with two certification information was occupants, at least one of whom was unavailable.28 As stated previously, we 26 NHTSA believes the estimate of killed. believe that the benefit of helmets in 1,483 lives saved by helmet use in 2009 reducing head injury is underreported actually underreports the effectiveness of motorcycle helmets that comply with because the study included motorcyclists wearing novelty helmets FMVSS No. 218. Because the foregoing in the group of helmeted riders. estimate examined crashes where a helmet was used, whether it complied 2. Novelty Helmet Performance with FMVSS No. 218 or not, we believe Novelty helmets do not provide the inclusion of motorcyclists wearing protection comparable to that provided novelty helmets in the ‘‘helmeted’’ by an FMVSS No. 218-compliant category of the database diluted the actual effectiveness of certified helmets. helmet. When NHTSA tested novelty NHTSA estimates that if there had been helmets using the protocols described in FMVSS No. 218, the agency found that 100 percent use of FMVSS No. 218compliant helmets among motorcyclists, they failed all or almost all of the safety performance requirements in the an additional 732 or more lives could standard.29 Based on these tests, the have been saved that year.27 agency concluded that novelty helmets, despite outward appearances, do not 24 Motorcycle Helmet Effectiveness Revisited, protect motorcyclists from both impact Technical Report, March 2004, DOT HS 809 715, available at http://www.nrd.nhtsa.dot.gov/Pubs/ or penetration threats, and their chin 809715.pdf (last accessed on 1/31/12). straps are incapable of keeping the 25 Head injuries are not the only cause of crash fatalities. When we speak of ‘‘effectiveness’’ of helmets in reducing the risk of death in fatal motorcycle crashes, all types of injuries suffered by riders are included. While it would be useful to know the effectiveness of helmets in preventing potentially fatal head injuries alone, the purpose of effectiveness as calculated in this technical report was to provide a measure of the overall difference in survival value in a potentially fatal crash that was attributable to the proper use of a helmet. 26 Motorcycle Helmet Effectiveness Revisited, Technical Report, March 2004, DOT HS 809 715, available at http://www.nrd.nhtsa.dot.gov/Pubs/ 809715.pdf (last accessed on 1/31/12). 27 Lives Saved in 2009 by Restraint Use and Minimum-Drinking-Age Laws, Traffic Safety Fact, PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 September 2010, DOT HS 811 383, available at http://www.nrd.nhtsa.dot.gov/pubs/811383.pdf (last accessed on 1/31/12). 28 Bodily Injury Locations in Fatally Injured Motorcycle Riders, Traffic Safety Facts, October 2007, DOT HS 810 856, available at http:// www.nrd.nhtsa.dot.gov/Pubs/810856.pdf (last accessed on 1/31/12). 29 Summary of Novelty Helmet Performance Testing, Traffic Safety Facts Research Note, DOT HS 810 752, available at http://www.nhtsa.gov/DOT/ NHTSA/Traffic%20Injury%20Control/ Studies%20&%20Reports/Associated%20Files/ Novelty_Helmets_TSF.pdf (last accessed on 1/31/12). E:\FR\FM\21MYP3.SGM 21MYP3 29466 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules helmets on the heads of their users during crashes. 3. Real World Injury Risks and Novelty Helmets Novelty helmets have been demonstrated to be unsafe in laboratory tests and in studies of real world motorcycle crashes. A study of motorcycle operators injured during a motor vehicle crash and subsequently transported to the R. Adams Cowley Shock Trauma Center (STC) in Baltimore, MD was conducted between January 2007 and May 2008.30 During this study, 244 of the 517 patients admitted granted consent to have photographs taken of the helmets they were using during the crash and the helmets were categorized as either certified or novelty. Data for these patients were obtained from the trauma registry, hospital discharge records, autopsy reports, and police crash reports, and were coded using the Abbreviated Injury Scale 31 (AIS). The AIS is a scoring system that ranks the severity of an injury on a scale between 1 and 6. The AIS score is used to determine the threat to life correlated to a specific injury, rather than comprehensively evaluating the severity of injuries. A score of 1 indicates a minor injury, while a score of 6 represents an injury that currently is untreatable and extremely difficult to survive. The Maximum Abbreviated Injury Scale (MAIS) is the maximum AIS score of injuries sustained. A comparison of head injury and helmet type revealed that 56 percent (28/50) of those wearing a novelty helmet received a head injury (AIS 1–6) as compared to 19 percent (37/194) of those wearing a certified helmet. The breakdown of the severity as measured by the Head MAIS of motorcycle operators who sustained a head injury is summarized below in Table 3. TABLE 3—HELMET USE AND HEAD MAIS AMONG MOTORCYCLE OPERATORS 1 (percent) Head MAIS Certified (n=194) .............................................. Novelty (n=50) .................................................. 3 16 2 (percent) 3 (percent) 4 12 4 (percent) 6 16 5 (percent) 3 10 3 2 6 (percent) Total percent having head injury 0 0 19 56 Novelty helmets present particular challenges to State and local government authorities seeking to enforce helmet use laws. These laws often require that riders use helmets that meet the requirements of FMVSS No. 218.33 However, because novelty helmets are similar in outward appearance to FMVSS No. 218compliant helmets, successfully enforcing a State use law that requires the use of a FMVSS No. 218-compliant helmet necessitates that enforcement officials do more than simply affirm the absence or presence of a helmet when dealing with a motorcyclist using a novelty helmet. When a motorcyclist uses a novelty helmet in lieu of an FMVSS No. 218-compliant helmet, law enforcement officers and hearing officers or judges must have means of determining that the novelty helmet does not meet FMVSS No. 218. The certification label required by FMVSS No. 218 is, of course, intended to serve as evidence that a helmet is certified by its manufacturer to FMVSS No. 218. Unfortunately, counterfeit certification labels are widely available. While we expect the recent final rule revising the certification label requirements 34 will make production of false certification labels more difficult in the future, nothing prevents the continued production and use of counterfeit certification labels by motorcyclists intent on using novelty helmets, including motorcycle helmets manufactured prior to the effective date of the final rule. Given the availability of false certification labels, law enforcement officials attempting to establish that a novelty helmet user has violated a State helmet use law must present evidence in a hearing that establishes, in the face of a false certification label, that a particular helmet does not meet FMVSS No. 218. This can be a difficult burden. Over the years that novelty helmets have been in use, NHTSA has been contacted many times by police officers and other state enforcement officials that have lost enforcement cases or complained about the costs due to the difficulty with demonstrating that a helmet does not meet the requirements of FMVSS No. 218. FMVSS No. 218 was intended to establish minimum performance criteria for helmets. Although compliance with some of the requirements of FMVSS No. 218 may be ascertained by visual examination of a helmet, establishing whether a particular helmet meets the performance requirements of the standard requires specific laboratory tests under tightly controlled conditions. It is impractical for State or local law enforcement officials to perform such testing in individual 30 Kerns, Timothy and Catherine McCullough, An Analysis of Hospitalized Motorcyclists in the State of Maryland Based on Helmet Use and Outcome. Paper presented at the 2009 ESV conference, paper No. 09–0061, available at http://www.nhtsa.gov/ Research/Crashworthiness (last accessed on 4/8/13). 31 The Abbreviated Injury Scale (AIS) 1990 Revision (1998 Update), Association for the Advancement of Automotive Medicine, Des Plaines, IL. 32 Injury Data collected during Kearns, et al., study available at http://www.nhtsa.gov/Research/ Crashworthiness (last accessed on 04/08/13). 33 Nineteen states, the District of Columbia, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands have a universal helmet law, requiring helmets for all riders. Of the 19 mandatory helmet law states, 17 have laws providing that motorcyclists must wear a helmet that complies with FMVSS No. 218. 34 Federal Register Vol. 76, No. 93 page 28132, Friday, May 13, 2011. Table 3 shows the safety benefit of using FMVSS No. 218-certified helmets by the fewer number of head injuries at the levels MAIS 1 through 4 in crashes that were at least as severe, if not more severe, than crashes involving novelty helmets.32 The number of patients admitted to the STC who sustained a head injury at the MAIS 5 and 6 levels during the study was low due to the fact that patients with MAIS 5 or greater injuries are likely to have suffered fatal injuries during a crash and are not likely to be admitted to the STC; therefore, this study did not measure significant differences in performance of certified and novelty helmets at MAIS 5 and 6 levels. Note that these injury rates cannot be interpreted as the true protective effects (i.e., effectiveness) for these two types of helmets because the study did not take into account the respective helmet use rates (i.e., the exposure data) and the limited sample size. tkelley on DSK3SPTVN1PROD with PROPOSALS3 F. Novelty Helmets and the Enforcement of State Helmet Laws VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 cases. This discourages law enforcement personnel from issuing citations to novelty helmet users. In the event that the helmet user chooses to contest the citation, the issuing officer, as well as any prosecutors associated with the case, must expend time, energy and resources to pursuing a case that they are likely to lose if the trier of fact determines that compliance cannot be ascertained without testing. Furthermore, while NHTSA does compliance testing of some helmets, testing all helmets in the marketplace would be difficult and place a heavy burden on the agency’s resources. NHTSA believes that helmet laws save lives and reduce injuries. The use of novelty helmets frustrates full achievement of those goals. Effective enforcement of helmet laws therefore requires that State and local governments have the means to successfully prosecute violations, including cases in which riders are using novelty helmets to create the false impression that they are complying with laws that require FMVSS No. 218compliant helmets. In the past, NHTSA has been contacted by North Carolina, Nevada, New York, and other States seeking objective, measurable criteria that could be used to enforce State helmet laws. The best available information NHTSA could provide them was a brochure available online titled How to Identify Unsafe Motorcycle Helmets.35 While conducting research to develop the proposals contained in this document of proposed rulemaking, the agency contacted Georgia, Washington, and California to discuss the criteria and test procedures. All three States were supportive of this initiative. As explained in the section of this document titled Proposed Amendments to Performance Requirements, NHTSA will be seeking official comment about this proposal from all States having universal helmet laws. G. Federal Motor Vehicle Safety Standard No. 218 The purpose of FMVSS No. 218 is to reduce fatalities and injuries to motorcyclists resulting from head impacts. FMVSS No. 218 applies to all helmets designed for use by motorcyclists and other motor vehicle users. Helmets complying with this standard have been demonstrated to be a significant factor in the reduction of critical and fatal injuries involving 35 How to Identify Unsafe Motorcycle Helmets, HS 807 880, September 2004, available at http:// www.nhtsa.gov/people/injury/pedbimot/ motorcycle/unsafehelmetid/images/ UnsafeHelmets.pdf (last accessed on 2/29/12). VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 29467 the retention system be able to withstand a quasi-static load. To meet the performance requirement, the helmet’s retention system may not break while the loads are being applied and the adjustable portion of the retention system may not move more than 1 inch (2.5 centimeters) during the test. The test procedures in FMVSS No. 218 specify the manner in which testing will be conducted by any laboratory under contract with NHTSA to test helmets. Additional details on how the tests are to be conducted are contained in the NHTSA Laboratory Test Procedure for FMVSS No. 218 Motorcycle Helmets.38 motorcyclists in motorcycle crashes.36 A further study based on impact attenuation test data supports the determination that helmets complying with FMVSS No. 218 significantly decrease the risk of a fatal head injury.37 A manufacturer of a motorcycle helmet must certify that the helmet meets or exceeds all of the standard’s requirements. Those requirements include three performance requirements as well as requirements dealing with peripheral vision, projections, and labeling. FMVSS No. 218 is primarily a performance standard, not a design standard. It requires certain physical attributes such as: a minimum coverage area, the presence of a chin strap, the location and content of the certification and other labels, the specification of the maximum size of projections, a minimum range of peripheral vision and the requirement that a helmet shell have a continuous contour. However, FMVSS No. 218 does not direct that a helmet have a particular configuration or design. The first of the three principal performance requirements in FMVSS No. 218 is that a motorcycle helmet must exhibit a minimum level of energy absorbency upon impact with a fixed, hard object. Compliance is determined by conducting a series of drop tests at four different sites onto two anvils. The impact attenuation requirement limits the acceleration levels of the headform and is quantified in units of g, gravitational acceleration. The acceleration level relates to the amount of force that is transferred through the helmet to the human head. FMVSS No. 218 limits the maximum acceleration to a level of 400g and limits accelerations exceeding 200g to a cumulative duration of 2.0 milliseconds and accelerations exceeding 150g to a cumulative duration of 4.0 milliseconds. The second performance requirement is a penetration test, in which a metal striker is dropped 118.1 inches (3 meters) in a guided free fall onto a stationary helmet mounted on a headform. To meet the performance requirement, the striker may not contact the surface of the headform. The third performance requirement of FMVSS No. 218 is the retention system test. It requires that the retention system, chin strap, or any component of H. Recent Amendments to FMVSS No. 218 NHTSA issued a final rule amending FMVSS No. 218 on May 13, 2011.39 These amendments modified labeling requirements, made changes to certain test procedures, updated references, and corrected the identification of figures incorporated into the standard. Among other things, the final rule requires the certification label to bear the manufacturer’s name and helmet model, as well as the statement ‘‘FMVSS No. 218 CERTIFIED.’’ The final rule also clarified and simplified other labeling requirements, such as permitting the certification label to be located on the helmet exterior between 1 and 3 inches (2.5 to 7.6 cm) from the lower rear edge of the helmet and requiring the size to be labeled in a numerical format. In addition to these labeling changes, the final rule clarified the test procedures for the retention system and impact attenuation tests, added tolerances to several parts of the standard, amended the time required to condition helmets, and updated a reference and figure numbers. The final rule stated that the amendments made to FMVSS No. 218 were issued for two purposes. One was to modify tolerances, test procedures, and similar requirements impacting compliance testing. The second was to address the increased use of novelty helmets and the relative ease of applying false certification labels to novelty helmets. The final rule 40 observed that the ability of novelty helmet users to attach inexpensive, easy-to-produce and easyto-obtain labels mimicking legitimate 36 Evans, Leonard, and Frick, Michael, ‘‘Helmet Effectiveness in Preventing Motorcycle Driver and Passenger Fatalities: Accident Analysis and Prevention,’’ U.S. Department of Transportation, National Highway Traffic Safety Administration, Volume 20, Number 6, 1988. 37 Docket No.: NHTSA–2011–0050–0002.1 can be accessed at http://www.regulations.gov. 38 NHTSA Laboratory Test Procedure for FMVSS No. 218, Motorcycle Helmets, May 13, 2011, TP– 218–07, available at http://www.nhtsa.gov/ staticfiles/nvs/pdf/TP-218-07.pdf (last accessed on 1/31/12). 39 Federal Register Vol. 76, No. 93 page 28132, Friday, May 13, 2011. 40 76 FR 28132, 28138. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 29468 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules certification labels frustrated enforcement of helmet use laws. NHTSA further noted that widely available false certification labels made it difficult to prove that a motorcyclist is evading helmet use laws by wearing a novelty helmet that appears to be certified. More importantly, the agency noted that the use of novelty helmets puts motorcyclists at much greater risk of head injury or death in the event of a crash. In order to make the production and use of fraudulent certification labels more difficult the final rule added a number of new requirements for certification labels. Instead of the simple three letter symbol ‘‘DOT,’’ the amended label requirements state that the symbol ‘‘DOT’’ be accompanied by the word ‘‘CERTIFIED’’ as well as the phrase ‘‘FMVSS No. 218.’’ To restrict the use of a ‘‘one size fits all’’ certification label, the final rule required that the helmet manufacturer’s name and/or brand and the precise model designation of the helmet also appear on the certification label.41 While the 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, based on the improved labeling alone, only 5 to 10 percent of motorcyclists using novelty helmets in States with universal helmet use laws will switch to using compliant helmets. Therefore, the agency acknowledged that more is needed to be done to further reduce novelty helmet use by motorcyclists. Citing comments by the Governors Highway Safety Association that novelty helmet use had become a means of expressing displeasure with helmet use laws and evading the operation of such laws, NHTSA indicated that it was assessing other actions that should be taken to address the marketing and selling of novelty helmets to motorcyclists for highway use.42 The agency noted the duplicity inherent in marketing or selling a novelty version of motor vehicle equipment. For example, the final rule observed that manufacturers of seat belts complying with FMVSS No. 209, ‘‘Seat belt assemblies,’’ do not also produce novelty versions of the same type of equipment used in motor vehicles, that they declare, explicitly or implicitly, are not intended to provide protection and therefore are not motor vehicle equipment subject to the FMVSSs. The final rule further stated 41 76 42 76 FR 28132, 28140–41. FR 28132, 28157. VerDate Sep<11>2014 21:20 May 20, 2015 that it was difficult to imagine any manufacturer, importer or seller of seat belts arguing that their seat belts are not motor vehicle equipment and stating, as novelty helmet manufacturers do, that their novelty products are not intended for highway use and not designed to provide protection in a crash. As explained in the final rule, the notion that an item of safety equipment can be transformed into something other than what it is by virtue of a disclaimer is absurd. This, in the agency’s view, would be aptly demonstrated by the disclaimer that might accompany the sale of a novelty seat belt: ‘‘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.’’ NHTSA also observed then, as it does again now, that novelty helmets are sold by businesses that also sell motorcycles or motorcycle related products, are in widespread use on public highways, and are only minimally used for any purpose other than while riding a motorcycle. Nonetheless, sellers of novelty helmets attempt to maintain the fiction that they are not producing products for highway use by providing disclaimers that the helmets they make are for ‘‘display or show,’’ not intended to be used in motor vehicles and are not designed to provide protection in a crash. NHTSA then stated its view that novelty safety equipment (having no apparent purpose other than facilitating evasion of legal requirements) is an item of ‘‘motor vehicle equipment’’ within the meaning of the Vehicle Safety Act and is subject to a FMVSS. Since they do not comply, it is impermissible to manufacture, import or sell novelty helmets in the United States.43 Furthermore, the agency explained that ‘‘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,’’ 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 43 76 Jkt 235001 PO 00000 FR 28132, 28158. Frm 00012 Fmt 4701 Sfmt 4702 ‘‘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. 218compliant helmet cannot reasonably be thought to be a reliable indication that the helmet is a compliant helmet. The plausibility of such a false indicator of compliance is negated by a lack of critical visible physical attributes such as an impact absorbing liner of adequate thickness and composition to protect a user in the event of a crash, as well as the presence of interior labeling required by FMVSS No. 218. 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. This has led the agency to propose criteria to assist the public and law enforcement in identifying novelty helmets. This proposal is discussed further in the section of this document titled Proposed Amendments to Performance Requirements. I. NHTSA’s Compliance Test Program To help ensure that helmets are properly certified by their manufacturers, NHTSA conducts a compliance test program that tests approximately 40 different makes and models of helmets each year. The helmets are purchased by NHTSA through normal retail channels. Because FMVSS No. 218 requires that helmets be tested under four different environmental conditions, NHTSA purchases four samples of each helmet model. The helmets are then tested by test laboratories under contract with the agency. Currently, testing of a particular model of helmet costs approximately $2,000.00. The appearance of novelty helmets in the marketplace and their increasing use creates a number of challenges for NHTSA that are relevant to the agency’s test program. First, although novelty helmets are typically not manufactured or sold with certification labels attesting that they comply with Standard No. 218, novelty helmets with certification labels have appeared in the marketplace. Second, as stated elsewhere in this document, the agency is proposing to add a new definition of E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules ‘‘motorcycle helmet’’ to FMVSS No. 218 that is intended to focus on the sale and use of helmets as determinants of their intended use. If adopted, this new definition will expand the universe of helmets subject to NHTSA testing to include novelty helmets. Because production of novelty helmets is, when compared to FMVSS No. 218 compliant helmets, relatively simple and inexpensive, there appear to be many manufacturers and importers of novelty helmets. Responding to consumer concerns and inquiries from law enforcement about the difficulties in distinguishing compliant helmets from non-compliant helmets, NHTSA embarked on an expanded test program in 1994 with the goal of providing more comprehensive coverage of the existing helmet market. This expanded test program illustrated the difficulties inherent in attempting to perform full FMVSS No. 218 testing on a wide range of helmets. Resource constraints prevented the agency from testing all of the helmets in the program under the four environmental conditions specified in the standard. The agency also found it difficult to procure all helmets in the marketplace and was criticized for failing to do so. Finally, the poor performance of novelty helmets in impact testing proved not just to be an ample demonstration of the threat they pose to users, but also had serious consequences for the test equipment used to assess performance. Due to concerns about damaging expensive test equipment in novelty helmet impact testing, laboratories contracting with NHTSA became reluctant to test novelty helmets or refused to do so. tkelley on DSK3SPTVN1PROD with PROPOSALS3 III. Interpretation—Novelty Helmets Are Motor Vehicle Equipment Congress passed the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act) with the express purpose of reducing motor vehicle accidents and injuries.44 To promote this end, the Safety Act provided for the establishment of motor vehicle safety standards for motor vehicles and equipment in interstate commerce. 15 U.S.C. 1381 (1988 ed.). The Safety Act empowered the Secretary of the Department of Transportation to establish motor vehicle safety standards for motor vehicles and motor vehicle equipment. 15 U.S.C. 1392(a) and 1407 (1988 ed.) (codified without substantive 44 S. Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966), U.S. Code Cong. & Admin. News 1966, p. 1; Conf. Rep. No. 1919, 89th Cong., 2d Sess. 1 (1966). VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 change as 49 U.S.C. 30107 and 49 U.S.C. 30111 (2006 ed. and Supp. III)). ‘‘Motor vehicle equipment’’ was defined in the Safety Act as ‘‘any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system part, or component or as any accessory or addition to the motor vehicle.’’ 15 U.S.C. 1391(4) (1988 ed.) Given that satisfaction of that definition was predicated on the existence of a motor vehicle which would be improved or enhanced by the equipment at issue, items that were not incorporated into vehicles or were accessories for a vehicle were not motor vehicle equipment. Therefore, when enacted in 1966, the Safety Act’s definition of ‘‘motor vehicle equipment’’ did not include protective equipment such as motorcycle helmets. In 1970, Congress amended the Safety Act of 1966 to substantially expand the definition of ‘‘motor vehicle equipment’’ to include motorcycle helmets and other protective equipment that did not meet the originally enacted definition of the term. The existing definition of ‘‘motor vehicle equipment,’’ was expanded beyond motor vehicle components to include ‘‘any device, article or apparel not a system, part, or component of a motor vehicle (other than medicines, or eyeglasses prescribed by a physician or other duly licensed practitioner) which is manufactured, sold, delivered, offered or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users from the risk of accident, injury or death.’’ 45 In 1994, the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381 et seq., was codified without substantive change as 49 U.S.C. Chapter 301—Motor Vehicle Safety. Section 1391(4) was redesignated as section 30102(a)(7)(C). In the codified form, the section defines Motor vehicle equipment to include devices, articles and apparel ‘‘manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death.’’ This definition of ‘‘motor vehicle equipment’’ was again amended by Congress in 2012. Specifically, MAP–21 amended this phrase to specifically state that motorcycle helmets are motor vehicle equipment. The definition now directs that motor vehicle equipment includes ‘‘. . . any device or an article 45 Public Law 91–265, 84 Stat. 262 (May 22, 1970). PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 29469 or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner.’’ The MAP–21 amendment further refined the definition by replacing the term ‘‘intended for use only’’ with the term ‘‘apparent purpose.’’ As enacted, this definition defines ‘‘motor vehicle equipment’’ as ‘‘any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner, that . . . is not a system, part, or component of a motor vehicle; and . . . is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding motor vehicles and highway users against risk of accident, injury, or death.’’ The 1970 expansion of the definition of ‘‘motor vehicle equipment’’ and the MAP–21 amendments confirm that Congress provided NHTSA with jurisdiction over motorcycle helmets used on public highways. By specifically including ‘‘motorcycle helmets’’ and replacing the phrase ‘‘intended to be used only to safeguard’’ highways users with the phrase ‘‘apparent purpose of safeguarding’’ highway users, the 2012 amendment further clarifies the scope of what constitutes ‘‘motor vehicle equipment’’ under the Safety Act. This modification indicates that Congress did not want the definition of motor vehicle equipment to turn on the question of ‘‘intent’’ to safeguard users, which could be either the subjective intent of a manufacturer or an objective assessment of intent based on the circumstances of marketing and sale. By choosing to employ the words ‘‘apparent purpose to safeguard’’ highway users, Congress indicated that decisions about what constitutes motor vehicle safety equipment are to be governed by an objective examination of the facts and circumstances of the marketing, sale, use and physical characteristics of the item at hand. More importantly, the specific inclusion of ‘‘motorcycle helmet’’ as the only example of motor vehicle equipment indicates that Congress intended to include every helmet that can reasonably be considered such a helmet. Nor did Congress want the word ‘‘only’’ to insulate from the Act’s reach any type of equipment that arguably has more than one possible use. The specific inclusion of ‘‘motorcycle helmet’’ in the Act’s definition clearly signals, along with these other changes, that Congress intended to include all items with that apparent purpose. The ‘‘apparent purpose’’ test employed by Congress indicates that E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 29470 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules motorcycle helmets, including ‘‘novelty’’ helmets, are items of motor vehicle equipment. Focusing on objective evidence, if a helmet is, based on its design, such that it would be used by a person while riding on a motorcycle to provide some level of protection, its apparent purpose is to safeguard that rider. It would therefore properly be an item of motor vehicle equipment. If it is offered for sale as a motorcycle helmet but the manufacturer or seller disclaims that it provides any protection, its apparent purpose remains the same. In other words, the apparent purpose of the helmet as a protective device outweighs a manufacturer’s stated purpose to the contrary when defining a motorcycle helmet as motor vehicle equipment. If it is worn by ordinary motorcycle riders while riding a motorcycle on the highway or in the immediate vicinity of a motorcycle before or after riding one,46 it is a ‘‘motorcycle helmet’’ whose apparent purpose is to provide protection in a crash. Such a helmet is therefore an item of motor vehicle equipment.47 Furthermore, a manufacturer’s addition of a label stating that a helmet is ‘‘not for highway use’’ would not be sufficient to overcome objective evidence regarding its apparent purpose (use while on the highway) and take a novelty helmet out of the ambit of ‘‘motor vehicle equipment.’’ By amending the definition of motor vehicle equipment to delete the words ‘‘intended’’ and ‘‘only’’ and to focus on the ‘‘apparent purpose’’ of safeguarding users, Congress indicated that the definition of motor vehicle equipment should not be controlled by subjective statements in which a manufacturer denies any intention of protecting wearers of the product from injury. NHTSA sees no reason to conclude that Congress would give any greater weight to similar subjective expressions of intent regarding highway use. Instead, we believe that Congress meant for the question of whether a product is manufactured or sold for highway use to be resolved by an objective examination of the facts. If a helmet is manufactured by a company that produces safety equipment for drag racers, the helmet is promoted for racing use and is sold by entities that serve racers, the objective facts and circumstances indicate that such a helmet is not manufactured, sold, delivered, or offered to be sold for highway use and not subject to 46 Such use is incidental to the wearing of the helmets by persons riding on motorcycles. 47 We note that a novelty helmet meets all three of those tests. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 NHTSA’s jurisdiction. However, if a helmet is promoted and advertised for purchase by highway users, is sold in outlets catering to highway users and is worn by highway users, an objective examination of these facts compels the conclusion that the helmet was sold for highway use regardless of any manufacturer disclaimers to the contrary. This is a sensible position and one that the agency concludes is wholly consistent with Congressional intent and the text of the Safety Act as modified by MAP–21. IV. Proposed Amendments to FMVSS No. 218 A. Adding a Definition for Motorcycle Helmet The agency is proposing to add a definition of ‘‘motorcycle helmet’’ to section S4 of FMVSS No. 218 to effectuate the interpretation of the statutory definition of motor vehicle equipment described in Section III of this document and help ensure that helmets being used by motorcyclists on highways meet the minimum performance standards set forth in FMVSS No. 218. Neither the Safety Act nor NHTSA’s regulations currently provide a precise definition of what constitutes a motorcycle helmet. FMVSS No. 218 currently states that regulated helmets are those helmets designed for highway use. Section S1 of FMVSS No. 218 states that the standard establishes minimum performance requirements for helmets designed for use by motorcyclists and other motor vehicle users. Section S3, stating what the standard applies to, sets forth that the standard applies to all helmets designed for use by motorcyclists and other motor vehicle users. The term ‘‘motorcyclist’’ is not defined by the Safety Act. Under the term’s ordinary meaning, a ‘‘motorcyclist’’ is an operator or passenger of a motorcycle.48 As employed in FMVSS No. 218, a ‘‘motorcyclist’’ is a user of a ‘‘motor vehicle.’’ As the term ‘‘motor vehicle’’ is restricted under the Safety Act to those vehicles ‘‘manufactured primarily for use on public streets, roads, and highways,’’ the existing statutory and regulatory text defines motorcycle helmets as helmets designed for use by motorcyclists and other motor vehicle 48 A motorcycle is a vehicle with motive power having a seat or saddle for the use of the operator and designed to travel on not more than three wheels in contact with the ground. 49 CFR 571.3. Any vehicle with three or fewer wheels manufactured for use on public streets, roads, and highways including motor scooters, mopeds, and 3wheeled trikes, are therefore motorcycles. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 users. Accordingly, helmets designed for use by motorcyclists and other motor vehicle users are helmets manufactured primarily for use on public highways. Manufacturers, sellers and, to a degree, buyers of novelty helmets are well aware of the implications of these terms. There is little question that novelty helmets are marketed and sold to ‘‘motorcyclists’’—operators and passengers of motorcycles. However, by designating these helmets as ‘‘not for highway use,’’ notwithstanding their well-known highway use, manufacturers and sellers of novelty helmets are attempting to circumvent their legal responsibilities. Although NHTSA believes, as explained more fully in the section of this document titled Interpretation— Novelty Helmets are Motor Vehicle Equipment, that novelty helmets are presently within the scope of FMVSS No. 218 because they are intended for use by motorcyclists and are in fact used by them on the highway, we are proposing to add a new definition of motorcycle helmet to FMVSS No. 218 section S4 to make clear that the stated intent of a manufacturer in designing a helmet is not the determinant of whether a helmet is intended for highway use. A broader examination of relevant factors is necessary where, as here, the stated intent regarding the use of the product is inconsistent with the actual use of the product, as well as the manner in which it is marketed and sold. Further, we are proposing to adopt this definition contemporaneously with other proposed amendments discussed below, to provide law enforcement officers, end users of motorcycle helmets, and hearing officers or judges with objective characteristics allowing them to distinguish helmets that are certified to FMVSS No. 218 from novelty helmets. The agency also believes that adding a definition and other provisions proposed in this document will assist States with helmet use laws, to more effectively enforce those laws. Although the agency remains concerned that manufacturers may tailor their efforts to avoid NHTSA’s enforcement efforts, we believe that focusing on the marketing, promotion and sale of helmets provides an important and legitimate means of distinguishing motorcycle helmets from other protective helmets. Marketing, promotion and sales materials are important objective indicia of the intended use of a product and this definition employs an eminently practical set of tests by examining who is selling the product and the use it is being sold for. If a helmet is sold by E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules entities selling other products for motorcyclists, then it follows that the helmet is intended for use by those same motorcyclists. If, when viewed by a reasonable observer, the helmet is promoted or displayed as suitable for uses including use as a motorcycle helmet, then it similarly follows that the helmet is actually made and sold as a motorcycle helmet. Of course, the agency recognizes that helmets of all kinds may be sold by entities that sell motorcycle equipment and accessories as well as a variety of other products. Marketing and promotion materials may also be broad or enigmatic. To clarify the definition and prevent the operation of the presumption when inappropriate, the definition also states that helmets within the scope of subsections (1)(B) and (1)(C) would not presumptively be a motorcycle helmet when it is certified by a recognized body for use as protective gear for purposes other than as a motorcycle helmet or is permanently labeled as not intended for highway use. NHTSA believes that including helmets worn by motorcyclists using public highways is supported by the expanded definition of motor vehicle equipment adopted by Congress in 1970 and the recent MAP–21 amendments. As we interpret that definition, the manner of actual use is compelling objective evidence of the intended use of a product regardless of any disclaimers issued by a manufacturer or seller. Nonetheless, the agency has tentatively decided not to propose incorporating this criterion in the definition of motorcycle helmet. This tentative determination is based on the current lack of data regarding which helmets are actually being used on public highways. As stated elsewhere in this document, if NHTSA were to adopt an actual use component in the definition of motorcycle helmet, the agency would not consider incidental use as evidence that a particular type of helmet is a motorcycle helmet. Instead, only those helmets being used on-road by a sufficient number of motorcyclists would be considered as evidence that the helmet being worn is intended for highway use. Although NHTSA has tentatively decided not to include a use-based criterion in the definition of ‘‘motorcycle helmet’’ the agency may include such a provision in the definition contained in the final rule. The agency therefore requests comments on including a provision in the final rule that helmets used on the highways are motorcycle helmets and motor vehicle equipment under the Safety Act. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 NHTSA’s proposed definition of ‘‘motorcycle helmet’’ establishes that ‘‘hard shell headgear’’ meeting certain conditions are motorcycle helmets. As employed in the definition, hard shell headgear refers to headgear that retains its shape when removed from the user’s head, whether or not covered by a decorative surface such as leather. ‘‘Hard shell’’ distinguishes motorcycle helmets from other non-hard shelled headgear such as soft caps and bandannas that are also used by motorcyclists on road. If an item of headgear meets this threshold requirement, additional criteria are employed to determine if the item is a motorcycle helmet. The criteria relate to the manufacture, importation, sale, and use of the headgear in question. First, a helmet is a motorcycle helmet under subsection (1)(A) if it is manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States, for use on public streets, roads, and highways with the apparent purpose of safeguarding highway users against risk of accident, injury, or death. The apparent purpose of a product stems from its essential physical characteristics such as the size, shape, design and general appearance of the helmet. For example, a small bicycle with small diameter wheels and a correspondingly small frame would have the apparent purpose of being used by a child for short distances on sidewalks and driveways. Conversely, a bicycle with large wheels and a large frame would have the apparent purpose of being used by an adult on roads and highways. In the case of helmets, an unperforated hard shell helmet with a chin strap or retention system would have the apparent purpose of being a protective motorcycle helmet. If that helmet also has snaps for attaching a visor or face shield, the apparent purpose becomes even clearer. Further, if such a helmet is similar to helmets certified by their manufacturers as meeting the requirements of FMVSS No. 218, the helmet would have the apparent purpose of being a protective helmet. Under subsection (1)(B) a helmet is a motorcycle helmet if it is manufactured, sold, introduced into interstate commerce, or imported by entities also manufacturing, offering, selling or importing certified helmets or other motor vehicle equipment and apparel for motorcycles or motorcyclists. Under this standard, if a helmet is manufactured, imported, sold, offered for sale or introduced into interstate commerce, or imported into the United PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 29471 States, by entities that undertake the same activities for other products, services or goods used by on-road motorcyclists, the apparent purpose of the helmet is on-road use and the helmet is a motorcycle helmet. Proposed subsection (1)(C) states that a helmet is a motorcycle helmet if it is described or depicted as a motorcycle helmet in packaging, display, promotional information or advertising. This criterion is met if the helmet is described or depicted as a motorcycle helmet in packaging, display, promotional materials or advertising. Such materials may include obvious characteristics such as the word ‘‘motorcycle’’ in a description of the helmet or more subtle factors such as a depiction of a user who is also wearing goggles, sunglasses, or other protective clothing or gear normally worn by motorcyclists. Subsection (1)(D) states that helmets presented for importation under applicable designation(s) for motorcycle helmets in the Harmonized Tariff Schedule of the United States would also be deemed to be on-road motorcycle helmets. This fourth criterion relates to the manner in which imported goods enter the United States and would specify that any helmet imported into the United States under the designations reserved for motorcycle helmets in the Harmonized Tariff Schedule of the United States (HTS) is intended for highway use. The HTS, which replaced former US Tariff Schedules, was enacted by Congress and made effective on January 1, 1989. The HTS establishes a hierarchical structure for describing all imported goods for duty, quota, and statistical purposes. The United States International Trade Commission (USITC) maintains and publishes the HTS, which is enforced and interpreted by the Bureau of Customs and Border Protection of the Department of Homeland Security.49 NHTSA recognizes that some helmet manufacturers, importers and sellers produce, sell or import a variety of helmets for various purposes and uses. Therefore, that retailer might sell motorcycle helmets, ski helmets, bicycle helmets, mountaineering helmets and other protective headgear for offhighway uses. A manufacturer or importer may produce helmets certified as meeting Standard No. 218 but may also produce helmets for racing or other motorsports that are not certified to that standard. Unlike ‘‘novelty helmets,’’ 49 Depending on the materials used in their construction, motorcycle helmets are currently found in 6506.10.3030, HTSUS, or subheading 6506.10.6000, HTSUS. E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 29472 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules such racing helmets may provide significantly more impact protection than required by Standard No. 218, but for a variety of reasons related to their specialized use, are not certified as meeting Standard No. 218. We also note that the current version of the Harmonized Tariff Schedule contains two classifications for motorcycle helmets but neither of these classifications distinguishes between helmets intended for highway use and those imported for legitimate off-road uses. NHTSA is therefore proposing additional language that would address the legitimate concerns of manufacturers, importers and sellers of helmets that are imported for legitimate off-road uses. Our proposed definition would exclude helmets designed and manufactured to, and labeled in accordance with other recognized helmet standards. For example, football helmets marked as complying with the National Operating Committee on Standards for Athletic Equipment (NOCSAE) or ASTM International ASTM F717–10 football helmet standards meet the exception clause included in the definition. Similarly, hockey helmets marked as complying with ASTM International ASTM F1045– 07 or Hockey Equipment Certification Council (HECC) hockey helmet standards would not be motorcycle helmets. Subsection (1)(A) couches the acts of manufacturing, selling, offering or introducing into interstate commerce, or importing into the United States, as being gauged by the ‘‘apparent purpose’’ of safeguarding highway users from death or injury. Deriving the apparent purpose involves looking to the essential physical characteristics of the item involved. Moreover, even though a manufacturer or seller of a novelty helmet may declare that the helmet is not ‘‘DOT Certified’’ or is ‘‘Not a Safety Device,’’ these products are sufficiently similar to helmets that actually do provide protection that both users and reasonable observers might conclude that they provide some degree of protection against impact. Subsections B and C also follow the language used by Congress in the MAP–21 and 1970 amendments. In this instance the actions of manufacturing, offering and selling are framed by the manner in which products are sold. The surrounding circumstances used to assess the apparent purpose of the product are found in the acts of making or selling other goods and services intended for use by motorcyclists or in promoting the helmet. If one sells a helmet in venues offering other VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 products that motorcyclists use on public highways, it is objectively reasonable to conclude that the helmet at issue is also intended for this use. It is also objectively reasonable to conclude that a product depicted as a motorcycle helmet in promotional materials or packaging is also meant by its maker to be used by ordinary motorcyclists. Subsection D follows the logical premise that a helmet declared to be a motorcycle helmet by an importer is intended by that importer to be used by motorcyclists. The proposed definition therefore characterizes motorcycle helmets as hard shell headgear meeting any one of four conditions. The first condition is that it is manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States, for use on public streets, roads, and highways with the apparent purpose of safeguarding highway users against risk of accident, injury, or death. The second condition is that it is manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States by entities that also manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States either motorcycles, helmets certified to FMVSS No. 218, or other motor vehicle equipment and apparel for motorcycles or motorcyclists. The third condition is that it is described or depicted as a motorcycle helmet in packaging, display, promotional information or advertising. The fourth and final condition is that it is imported into the United States under the applicable designation(s) for motorcycle helmets in the Harmonized Tariff Schedule of the United States. However, if a helmet that meets any of conditions two, three, or four is labeled and marked in accordance with a non-motorcycle helmet standard issued or adopted by any one of the organizations identified as manufacturing other types of safety helmets and listed in the proposed definition, it would not be considered to be a motorcycle helmet. For consistency, NHTSA also proposes to revise the language in the scope and application sections of FMVSS No. 218 to refer to motorcycle helmets. The agency requests comments on the proposed definition as well as the alternative definitions discussed previously. Depending on the public comments, elements of the different definitions could be combined into the definition adopted in the final rule. In addition, the agency request comment PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 on additional government entities or industry standards that should be included in Paragraph (2) of the definition. B. Proposed Amendments to Performance Requirements As NHTSA has observed elsewhere in this document, the existing performance requirements of FMVSS No. 218 establish test procedures specifying that compliance with the standard be evaluated through the use of laboratory tests requiring that four samples of each helmet model be tested under different specific environmental conditions. Although compliance with some of the requirements of the standard may be determined by simple visual examination—i.e. a compliant helmet must have the required interior labels, the shell must be free of rigid projections taller than 0.20 inch (5 mm) and have a continuous contour, and it must cover a minimum area of the head—current compliance tests require sensitive specialized equipment and can only be performed by trained personnel employed by specialized laboratories. Testing four samples of one helmet model currently costs NHTSA approximately $2000.00 and the agency’s budget allows approximately forty tests in one fiscal year. The interpretation issued in this document, as well the proposed amended definition of motorcycle helmet, would both require significant expansion of NHTSA’s compliance test program. Such an expansion would, of course, require significant additional agency expenditures if the agency continues to rely on the existing performance requirements of FMVSS No. 218. In addition, novelty helmets perform very poorly in compliance testing. This performance is substandard to the point that performing impact attenuation testing on novelty helmets poses a threat to accelerometers and other devices incorporated into test devices. The risk of damage to this equipment has caused NHTSA-contracted test laboratories to be reluctant to perform impact attenuation testing on novelty helmets or to refuse to test them altogether. The agency also notes that because manufacturing and/or importing novelty helmets requires less financial resources than manufacturing conventional FMVSS No. 218 compliant helmets, there appear to be many entities manufacturing, importing and selling novelty helmets. Taken together, the foregoing factors indicate that a full test program aimed at examining large numbers of both novelty and E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules conventional helmets would be difficult and expensive. The agency is therefore proposing modifications to FMVSS No. 218 to lessen NHTSA’s test burden and allow a more comprehensive examination of helmets being sold and marketed to highway users. The proposed amendments would incorporate certain physical criteria into FMVSS No. 218 in order to facilitate simplified test procedures. The physical characteristics being proposed are, in NHTSA’s view, excellent indicators that a helmet will be unable to comply with the impact attenuation and penetration tests already incorporated in the standard. With the issuance of the NPRM, the agency will simultaneously be contacting States with universal helmet laws for feedback on the proposals contained herein. Specifically, the agency requests the following feedback: • Does your State’s helmet law require use of a DOT-certified helmet? • Has your State had difficulty with prosecuting cases against users of novelty helmets in the past and, if so, why? • Has your State had difficulty with prosecuting cases against manufacturers of novelty helmets in the past and, if so, why? • Have law enforcement officers in your state had difficulty distinguishing novelty helmets from certified helmets? • Will these criteria help your state to distinguish novelty helmets from certified helmets? • Will the tools described in the regulatory text be useful to you? • Will you use the tools in the field or during court hearings? • Do you believe this rule will encourage greater use of DOT-certified helmets in your state? • Are there other actions that NHTSA can take to assist the States in this area? To the extent that advances in technology and materials may permit the development of helmets meeting all the requirements of Standard No. 218 excluding the proposed preliminary screening requirements, we are also proposing to establish an alternative compliance process encompassing a petition procedure allowing helmet manufacturers an opportunity to establish that a specific helmet design qualifies for further testing. In so doing, NHTSA acknowledges that such a petition process appears to present an increased burden to both manufacturers and the agency. The agency believes, however, that the likelihood that the proposed petition process will be frequently employed is small. The proposed preliminary screening requirements are quite conservative. We VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 believe that it is extremely unlikely that any helmet constructed using presently known techniques and materials can meet the performance requirements of Standard No. 218 without also complying with the proposed preliminary screening requirements. The alternative compliance process being proposed allows manufacturers to petition the agency and demonstrate that new technologies allow their helmets to comply with the requirements of S5.2–S5.7 (as renumbered) of the Standard even if they do not meet the proposed preliminary screening requirements in S5.1. They do this by providing information specified in the proposed Appendix including the evidence on which they base their belief that the helmet complies with all requirements of S5.2–S5.7. The Agency reviews their petition and has an option to conduct validation testing. Manufacturers who have all required information on file and whose helmets are determined by the agency to be capable of meeting Standard No. 218 S5.2–S5.7 and yet do not meet the preliminary screening criteria of S5.1, will be identified in an Appendix to the Standard and this information will be made available on the NHTSA Web site. Adoption of these proposed requirements will also have ancillary benefits for State officials charged with enforcing helmet laws requiring the use of FMVSS No. 218 compliant helmets. Many States with helmet use laws have adopted a requirement that riders subject to the law must use a helmet that complies with FMVSS No. 218. Although such a requirement advances the laudable goal of ensuring that motorcyclists use helmets meeting minimum performance requirements, it creates an additional burden for State and local authorities who must enforce these helmet laws. In many jurisdictions, establishing a violation requires the State to prove either that a rider was not wearing any helmet or that the helmet worn by the rider did not meet the performance requirements incorporated in the State helmet law. Given the popularity of novelty helmets and the widespread availability of ‘‘DOT’’ stickers and other facsimiles of actual manufacturer certifications, successful enforcement of such a State helmet law requires proof that a particular helmet, even when marked with the symbol ‘‘DOT,’’ does not meet FMVSS No. 218. These helmets are typically not certified by the manufacturer as meeting FMVSS No. 218 and are not designed or manufactured to comply with FMVSS No. 218. Nonetheless, the availability of PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 29473 misleading look-alike or ‘‘counterfeit’’ certification labels provides users with the opportunity to give the helmet the appearance of having been properly certified. In jurisdictions where motorcycle helmet laws require the use of an FMVSS No. 218-compliant helmet, riders using novelty helmets are violating the law. However, proving the violation requires establishing that a helmet does not comply with FMVSS No. 218. This can be especially difficult when a helmet has a fraudulent certification label. Under the current regulations, the only recourse enforcement officials may have is to establish that a helmet does not meet the performance requirements of FMVSS No. 218. If NHTSA has not tested the helmet at issue, State and local officials attempting to establish that a helmet does not comply with FMVSS No. 218 are often asked to present their own data. Although manufacturers of properly certified helmets routinely perform compliance testing before releasing a product for sale, such testing is obviously not performed by novelty helmet manufacturers claiming their products are not for highway use. If agency or manufacturer test data are not available, it is impractical to expect State and local enforcement officials to commission or perform such tests to prosecute individual cases. To reduce NHTSA’s test burdens, prevent or reduce the entry of novelty helmets into the United States, and assist State and local governments with the means to effectively enforce their helmet laws, NHTSA undertook an examination of the physical characteristics of helmets certified to FMVSS No. 218 and novelty helmets to determine if a set of simple criteria could be developed to differentiate between the two groups of helmets. In doing so, the agency’s goal was to develop a test, or set of tests, that would employ commonly available tools or measurement devices in a manner that would not impair or compromise the performance of the helmet being examined. In an effort to reduce the agency’s test burden and provide a means for State officials and consumers to differentiate compliant and non-compliant helmets, NHTSA examined the possibility of comparing the weight and/or dimensions of the two classes of helmets and positing a test based on weight or size. However, because novelty helmets are produced in a wide variety of sizes and are not necessarily labeled as being a particular size, comparing the weight or exterior dimensions of large novelty helmets to E:\FR\FM\21MYP3.SGM 21MYP3 29474 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules those of small compliant helmets does not produce meaningful results. Next, NHTSA examined the possibility of comparing liners of the two classes of helmets. The importance of an energy absorbing liner in preventing and reducing brain injuries was first established in the United States shortly after World War II by research directed toward developing effective protective helmets for military pilots.50 Since that time, expanded polystyrene (EPS) foam has become the predominant helmet liner material in FMVSS No. 218 compliant helmets because it combines light weight, manufacturing advantages, affordability, and an ability to ‘‘crush’’ and absorb energy in an impact. Because some amount of ‘‘crush’’ in a motorcycle helmet’s liner is needed to absorb a sufficient amount of energy during a crash, EPS foam liners (or their equivalents) must have a certain minimum thickness to prevent or reduce injury. Therefore, the configuration and composition of a semi-rigid liner is a critical factor in a protective helmet’s ability to reduce or prevent injury and was considered a potentially useful criterion for differentiating novelty helmets from certified helmets. NHTSA therefore examined the thickness of the liners, liners and shells, and compression characteristics of a sample of motorcycle helmets commercially available in 2009 and 2010. Two critical physical differences between novelty and FMVSS No. 218 certified helmets were revealed: The thickness and compression characteristics of the padding and/or energy absorbing material inside the shell of the helmet. Novelty helmets are typically manufactured with a relatively thin comfort liner between the wearer’s head and the exterior shell. These comfort liners consist of a layer of cloth immediately next to the wearer’s head and possibly a thin layer of foam between the cloth and the inside of the helmet shell. NHTSA attempted to quantify the differences in the thickness and response of helmet liner materials to compression in order to determine if threshold values for thickness and compression could be identified to distinguish certified from novelty helmets. Measurements were taken near the apex of 30 helmets obtained from the market place. The apex of the helmet is the highest point when a helmet is oriented so the brow opening is parallel to the ground. Inner liner thickness was measured by inserting a push pin into the liner, marking its depth along the shaft of the pin, withdrawing the pin, and measuring the depth of penetration to the shell. The combined thickness of the shell and liner was measured using digital calipers. The combined thickness of the shell and liners were measured before and after being compressed with a specified force. In order to measure the thickness when the comfort liner was compressed, a 5 pound-force (lbf) (22 Newton (N)) was applied using a dial force gauge. This force was selected because it is sufficient to distinguish EPS foam from foam that does not have sufficient compressive resistance to attenuate energy during an impact, not damage the EPS foam, and can readily be achieved using a thumb-fingertip grip should a gauge not be available.51 The purpose of this test is to distinguish relatively dense impact attenuating liners, typically made of expanded polystyrene (EPS) or urethane, from comfort liners made of foams that are easily indented and unable to adequately attenuate energy of a head hitting a surface during a crash. The EPS and urethane foams do not crush under this very minor force whereas the comfort liners typically do. The tools used to measure helmet characteristics are described in Table 4. These tools were selected because they are commercially available, relatively inexpensive, and are easy to use. While these tools will not measure the criteria with high precision, we believe they are minimally sufficient to perform the preliminary screening tests proposed in the standard. Other tools may be useful as well. Based on useful life, the tool kit in 2012 dollars is estimated to be $81.43 per kit per year. TABLE 4—TOOLS USED TO EXAMINE THE PHYSICAL CHARACTERISTICS OF MOTORCYCLE HELMETS Purpose Description Manufacturer Part No. Measure inner liner thickness ....... Size 28—13⁄4 inch Nickel Plated Steel T-Pin. 0–8 inch Outside Diameter Caliper Dritz ........................... 6828 ............ $3.50 for a 40-count pack. iGAGING ................... 35–OD8 ....... $28.00. Push style force gauge 1–10 lbf range 6.3 mm diameter flat probe. Wagner Instruments .. FDK 10 ........ $225. tkelley on DSK3SPTVN1PROD with PROPOSALS3 Measure combined thickness of shell & inner liner. Apply compressive force to the non impact-attenuating liner. Approximate cost NHTSA examined each helmet and took multiple measurements in the vicinity of the apex. Two measurements are being reported: Thickness at the low end of the range (i.e., a thin location) and thickness at the upper end of the range (i.e., a thick location). See Table 5. The methodology used was not designed to identify the absolute minimum or maximum thickness values, but rather to obtain a general characterization of the inner liner, shell, and non-impact attenuating liner thicknesses. Summaries are reported in Tables 6 and 7. The certified helmets in this group had impact attenuating liners that were at least 1 inch (25 mm) thick and an overall thickness from the inside of the impact attenuating liner to the outside of the shell measured at least 1.1 inch (28 mm). On the other hand, the novelty helmets examined had no impact attenuating liners or liners that were less than 0.59 inch (15 mm) thick and a combined thicknesses of liner and shell that measured less than or equal to 0.75 inch (19 mm). The certified helmets examined had an inner liner that would not deform when subject to a load of 5 lbf (22 N); whereas the liners (inner and comfort) on novelty helmets that we examined deformed readily. It is possible to foresee that a user of a novelty helmet might mistake the comfort liner of non-energy attenuating foam for an inner liner; therefore NHTSA measured the amount that the liners would deform under such a small load. The measurements made on these 50 N. Yoganandan et al. (Eds.), FRONTIERS IN HEAD AND NECK TRAUMA Clinical and Biomechanical, IOS Press, OHMSHA, 1998, retrieved from http://www.smf.org/docs/articles/ helmet_development.html, July 18, 2011 (last accessed on 1/19/12). 51 Per MIL–STD–1472F Department of Defense’s Design Criteria Standard for Human Engineering revised 23 August 1999, data contained in Figures 23. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Jkt 235001 Thill Locatioll IThick Locatioll Frm 00019 ··~·-· I ~~"-- ~·-~· - 0"' ~ Fmt 4701 !11 ...., Sfmt 4725 ~~~~=4~~~~ ... ~--~~-+~~~4 n = ~ "' "' E:\FR\FM\21MYP3.SGM c ~ ..... ~ --~~--+-~~~~ inoer liDer, aDd comfort liner 110 commpression (mm) Thick Location case, the comfort liner on the novelty helmet deformed 0.6 inch (15.1 mm). PO 00000 ...., ~ Shel~ 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules 21:20 May 20, 2015 boer lioer thickness (mm) Average Sllell, inner liner, comfort liner I def<>rmation of nonnuder compression wi22:S force impact atteooating (mm) Iiiler with compression (mm) helmets are reported in Table 5. In one VerDate Sep<11>2014 T~l>e O•·erall tllkkaess from inside of the inner lioer to the outside of sllell(mm) 29475 EP21MY15.009</GPH> Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules In comparison, the liners of helmets certified by manufacturers as complying with FMVSS No. 218 are thicker and are composed of materials with different physical properties. Certified helmets employ an energy absorbing nonresilient material in the helmet liner. Typically, this non-resilient liner, which fits between the cloth comfort liner and the inside of the helmet shell, is made from a semi-rigid material such as EPS or polyurethane foam 52 that deforms when subjected to certain pressure and does not spring back to shape. This semi-rigid foam liners in the examined helmets were all greater than 1.0 inch (25 mm) thick near the apex of the helmet and did not deform when subjected to a force up to 5 lbf (22 N) distributed over a circular area approximately 1⁄4 inch (6 mm) in diameter. However, at some force greater than 5 lbf (22 N) over the same area, the certified helmet liners will begin to crush or deform. NHTSA is not alone in its efforts to characterize helmet liners. A study of helmet design and effectiveness published in the 1990s concluded that a helmet must have a combined shell and liner minimum thickness of 1.5 inch (40 mm) in order to meet the impact attenuation requirements of the then-current Snell M90 standard.53 The Snell M90 standard differs from FMVSS No. 218 in several respects, but the general concept that a certain thickness of energy absorbing material must be present still prevails. By conducting FMVSS No. 218 compliance tests over several decades and recently examining the thickness of commercially available motorcycle helmets, NHTSA concludes that those helmets meeting the NHTSA standard must have an energy absorbing liner that is greater than 0.75 inch (19 mm) thick. Such a liner dissipates energy during a crash and allows the wearer’s head to come to a stop more slowly in order to reduce head injuries. 52 Newman, James A. ‘‘Chapter 14: Biomechanics of Head Trauma: Head Protection’’ from Nahum, Alan M. and Melvin, John W., ed. Accidental Injury: Biomechanics and Prevention. 2nd ed. New York: Springer Science+Business Media, Inc., 2002. 53 Hurt, H.H., Jr. and Thorn, D.R., ‘‘Accident Performance of Contemporary Safety Helmets,’’ Head and Neck Injuries in Sports, p. 15. ASTM STP 1229, American Society for Testing and Materials, Philadelphia, 1993. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 By contrast, novelty helmets have very soft liners of foam that cannot absorb energy or provide an adequate amount of cushion to a wearer’s head during a crash. Based on the examination of these certified and novelty helmets, the threshold thickness value of 0.75 inch (19 mm), measured within 4-inches of the apex, would allow for variability in helmet design, test equipment usage, and materials, while serving as an objective thickness criterion to distinguish certified from novelty helmets. Accordingly, NHTSA proposes to amend FMVSS No. 218 to incorporate a series of simple tests that would evaluate the physical characteristics required to meet current standards of helmet performance. These tests would serve to establish whether further testing is needed to fully and fairly determine if a helmet meets the existing performance requirements of FMVSS No. 218. Helmets not meeting the proposed requirements would be deemed to be non-compliant.54 Helmets 54 Excluding helmets that have been listed in Appendix B of FMVSS No. 218 as discussed elsewhere in this document. E:\FR\FM\21MYP3.SGM 21MYP3 EP21MY15.010</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS3 29476 tkelley on DSK3SPTVN1PROD with PROPOSALS3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules meeting the proposed requirements would be subject to further evaluation through laboratory tests to determine if they provide the required minimum levels of performance needed to adequately protect users. Any helmet with an inner liner that is less than 0.75 inch (19 mm) thick would be considered incapable of complying with FMVSS No. 218. Moreover, NHTSA proposes that any helmet with a liner meeting the minimum thickness criteria must also be sufficiently resistant to deformation to ensure that the liner is capable of some level of energy absorption. Finally, because the combined thickness of the liner and the shell together is also an excellent predictor that a helmet will be unable to comply with the performance requirements of FMVSS No. 218, NHTSA also proposes that any helmet whose combined shell and inner liner thickness is less than 1 inch (25 mm) and whose liner meets the same resistance to deformation would also presumably not be able to comply with the standard. NHTSA seeks comments and data from helmet manufacturers of compliant helmets pertaining to the thickness of impact attenuating liners and of shell and liner combinations. The aforementioned criteria are of little use to NHTSA or to State and local law enforcement officials if tools and techniques for ascertaining helmet inner liner thickness and composition are not readily available or are only available at significant cost. Similarly, the procedures employed in examining helmets should not be complex. Accordingly, this preamble discusses tests that could be performed on easily accessible areas of a helmet using simple tools and provides a guideline that could be adapted to reference cards carried by law enforcement personnel conducting traffic stops. Inner liner thickness could be measured in a number of ways. One method could be to penetrate the helmet liner with a pin, needle, or similarly small diameter wire probe until the inside of the helmet shell is reached and measuring the depth of the penetration. NHTSA is confident that measurements of inner liner thickness taken in this fashion will not impair helmet performance and that a single penetration, or a limited number of similar penetrations, of the energy attenuating foam liners employed in compliant motorcycle helmets by a pin, needle or other small diameter probe would not degrade a helmet’s ability to protect a user in a crash. Because we recognize that some organizations may be reluctant to conduct such a test, we request comment on this method of measuring inner liner thickness, its VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 29477 potential impact on helmet performance and any alternative means that may be employed using simple tools to readily and accurately find liner depth. NHTSA is also proposing a measure of the combined thickness of the outer shell and inner liner as another means of identifying helmets that do not comply with FMVSS No. 218. As discussed above, the combined shell and inner liner thickness are good predictors of how well a helmet will perform in compliance testing. Because the combination of the outer shell and the impact absorbing inner liner are critical determinants of a helmets’ ability to meet the performance requirements of FMVSS No. 218, NHTSA proposes that any helmet whose outer shell and liner are less than 25 mm (1 inch) thick would not comply with FMVSS No. 218. This measurement could be taken using a large caliper. Another method would be to place a helmet on a headform or stand so that the inner liner is seated against that stand, measure the combined height of the helmet and the stand, and then remove the helmet and measure the height of the stand alone. The difference between the two measurements would yield the thickness of the combined shell and liner. Measuring inner liner thickness, or combined shell and inner liner thickness, represents only one component of a test for identifying helmets that do not comply with FMVSS No. 218. NHTSA proposes a second component of this test that involves examining the resistance of helmet liners to crush when low forces are applied. This technique is useful because, as previously explained, novelty helmets have thin, nonsubstantial inner liners that are too soft to absorb energy if they have any liner at all. NHTSA is proposing guidance stating that an inner liner that meets the appropriate thickness requirements but which may be deformed 1⁄12 inch (2 mm) by the application of a force between 1 lbf (4.4 N) and 5 lbf (22 N) distributed over a circle approximately 0.20–0.30 inch (5–7 mm) in diameter is incapable of complying with FMVSS No. 218. The area over which the proposed force would be applied is the diameter of most common pencils. The specified force range of 1 lbf (4.4 N) to 5 lbf (22 N) is sufficient to deform soft liners and may be applied using a weighted probe or a dial indicator force gauge.55 The amount of deformation of the inner liner could be ascertained either by observation or by measurement using a small ruler or use of the force gauge and calipers in combination. By examining and testing novelty and certified helmets, NHTSA has observed the force proposed produces little to no deformation on the impact absorbing liners made of EPS or urethane in helmets meeting FMVSS No. 218, while novelty helmets with thick soft ‘‘comfort’’ liners experience a noticeable degree of deformation. Again, NHTSA requests comments on the means employed to make this measurement. To reduce the possibility of error caused by variations in helmet designs, NHTSA is proposing that the measurements of inner liner thickness, combined helmet/inner liner thickness and inner liner compression characteristics be conducted in a limited area near the crown or apex of the helmet. Helmets providing the minimum level of impact and penetration resistance required to meet FMVSS No. 218 must have a robust shell and liner in this area. In addition, the test area proposed in this document is intended to be located, measured and marked using simple tools that are readily available at low cost. This is best achieved by focusing at the topmost area of the helmet. Finally, it is not NHTSA’s intention to discourage manufacturers from designing helmets with ventilation channels. NHTSA requests feedback about the following issues as they relate to this proposal: • How will the proposed measurements be affected by the presence of ventilation channels? • How will the proposed measurements stand up to the effects of wear and aging on certified motorcycle helmets? • Will compliant motorcycle helmets that are currently manufactured meet the newly proposed performance requirements? • What emerging motorcycle helmet technologies will be affected if this proposal moves forward? The proposal specifies that the measurements of inner liner thickness, combined shell and inner liner thickness and inner liner resilience be made within a circular zone having a 4 inch (104 mm) radius centered at the apex of the helmet. We are proposing the term ‘‘inner liner’’ to mean an energy absorbing material that is molded to conform to the inner shape of the helmet’s shell and serves to protect 55 Mechanical dial force gauges suitable for this measurement may be acquired for approximately $225. An example of one such gauge is found at http://www.wagnerinstruments.com/force_gauges/ fdk_mechanical_dial_force_gauge.php (last accessed on 1/19/12). PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 tkelley on DSK3SPTVN1PROD with PROPOSALS3 29478 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules the user’s head from impact forces during a crash. We are also proposing the term ‘‘apex’’ to mean the upper most point on the shell of the helmet when the helmet is oriented such that that brow opening is parallel to the ground. The agency does not intend that measurements must be made with such precision that they could only be taken at a single point. Instead, we are proposing that measurements be taken within a circle centered on the apex. The center point of this circle need not be precisely located at the single point constituting the ‘‘apex’’ of a helmet. To that end, we solicit comments on using an alternative definition for the topmost area of a helmet, including the use of the term ‘‘crown’’ to designate the measurement area. Alternatively, we also solicit comments on locating the center of the measurement circle within a specified tolerance range—i.e. a 4 inch (104 mm) radius of the actual apex. Once the approximate location of the apex is determined, a flexible cloth tape may be used to measure the outer bounds of the circular measurement area. Alternatively, a circle having a 4 inch (104 mm) radius cut out of a flexible material capable of conforming to the contours of the liner could be employed for the same purpose. Helmet measurements would be made within this circle. NHTSA’s intention is that thickness measurements are made along the shortest line that passes through the helmet to measure the thinnest cross section and avoid artificially inflating the thickness. Therefore, we propose that this measurement be made along a line that is at or near perpendicular to a plane tangent to a point on the outer shell near the apex of the helmet. We are proposing to add to FMVSS No. 218, a figure of an exemplar helmet to demonstrate the general location and meaning of these terms, so the public will know where and how the measurement should be made and a new Table 3 to specify which certification label is required based on the helmet’s manufacture date. NHTSA is also proposing the establishment of an alternative compliance process for manufacturers whose helmets do not meet the aforementioned preliminary screening criteria, to prove that their products are capable of meeting the remaining requirements of Standard No. 218. As noted above, we are proposing this process to ensure that the preliminary screening criteria do not stifle advances in helmet technology and materials. To accomplish this end, the Agency proposes that manufacturers of advanced technology helmets that do VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 not meet the preliminary screening criteria be allowed to petition the agency for a determination that a particular helmet is capable of meeting S5.2–S5.7 (as renumbered) of the Standard. The proposed requirements for such a petition are straightforward and stated in the proposed regulatory section (Appendix B) of this document. Manufacturers of helmets, including importers of helmets, would be eligible to file a petition provided that such manufacturer or importer has identified itself to NHTSA in compliance with 49 CFR part 566 and, in the case of helmets manufactured outside of the United States, the manufacturer of the helmet has designated a U.S. agent for service of process as required by subpart D of 49 CFR part 551 (49 CFR 551.45 et seq.). Petitions must be in writing, be written in English, properly identify the manufacturer of the helmet, provide contact information for the petitioner and identify the precise model and name brand of the helmet at issue. Petitioners would be required to submit test data, photographs, videos, and other evidence establishing that the helmet at issue is capable of meeting the requirements of Standard No. 218 with the exception of the proposed preliminary screening criteria of S5.1. Petitions that are incomplete or fail to comply with any of the foregoing requirements would be rejected. Otherwise, the Agency will seek to inform the manufacturer not later than 60 days after receipt of the written submission, if the information is complete. If the petition is complete, NHTSA’s review of the petition may, at the agency’s discretion, result in subsequent testing of sample helmets. If NHTSA is unable to obtain sample helmets that are the subject of the petition, it will reject the request. If the Agency determines that a particular model helmet that does not comply with the preliminary screening requirements of S5.1 is otherwise capable of meeting Standard No. 218, it will publish this determination in the Federal Register and make a copy of the determination available on the agency’s Web site. The brand name, model and size of any helmet not meeting the preliminary screening requirements of S5.1 that is determined by NHTSA to be capable of meeting Standard No. 218 will be published in an appendix to Standard No. 218 and be made available on the Agency’s Web site. The proposed petition process would also allow for termination or modification of a determination if doing so is in the public interest, if additional PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 information indicates that the determination was erroneous or if the petition was granted on the basis of false, fraudulent or misleading information. If adopted, the petition process proposed here would exist alongside existing provisions that offer similar relief. Manufacturers of motor vehicles and motor vehicle equipment, along with other interested parties, currently have the ability to petition NHTSA to initiate rulemaking to amend a safety standard under 49 CFR part 552. Therefore, a helmet manufacturer that has developed new materials or technologies allowing the use of thinner helmet liners than those currently needed to meet Standard No. 218 could address their inability to meet the proposed preliminary screening requirements through a petition for rulemaking rather than the special petition procedures being proposed in this document. We therefore note that NHTSA may decide that the proposed petition process described above may not be needed and may be deleted from a final rule. NHTSA solicits comments on the proposed petition process in general and the following specific issues related to this portion of our proposal: • Are the existing provisions of part 552 adequate to minimize or alleviate the risk that the proposed preliminary screening requirements for helmets would stifle innovation? • What is the likelihood that new cost effective technologies or materials would allow for helmet liners to meet the performance requirements of Standard No. 218 while not meeting the preliminary screening requirements proposed in this document? • What means should the Agency employ to ensure that helmet users and state and local law enforcement agencies are adequately informed about determinations made under the proposed petition process? V. Effective Date NHTSA is proposing a lead time of two years from the publication of the final rule for manufacturers to comply with the new requirements. Based on NHTSA’s survey of helmets, NHTSA believes that helmets currently sold in the market place will comply with the new screening criteria; however, responsible manufacturers may wish to submit their products to independent laboratories to generate data on which they base their certification. The agency believes that a lead time of two years to be a sufficient and reasonable time to allow the manufacturers the opportunity E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules to recertify their products to the updated regulations. VI. Benefits/Costs To calculate the benefits and costs of this proposed rulemaking, the agency has prepared a Preliminary Regulatory Impact Analysis (PRIA). The results of the PRIA indicate that the proposed rule is cost-effective. The goal of this rule is have motorcyclists wearing novelty helmets switch to FMVSS No. 218certified helmets (certified helmets). Depending on the degree of effectiveness of the rule, the costs and benefits can vary substantially. The benefits and costs of the proposal depend on how many additional motorcycle riders change from wearing novelty helmets to wearing certified helmets in States that have a Universal Helmet Laws beyond the benefits estimated for the final rule that becomes effective on May 13, 2013.56 This NPRM proposes two amendments to FMVSS No. 218 that affect the benefits calculation: Inclusion of a definition of ‘‘motorcycle helmet’’ and the addition of dimensional and compression requirements to identify helmets that, under the current state of the art of helmet design and construction, would not be capable of complying with FMVSS No. 218 because they lack characteristics needed to absorb and dissipate impact energy. The benefit of the proposed definition is seen to the extent that it clarifies and supports the other actions in this proposed rule, and the benefits and costs of such will not be estimated independently in this analysis. The preliminary screening requirements will be beneficial to enforcement. The costs and benefits of the proposal are described in detail in the accompanying PRIA. Behavioral change among motorcycle riders as a result of the rule is difficult to predict. However, the agency believes that this proposal would further improve the ability to enforce helmet laws and that an additional 5 to 10 percent of the novelty helmet users in States that have a Universal Helmet Law would eventually make a switch to avoid being ticketed or fined, and that this is a modest and achievable projection. In addition, the analysis also estimates the maximum potential benefit of the rule which corresponds to a hypothetical scenario of all novelty helmet users in States that have universal helmet laws becoming 218certified helmet users (the 100-percent scenario). Note that this 100-percent scenario is considered theoretical since some novelty-helmeted motorcyclists would still be expected to circumvent the helmet laws by continuing taking the risk of wearing novelty helmets. Therefore, the estimated costs and 29479 benefits for the 100-percent scenario are not used (and not appropriate) for determining the effects of the proposed rule. However, they do indicate the potential savings in social costs that are offered by FMVSS No. 218-compliant helmets and the importance of educating the public to this potential. The following table lists the discounted injury benefits from lives saved and monetized savings. It excludes benefits from non-fatal injuries prevented and any utility lost by novelty helmet riders who switch to FMVSS 218 compliant helmets. Since any such utility is obtained in violation of State law, its status is uncertain. See ‘‘Non-quantified Impacts’’ section of the PRIA for further discussion. The lower bounds represent the savings for the 7 percent discount rate and the higher bounds represent savings for the 3 percent discount rate. In addition to discount rates, the estimated benefit ranges also reflect two different approaches that were used to derive the benefit target population and the injury risk reduction rates as described in the accompanying PRIA. Furthermore, due to great uncertainty in deriving the estimated portion of non-fatal injuries attributed to the head, the benefits attributed to non-fatal head injuries are not quantified in this analysis.57 TABLE 8—DISCOUNTED BENEFITS OF THE PROPOSED RULE [Millions of 2012 dollars] Number of lives saved 5-percent scenario ................................................................... 10-percent scenario ................................................................. 100-percent scenario ............................................................... 9–22 19–43 186–433 Societal economic benefits $3.0–$7.4 6.4–14.4 62.5–145.4 VSL benefits Total benefits from fatalities prevented $92.9–$211.9 185.8–423.9 1,819.3–4,247.4 $95.9–$219.3 192.2–438.3 1,881.7–4,392.7 tkelley on DSK3SPTVN1PROD with PROPOSALS3 VSL: Value of statistical life. Note: The lower bounds represent the estimated benefits at a 7 discount rate and the higher bounds represent the estimated benefits at a 3 percent discount rate. Additionally, the wide range of benefits also reflects the two approaches that were used for deriving the benefit target population and risk reduction rates. The regulatory costs of the proposed rule are derived from the incremental cost increase due to purchasing a 218certified helmet versus a novelty helmet, and the cost of State and local law enforcement acquiring preliminary screening tools. The incremental cost per replaced novelty helmet is estimated to be $48.92. The estimated costs of the proposed rule are based on 5 percent and 10 percent of consumers in Law States replacing novelty helmets with compliant helmets. The estimated consumer cost ranged from $0.6 million to $1.2 million, where 12,150 to 24,300 novelty helmets would be replaced by compliant helmets. Under the maximum benefit scenario in which 100 percent of novelty helmet users would switch to compliant helmets, the incremental cost to consumers is $11.9 million, where 243,000 novelty helmets would be replaced by compliant helmets. The cost of the preliminary screening tool kit is estimated to be $81.43 per kit per year,58 for a total cost of $0.6 million 56 Office of Regulatory Analysis and Evaluation, National Center for Statistics and Analysis, ‘‘Final Regulatory Evaluation: FMVSS No. 218 Motorcycle Helmet Labeling,’’ May 2011, Docket NHTSA– 2011–0050. 57 See Chapter IV, Benefits of the Preliminary Regulatory Evaluation, FMVSS No. 218 Motorcycle Helmet Labeling (Docket No. NHTSA–2011–0050– 0001). Based on 2003–2005 Crash Outcome Data Evaluation System (CODES) data from Maryland, Utah and Wisconsin, and 2005–2007 NASS–GES. 58 A complete kit includes three tools. We estimated the cost is $264.67 per complete kit. The total first year investment in screening tools for the 7,214 State and local law enforcement agencies would be $1.9 million. Because one of the tools would need to be replaced only every five years, one-fifth cost for that specific component was used for estimating for the annual costs of the screening tools. In other words, the difference between the first year cost and the annual cost is the allocation of the tool costs over their useful life. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 29480 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules (assuming each of the 7,214 State and local law enforcement agencies in only the States that require motorcycle helmet use will purchase one screening tool kit). The total regulatory cost of the proposed rule including the cost of novelty helmet replacement and screening tool kits ranged from $1.2 million to $1.8 million. For achieving the maximum benefit (i.e., 100-percent scenario), the estimated total regulatory cost is $12.5 million. TABLE 9—REGULATORY COSTS OF THE PROPOSED RULE [Millions of 2012 dollars] Number of novelty helmets assumed to be replaced 5-percent scenario ................................................................... 10-percent scenario ................................................................. 100-percent scenario ............................................................... Total cost of replacing novelty helmets * 12,150 24,300 243,000 Annual cost of screening tools ** $0.6 1.2 11.9 Total regulatory cost $0.6 0.6 0.6 $1.2 1.8 12.5 * $48.92 per minimally-compliant helmet which replace novelty helmets. ** $81.43 per screening tool kit per year. The net benefit of the proposed rule is the regulatory cost minus the societal economic savings. The societal economic savings is greater than the regulatory cost for all three scenarios. VII. Public Participation How do I prepare and submit comments? Your comments must be written and in English. To ensure that your comments are filed correctly in the docket, please include the docket identification number of this document in your comments. Your comments must not be more than 15 pages long. (49 CFR 553.21) NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB’s guidelines may be accessed at http:// www.whitehouse.gov/omb/fedreg/ reproducible.html. tkelley on DSK3SPTVN1PROD with PROPOSALS3 How do I submit confidential business information? If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit a copy, from which you have deleted the claimed confidential VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 business information, to the docket at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in NHTSA’s confidential business information regulation (49 CFR part 512). name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477–78). Will the Agency consider late comments? NHTSA will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, the agency will also consider comments that the docket receives after that date. If the docket receives a comment too late for the agency to consider it in developing a final rule (assuming that one is issued), the agency will consider that comment as an informal suggestion for future rulemaking action. A. Executive Order 12866 and DOT Regulatory Policies and Procedures How can I read the comments submitted by other people? You may read the comments received by the docket at the address given above under ADDRESSES. The hours of the docket are indicated above in the same location. You may also read the comments on the internet. Please note that even after the comment closing date, NHTSA will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the docket for new material. You can arrange with the docket to be notified when others file comments in the docket. See http://www.regulations.gov for more information. Anyone is able to search the electronic form of all comments received into any of our dockets by the PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 VIII. Rulemaking Analyses and Notices The agency has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation’s regulatory policies and procedures. This rulemaking is economically significant and was reviewed by the Office of Management and Budget under E.O. 12866, ‘‘Regulatory Planning and Review.’’ The rulemaking action has also been determined to be significant under the Department’s regulatory policies and procedures. NHTSA has placed in the docket a Preliminary Regulatory Impact Analysis describing the costs and benefits of this rulemaking action and summarized those findings in Section V titled Benefits/Costs. B. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act of 1980 (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 E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 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 proposed rule under the Regulatory Flexibility Act. Manufacturers not currently producing compliant helmets that switch to manufacturing compliant helmets will recapture the increased costs associated with manufacturing such compliant helmets as reflected in this analysis. Small entities selling motorcycle equipment and accessories would be precluded from selling noncompliant novelty helmets but would still have the ability to obtain and sell compliant helmets from numerous suppliers and wholesalers. Similarly, to the extent that there are any small entities whose business is based solely on the sale of non-compliant novelty helmets, these entities would be able to obtain, market and sell compliant helmets. 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 this proposed 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 rulemaking process. The proposed rule does not directly require a state or local government entity to take any action or refrain from acting. This proposed rule would not alter the relationship between the national government and the States or the distribution of power and responsibilities among the various levels of government. To the extent that any state is impacted by this proposed rule, the principal effect of today’s proposed rule will be to assist mandatory helmet law states in enforcing helmet laws requiring motorcyclists to wear helmets complying with FMVSS No. 218. As noted above, NHTSA consulted with certain state officials regarding enforcement of such laws prior to issuing this proposed rule. The agency has concluded that the rulemaking would not have sufficient federalism VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 implications to warrant further consultation with State and local officials or the preparation of a federalism summary impact statement. 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 nonidentical 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 proposed rule could or should preempt State common law causes of action. The agency’s ability to PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 29481 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 proposed rule and finds that this proposed rule, like many NHTSA rules, prescribes only a minimum safety standard. As such, NHTSA does not intend that this proposed rule preempt State tort law that would effectively impose a higher standard on motor vehicle equipment manufacturers than that established by today’s proposed 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 proposed 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. 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.’’ E:\FR\FM\21MYP3.SGM 21MYP3 29482 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 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 MAR 95, ‘‘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. Paragraph 2 of the definition of ‘‘motorcycle helmet’’ proposed in this document employs compliance with voluntary standards for protective helmets (other than motorcycle helmets) as a means of delineating those helmets that are not motorcycle helmets subject to NHTSA’s jurisdiction. would likely aid in offsetting the costs estimated in this analysis. 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). Adjusting this amount by the implicit gross domestic product price deflator for the year 2012 results in $141 million (115.366/81.602 = 1.414). The assessment may be included in conjunction with other assessments, as it is here. This proposed rule would not result in expenditures by State, local or tribal governments of more than $141 million annually as the Federal government (1) is not requiring States to purchase all of the preliminary screening tools described in the cost section and (2) provides grants to States for other motorcycle safety related programs and Summary of the Collection of Information NHTSA is proposing a new requirement in section 571.218 which would permit manufacturers of motorcycle helmets to petition the agency regarding their belief that their helmet meets the requirements of FMVSS No. 218, excluding the proposed S5.1 which contains preliminary screening requirements. This collection of information would be used by the agency to evaluate the manufacturers’ claims and determine if confirmation testing of their product is warranted. If the information submitted to the agency by the manufacturer together with confirmation testing, shows the helmet that is the subject of the petition can meet the requirement of FMVSS No. 218, the brand, model, and size of the helmet will be added to an appendix in the standard and the information will be published in the docket for public reference. The information would be provided by manufacturers to NHTSA under a reporting requirement that allows them VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 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 procedures established by 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. The proposed rule would require manufacturers of motorcycle helmets to submit a petition and provide data on motorcycle helmets to NHTSA if they wish to utilize the alternative compliance path proposed in this NPRM. In compliance with the PRA, we announce that NHTSA is seeking comment on a new information collection. Agency: National Highway Traffic Safety Administration (NHTSA). Title: 49 CFR 571.218 Motorcycle helmets. OMB Control Number: Not assigned. Form Number: The collection of this information uses no standard form. Requested Expiration Date of Approval: Three years from the date of approval. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 an alternate process in lieu of complying with S5.1(a) through S5.1(c). NHTSA would make the manufacturer’s submission available to the public via the Internet if it can be supported by NHTSA testing. Estimated Annual Burden The total estimated annual burden to manufacturers is based on the cost to manufacturers to review the regulatory text, conduct testing of their products, complete and review the collection of information, and transmitting that information to NHTSA. The cost to review the collection requirement is small. The collection requirement is documented in FMVSS No. 218, Appendix B which will be publicly available through the Internet once the rule is finalized. It is estimated that a management level employee will spend less than one hour reviewing the regulatory text pertaining to the optional reporting requirement. The labor rate for this type of manager is $62.19 per hour 59 to which we have applied a fringe-benefit factor of 0.41 60 and an overhead factor of 0.17 to obtain a fully loaded staff cost per hour of $102.59 for engineering managers. Second, we considered the cost burden imposed by the proposed petition process for motorcycle helmets which requires testing of products. However, testing of products is usual and customary for manufacturers of motorcycle helmets wishing to introduce their products into interstate commerce in the United States. Responsible manufacturers conduct tests during the development phase of their product and again prior to the introduction of their product to market as well as throughout production. Per 49 U.S.C. 30115, manufacturers shall exercise reasonable care in certifying that their equipment complies with applicable FMVSS. This testing often serves, in part, as the basis for exercising reasonable care that their products comply with FMVSS 218. However, the proposed process requests that photographic and video documentation of the testing be provided, which is typically more documentation than is obtained during a standard helmet test. A motorcycle helmet test of four samples is estimated to cost $1,500 and this additional requirement is estimated to cost approximately 7% more than a standard 59 Occupational Employment and Wages, May 2011 for Standard Occupational Classification Code 11–9041 Architectural and Engineering Managers, http://www.bls.gov/oes/current/oes119041.htm, last accessed on May 31, 2012. 60 BLS, Employer Costs for Employee Compensation, May 2010. E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules test, which can be attributed to initial purchase of video recording equipment, and recurring costs associated with recording media, labor to execute the recording, and profit. Since the base cost ($1,500) is considered usual and customary, it will not be factored into the estimated annual burden; yet, the additional burden ($100 for each unique shell/liner combination and model) will be included into the burden for the collection requirement. Next, the cost to complete and review the collection of information is expected to require 15 hours of technical labor which costs $40.17 61/hour to which we have applied a fringe-benefit factor of 0.41 and an overhead factor of 0.17 to obtain a fully loaded staff cost per hour of $66.27 for engineering managers and one hour of fully loaded managerial labor ($102.59/hour) for a total cost of $1,096.64. Finally, the cost to transmit the data to the agency using a contract carrier is expected to be $10. Therefore, the total estimated cost burden to each manufacturer who chooses to pursue this alternative compliance process is $1,206.64 and the total number of burden hours is 16 per company. Given an annual estimate of three respondents, the total cost burden to manufacturers is $3,619.92 and 48 hours. Estimated Annual Cost to the Government The estimated annual cost to the Federal Government is $9,500. This cost includes approximately $4,500 for enforcement testing and approximately $5,000 annually to process, respond to, and publish determinations for the anticipated respondents. tkelley on DSK3SPTVN1PROD with PROPOSALS3 Estimated Number of Respondents Because this option is being included in the NPRM as a means facilitating the introduction of innovative helmet technologies and materials, it is anticipated that approximately three companies will attempt to pursue this option on an annual basis. the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. Please submit any comments to the NHTSA Docket Number referenced in the heading of this document, and to Claudia Covell as referenced in the FOR FURTHER INFORMATION CONTACT section of this document. Employment and Wages, May 2011 for Standard Occupational Classification Code 17–2141 Mechanical Engineers, http://www.bls.gov/ oes/current/oes172141.htm, last accessed on May 31, 2012. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 Old section New section S7.1 S7.1.1 S7.1.2 S7.1.3 S7.1.4 S7.1.5 S7.1.6 S7.1.7 S7.1.8 S7.1.9 S7.1.10 S7.1.11 S7.2 S7.2.1 S7.2.2 S7.2.3 S7.2.4 S7.2.5 S7.2.6 S7.2.7 S7.2.8 S7.3 S7.3.1 S7.3.2 S7.3.3 S7.3.4 S7.2 S7.2.1 S7.2.2 S7.2.3 S7.2.4 S7.2.5 S7.2.6 S7.2.7 S7.2.8 S7.2.9 S7.2.10 S7.2.11 S7.3 S7.3.1 S7.3.2 S7.3.3 S7.3.4 S7.3.5 S7.3.6 S7.3.7 S7.3.8 S7.4 S7.4.1 S7.4.2 S7.4.3 S7.4.4 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 1. The authority citation for part 571 of title 49 continues to read as follows: l. Adding S7.1, S7.1.1, S7.1.2, S7.1.3, and S7.1.4; ■ m. Revising the heading of the Appendix to § 571.218; ■ n. Adding Figure 9 and Table 3 at the end of Appendix A; and ■ o. Adding appendices B and C. The revisions and additions read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95. § 571.218 helmets. PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS ■ 2. Amend § 571.218 by: a. Revising S1; b. Revising S3; c. Adding definitions of ‘‘Apex’’, ‘‘Inner Liner’’, and ‘‘Motorcycle Helmet’’ in alphabetical order in S4; ■ d. Revising S5; ■ e. Redesignating S5.1 through S5.7 as follows: ■ ■ ■ ■ Old section New section S5.1 S5.2 S5.3 S5.3.1 S5.3.2 S5.4 S5.5 S5.6 S5.6.1 S5.7 Comments Are Invited On Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department’s estimate of the burden of the proposed information collection; ways to enhance 61 Occupational j. Revising S6.4.2; k. Redesignating S7.1 through S7.3.4 as follows: ■ ■ I. Regulation Identifier Number (RIN) Imports, Motor vehicle safety, Motor vehicles, Tires. In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as set forth below. 29483 S5.2 S5.3 S5.4 S5.4.1 S5.4.2 S5.5 S5.6 S5.7 S5.7.1 S5.8 f. Adding S5.1; g. Revising S6; h. Revising S6.3.2; i. Revising the introductory text of S6.4.1; ■ ■ ■ ■ PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 ■ Standard No. 218; Motorcycle S1. Scope. This standard establishes minimum performance requirements for motorcycle helmets. * * * * * S3. Application. This standard applies to all motorcycle helmets. S4. * * * Apex means the upper most point on the shell of the helmet when the helmet is oriented such that that brow opening is parallel to the ground. * * * * * Inner liner means an energy absorbing material that is molded to conform to the inner shape of the helmet’s shell and serves to protect the user’s head from impact forces during a crash. * * * * * Motorcycle helmet (1) Except as provided in paragraph (2) of this definition, any hard shell headgear is a motorcycle helmet and an item of motor vehicle equipment if it is either— (A) Manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, E:\FR\FM\21MYP3.SGM 21MYP3 29484 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 or imported into the United States, for use on public streets, roads, and highways with the apparent purpose of safeguarding highway users against risk of accident, injury, or death, or (B) manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States by entities that also manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States either motorcycles, helmets certified to FMVSS No. 218, or other motor vehicle equipment and apparel for motorcycles or motorcyclists, or (C) described or depicted as a motorcycle helmet in packaging, display, promotional information or advertising, or (D) imported into the United States under the applicable designation(s) for motorcycle helmets in the Harmonized Tariff Schedule of the United States. (2) Paragraphs (1)(B), (1)(C), and (1)(D) of this definition do not apply to a helmet that is properly labeled and marked by its manufacturer as meeting a standard (other than a standard for motorcycle helmets) issued or adopted by the U.S. Consumer Product Safety Commission, ASTM International, National Operating Committee on Standards for Athletic Equipment, Snell Memorial Foundation, American National Standards Institute, The Hockey Equipment Certification Council, International Mountaineering and Climbing Federation, SFI Foundation, European Commission CE ´ ´ Marking (CE), or the Federation Internationale de l’Automobile and such labeling and marking and the manner in which it is done are in accordance with that standard. * * * * * S5. Requirements. Except as provided in this paragraph, each helmet shall meet the requirements of S5.1, when tested in accordance with S7.1. Helmets meeting the requirements of S5.1 when tested in accordance with S7.1 shall also meet the requirements of S5.2, S5.3 and S5.4 when subjected to any conditioning procedure specified in S6.4, and tested in accordance with S7.2, S7.3, and S7.4. Helmets shall also VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 meet requirements of S5.5 through and including S5.7. A manufacturer may submit to NHTSA evidence that a helmet model complies with the requirements of FMVSS 218 S5.2 through and including S5.7, despite not meeting the requirements of S5.1 and thereby request to be included in appendix C of this standard. The provisions for submitting such a request can be found in appendix B of this standard. S5.1 Preliminary screening. Each helmet shall have the following characteristics (refer to Figure 9 of appendix A of this standard) when tested in accordance with S7.1: (a) The inner liner, excluding any cloth or fabric liner, is at least 3⁄4 inch (19 mm) thick; and (b) The combined thickness of the inner liner, excluding any cloth or fabric liner, and outer shell is at least 1 inch (25 mm) thick; and (c) The inner liner shall not deform more than 1⁄12 inch (2 mm) when measured in accordance with S7.1.4. * * * * * S6. Preliminary test procedures. Before subjecting a helmet to the testing sequence specified in S7.2, S7.3 and S7.4, prepare it according to the procedures in S6.1, S6.2, and S6.3. * * * * * S6.3.2 In testing as specified in S7.2 and S7.3, place the retention system in a position such that it does not interfere with free fall, impact or penetration. * * * * * S6.4.1 Immediately before conducting the testing sequence specified in S7.2 through S7.4, condition each test helmet in accordance with any one of the following procedures: * * * * * S6.4.2 If during testing, as specified in S7.2.3 and S7.3.3, a helmet is returned to the conditioning environment before the time out of that environment exceeds 4 minutes, the helmet is kept in the environment for a minimum of 3 minutes before resumption of testing with that helmet. If the time out of the environment exceeds 4 minutes, the helmet is returned to the environment for a PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 minimum of 3 minutes for each minute or portion of a minute that the helmet remained out of the environment in excess of 4 minutes or for a maximum of 12 hours, whichever is less, before the resumption of testing with that helmet. * * * * * S7.1 Thickness and inner liner compression test. S7.1.1 The thickness is measured anywhere within a 4-inch (104 mm) radius of the apex of the helmet. S7.1.2 The inner liner is measured by penetrating the helmet liner using a stiff metal probe having a gauge of 26– 30 (nominal outer diameter 0.01825 inch (0.4636 mm)). The probe is inserted until it contacts the inner surface of the shell in a direction that measures the shortest distance along a line that connects a point on the outer shell and the closest point on the inner surface of the inner liner. The depth of penetration of the probe equates to the thickness of the helmet liner. S7.1.3 The combined thickness of the inner liner, excluding any cloth or fabric liner, and the outer shell is measured using an outside dimension caliper that can reach the measurement area without interference with the helmet. One tip of the caliper is placed on a point on the outer shell of the helmet and the other tip of the caliper is placed on the closest point on the inner surface of the inner liner. S7.1.4 The uncompressed thickness of the inner liner is measured in accordance with the procedure in S7.1.2 or the uncompressed thickness of the inner liner and outer shell is measured in accordance with the procedure in S7.1.3. A force gauge having a flat tip of 0.20–0.30 inch (5–7 mm) in diameter is used to apply a compression force of not less than 1 lbf (4.4 N) and not more than 5 lbf (22.2N) to the inner liner adjacent to the area measured for thickness. The compression force is held for 10 seconds and the thickness measurement is repeated at the original location. The thickness measured during compression is subtracted from the initial thickness measured at the original location. * * * * * E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules 29485 TABLE 3—REQUIRED CERTIFICATION LABEL BASED ON HELMET MANUFACTURE DATE DOT Mfr. Name and/or Brand Model Designation DOT FMVSS No. 218 CERTIFIED VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\21MYP3.SGM 21MYP3 EP21MY15.011</GPH> Certification label shall contain the following information Prior to May 13, 2013 .............................................................................................. On or after May 13, 2013 ........................................................................................ tkelley on DSK3SPTVN1PROD with PROPOSALS3 Motorcycle helmet date of manufacture 29486 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS3 Appendix B—Petition in Accordance With the Alternative Compliance Process for Motorcycle Helmets, Section 5 of FMVSS No. 218 S1. Application. This section establishes procedures for the submission and disposition of petitions filed by manufacturers of motorcycle helmets whose products do not meet the requirements of S5.1 and do meet the requirements of S5.2 through and including S5.7, who wish to certify their products in accordance with the alternative compliance process established in S5 of FMVSS No. 218. S2. Form of Petition. (a) Information shall be furnished to: Associate Administrator for Enforcement, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590, Attention: Filing for 218 Motorcycle helmet S5 Alternative compliance Process. (b) Be written entirely in the English language. (c) Each submission shall consist of one set of information, all written information shall be on 81⁄2 by 11-inch paper, visual information shall be provided in printed color photographs, and color videos. (d) Petitions may be submitted by motorcycle helmet manufacturers. (e) Set forth in full the data, photographs, videos, and other documentation supporting the petitioner’s statements and claims required in S4 of this appendix. (f) Test data shall be labeled with the appropriate units cited in the standard. (g) Not request confidential treatment for the contents of the petition. S3. Contents of petition. The petitioner shall provide the following information— (a) State the full name and address of the original equipment manufacturer (petitioner), the name and contact information for a point of contact to which the Agency can direct correspondence, the nature of the petitioning organization (individual, partnership, corporation, etc.) and the name of the State or country under the laws of which it is organized. (b) Identify the motorcycle helmet for which the petition is being submitted. The motorcycle helmet must be identified by manufacturer’s name in accordance with S5.6.1(a), precise model designation per S5.6.2(a)(4), and manufacturer’s name and/or brand per S5.6.2(a)(5) of FMVSS No. 218. The helmet identification provided in the petition must correspond to the information found on the helmet and in the supporting documentation submitted with the petition. (c) The petitioner shall provide evidence of current information on file to facilitate correspondence with NHTSA and procurement of test samples by NHTSA, as applicable, including, but not limited to, part 551 of this chapter, part 566 of this chapter, and compliance with other applicable legal requirements. Valid contact information must be made available. Submission of a petition in accordance with this appendix does not constitute submission of information with respect to any other regulation. (d) Submissions shall be unique and specific to the motorcycle helmet for which VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 a petition is being submitted in accordance with this appendix. The brand and precise model designation must refer to a unique design and fabrication process for a specific motorcycle helmet. The submission shall address every size that will be made available for sale. Information about the differences in each size that will be sold shall be completely described. (e) The basis on which the manufacturer certifies the helmet must be explained and address all aspects of FMVSS No. 218 including data evaluating the helmet to all aspects of FMVSS No. 218. Test protocol(s), calibration records, test dates, information about the testing organization(s), photographs of test locations and test results, videos of the actual testing of the helmet, and any other relevant information must be fully documented. (f) The manufacturer shall provide contact information for the independent testing organization(s) used to collect supporting data and a statement granting the Agency permission to discuss the testing contained in the petition with that testing organization. (g) Photographs and other descriptive characteristics to adequately describe and identify the samples must be provided. Distinguishing features must be identified. Such photographic and descriptive material shall not be copyrighted, shall be of sufficient quality for reproduction, and may be reproduced by the Agency for purposes of disseminating information about the helmets listed in appendix C of this standard. S4. Processing of Petition. (a) NHTSA will process any petition that contains the information and supporting documentation specified by this section. If a petition fails to provide any of the information, NHTSA will not process the petition. (b) The Associate Administrator seeks to review each submission and inform the manufacturer not later than 60 days after its receipt of the written submission, if the information is complete or acceptable. The Associate Administrator does not accept any submission that does not contain all of the information specified in this appendix, or that contains information suggesting that the design or manufacture of the motorcycle helmet which is the subject of the petition does not conform to all aspects of FMVSS 571.218, Motorcycle Helmets, excluding S5.1. (c) At any time during the agency’s consideration of a petition submitted under this part, the Associate Administrator for Enforcement may request the petitioner to submit additional supporting information and data. If such a request is not honored to the satisfaction of the agency, the petition will not receive further consideration until the information is submitted. (d) If the submission is complete, valid, and provides adequate indication that the helmet can comply with S5.2–S5.7 of FMVSS No. 218, NHTSA will contact the manufacturer to obtain samples for testing. NTHSA will procure up to ten identical samples of each size motorcycle helmet for which the manufacturer is submitting a petition. The manufacturer must furnish the helmet positioning index for each size helmet at the time of procurement. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 (e) NTHSA will conduct testing of the helmet, at its discretion, to some or all of the requirements, in accordance with the test procedures established in FMVSS No. 218. If any apparent non-compliances with FMVSS No. 218 are identified, the Associate Administrator shall reject the submission. (f) The Associate Administrator seeks to test samples within six months of receipt. Samples that cannot be procured for any reason will not be tested and the petition will not be granted. Samples will not be returned to the manufacturer. (g) If the submission is accepted, if NTHSA finds no discrepancy with administrative or performance information included in the submission, and if testing performed on behalf of NHTSA is acceptable, the complete submission and NHTSA’s determination will be placed in the docket. Such motorcycle helmets identified by manufacturer, brand (if applicable), precise model designation, and size will be listed in appendix C of this standard. (h) Products manufactured, sold, offered for sale, introduced in interstate commerce, or imported into the United States under the brand and precise model name for which a submission was made must be identical in design, manufacturing processes, materials, and sizes, to those submitted to NHTSA for review. (i) The granting of the petition is valid only: (1) As long as the design and manufacture of the helmet does not vary from the make, model, and size helmet for which the petition was submitted; and (2) While the make, model, and size of helmet are listed in appendix C of this standard. (j) The Associate Administrator terminates or modifies its determination if— (1) Granting the petition is no longer consistent with the public interest and the objectives of the Act; or (2) Subsequent to granting the petition, additional information or testing becomes available to indicate the helmet fails to comply with any requirement of the standard; or (3) Subsequent to granting the petition, additional information or testing becomes available to indicate the helmet may fail to comply with any requirement of the standard and the responsible manufacturer is nonresponsive or fails to comply with his obligations under the law; or (4) Subsequent to granting the petition, additional information or testing becomes available to indicate the helmet poses an unreasonable risk to safety; or (5) The petition was granted on the basis of false, fictitious, fraudulent, or misleading representations or information. (k) The knowing and willful submission of false, fictitious or fraudulent information will subject the petitioner to the civil and criminal penalties of 18 U.S.C. 1001. E:\FR\FM\21MYP3.SGM 21MYP3 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules Appendix C—Motorcycle Helmets That Have Complied With the Alternative Compliance Process for Motorcycle Helmets, Section 5 of FMVSS No. 218 and Must Be Further Certified by the Manufacturer Before Being Manufactured, Sold, Offered for Sale, Introduced Into Interstate Commerce or Imported Into the United States Issued on May 12, 2015 in Washington, DC, under authority delegated in 49 CFR 1.95. Daniel C. Smith, Senior Associate Administrator for Vehicle Safety. [FR Doc. 2015–11756 Filed 5–20–15; 8:45 am] BILLING CODE 4910–59–P tkelley on DSK3SPTVN1PROD with PROPOSALS3 At the time of this notification, there are no motorcycle helmets that meet the alternative compliance process for S5. VerDate Sep<11>2014 21:20 May 20, 2015 Jkt 235001 PO 00000 Frm 00031 Fmt 4701 Sfmt 9990 E:\FR\FM\21MYP3.SGM 21MYP3 29487

Agencies

[Federal Register Volume 80, Number 98 (Thursday, May 21, 2015)]
[Proposed Rules]
[Pages 29457-29487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11756]



[[Page 29457]]

Vol. 80

Thursday,

No. 98

May 21, 2015

Part IV





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; Proposed 
Rule

Federal Register / Vol. 80 , No. 98 / Thursday, May 21, 2015 / 
Proposed Rules

[[Page 29458]]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2015-0045]
RIN 2127-AL01


Federal Motor Vehicle Safety Standards; Motorcycle Helmets

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This document sets forth an interpretation of the definition 
of ``motor vehicle equipment'' in the United States Code, as amended by 
the Moving Ahead for Progress in the 21st Century (MAP-21) Act, and 
requests comments on two proposed changes to the motorcycle helmet 
safety standard, Federal Motor Vehicle Safety Standard (FMVSS) No. 218. 
Continued high levels of motorcycle related fatalities, the ongoing use 
of novelty helmets by motorcyclists and the poor performance of these 
helmets in tests and crashes have prompted the agency to clarify the 
status of such helmets under federal law to ensure that all relevant 
legal requirements are readily enforceable. All helmets that are sold 
to, and worn on the highway by, motorcyclists and that, based on their 
design and/or other factors, have the apparent purpose of protecting 
highway users are motorcycle helmets subject to the jurisdiction and 
standard of the National Highway Traffic Safety Administration 
(``NHTSA'' or ``agency'').
    NHTSA is simultaneously proposing to amend its helmet standard, 
FMVSS No. 218. First, NHTSA is proposing to add a definition of 
``motorcycle helmet.'' Second, we are proposing to modify the existing 
performance requirements of the standard by adding a set of dimensional 
and compression requirements. These requirements and the associated 
test procedures would identify those helmets whose physical 
characteristics indicate that they likely cannot meet the existing 
performance requirements of the standard. Third, we are incorporating 
an optional alternative compliance process for manufacturers whose 
helmets do not comply with the proposed dimensional and compression 
requirements, but do comply with the performance requirements and all 
other aspects of FMVSS No. 218. NHTSA will publish a list of helmets 
that have complied with the alternative compliance process and can 
therefore be certified by their manufacturers. This document is the 
result of the agency's assessment of other actions that could be taken 
to increase further the percentage of motorcyclists who wear helmets 
that comply with the helmet standard.

DATES: You should submit your comments to ensure that Docket Management 
receives them not later than July 20, 2015. The incorporation by 
reference of certain publications listed in the proposed rule is 
approved by the Director of the Federal Register as of May 22, 2017.

ADDRESSES: You may submit comments to the docket number identified in 
the heading of this document by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: 1200 New Jersey Avenue SE., West 
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://www.regulations.gov, including any personal information 
provided. Please see the ``Privacy Act'' heading below.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78) or you may visit http://DocketInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or the street 
address listed above. Follow the online instructions for accessing the 
dockets.
    See the SUPPLEMENTARY INFORMATION portion of this document (Section 
VII.; Public Participation) for DOT's Privacy Act Statement regarding 
documents submitted to the agency's dockets.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact 
Ms. Claudia Covell, Office of Vehicle Safety Compliance (Telephone: 
202-366-5293) (Fax: 202-366-7002). For legal issues, you may contact 
Mr. Otto Matheke, Office of the Chief Counsel (Telephone: 202-366-5253) 
(Fax: 202-366-3820). You may send mail to these officials at: National 
Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., 
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:
I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Need for Regulation
    C. Summary of the Major Provisions of the Regulatory Action in 
Question
    D. Costs and Benefits
II. Background
    A. Increased Motorcycle Related Fatalities and Injuries
    B. Recent Downturns in Motorcyclist Fatalities Do Not Appear To 
Be a Reversal of a Decade-Long Trend
    C. NHTSA's Comprehensive Motorcycle Safety Program and Helmet 
Use
    D. Novelty Helmets
    1. What is a novelty helmet?
    2. Novelty Helmet Use
    E. Safety Consequences of Novelty Helmet Use
    1. Helmet Effectiveness
    2. Novelty Helmet Performance
    3. Real World Injury Risks and Novelty Helmets
    F. Novelty Helmets and the Enforcement of State Helmet Laws
    G. Federal Motor Vehicle Safety Standard No. 218
    H. Recent Amendments to FMVSS No. 218
    I. NHTSA's Compliance Test Program
III. Interpretation--Novelty Helmets Are Motor Vehicle Equipment
IV. Proposed Amendments to FMVSS No. 218
    A. Adding a Definition for Motorcycle Helmet
    B. Proposed Amendments to Performance Requirements
V. Effective Date
VI. Benefits/Costs
VII. Public Participation
VIII. Rulemaking Analyses and Notices

I. Executive Summary

A. Purpose of the Regulatory Action

    The purpose of this regulatory action is to reduce fatalities and 
injuries resulting from traffic accidents involving use of motorcycle 
helmets that fail to meet Federal Motor Vehicle Safety Standard (FMVSS) 
No. 218, Motorcycle helmets. Motorcycle crash-related fatalities are 
disproportionately high, compared as a measure of exposure, among all 
motor vehicle crash fatalities. In part, these fatalities can be 
attributed to the high number of motorcyclists wearing sub-standard 
motorcycle helmets. For example, NHTSA's National Occupant Protection

[[Page 29459]]

Use Survey (NOPUS) has consistently shown that a portion of the 
motorcycling community wears novelty helmets. Specifically, in states 
where use is required for all motorcyclists, between 8-27% of 
motorcyclists have been observed wearing helmets that likely do not 
comply with FMVSS No. 218.1 2
---------------------------------------------------------------------------

    \1\ Motorcycle Helmet Use in XXXX--Overall Results, Traffic 
Safety Facts Research Notes, DOT HS 809 867, 809 937, 810 840, 811 
254, 811 610, and 811 759 available at http://www.nrd.nhtsa.dot.gov/cats/listpublications.aspx?Id=7&ShowBy=Category (last accessed on 5/
14/13).
    \2\ Data represent an aggregation of sampling units located in 
states where use is required for all motorcyclists.
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    These helmets, frequently marketed as ``novelty'' helmets, are 
seldom certified by the manufacturer as meeting Standard No. 218, but 
are sold to, and used by, on-road motorcycle riders and passengers.\3\ 
Data from a study of motorcycle operators injured in crashes and 
transported to a shock trauma center indicates that 56 percent of those 
wearing a novelty helmet received head injuries as compared to 19 
percent of those wearing a certified helmet.\4\
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    \3\ When NHTSA becomes aware that a manufacturer is fraudulently 
certifying non-compliant helmets, the agency can take legal action 
and impose fines on the manufacturer.
    \4\ An Analysis of Hospitalized Motorcyclists in the State of 
Maryland Based on Helmet Use and Outcome, available at http://www.nhtsa.gov/Research/Crashworthiness (last accessed on 04/08/13).
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    These novelty helmets are frequently sold as ``motorcycle novelty 
helmets'' or otherwise marketed to on-road motorcycle riders. However, 
these novelty helmets are usually offered along with a disclaimer that 
the helmet does not meet Standard No. 218, is not a protective device 
or is not intended for highway use. In States where universal helmet 
use laws often require riders and passengers to wear helmets meeting 
Standard No. 218, helmet users wearing novelty helmets often affix 
labels to their helmets that mimic the certification labels applied by 
manufacturers of helmets that are certified as meeting the Standard. 
Consequently, officials attempting to enforce compulsory helmet use 
laws in those States requiring that riders use helmets meeting Standard 
No. 218 currently find it difficult to enforce these laws to prevent 
the use of these novelty helmets.
    In 2011, NHTSA attempted to make it easier for riders and law 
enforcement officials to identify non-compliant helmets by amending 
FMVSS No. 218 to require that all compliant helmets manufactured after 
May 13, 2013 have a certification decal which includes the phrase 
``FMVSS No. 218'', the helmet manufacturer's name or brand name of the 
helmet and the word ``certified.'' The new requirements were intended 
to make decals more difficult to counterfeit. However, this regulatory 
change has not been sufficient to solve the problem. Prior to May 13, 
2013, the certification label requirements of FMVSS No. 218 stated 
simply that the certification label must consist of the letters ``DOT'' 
printed in a specified size range and located in a designated area on 
the rear of helmet. Facsimiles of that earlier label are widely 
available and are often added by ``novelty helmet'' users in mandatory 
helmet law states to their helmets to give them the appearance of a 
compliant helmet certified before the May 2013 change to the labeling 
requirements.
    There are no regulatory limits on the age of motorcycle helmets 
that may be used to comply with a state motorcycle helmet use law. 
Therefore, a helmet user could assert that the wearing of a helmet 
manufactured prior to the May 2013 change to the certification label 
requirements meets the requirements of state helmet laws requiring use 
of an FMVSS No. 218 compliant helmet if the manufacturer properly 
certified the helmet with the three character ``DOT'' label. Until a 
sufficient period of time passes to establish that a helmet bearing the 
older certification label is likely to have not been certified as FMVSS 
No. 218 compliant by the manufacturer, a helmet with the older 
certification label would appear to be a compliant helmet. Novelty 
helmet users will be able to employ the counterfeit versions of the old 
certification label for many years into the future.
    To enhance NHTSA's ability to restrict the sale and subsequent use 
of novelty helmets, as well as assisting State law enforcement 
officials in enforcing laws requiring use of compliant helmets, this 
document contains an interpretation of the definition of ``motor 
vehicle equipment'' as defined by the National Traffic and Motor 
Vehicle Safety Act of 1966 (Safety Act), proposes adding a definition 
of ``motorcycle helmet'' to FMVSS No. 218 consistent with 49 U.S.C. 
30102(a)(7)(C) as amended by the MAP-21 Act, and also proposes 
modifying the existing requirements of Standard No. 218. It is the 
agency's view that adoption of these proposals will reduce fatalities 
and injuries attributable to the use of non-compliant helmets by 
increasing successful prosecutions in mandatory helmet law states, 
reducing the demand for novelty helmets and augmenting NHTSA's ability 
to prevent the importation and sale of non-compliant helmets.

B. Need for Regulation

    Novelty helmets are sold to be worn by motorcycle riders for road 
use. However, these helmets provide little or no head protection in 
crashes. The proposed rule would assist local enforcement agencies in 
determining compliance with their State helmet laws and mitigate the 
fatalities, injuries, and societal costs that are caused by the use of 
improper helmets. The deterrent intent of the proposed rule is similar 
to other enforcement improving approaches such as the improvement of 
counterfeit currency detection.
    NHTSA believes that at least some portion of novelty helmet use 
results from inadequate or asymmetric information, a major indication 
of market failure. Reasons for novelty helmet use may vary, but likely 
include some misjudgment regarding the risk associated with motorcycles 
and false expectations regarding the amount of protection that would be 
provided by some novelty helmet designs. In general, problems of 
inadequate information can be addressed by providing greater 
information to the public. NHTSA has attempted to do this through 
public education materials identifying the significant differences 
between novelty helmets and compliant helmets and expanded test 
programs identifying helmets that failed to meet the performance 
requirements of FMVSS No. 218. In the latter instance, NHTSA found that 
the difficulties and costs associated with attempting to test all the 
helmets in the marketplace could not be sustained. At the same time, 
critics of the expanded test program were quick to note that the 
results were incomplete. Efforts at increased public education 
regarding the risks and characteristics of novelty helmets also did not 
achieve desired results. Neither initiative resulted in any apparent 
reduction in the sale and use of novelty helmets.
    In addition to riders' misperceptions, novelty helmets can be lower 
cost, and some consumers find them to be more comfortable or stylish. 
When consumers choose to wear novelty helmets, it unnecessarily reduces 
their safety and burdens society with an unnecessary diversion of 
economic resources. Roughly three quarters of all economic costs from 
motor vehicle crashes are borne by society at large through taxes that 
support welfare payment mechanisms, insurance premiums, charities, and 
unnecessary travel delay. These costs may be even higher for motorcycle 
riders, who often experience more serious injuries when colliding

[[Page 29460]]

with larger vehicles and without protection from vehicle structures or 
seat belts. NHTSA also believes that this regulation is warranted by a 
compelling public need, specifically, the need for States to properly 
enforce the laws that they have passed in order to promote public 
safety. This proposed rulemaking is designed to enable both the 
identification of novelty helmets and enforcement of these laws. These 
requirements do not force individuals who do not currently wear 
complying helmets to wear complying helmets. Rather, by making it 
easier for law enforcement officials to enforce helmet laws, they make 
it more likely that riders will choose to purchase compliant helmets in 
order to avoid prosecution and fines.
    NHTSA has worked with state law enforcement and safety officials 
for decades. The agency has repeatedly received reports from these 
sources regarding the difficulty of enforcing state helmet laws when 
the state law provides that a helmet must meet FMVSS No. 218. A series 
of court decisions from Washington State illustrate the difficulties 
that local law enforcement agencies face in enforcing mandatory helmet 
laws. These decisions implied that FMVSS No. 218 is a complex 
performance standard intended to apply to helmet manufacturers and not 
to helmet users and did not address the difficulties of proof for law 
enforcement agency to show that a helmet does not meet FMVSS No. 218. 
This proposed rule seeks to remedy this problem by the adoption of 
objective physical criteria which can be employed by helmet users and 
law enforcement officials to determine if a helmet complies with FMVSS 
No. 218.

C. Summary of the Major Provisions of the Regulatory Action in Question

1. Interpretation--Novelty Helmets Are Motor Vehicle Equipment
    NHTSA is issuing an interpretation of the statutory definition of 
``motor vehicle equipment'' as amended by the MAP-21 Act. This 
interpretation sets forth the agency's position on which helmets are 
subject to NHTSA's jurisdiction and, therefore, must meet Standard No. 
218. The original definition of ``motor vehicle equipment'' in the 
Vehicle Safety Act of 1966 did not include protective equipment such as 
motorcycle helmets. In 1970, Congress amended the Safety Act to 
substantially expand the foregoing definition. The 1970 amendment 
changed the definition of ``motor vehicle equipment'' to include ``any 
device, article or apparel . . . manufactured, sold, delivered, offered 
or intended for use exclusively to safeguard motor vehicles, drivers, 
passengers, and other highway users from the risk of accident, injury 
or death.'' In 2012, the MAP-21 Act modified this definition of ``motor 
vehicle equipment'' in two ways. First, the definition was amended by 
specifically adding the term ``motorcycle helmet'' to the description 
of regulated items. Second, the MAP-21 Act amended the definition of 
``motor vehicle equipment'' by replacing the phrase ``. . . 
manufactured, sold, delivered, offered or intended for use exclusively 
to safeguard motor vehicles, drivers, passengers, and other highway 
users . . .'' with ``. . . manufactured, sold, delivered, or offered to 
be sold for use on public streets, roads, and highways with the 
apparent purpose of safeguarding motor vehicles and highway users . . 
.''
    The agency's interpretation of this definition, based on an 
examination of the text of the 2012 MAP-21 amendment and the evolution 
of the original 1970 definition before its enactment as well as its 
legislative history, concludes that Congress meant to grant NHTSA 
authority to regulate motorcycle helmets and that any determination of 
what constitutes motor vehicle equipment must be governed by an 
objective standard and not controlled by the subjective intent of a 
manufacturer or seller. This conclusion is supported by the explicitly 
pronounced Congressional goal of reducing fatalities and injuries 
resulting from the use of helmets that did not provide a minimum level 
of safety. The agency's interpretation further notes the absence of any 
suggestion in the legislative history that Congress meant to have the 
definition negated by subjective declarations of intended use that are 
contrary to an objective measure of actual sale, use and ``apparent 
purpose.''
    By applying the objective criterion of an ``apparent purpose to 
safeguard'' highway users, NHTSA concludes that novelty helmets are 
items of motor vehicle equipment. If a helmet is marketed and sold to 
highway users and has outward characteristics consistent with providing 
some level of protection to the wearer, such a helmet is a ``motorcycle 
helmet'' with the ``apparent purpose'' of protecting highway users from 
harm. It is, therefore, ``motor vehicle equipment.'' Under the 
foregoing circumstances, the addition of a label stating the 
manufacturer's subjective intent that a helmet is ``not protective 
equipment,'' ``not DOT certified,'' or ``not for highway use'' would, 
in NHTSA's view, not be sufficient to conclude that a helmet is not 
``motor vehicle equipment.''
2. Defining ``Motorcycle Helmet''
    This document also proposes adding a definition of ``motorcycle 
helmet'' to Standard No. 218 to effectuate the interpretation of the 
statutory definition of motor vehicle equipment described above. The 
proposed definition seeks to more clearly establish those helmets that 
are required to comply with FMVSS No. 218 by establishing conditions 
dictating which helmets will be considered as being intended for 
highway use.
    NHTSA's proposed definition of ``motorcycle helmet'' establishes 
that ``hard shell headgear'' meeting any of four conditions are 
motorcycle helmets. The criteria relate to the manufacture, 
importation, sale, and use of the headgear in question. First, a helmet 
is a motorcycle helmet if it is manufactured or offered for sale with 
the apparent purpose of safeguarding highway users against risk of 
accident, injury, or death. Under the second criterion, a helmet is a 
motorcycle helmet if it is manufactured or sold by entities also 
dealing in certified helmets or other motor vehicle equipment and 
apparel for motorcycles or motorcyclists. The third proposed criterion 
states that a helmet is a motorcycle helmet if it is described or 
depicted as a motorcycle helmet in packaging, promotional information 
or advertising. The fourth criterion states that helmets presented for 
importation as motorcycle helmets in the Harmonized Tariff Schedule 
would also be motorcycle helmets.
    Because the second, third and fourth criteria may capture helmets 
sold legitimately for off-road use or non-motor vehicle applications, 
NHTSA's proposed definition exempts helmets labeled as meeting 
recognized safety standards for off-highway uses from the proposed 
definition.
3. Proposed Amendments to Performance Requirements
    NHTSA is also proposing modifications to the criteria helmets must 
meet in order to comply with Standard No. 218. The proposal seeks to 
establish in S5.1 (as proposed), a set of threshold requirements to 
distinguish helmets that qualify for testing to the existing 
performance requirements of the Standard in S5.2 through and including 
S5.4. These threshold requirements are hereafter called preliminary 
screening requirements. The preliminary screening criteria proposed in 
S5.1 are dimensional and

[[Page 29461]]

compression requirements that all helmets intended for highway use must 
meet. These preliminary screening requirements identify helmets which, 
under the current state of known technologies, are incapable of meeting 
the minimum performance requirements for impact attenuation currently 
incorporated in FMVSS No. 218. NHTSA is also proposing an alternative 
compliance process by which manufacturers of helmets that do not meet 
the foregoing preliminary screening requirements may submit a petition 
including information and test data to the agency, to establish that a 
particular helmet design is capable of meeting all the requirements of 
Standard No. 218, excluding the preliminary screening requirements.
    The agency proposes to add these preliminary screening requirements 
to alleviate the test burdens of NHTSA's current compliance test 
program. By reducing the complexity of compliance testing, the proposal 
would allow the agency to test more helmet brands and models without 
increased costs. The proposed requirements also address concerns by 
test laboratories that their equipment will be damaged while testing 
sub-standard helmets. Moreover, by establishing a set of physical 
criteria that may be employed to identify non-compliant helmets, these 
proposed requirements will assist in the enforcement of helmet laws 
specifying that motorcycle riders must wear helmets meeting Standard 
No. 218.
    The proposed preliminary screening requirements specify that any 
helmet with an inner liner that is less than 0.75 inch (19 mm) thick 
would be considered incapable of complying with FMVSS No. 218. 
Similarly, any helmet with an inner liner and shell having a combined 
thickness less than 1 inch (25 mm) would also presumably not be able to 
comply with the standard. This document also proposes that any helmet, 
even those with an inner liner meeting the minimum thickness criteria 
or the liner and shell combination meeting the overall thickness, must 
also be sufficiently resistant to deformation to ensure that the liner 
is capable of some level of energy absorption.
    The document also sets forth proposals for measuring compliance 
with the preliminary screening requirements. Inner liner thickness 
could be measured with a thin metal probe. Measuring the combined 
thickness of the outer shell and inner liner could be taken using a 
large caliper or measuring the distance derived by noting the 
difference between the topmost point of a stand supporting the helmet 
and the topmost point of the helmet on the stand. The document also 
proposes that liner deformation be measured after applying force using 
a weighted probe or a dial indicator force gauge. To reduce the 
possibility of error caused by variations in helmet designs, NHTSA is 
proposing that the measurements of inner liner thickness, combined 
helmet/inner liner thickness and inner liner compression 
characteristics be conducted at the crown or apex of the helmet.
    To address concerns that the proposed preliminary screening 
requirements may adversely affect the adoption and development of new 
helmet technologies and materials, the proposed amendments also set 
forth an alternative compliance process, in a proposed Appendix. This 
alternative compliance process provides helmet manufacturers with a 
means to demonstrate that helmets that do not adhere to the preliminary 
screening requirements can otherwise be properly certified and are 
capable of meeting all of the other requirements of Standard No. 218.

D. Costs and Benefits

    The benefits of the proposed rule are based on the use of the 
dimensional and compression requirements and the proposed Appendix as 
criteria to distinguish certified from non-certified motorcycle 
helmets. Behavioral 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 Law would eventually make a switch to avoid being ticketed or 
fined, and that this is a modest and achievable projection. As a 
result, the proposal would save 12 to 48 lives annually. In addition, 
the analysis also estimates the maximum potential benefit of the rule 
which corresponds to a hypothetical scenario of all novelty helmet 
users in States that have universal helmet laws becoming 218-certified 
helmet users (the 100-percent scenario). Under this hypothetical 100-
percent scenario, 235 to 481 lives would be saved. Note that this 100-
percent scenario is theoretical since some novelty-helmeted 
motorcyclists would still be expected to circumvent the helmet laws by 
continuing taking the risk of wearing novelty helmets. Therefore, the 
estimated costs and benefits for the 100-percent scenario are not used 
(and not appropriate) for determining the effects of the proposed rule. 
However, they do indicate the potential savings in social costs that 
are offered by FMVSS No. 218-compliant helmets and the importance of 
educating the public to this potential. The discounted annualized costs 
and benefits are presented below. The numbers exclude benefits from 
nonfatal injuries prevented as well as private disbenefits to riders 
who prefer to wear novelty helmets, but switch to compliant helmets to 
avoid law enforcement. Since these benefits are obtained in violation 
of State law, their status is uncertain. A more detailed discussion of 
this issue is included in the Non-quantified impacts section of the 
PRIA. We are not assuming for this analysis that any novelty helmet 
users in States that do not have Universal Helmet Laws will switch to 
218-certified helmets; however, we note that this may occur if users 
voluntarily make this switch.

                                          Annualized Costs and Benefits
                                          [In millions of 2012 dollars]
----------------------------------------------------------------------------------------------------------------
                                                  Regulatory
                                                     costs              Benefits              Net benefits *
----------------------------------------------------------------------------------------------------------------
                                               3 Percent Discount
----------------------------------------------------------------------------------------------------------------
5-percent scenario............................            $1.2            $109.7-$219.3            $108.5-$218.1
10-percent scenario...........................             1.8              219.3-438.3              217.5-436.5
100-percent scenario..........................            12.5          2,146.3-4,392.7          2,133.8-4,380.3
                                               7 Percent Discount
----------------------------------------------------------------------------------------------------------------
5-percent scenario............................             1.2               95.9-192.2               94.7-191.0
10-percent scenario...........................             1.8              192.2-384.4              190.4-382.6

[[Page 29462]]

 
100-percent scenario..........................            12.5          1,881.7-3,851.3          1,869.2-3,838.8
----------------------------------------------------------------------------------------------------------------
* Excludes benefits from non-fatal injuries prevented and any utility lost by novelty helmet riders who switch
  to FMVSS 218 compliant helmets. Since any such utility is obtained in violation of State law, its status is
  uncertain. See ``Non-quantified Impacts'' section of the PRIA for further discussion.

II. Background

A. Increased Motorcycle Related Fatalities and Injuries

    There is a pressing need for improvements in motorcycle safety. As 
shown in NHTSA's research, motorcycle crash-related fatalities have 
been disproportionately high, compared as a measure of exposure, among 
all motor vehicle crash fatalities. According to the Fatality Analysis 
Reporting System (FARS), motorcyclist \5\ fatalities increased from 
3,270 fatalities in 2002 to 4,612 fatalities in 2011. During this time, 
motorcyclist fatalities as a percent of motor vehicle occupants and 
non-occupants killed in traffic crashes nearly doubled from 8% to 14%. 
Refer to Figure 1.
---------------------------------------------------------------------------

    \5\ ``Motorcyclist'' refers to both motorcycle drivers and 
motorcycle passengers.
[GRAPHIC] [TIFF OMITTED] TP21MY15.008

    In contrast to the total number of passenger vehicle and pedestrian 
fatalities, which have decreased over the past decade, motorcyclist 
fatalities increased significantly. Some claim this is due to increased 
exposure; however, registrations for both motorcycle and passenger 
vehicles have increased over this time period, yet it is only 
motorcyclist fatalities which have risen. In 2011, motorcycles 
accounted for only about 3 percent of all registered vehicles and 0.6 
percent of all vehicle miles traveled (VMT) \6\ yet present themselves 
as a much larger proportion of the overall motor vehicle related 
fatalities due to traffic crashes. Compared with a passenger vehicle 
occupant, a motorcyclist is over 30 times more likely to die in a 
crash, based on VMT.\7\
---------------------------------------------------------------------------

    \6\ In August 2011, starting with 2009 data, FHWA implemented an 
enhanced methodology for estimating registered vehicles and vehicle 
miles traveled by vehicle type. In addition, revisions were made to 
2008 and 2007 data using the enhanced methodology. As a result, 
vehicle involvement rates may differ, and in some cases 
significantly, from previously published rates.
    \7\ Motorcycles: 2011 Data, Traffic Safety Facts, DOT HS 811 
765, available at http://www.nrd.nhtsa.dot.gov/Pubs/811765.pdf (last 
accessed on 5/14/13).
---------------------------------------------------------------------------

    Over the same time period, the number of motorcyclists injured 
increased from 65,000 in 2002 to 81,000 in 2011 accounting for 4 
percent of all occupant injuries.\8\ Simultaneously, the number of 
passenger vehicle occupants injured decreased by 25 percent.\9\

[[Page 29463]]

Compared with a passenger vehicle occupant, a motorcyclist is 5 times 
more likely to be injured, based on VMT.\10\
---------------------------------------------------------------------------

    \8\ Ibid.
    \9\ Traffic Safety Facts 2011, Annual Report Overview, DOT HS 
811 753, available at http://www.nrd.nhtsa.dot.gov/pubs/811753.pdf 
(last accessed on 5/14/13). Based on calculations using data 
provided in Table 1.
    \10\ Motorcycles: 2011 Data, Traffic Safety Facts, DOT HS 811 
765, available at http://www.nrd.nhtsa.dot.gov/Pubs/811765.pdf (last 
accessed on 5/14/13).
---------------------------------------------------------------------------

    The most common fatal injuries sustained by motorcyclists are 
injuries to the head.\11\ Head injuries are common among non-fatal 
injuries as well. A study of data from the Crash Outcome Data 
Evaluation System (CODES) indicates that median charges for 
hospitalized motorcyclists who survived to discharge were 13 times 
higher for those incurring a traumatic brain injury (TBI) compared to 
those who did not sustain a TBI ($31,979 versus $2,461).\12\
---------------------------------------------------------------------------

    \11\ Bodily Injury Locations in Fatally Injured Motorcycle 
Riders Traffic Safety Facts, DOT HS 810 856, available at http://www.nrd.nhtsa.dot.gov/Pubs/810856.pdf (last accessed on 2/1/12).
    \12\ Motorcycle Helmet Use and Head and Facial Injuries: Crash 
Outcomes in CODES-Linked Data, DOT HS 811 208 available at http://www.nrd.nhtsa.dot.gov/Pubs/811208.pdf (last accessed on 1/31/12).
---------------------------------------------------------------------------

    The National Transportation Safety Board (NTSB) has also made a 
similar assessment of the motorcycle safety problem. They issued a 
November 2010 safety alert titled ``Motorcycle Deaths Remain 
High''.\13\
---------------------------------------------------------------------------

    \13\ Motorcycle Deaths Remain High, National Transportation 
Safety Board Safety Alert SA-012, November 2010, available at http://www.ntsb.gov/doclib/safetyalerts/SA_012.pdf (last accessed on 1/31/
12).
---------------------------------------------------------------------------

B. Recent Downturns in Motorcyclist Fatalities Do Not Appear To Be a 
Reversal of a Decade--Long Trend

    Compared to 2010, overall traffic fatalities fell by 2 percent in 
2011. Occupant fatalities fell by 4 percent in passenger cars and, 5 
percent in light trucks. However, occupant fatalities increased by 20 
percent in large trucks and 2 percent on motorcycles. In addition, 
pedestrian fatalities increased by 3 percent and pedalcyclist 
fatalities increased by 9 percent.\14\
---------------------------------------------------------------------------

    \14\ Traffic Safety Facts 2011, Annual Report Overview, DOT HS 
811 753, available at http://www.nrd.nhtsa.dot.gov/pubs/811753.pdf 
(last accessed on 5/14/13). See Table 2.
---------------------------------------------------------------------------

    The 2011 increase in motorcycle occupant fatalities followed a 3 
year period of decline. The agency notes that the 2008, 2009 and 2010 
reductions in fatalities and injuries coincided with a significant 
economic downturn. Past economic downturns have resulted in similar 
declines. The three most notable periods of across-the-board declines 
in overall traffic fatalities, including the current period, coincide 
with the three most significant economic downturns since the early 
1970s. Following the first and second economic downturns, the overall 
number of fatalities nearly rebounded to the previous levels. The 
agency observes that motorcycle occupant fatalities increased slightly 
in 2011 and anticipates that they will likewise rebound as the economy 
improves. Even with the 2008-10 reductions in fatalities and injuries, 
motorcyclist fatalities remain far above 2002 levels.

C. NHTSA's Comprehensive Motorcycle Safety Program and Helmet Use

    NHTSA's comprehensive motorcycle safety program15 16 
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 motorcyclist 
fatalities and injuries and the initiatives for addressing them can be 
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).
---------------------------------------------------------------------------

    \15\ US Department of Transportation Action Plan to Reduce 
Motorcycle Fatalities, October 2007, available at http://www.nhtsa.gov/DOT/NHTSA/Communication%20&%20Consumer%20Information/Articles/Associated%20Files/4640-report2.pdf (last accessed on 1/31/
12).
    \16\ Countermeasures That Work: A Highway Safety Countermeasure 
Guide for State Highway Safety Offices, Sixth Edition (2011), 
February 2011: pp. 5-1 through 5-24, DOT HS 811 258, available at 
http://www.nhtsa.gov/staticfiles/nti/pdf/811444.pdf(last accessed on 
1/21/12).
---------------------------------------------------------------------------

    While a number of factors are believed to account for this increase 
in fatalities, including expanding motorcycle sales, increases in the 
percentage of older riders, and increases in engine size, motorcyclist 
head injuries are a leading cause of death. 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. Because no measure in any of 
the nine areas is a complete solution, the implementation of a measure 
in one area does not eliminate or reduce the need to implement measures 
in the other areas.
    For example, while NHTSA encourages efforts in all areas of the 
motorcycle safety matrix below, including the offering of motorcyclist 
training, such training cannot substitute for wearing a helmet that 
complies with FMVSS No. 218. The results of studies examining the 
effectiveness of motorcyclist training in actually reducing crash 
involvement are mixed.\17\ To argue that taking a motorcycle operating 
course eliminates the need for motorcycle helmets is akin to arguing 
that taking a driver's education course for driving a passenger vehicle 
eliminates the need for seat belts, air bags, padding, and other safety 
equipment in motor vehicles.
---------------------------------------------------------------------------

    \17\ Approaches to the Assessment of Entry-Level Motorcycle 
Training: An Expert Panel Discussion, Traffic Safety Facts Research 
Note, February 2010, DOT HS 811 242, available at http://www.nhtsa.gov/staticfiles/nti/motorcycles/pdf/811242.pdf (last 
accessed on 1/31/12). 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.

[[Page 29464]]



                                 Table 1--NHTSA's Motorcycle Safety Program \18\
----------------------------------------------------------------------------------------------------------------
                                                                                             C-Environmental
                                           A-Human factors           B-Vehicle role             conditions
----------------------------------------------------------------------------------------------------------------
I-Crash Prevention (Pre-Crash)......   Rider Education   Brakes, Tires,   Roadway
                                       & Licensing.              & Controls.              Design, Construction,
                                       Impaired          Lighting &       Operations &
                                       Riding.                   Visibility.              Preservation.
                                       Motorist          Compliance       Roadway
                                       Awareness.                Testing &                Maintenance.
                                       State Safety      Investigations.          Training for
                                       Program.                                           Law Enforcement.
                                       Use of
                                       Protective Gear.
II-Injury Mitigation (Crash)........   Use of            Occupant         Roadway
                                       Protective Gear.          Protection (e.g.,        Design, Construction,
                                                                 helmets, airbags).       & Preservation.
III-Emergency Response (Post-Crash).   Education &       Automatic
                                       Assistance to EMS.        Crash Notification.
                                       Bystander Care.   Data
                                                                 Collection & Analysis.
----------------------------------------------------------------------------------------------------------------

    Mitigating rider injury in crashes through the use of motorcycle 
helmets is a highly effective measure for improving motorcycle safety. 
The steady 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. 
Additional information about helmet effectiveness and the real world 
risk of not using helmets is discussed later in this document.
---------------------------------------------------------------------------

    \18\ Activities shown in italics are either implemented jointly 
with, or conducted by, the Federal Highway Administration.
---------------------------------------------------------------------------

    In November 2010, the NTSB issued a Safety Alert in which that 
agency expressed similar conclusions about the value of increased use 
of helmets that comply with FMVSS No. 218. The Safety Alert said:
     FMVSS No. 218-compliant helmets are extremely effective. 
They can prevent injury and death from motorcycle crashes.
     A motorcyclist without a helmet, who is involved in a 
crash, is three times more likely to sustain brain injuries.
     Wearing a helmet reduces the overall risk of dying in a 
crash by 37%.
     In addition to preventing fatalities, FMVSS No. 218-
compliant 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 has been demonstrated in studies of injuries 
resulting from crashes, as discussed below in the section titled ``Real 
World Injury Risks and Novelty Helmets.''

D. Novelty Helmets

1. What is a novelty helmet?
    Commonly sold with a disclaimer that they are not for highway use, 
certain helmets worn by motorcycle riders are marketed under a variety 
of helmet pseudonyms. Manufacturers and sellers' market them under 
names such as ``novelty motorcycle helmets,'' ``rain bonnets,'' 
``lids,'' ``brain buckets,'' ``beanies,'' ``universal helmets,'' 
``novelty helmets,'' or ``loophole lids,'' and others. Typically, 
novelty helmets cover a smaller area of the head than compliant helmets 
and, because they usually have very thin liners, sit closer to a user's 
head. These helmets lack the strength, size, and ability to absorb 
energy necessary to protect highway users during a crash. Yet, they are 
sold to highway users and used in great numbers by motorcyclists.
    Novelty helmets often display labels stating that they are not 
intended for highway use and are not protective gear. Some examples of 
labels found on novelty helmets NHTSA has examined include:
     WARNING: This is a novelty item and not intended for use 
as safety equipment.\19\
---------------------------------------------------------------------------

    \19\ Hot Leathers model Hawk.
---------------------------------------------------------------------------

     This helmet is a NOVELTY item only and was not made for, 
intended for, nor designated for use as protective headgear under any 
circumstances. The manufacturer disclaims all responsibility if used in 
any manner other than a novelty item.\20\
---------------------------------------------------------------------------

    \20\ Advanced Carbon Composites model Polo Novelty Helmet.
---------------------------------------------------------------------------

     Warning: This novelty helmet is not D.O.T. certified. It 
does not meet ANSI, SNELL or any other American or International Safety 
standards. Do not wear this helmet to operate motorized or non-
motorized street legal or off-road vehicles. Doing so could result in 
death.\21\
---------------------------------------------------------------------------

    \21\ Biltwell Inc. model Novelty Helmet.
---------------------------------------------------------------------------

    Throughout this document, we will refer to these types of helmets 
as novelty helmets.
2. Novelty Helmet Use
    Although use of a properly certified FMVSS No. 218-compliant 
motorcycle helmet can significantly reduce the possibility of death or 
injury in a crash, a significant percentage of motorcyclists either 
wear novelty helmets or do not wear any helmet at all. In fact, 
motorcyclists appear to be forsaking the use of compliant helmets in 
favor of novelty helmets in high numbers in States with universal 
helmet use laws. (See Table 2.)
    In 2011, 20 States and the District of Columbia had helmet use laws 
requiring all motorcyclists to wear helmets. According to a NHTSA 
survey, in States where use is required for all motorcyclists, FMVSS 
No. 218-compliant helmets had an observed use rate of 84%; novelty 
helmets had an observed use rate of 12%; and no helmets were worn by an 
estimated 4 percent of motorcyclists. Comparatively, in the States with 
partial or no helmet use laws, the observed use rate of FMVSS No. 218-
compliant helmets was 50%; 5 percent used novelty helmets; and 45 
percent did not use a helmet at all.\22\ Partial helmet use 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 motorcyclist fatalities.\23\
---------------------------------------------------------------------------

    \22\ Motorcycle Helmet Use in 2011--Overall Results, Traffic 
Safety Facts Research Note, DOT HS 811 610, available at http://www.nrd.nhtsa.dot.gov/Pubs/811610.pdf (last accessed on 5/16/12).
    \23\ Insurance Institute for Highway Safety, Teenagers: Fatality 
Facts 2008, available at http://www.iihs.org/research/fatality_facts_2008/teenagers.html (last accessed on 1/19/12).
---------------------------------------------------------------------------

    Motorcycle helmet use rates in 2011 are presented below in tabular 
form:

[[Page 29465]]



              Table 2--Motorcycle Helmet Use Rates in 2011
------------------------------------------------------------------------
                                           States with a    States with
              Motorcyclists                  universal     partial or no
                                          helmet use law  helmet use law
------------------------------------------------------------------------
Percentage using FMVSS No. 218-compliant              84              50
 helmets................................
Percentage using novelty helmets........              12               5
Percentage not using any helmet.........               4              45
------------------------------------------------------------------------

    These data show that a considerable number of motorcyclists in all 
States are wearing novelty helmets and that novelty helmet use appears 
to be remaining steady over time in States with helmet laws.
    NHTSA believes that some portion of novelty helmet use results from 
inadequate or asymmetric information, a major indication of market 
failure. Reasons for novelty helmet use may vary, but likely include 
some misjudgment regarding the risk associated with motorcycles and 
false expectations regarding the protection that would be provided by 
some novelty helmet designs. In general, problems of inadequate 
information can be addressed by providing greater information to the 
public. As noted above, NHTSA has attempted to do this through the 
dissemination of rider education materials and by publishing the 
results of an intensive expanded compliance test program. The latter 
proved to be ineffective and unsustainable while the former has not 
produced any appreciable results.
    In addition to riders' misperceptions, novelty helmets can be lower 
cost, and some consumers find them to be more comfortable or stylish. 
When consumers choose to wear novelty helmets, they unnecessarily 
reduce their safety and burden society with an unnecessary diversion of 
economic resources. Roughly three quarters of all economic costs from 
motor vehicle crashes are borne by society at large through taxes that 
support welfare payment mechanisms, insurance premiums, charities, and 
unnecessary travel delay. These costs may be even higher for motorcycle 
riders, who often experience more serious injuries when colliding with 
larger vehicles and without protection from vehicle structures or seat 
belts. NHTSA also believes that this regulation is warranted by a 
compelling public need, specifically, the need for States to properly 
enforce the laws that they have passed in order to promote public 
safety. This proposed rulemaking is designed to enable both the 
identification of novelty helmets and enforcement of these laws. These 
requirements do not force individuals who do not currently wear 
complying helmets to wear complying helmets. Rather, by making it 
easier for law enforcement officials to enforce helmet laws, they make 
it more likely that riders will choose to purchase compliant helmets in 
order to avoid prosecution and fines.

E. Safety Consequences of Novelty Helmet Use

1. Helmet Effectiveness
    Motorcycle helmets are at least 37% effective in preventing 
fatalities in motorcycle crashes.24 25 Based on the data for 
2009, the agency estimates that helmets saved at least 1,483 lives in 
that year. In order to employ a matched pair method of analysis, the 
estimates were derived by examining crashes in FARS involving 
motorcycles with two occupants, at least one of whom was killed.\26\ 
NHTSA believes the estimate of 1,483 lives saved by helmet use in 2009 
actually underreports the effectiveness of motorcycle helmets that 
comply with FMVSS No. 218. Because the foregoing estimate examined 
crashes where a helmet was used, whether it complied with FMVSS No. 218 
or not, we believe the inclusion of motorcyclists wearing novelty 
helmets in the ``helmeted'' category of the database diluted the actual 
effectiveness of certified helmets. NHTSA estimates that if there had 
been 100 percent use of FMVSS No. 218-compliant helmets among 
motorcyclists, an additional 732 or more lives could have been saved 
that year.\27\
---------------------------------------------------------------------------

    \24\ Motorcycle Helmet Effectiveness Revisited, Technical 
Report, March 2004, DOT HS 809 715, available at http://www.nrd.nhtsa.dot.gov/Pubs/809715.pdf (last accessed on 1/31/12).
    \25\ Head injuries are not the only cause of crash fatalities. 
When we speak of ``effectiveness'' of helmets in reducing the risk 
of death in fatal motorcycle crashes, all types of injuries suffered 
by riders are included. While it would be useful to know the 
effectiveness of helmets in preventing potentially fatal head 
injuries alone, the purpose of effectiveness as calculated in this 
technical report was to provide a measure of the overall difference 
in survival value in a potentially fatal crash that was attributable 
to the proper use of a helmet.
    \26\ Motorcycle Helmet Effectiveness Revisited, Technical 
Report, March 2004, DOT HS 809 715, available at http://www.nrd.nhtsa.dot.gov/Pubs/809715.pdf (last accessed on 1/31/12).
    \27\ Lives Saved in 2009 by Restraint Use and Minimum-Drinking-
Age Laws, Traffic Safety Fact, September 2010, DOT HS 811 383, 
available at http://www.nrd.nhtsa.dot.gov/pubs/811383.pdf (last 
accessed on 1/31/12).
---------------------------------------------------------------------------

    Data also suggest that unhelmeted motorcyclists suffer 
proportionately more fatal head injuries. A study of death certificate 
information about 8,539 motorcyclists who were fatally injured in 2000, 
2001, and 2002 revealed a direct correlation between head injury and 
helmet use. While about 35 percent of the helmeted motorcyclists who 
died had a head injury, about 51 percent of the unhelmeted 
motorcyclists who died had a head injury. This data was based on the 
National Center for Health Statistics (NCHS) Multiple Cause of Death 
(MCoD) data set that is linked to NHTSA's FARS. The data set includes 
data on all recorded fatalities that occurred in the United States 
during the study period, excluding the 825 fatally injured 
motorcyclists whose death certification information was 
unavailable.\28\ As stated previously, we believe that the benefit of 
helmets in reducing head injury is underreported because the study 
included motorcyclists wearing novelty helmets in the group of helmeted 
riders.
---------------------------------------------------------------------------

    \28\ Bodily Injury Locations in Fatally Injured Motorcycle 
Riders, Traffic Safety Facts, October 2007, DOT HS 810 856, 
available at http://www.nrd.nhtsa.dot.gov/Pubs/810856.pdf (last 
accessed on 1/31/12).
---------------------------------------------------------------------------

2. Novelty Helmet Performance
    Novelty helmets do not provide protection comparable to that 
provided by an FMVSS No. 218-compliant helmet. When NHTSA tested 
novelty helmets using the protocols described in FMVSS No. 218, the 
agency found that they failed all or almost all of the safety 
performance requirements in the standard.\29\ Based on these tests, the 
agency concluded that novelty helmets, despite outward appearances, do 
not protect motorcyclists from both impact or penetration threats, and 
their chin straps are incapable of keeping the

[[Page 29466]]

helmets on the heads of their users during crashes.
---------------------------------------------------------------------------

    \29\ Summary of Novelty Helmet Performance Testing, Traffic 
Safety Facts Research Note, DOT HS 810 752, available at http://www.nhtsa.gov/DOT/NHTSA/Traffic%20Injury%20Control/Studies%20&%20Reports/Associated%20Files/Novelty_Helmets_TSF.pdf 
(last accessed on 1/31/12).
---------------------------------------------------------------------------

3. Real World Injury Risks and Novelty Helmets
    Novelty helmets have been demonstrated to be unsafe in laboratory 
tests and in studies of real world motorcycle crashes. A study of 
motorcycle operators injured during a motor vehicle crash and 
subsequently transported to the R. Adams Cowley Shock Trauma Center 
(STC) in Baltimore, MD was conducted between January 2007 and May 
2008.\30\ During this study, 244 of the 517 patients admitted granted 
consent to have photographs taken of the helmets they were using during 
the crash and the helmets were categorized as either certified or 
novelty.
---------------------------------------------------------------------------

    \30\ Kerns, Timothy and Catherine McCullough, An Analysis of 
Hospitalized Motorcyclists in the State of Maryland Based on Helmet 
Use and Outcome. Paper presented at the 2009 ESV conference, paper 
No. 09-0061, available at http://www.nhtsa.gov/Research/Crashworthiness (last accessed on 4/8/13).
---------------------------------------------------------------------------

    Data for these patients were obtained from the trauma registry, 
hospital discharge records, autopsy reports, and police crash reports, 
and were coded using the Abbreviated Injury Scale \31\ (AIS). The AIS 
is a scoring system that ranks the severity of an injury on a scale 
between 1 and 6. The AIS score is used to determine the threat to life 
correlated to a specific injury, rather than comprehensively evaluating 
the severity of injuries. A score of 1 indicates a minor injury, while 
a score of 6 represents an injury that currently is untreatable and 
extremely difficult to survive. The Maximum Abbreviated Injury Scale 
(MAIS) is the maximum AIS score of injuries sustained.
---------------------------------------------------------------------------

    \31\ The Abbreviated Injury Scale (AIS) 1990 Revision (1998 
Update), Association for the Advancement of Automotive Medicine, Des 
Plaines, IL.
---------------------------------------------------------------------------

    A comparison of head injury and helmet type revealed that 56 
percent (28/50) of those wearing a novelty helmet received a head 
injury (AIS 1-6) as compared to 19 percent (37/194) of those wearing a 
certified helmet. The breakdown of the severity as measured by the Head 
MAIS of motorcycle operators who sustained a head injury is summarized 
below in Table 3.

                                              Table 3--Helmet Use and Head MAIS Among Motorcycle Operators
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Total percent
                            Head MAIS                                  1           2           3           4           5           6        having head
                                                                   (percent)   (percent)   (percent)   (percent)   (percent)   (percent)      injury
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certified (n=194)...............................................           3           4           6           3           3           0              19
Novelty (n=50)..................................................          16          12          16          10           2           0              56
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 3 shows the safety benefit of using FMVSS No. 218-certified 
helmets by the fewer number of head injuries at the levels MAIS 1 
through 4 in crashes that were at least as severe, if not more severe, 
than crashes involving novelty helmets.\32\ The number of patients 
admitted to the STC who sustained a head injury at the MAIS 5 and 6 
levels during the study was low due to the fact that patients with MAIS 
5 or greater injuries are likely to have suffered fatal injuries during 
a crash and are not likely to be admitted to the STC; therefore, this 
study did not measure significant differences in performance of 
certified and novelty helmets at MAIS 5 and 6 levels. Note that these 
injury rates cannot be interpreted as the true protective effects 
(i.e., effectiveness) for these two types of helmets because the study 
did not take into account the respective helmet use rates (i.e., the 
exposure data) and the limited sample size.
---------------------------------------------------------------------------

    \32\ Injury Data collected during Kearns, et al., study 
available at http://www.nhtsa.gov/Research/Crashworthiness (last 
accessed on 04/08/13).
---------------------------------------------------------------------------

F. Novelty Helmets and the Enforcement of State Helmet Laws

    Novelty helmets present particular challenges to State and local 
government authorities seeking to enforce helmet use laws. These laws 
often require that riders use helmets that meet the requirements of 
FMVSS No. 218.\33\ However, because novelty helmets are similar in 
outward appearance to FMVSS No. 218-compliant helmets, successfully 
enforcing a State use law that requires the use of a FMVSS No. 218-
compliant helmet necessitates that enforcement officials do more than 
simply affirm the absence or presence of a helmet when dealing with a 
motorcyclist using a novelty helmet. When a motorcyclist uses a novelty 
helmet in lieu of an FMVSS No. 218-compliant helmet, law enforcement 
officers and hearing officers or judges must have means of determining 
that the novelty helmet does not meet FMVSS No. 218.
---------------------------------------------------------------------------

    \33\ Nineteen states, the District of Columbia, the Northern 
Mariana Islands, Puerto Rico and the U.S. Virgin Islands have a 
universal helmet law, requiring helmets for all riders. Of the 19 
mandatory helmet law states, 17 have laws providing that 
motorcyclists must wear a helmet that complies with FMVSS No. 218.
---------------------------------------------------------------------------

    The certification label required by FMVSS No. 218 is, of course, 
intended to serve as evidence that a helmet is certified by its 
manufacturer to FMVSS No. 218. Unfortunately, counterfeit certification 
labels are widely available. While we expect the recent final rule 
revising the certification label requirements \34\ will make production 
of false certification labels more difficult in the future, nothing 
prevents the continued production and use of counterfeit certification 
labels by motorcyclists intent on using novelty helmets, including 
motorcycle helmets manufactured prior to the effective date of the 
final rule.
---------------------------------------------------------------------------

    \34\ Federal Register Vol. 76, No. 93 page 28132, Friday, May 
13, 2011.
---------------------------------------------------------------------------

    Given the availability of false certification labels, law 
enforcement officials attempting to establish that a novelty helmet 
user has violated a State helmet use law must present evidence in a 
hearing that establishes, in the face of a false certification label, 
that a particular helmet does not meet FMVSS No. 218. This can be a 
difficult burden. Over the years that novelty helmets have been in use, 
NHTSA has been contacted many times by police officers and other state 
enforcement officials that have lost enforcement cases or complained 
about the costs due to the difficulty with demonstrating that a helmet 
does not meet the requirements of FMVSS No. 218.
    FMVSS No. 218 was intended to establish minimum performance 
criteria for helmets. Although compliance with some of the requirements 
of FMVSS No. 218 may be ascertained by visual examination of a helmet, 
establishing whether a particular helmet meets the performance 
requirements of the standard requires specific laboratory tests under 
tightly controlled conditions. It is impractical for State or local law 
enforcement officials to perform such testing in individual

[[Page 29467]]

cases. This discourages law enforcement personnel from issuing 
citations to novelty helmet users. In the event that the helmet user 
chooses to contest the citation, the issuing officer, as well as any 
prosecutors associated with the case, must expend time, energy and 
resources to pursuing a case that they are likely to lose if the trier 
of fact determines that compliance cannot be ascertained without 
testing. Furthermore, while NHTSA does compliance testing of some 
helmets, testing all helmets in the marketplace would be difficult and 
place a heavy burden on the agency's resources.
    NHTSA believes that helmet laws save lives and reduce injuries. The 
use of novelty helmets frustrates full achievement of those goals. 
Effective enforcement of helmet laws therefore requires that State and 
local governments have the means to successfully prosecute violations, 
including cases in which riders are using novelty helmets to create the 
false impression that they are complying with laws that require FMVSS 
No. 218-compliant helmets.
    In the past, NHTSA has been contacted by North Carolina, Nevada, 
New York, and other States seeking objective, measurable criteria that 
could be used to enforce State helmet laws. The best available 
information NHTSA could provide them was a brochure available online 
titled How to Identify Unsafe Motorcycle Helmets.\35\ While conducting 
research to develop the proposals contained in this document of 
proposed rulemaking, the agency contacted Georgia, Washington, and 
California to discuss the criteria and test procedures. All three 
States were supportive of this initiative. As explained in the section 
of this document titled Proposed Amendments to Performance 
Requirements, NHTSA will be seeking official comment about this 
proposal from all States having universal helmet laws.
---------------------------------------------------------------------------

    \35\ How to Identify Unsafe Motorcycle Helmets, HS 807 880, 
September 2004, available at http://www.nhtsa.gov/people/injury/pedbimot/motorcycle/unsafehelmetid/images/UnsafeHelmets.pdf (last 
accessed on 2/29/12).
---------------------------------------------------------------------------

G. Federal Motor Vehicle Safety Standard No. 218

    The purpose of FMVSS No. 218 is to reduce fatalities and injuries 
to motorcyclists resulting from head impacts. FMVSS No. 218 applies to 
all helmets designed for use by motorcyclists and other motor vehicle 
users. Helmets complying with this standard have been demonstrated to 
be a significant factor in the reduction of critical and fatal injuries 
involving motorcyclists in motorcycle crashes.\36\ A further study 
based on impact attenuation test data supports the determination that 
helmets complying with FMVSS No. 218 significantly decrease the risk of 
a fatal head injury.\37\ A manufacturer of a motorcycle helmet must 
certify that the helmet meets or exceeds all of the standard's 
requirements. Those requirements include three performance requirements 
as well as requirements dealing with peripheral vision, projections, 
and labeling.
---------------------------------------------------------------------------

    \36\ Evans, Leonard, and Frick, Michael, ``Helmet Effectiveness 
in Preventing Motorcycle Driver and Passenger Fatalities: Accident 
Analysis and Prevention,'' U.S. Department of Transportation, 
National Highway Traffic Safety Administration, Volume 20, Number 6, 
1988.
    \37\ Docket No.: NHTSA-2011-0050-0002.1 can be accessed at 
http://www.regulations.gov.
---------------------------------------------------------------------------

    FMVSS No. 218 is primarily a performance standard, not a design 
standard. It requires certain physical attributes such as: a minimum 
coverage area, the presence of a chin strap, the location and content 
of the certification and other labels, the specification of the maximum 
size of projections, a minimum range of peripheral vision and the 
requirement that a helmet shell have a continuous contour. However, 
FMVSS No. 218 does not direct that a helmet have a particular 
configuration or design.
    The first of the three principal performance requirements in FMVSS 
No. 218 is that a motorcycle helmet must exhibit a minimum level of 
energy absorbency upon impact with a fixed, hard object. Compliance is 
determined by conducting a series of drop tests at four different sites 
onto two anvils. The impact attenuation requirement limits the 
acceleration levels of the headform and is quantified in units of g, 
gravitational acceleration. The acceleration level relates to the 
amount of force that is transferred through the helmet to the human 
head. FMVSS No. 218 limits the maximum acceleration to a level of 400g 
and limits accelerations exceeding 200g to a cumulative duration of 2.0 
milliseconds and accelerations exceeding 150g to a cumulative duration 
of 4.0 milliseconds.
    The second performance requirement is a penetration test, in which 
a metal striker is dropped 118.1 inches (3 meters) in a guided free 
fall onto a stationary helmet mounted on a headform. To meet the 
performance requirement, the striker may not contact the surface of the 
headform.
    The third performance requirement of FMVSS No. 218 is the retention 
system test. It requires that the retention system, chin strap, or any 
component of the retention system be able to withstand a quasi-static 
load. To meet the performance requirement, the helmet's retention 
system may not break while the loads are being applied and the 
adjustable portion of the retention system may not move more than 1 
inch (2.5 centimeters) during the test.
    The test procedures in FMVSS No. 218 specify the manner in which 
testing will be conducted by any laboratory under contract with NHTSA 
to test helmets. Additional details on how the tests are to be 
conducted are contained in the NHTSA Laboratory Test Procedure for 
FMVSS No. 218 Motorcycle Helmets.\38\
---------------------------------------------------------------------------

    \38\ NHTSA Laboratory Test Procedure for FMVSS No. 218, 
Motorcycle Helmets, May 13, 2011, TP-218-07, available at http://www.nhtsa.gov/staticfiles/nvs/pdf/TP-218-07.pdf (last accessed on 1/
31/12).
---------------------------------------------------------------------------

H. Recent Amendments to FMVSS No. 218

    NHTSA issued a final rule amending FMVSS No. 218 on May 13, 
2011.\39\ These amendments modified labeling requirements, made changes 
to certain test procedures, updated references, and corrected the 
identification of figures incorporated into the standard.
---------------------------------------------------------------------------

    \39\ Federal Register Vol. 76, No. 93 page 28132, Friday, May 
13, 2011.
---------------------------------------------------------------------------

    Among other things, the final rule requires the certification label 
to bear the manufacturer's name and helmet model, as well as the 
statement ``FMVSS No. 218 CERTIFIED.'' The final rule also clarified 
and simplified other labeling requirements, such as permitting the 
certification label to be located on the helmet exterior between 1 and 
3 inches (2.5 to 7.6 cm) from the lower rear edge of the helmet and 
requiring the size to be labeled in a numerical format.
    In addition to these labeling changes, the final rule clarified the 
test procedures for the retention system and impact attenuation tests, 
added tolerances to several parts of the standard, amended the time 
required to condition helmets, and updated a reference and figure 
numbers.
    The final rule stated that the amendments made to FMVSS No. 218 
were issued for two purposes. One was to modify tolerances, test 
procedures, and similar requirements impacting compliance testing. The 
second was to address the increased use of novelty helmets and the 
relative ease of applying false certification labels to novelty 
helmets.
    The final rule \40\ observed that the ability of novelty helmet 
users to attach inexpensive, easy-to-produce and easy-to-obtain labels 
mimicking legitimate

[[Page 29468]]

certification labels frustrated enforcement of helmet use laws. NHTSA 
further noted that widely available false certification labels made it 
difficult to prove that a motorcyclist is evading helmet use laws by 
wearing a novelty helmet that appears to be certified. More 
importantly, the agency noted that the use of novelty helmets puts 
motorcyclists at much greater risk of head injury or death in the event 
of a crash.
---------------------------------------------------------------------------

    \40\ 76 FR 28132, 28138.
---------------------------------------------------------------------------

    In order to make the production and use of fraudulent certification 
labels more difficult the final rule added a number of new requirements 
for certification labels. Instead of the simple three letter symbol 
``DOT,'' the amended label requirements state that the symbol ``DOT'' 
be accompanied by the word ``CERTIFIED'' as well as the phrase ``FMVSS 
No. 218.'' To restrict the use of a ``one size fits all'' certification 
label, the final rule required that the helmet manufacturer's name and/
or brand and the precise model designation of the helmet also appear on 
the certification label.\41\
---------------------------------------------------------------------------

    \41\ 76 FR 28132, 28140-41.
---------------------------------------------------------------------------

    While the 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, based on the 
improved labeling alone, only 5 to 10 percent of motorcyclists using 
novelty helmets in States with universal helmet use laws will switch to 
using compliant helmets. Therefore, the agency acknowledged that more 
is needed to be done to further reduce novelty helmet use by 
motorcyclists. Citing comments by the Governors Highway Safety 
Association that novelty helmet use had become a means of expressing 
displeasure with helmet use laws and evading the operation of such 
laws, NHTSA indicated that it was assessing other actions that should 
be taken to address the marketing and selling of novelty helmets to 
motorcyclists for highway use.\42\
---------------------------------------------------------------------------

    \42\ 76 FR 28132, 28157.
---------------------------------------------------------------------------

    The agency noted the duplicity inherent in marketing or selling a 
novelty version of motor vehicle equipment. For example, the final rule 
observed that manufacturers of seat belts complying with FMVSS No. 209, 
``Seat belt assemblies,'' do not also produce novelty versions of the 
same type of equipment used in motor vehicles, that they declare, 
explicitly or implicitly, are not intended to provide protection and 
therefore are not motor vehicle equipment subject to the FMVSSs. The 
final rule further stated that it was difficult to imagine any 
manufacturer, importer or seller of seat belts arguing that their seat 
belts are not motor vehicle equipment and stating, as novelty helmet 
manufacturers do, that their novelty products are not intended for 
highway use and not designed to provide protection in a crash. As 
explained in the final rule, the notion that an item of safety 
equipment can be transformed into something other than what it is by 
virtue of a disclaimer is absurd. This, in the agency's view, would be 
aptly demonstrated by the disclaimer that might accompany the sale of a 
novelty seat belt:

    ``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.''

NHTSA also observed then, as it does again now, that novelty helmets 
are sold by businesses that also sell motorcycles or motorcycle related 
products, are in widespread use on public highways, and are only 
minimally used for any purpose other than while riding a motorcycle. 
Nonetheless, sellers of novelty helmets attempt to maintain the fiction 
that they are not producing products for highway use by providing 
disclaimers that the helmets they make are for ``display or show,'' not 
intended to be used in motor vehicles and are not designed to provide 
protection in a crash. NHTSA then stated its view that novelty safety 
equipment (having no apparent purpose other than facilitating evasion 
of legal requirements) is an item of ``motor vehicle equipment'' within 
the meaning of the Vehicle Safety Act and is subject to a FMVSS. Since 
they do not comply, it is impermissible to manufacture, import or sell 
novelty helmets in the United States.\43\
---------------------------------------------------------------------------

    \43\ 76 FR 28132, 28158.
---------------------------------------------------------------------------

    Furthermore, the agency explained that ``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,'' 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 a reliable 
indication that the helmet is a compliant helmet. The plausibility of 
such a false indicator of compliance is negated by a lack of critical 
visible physical attributes such as an impact absorbing liner of 
adequate thickness and composition to protect a user in the event of a 
crash, as well as the presence of interior labeling required by FMVSS 
No. 218. 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. This has led the agency 
to propose criteria to assist the public and law enforcement in 
identifying novelty helmets. This proposal is discussed further in the 
section of this document titled Proposed Amendments to Performance 
Requirements.

I. NHTSA's Compliance Test Program

    To help ensure that helmets are properly certified by their 
manufacturers, NHTSA conducts a compliance test program that tests 
approximately 40 different makes and models of helmets each year. The 
helmets are purchased by NHTSA through normal retail channels. Because 
FMVSS No. 218 requires that helmets be tested under four different 
environmental conditions, NHTSA purchases four samples of each helmet 
model. The helmets are then tested by test laboratories under contract 
with the agency. Currently, testing of a particular model of helmet 
costs approximately $2,000.00.
    The appearance of novelty helmets in the marketplace and their 
increasing use creates a number of challenges for NHTSA that are 
relevant to the agency's test program. First, although novelty helmets 
are typically not manufactured or sold with certification labels 
attesting that they comply with Standard No. 218, novelty helmets with 
certification labels have appeared in the marketplace. Second, as 
stated elsewhere in this document, the agency is proposing to add a new 
definition of

[[Page 29469]]

``motorcycle helmet'' to FMVSS No. 218 that is intended to focus on the 
sale and use of helmets as determinants of their intended use. If 
adopted, this new definition will expand the universe of helmets 
subject to NHTSA testing to include novelty helmets. Because production 
of novelty helmets is, when compared to FMVSS No. 218 compliant 
helmets, relatively simple and inexpensive, there appear to be many 
manufacturers and importers of novelty helmets.
    Responding to consumer concerns and inquiries from law enforcement 
about the difficulties in distinguishing compliant helmets from non-
compliant helmets, NHTSA embarked on an expanded test program in 1994 
with the goal of providing more comprehensive coverage of the existing 
helmet market. This expanded test program illustrated the difficulties 
inherent in attempting to perform full FMVSS No. 218 testing on a wide 
range of helmets. Resource constraints prevented the agency from 
testing all of the helmets in the program under the four environmental 
conditions specified in the standard. The agency also found it 
difficult to procure all helmets in the marketplace and was criticized 
for failing to do so. Finally, the poor performance of novelty helmets 
in impact testing proved not just to be an ample demonstration of the 
threat they pose to users, but also had serious consequences for the 
test equipment used to assess performance. Due to concerns about 
damaging expensive test equipment in novelty helmet impact testing, 
laboratories contracting with NHTSA became reluctant to test novelty 
helmets or refused to do so.

III. Interpretation--Novelty Helmets Are Motor Vehicle Equipment

    Congress passed the National Traffic and Motor Vehicle Safety Act 
of 1966 (Safety Act) with the express purpose of reducing motor vehicle 
accidents and injuries.\44\ To promote this end, the Safety Act 
provided for the establishment of motor vehicle safety standards for 
motor vehicles and equipment in interstate commerce. 15 U.S.C. 1381 
(1988 ed.). The Safety Act empowered the Secretary of the Department of 
Transportation to establish motor vehicle safety standards for motor 
vehicles and motor vehicle equipment. 15 U.S.C. 1392(a) and 1407 (1988 
ed.) (codified without substantive change as 49 U.S.C. 30107 and 49 
U.S.C. 30111 (2006 ed. and Supp. III)).
---------------------------------------------------------------------------

    \44\ S. Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966), U.S. Code 
Cong. & Admin. News 1966, p. 1; Conf. Rep. No. 1919, 89th Cong., 2d 
Sess. 1 (1966).
---------------------------------------------------------------------------

    ``Motor vehicle equipment'' was defined in the Safety Act as ``any 
system, part, or component of a motor vehicle as originally 
manufactured or any similar part or component manufactured or sold for 
replacement or improvement of such system part, or component or as any 
accessory or addition to the motor vehicle.'' 15 U.S.C. 1391(4) (1988 
ed.) Given that satisfaction of that definition was predicated on the 
existence of a motor vehicle which would be improved or enhanced by the 
equipment at issue, items that were not incorporated into vehicles or 
were accessories for a vehicle were not motor vehicle equipment. 
Therefore, when enacted in 1966, the Safety Act's definition of ``motor 
vehicle equipment'' did not include protective equipment such as 
motorcycle helmets.
    In 1970, Congress amended the Safety Act of 1966 to substantially 
expand the definition of ``motor vehicle equipment'' to include 
motorcycle helmets and other protective equipment that did not meet the 
originally enacted definition of the term. The existing definition of 
``motor vehicle equipment,'' was expanded beyond motor vehicle 
components to include ``any device, article or apparel not a system, 
part, or component of a motor vehicle (other than medicines, or 
eyeglasses prescribed by a physician or other duly licensed 
practitioner) which is manufactured, sold, delivered, offered or 
intended for use exclusively to safeguard motor vehicles, drivers, 
passengers, and other highway users from the risk of accident, injury 
or death.'' \45\
---------------------------------------------------------------------------

    \45\ Public Law 91-265, 84 Stat. 262 (May 22, 1970).
---------------------------------------------------------------------------

    In 1994, the National Traffic and Motor Vehicle Safety Act, 15 
U.S.C. 1381 et seq., was codified without substantive change as 49 
U.S.C. Chapter 301--Motor Vehicle Safety. Section 1391(4) was 
redesignated as section 30102(a)(7)(C). In the codified form, the 
section defines Motor vehicle equipment to include devices, articles 
and apparel ``manufactured, sold, delivered, offered, or intended to be 
used only to safeguard motor vehicles and highway users against risk of 
accident, injury, or death.''
    This definition of ``motor vehicle equipment'' was again amended by 
Congress in 2012. Specifically, MAP-21 amended this phrase to 
specifically state that motorcycle helmets are motor vehicle equipment. 
The definition now directs that motor vehicle equipment includes ``. . 
. any device or an article or apparel, including a motorcycle helmet 
and excluding medicine or eyeglasses prescribed by a licensed 
practitioner.'' The MAP-21 amendment further refined the definition by 
replacing the term ``intended for use only'' with the term ``apparent 
purpose.'' As enacted, this definition defines ``motor vehicle 
equipment'' as ``any device or an article or apparel, including a 
motorcycle helmet and excluding medicine or eyeglasses prescribed by a 
licensed practitioner, that . . . is not a system, part, or component 
of a motor vehicle; and . . . is manufactured, sold, delivered, or 
offered to be sold for use on public streets, roads, and highways with 
the apparent purpose of safeguarding motor vehicles and highway users 
against risk of accident, injury, or death.''
    The 1970 expansion of the definition of ``motor vehicle equipment'' 
and the MAP-21 amendments confirm that Congress provided NHTSA with 
jurisdiction over motorcycle helmets used on public highways. By 
specifically including ``motorcycle helmets'' and replacing the phrase 
``intended to be used only to safeguard'' highways users with the 
phrase ``apparent purpose of safeguarding'' highway users, the 2012 
amendment further clarifies the scope of what constitutes ``motor 
vehicle equipment'' under the Safety Act. This modification indicates 
that Congress did not want the definition of motor vehicle equipment to 
turn on the question of ``intent'' to safeguard users, which could be 
either the subjective intent of a manufacturer or an objective 
assessment of intent based on the circumstances of marketing and sale. 
By choosing to employ the words ``apparent purpose to safeguard'' 
highway users, Congress indicated that decisions about what constitutes 
motor vehicle safety equipment are to be governed by an objective 
examination of the facts and circumstances of the marketing, sale, use 
and physical characteristics of the item at hand. More importantly, the 
specific inclusion of ``motorcycle helmet'' as the only example of 
motor vehicle equipment indicates that Congress intended to include 
every helmet that can reasonably be considered such a helmet. Nor did 
Congress want the word ``only'' to insulate from the Act's reach any 
type of equipment that arguably has more than one possible use. The 
specific inclusion of ``motorcycle helmet'' in the Act's definition 
clearly signals, along with these other changes, that Congress intended 
to include all items with that apparent purpose.
    The ``apparent purpose'' test employed by Congress indicates that

[[Page 29470]]

motorcycle helmets, including ``novelty'' helmets, are items of motor 
vehicle equipment. Focusing on objective evidence, if a helmet is, 
based on its design, such that it would be used by a person while 
riding on a motorcycle to provide some level of protection, its 
apparent purpose is to safeguard that rider. It would therefore 
properly be an item of motor vehicle equipment. If it is offered for 
sale as a motorcycle helmet but the manufacturer or seller disclaims 
that it provides any protection, its apparent purpose remains the same. 
In other words, the apparent purpose of the helmet as a protective 
device outweighs a manufacturer's stated purpose to the contrary when 
defining a motorcycle helmet as motor vehicle equipment. If it is worn 
by ordinary motorcycle riders while riding a motorcycle on the highway 
or in the immediate vicinity of a motorcycle before or after riding 
one,\46\ it is a ``motorcycle helmet'' whose apparent purpose is to 
provide protection in a crash. Such a helmet is therefore an item of 
motor vehicle equipment.\47\
---------------------------------------------------------------------------

    \46\ Such use is incidental to the wearing of the helmets by 
persons riding on motorcycles.
    \47\ We note that a novelty helmet meets all three of those 
tests.
---------------------------------------------------------------------------

    Furthermore, a manufacturer's addition of a label stating that a 
helmet is ``not for highway use'' would not be sufficient to overcome 
objective evidence regarding its apparent purpose (use while on the 
highway) and take a novelty helmet out of the ambit of ``motor vehicle 
equipment.'' By amending the definition of motor vehicle equipment to 
delete the words ``intended'' and ``only'' and to focus on the 
``apparent purpose'' of safeguarding users, Congress indicated that the 
definition of motor vehicle equipment should not be controlled by 
subjective statements in which a manufacturer denies any intention of 
protecting wearers of the product from injury. NHTSA sees no reason to 
conclude that Congress would give any greater weight to similar 
subjective expressions of intent regarding highway use. Instead, we 
believe that Congress meant for the question of whether a product is 
manufactured or sold for highway use to be resolved by an objective 
examination of the facts.
    If a helmet is manufactured by a company that produces safety 
equipment for drag racers, the helmet is promoted for racing use and is 
sold by entities that serve racers, the objective facts and 
circumstances indicate that such a helmet is not manufactured, sold, 
delivered, or offered to be sold for highway use and not subject to 
NHTSA's jurisdiction. However, if a helmet is promoted and advertised 
for purchase by highway users, is sold in outlets catering to highway 
users and is worn by highway users, an objective examination of these 
facts compels the conclusion that the helmet was sold for highway use 
regardless of any manufacturer disclaimers to the contrary. This is a 
sensible position and one that the agency concludes is wholly 
consistent with Congressional intent and the text of the Safety Act as 
modified by MAP-21.

IV. Proposed Amendments to FMVSS No. 218

A. Adding a Definition for Motorcycle Helmet

    The agency is proposing to add a definition of ``motorcycle 
helmet'' to section S4 of FMVSS No. 218 to effectuate the 
interpretation of the statutory definition of motor vehicle equipment 
described in Section III of this document and help ensure that helmets 
being used by motorcyclists on highways meet the minimum performance 
standards set forth in FMVSS No. 218.
    Neither the Safety Act nor NHTSA's regulations currently provide a 
precise definition of what constitutes a motorcycle helmet. FMVSS No. 
218 currently states that regulated helmets are those helmets designed 
for highway use. Section S1 of FMVSS No. 218 states that the standard 
establishes minimum performance requirements for helmets designed for 
use by motorcyclists and other motor vehicle users. Section S3, stating 
what the standard applies to, sets forth that the standard applies to 
all helmets designed for use by motorcyclists and other motor vehicle 
users.
    The term ``motorcyclist'' is not defined by the Safety Act. Under 
the term's ordinary meaning, a ``motorcyclist'' is an operator or 
passenger of a motorcycle.\48\ As employed in FMVSS No. 218, a 
``motorcyclist'' is a user of a ``motor vehicle.'' As the term ``motor 
vehicle'' is restricted under the Safety Act to those vehicles 
``manufactured primarily for use on public streets, roads, and 
highways,'' the existing statutory and regulatory text defines 
motorcycle helmets as helmets designed for use by motorcyclists and 
other motor vehicle users. Accordingly, helmets designed for use by 
motorcyclists and other motor vehicle users are helmets manufactured 
primarily for use on public highways. Manufacturers, sellers and, to a 
degree, buyers of novelty helmets are well aware of the implications of 
these terms. There is little question that novelty helmets are marketed 
and sold to ``motorcyclists''--operators and passengers of motorcycles. 
However, by designating these helmets as ``not for highway use,'' 
notwithstanding their well-known highway use, manufacturers and sellers 
of novelty helmets are attempting to circumvent their legal 
responsibilities.
---------------------------------------------------------------------------

    \48\ A motorcycle is a vehicle with motive power having a seat 
or saddle for the use of the operator and designed to travel on not 
more than three wheels in contact with the ground. 49 CFR 571.3. Any 
vehicle with three or fewer wheels manufactured for use on public 
streets, roads, and highways including motor scooters, mopeds, and 
3-wheeled trikes, are therefore motorcycles.
---------------------------------------------------------------------------

    Although NHTSA believes, as explained more fully in the section of 
this document titled Interpretation--Novelty Helmets are Motor Vehicle 
Equipment, that novelty helmets are presently within the scope of FMVSS 
No. 218 because they are intended for use by motorcyclists and are in 
fact used by them on the highway, we are proposing to add a new 
definition of motorcycle helmet to FMVSS No. 218 section S4 to make 
clear that the stated intent of a manufacturer in designing a helmet is 
not the determinant of whether a helmet is intended for highway use. A 
broader examination of relevant factors is necessary where, as here, 
the stated intent regarding the use of the product is inconsistent with 
the actual use of the product, as well as the manner in which it is 
marketed and sold. Further, we are proposing to adopt this definition 
contemporaneously with other proposed amendments discussed below, to 
provide law enforcement officers, end users of motorcycle helmets, and 
hearing officers or judges with objective characteristics allowing them 
to distinguish helmets that are certified to FMVSS No. 218 from novelty 
helmets. The agency also believes that adding a definition and other 
provisions proposed in this document will assist States with helmet use 
laws, to more effectively enforce those laws.
    Although the agency remains concerned that manufacturers may tailor 
their efforts to avoid NHTSA's enforcement efforts, we believe that 
focusing on the marketing, promotion and sale of helmets provides an 
important and legitimate means of distinguishing motorcycle helmets 
from other protective helmets. Marketing, promotion and sales materials 
are important objective indicia of the intended use of a product and 
this definition employs an eminently practical set of tests by 
examining who is selling the product and the use it is being sold for. 
If a helmet is sold by

[[Page 29471]]

entities selling other products for motorcyclists, then it follows that 
the helmet is intended for use by those same motorcyclists. If, when 
viewed by a reasonable observer, the helmet is promoted or displayed as 
suitable for uses including use as a motorcycle helmet, then it 
similarly follows that the helmet is actually made and sold as a 
motorcycle helmet. Of course, the agency recognizes that helmets of all 
kinds may be sold by entities that sell motorcycle equipment and 
accessories as well as a variety of other products. Marketing and 
promotion materials may also be broad or enigmatic. To clarify the 
definition and prevent the operation of the presumption when 
inappropriate, the definition also states that helmets within the scope 
of subsections (1)(B) and (1)(C) would not presumptively be a 
motorcycle helmet when it is certified by a recognized body for use as 
protective gear for purposes other than as a motorcycle helmet or is 
permanently labeled as not intended for highway use.
    NHTSA believes that including helmets worn by motorcyclists using 
public highways is supported by the expanded definition of motor 
vehicle equipment adopted by Congress in 1970 and the recent MAP-21 
amendments. As we interpret that definition, the manner of actual use 
is compelling objective evidence of the intended use of a product 
regardless of any disclaimers issued by a manufacturer or seller. 
Nonetheless, the agency has tentatively decided not to propose 
incorporating this criterion in the definition of motorcycle helmet. 
This tentative determination is based on the current lack of data 
regarding which helmets are actually being used on public highways. As 
stated elsewhere in this document, if NHTSA were to adopt an actual use 
component in the definition of motorcycle helmet, the agency would not 
consider incidental use as evidence that a particular type of helmet is 
a motorcycle helmet. Instead, only those helmets being used on-road by 
a sufficient number of motorcyclists would be considered as evidence 
that the helmet being worn is intended for highway use.
    Although NHTSA has tentatively decided not to include a use-based 
criterion in the definition of ``motorcycle helmet'' the agency may 
include such a provision in the definition contained in the final rule. 
The agency therefore requests comments on including a provision in the 
final rule that helmets used on the highways are motorcycle helmets and 
motor vehicle equipment under the Safety Act.
    NHTSA's proposed definition of ``motorcycle helmet'' establishes 
that ``hard shell headgear'' meeting certain conditions are motorcycle 
helmets. As employed in the definition, hard shell headgear refers to 
headgear that retains its shape when removed from the user's head, 
whether or not covered by a decorative surface such as leather. ``Hard 
shell'' distinguishes motorcycle helmets from other non-hard shelled 
headgear such as soft caps and bandannas that are also used by 
motorcyclists on road. If an item of headgear meets this threshold 
requirement, additional criteria are employed to determine if the item 
is a motorcycle helmet.
    The criteria relate to the manufacture, importation, sale, and use 
of the headgear in question. First, a helmet is a motorcycle helmet 
under subsection (1)(A) if it is manufactured for sale, sold, offered 
for sale, introduced or delivered for introduction in interstate 
commerce, or imported into the United States, for use on public 
streets, roads, and highways with the apparent purpose of safeguarding 
highway users against risk of accident, injury, or death. The apparent 
purpose of a product stems from its essential physical characteristics 
such as the size, shape, design and general appearance of the helmet. 
For example, a small bicycle with small diameter wheels and a 
correspondingly small frame would have the apparent purpose of being 
used by a child for short distances on sidewalks and driveways. 
Conversely, a bicycle with large wheels and a large frame would have 
the apparent purpose of being used by an adult on roads and highways. 
In the case of helmets, an unperforated hard shell helmet with a chin 
strap or retention system would have the apparent purpose of being a 
protective motorcycle helmet. If that helmet also has snaps for 
attaching a visor or face shield, the apparent purpose becomes even 
clearer. Further, if such a helmet is similar to helmets certified by 
their manufacturers as meeting the requirements of FMVSS No. 218, the 
helmet would have the apparent purpose of being a protective helmet.
    Under subsection (1)(B) a helmet is a motorcycle helmet if it is 
manufactured, sold, introduced into interstate commerce, or imported by 
entities also manufacturing, offering, selling or importing certified 
helmets or other motor vehicle equipment and apparel for motorcycles or 
motorcyclists. Under this standard, if a helmet is manufactured, 
imported, sold, offered for sale or introduced into interstate 
commerce, or imported into the United States, by entities that 
undertake the same activities for other products, services or goods 
used by on-road motorcyclists, the apparent purpose of the helmet is 
on-road use and the helmet is a motorcycle helmet. Proposed subsection 
(1)(C) states that a helmet is a motorcycle helmet if it is described 
or depicted as a motorcycle helmet in packaging, display, promotional 
information or advertising. This criterion is met if the helmet is 
described or depicted as a motorcycle helmet in packaging, display, 
promotional materials or advertising. Such materials may include 
obvious characteristics such as the word ``motorcycle'' in a 
description of the helmet or more subtle factors such as a depiction of 
a user who is also wearing goggles, sunglasses, or other protective 
clothing or gear normally worn by motorcyclists.
    Subsection (1)(D) states that helmets presented for importation 
under applicable designation(s) for motorcycle helmets in the 
Harmonized Tariff Schedule of the United States would also be deemed to 
be on-road motorcycle helmets. This fourth criterion relates to the 
manner in which imported goods enter the United States and would 
specify that any helmet imported into the United States under the 
designations reserved for motorcycle helmets in the Harmonized Tariff 
Schedule of the United States (HTS) is intended for highway use. The 
HTS, which replaced former US Tariff Schedules, was enacted by Congress 
and made effective on January 1, 1989. The HTS establishes a 
hierarchical structure for describing all imported goods for duty, 
quota, and statistical purposes. The United States International Trade 
Commission (USITC) maintains and publishes the HTS, which is enforced 
and interpreted by the Bureau of Customs and Border Protection of the 
Department of Homeland Security.\49\
---------------------------------------------------------------------------

    \49\ Depending on the materials used in their construction, 
motorcycle helmets are currently found in 6506.10.3030, HTSUS, or 
subheading 6506.10.6000, HTSUS.
---------------------------------------------------------------------------

    NHTSA recognizes that some helmet manufacturers, importers and 
sellers produce, sell or import a variety of helmets for various 
purposes and uses. Therefore, that retailer might sell motorcycle 
helmets, ski helmets, bicycle helmets, mountaineering helmets and other 
protective headgear for off-highway uses. A manufacturer or importer 
may produce helmets certified as meeting Standard No. 218 but may also 
produce helmets for racing or other motorsports that are not certified 
to that standard. Unlike ``novelty helmets,''

[[Page 29472]]

such racing helmets may provide significantly more impact protection 
than required by Standard No. 218, but for a variety of reasons related 
to their specialized use, are not certified as meeting Standard No. 
218. We also note that the current version of the Harmonized Tariff 
Schedule contains two classifications for motorcycle helmets but 
neither of these classifications distinguishes between helmets intended 
for highway use and those imported for legitimate off-road uses. NHTSA 
is therefore proposing additional language that would address the 
legitimate concerns of manufacturers, importers and sellers of helmets 
that are imported for legitimate off-road uses.
    Our proposed definition would exclude helmets designed and 
manufactured to, and labeled in accordance with other recognized helmet 
standards. For example, football helmets marked as complying with the 
National Operating Committee on Standards for Athletic Equipment 
(NOCSAE) or ASTM International ASTM F717-10 football helmet standards 
meet the exception clause included in the definition. Similarly, hockey 
helmets marked as complying with ASTM International ASTM F1045-07 or 
Hockey Equipment Certification Council (HECC) hockey helmet standards 
would not be motorcycle helmets.
    Subsection (1)(A) couches the acts of manufacturing, selling, 
offering or introducing into interstate commerce, or importing into the 
United States, as being gauged by the ``apparent purpose'' of 
safeguarding highway users from death or injury. Deriving the apparent 
purpose involves looking to the essential physical characteristics of 
the item involved. Moreover, even though a manufacturer or seller of a 
novelty helmet may declare that the helmet is not ``DOT Certified'' or 
is ``Not a Safety Device,'' these products are sufficiently similar to 
helmets that actually do provide protection that both users and 
reasonable observers might conclude that they provide some degree of 
protection against impact. Subsections B and C also follow the language 
used by Congress in the MAP-21 and 1970 amendments. In this instance 
the actions of manufacturing, offering and selling are framed by the 
manner in which products are sold. The surrounding circumstances used 
to assess the apparent purpose of the product are found in the acts of 
making or selling other goods and services intended for use by 
motorcyclists or in promoting the helmet. If one sells a helmet in 
venues offering other products that motorcyclists use on public 
highways, it is objectively reasonable to conclude that the helmet at 
issue is also intended for this use. It is also objectively reasonable 
to conclude that a product depicted as a motorcycle helmet in 
promotional materials or packaging is also meant by its maker to be 
used by ordinary motorcyclists. Subsection D follows the logical 
premise that a helmet declared to be a motorcycle helmet by an importer 
is intended by that importer to be used by motorcyclists.
    The proposed definition therefore characterizes motorcycle helmets 
as hard shell headgear meeting any one of four conditions. The first 
condition is that it is manufactured for sale, sold, offered for sale, 
introduced or delivered for introduction in interstate commerce, or 
imported into the United States, for use on public streets, roads, and 
highways with the apparent purpose of safeguarding highway users 
against risk of accident, injury, or death. The second condition is 
that it is manufactured for sale, sold, offered for sale, introduced or 
delivered for introduction in interstate commerce, or imported into the 
United States by entities that also manufacture for sale, sell, offer 
for sale, introduce or deliver for introduction in interstate commerce, 
or import into the United States either motorcycles, helmets certified 
to FMVSS No. 218, or other motor vehicle equipment and apparel for 
motorcycles or motorcyclists. The third condition is that it is 
described or depicted as a motorcycle helmet in packaging, display, 
promotional information or advertising. The fourth and final condition 
is that it is imported into the United States under the applicable 
designation(s) for motorcycle helmets in the Harmonized Tariff Schedule 
of the United States. However, if a helmet that meets any of conditions 
two, three, or four is labeled and marked in accordance with a non-
motorcycle helmet standard issued or adopted by any one of the 
organizations identified as manufacturing other types of safety helmets 
and listed in the proposed definition, it would not be considered to be 
a motorcycle helmet.
    For consistency, NHTSA also proposes to revise the language in the 
scope and application sections of FMVSS No. 218 to refer to motorcycle 
helmets.
    The agency requests comments on the proposed definition as well as 
the alternative definitions discussed previously. Depending on the 
public comments, elements of the different definitions could be 
combined into the definition adopted in the final rule. In addition, 
the agency request comment on additional government entities or 
industry standards that should be included in Paragraph (2) of the 
definition.

B. Proposed Amendments to Performance Requirements

    As NHTSA has observed elsewhere in this document, the existing 
performance requirements of FMVSS No. 218 establish test procedures 
specifying that compliance with the standard be evaluated through the 
use of laboratory tests requiring that four samples of each helmet 
model be tested under different specific environmental conditions. 
Although compliance with some of the requirements of the standard may 
be determined by simple visual examination--i.e. a compliant helmet 
must have the required interior labels, the shell must be free of rigid 
projections taller than 0.20 inch (5 mm) and have a continuous contour, 
and it must cover a minimum area of the head--current compliance tests 
require sensitive specialized equipment and can only be performed by 
trained personnel employed by specialized laboratories. Testing four 
samples of one helmet model currently costs NHTSA approximately 
$2000.00 and the agency's budget allows approximately forty tests in 
one fiscal year.
    The interpretation issued in this document, as well the proposed 
amended definition of motorcycle helmet, would both require significant 
expansion of NHTSA's compliance test program.
    Such an expansion would, of course, require significant additional 
agency expenditures if the agency continues to rely on the existing 
performance requirements of FMVSS No. 218. In addition, novelty helmets 
perform very poorly in compliance testing. This performance is 
substandard to the point that performing impact attenuation testing on 
novelty helmets poses a threat to accelerometers and other devices 
incorporated into test devices. The risk of damage to this equipment 
has caused NHTSA-contracted test laboratories to be reluctant to 
perform impact attenuation testing on novelty helmets or to refuse to 
test them altogether. The agency also notes that because manufacturing 
and/or importing novelty helmets requires less financial resources than 
manufacturing conventional FMVSS No. 218 compliant helmets, there 
appear to be many entities manufacturing, importing and selling novelty 
helmets. Taken together, the foregoing factors indicate that a full 
test program aimed at examining large numbers of both novelty and

[[Page 29473]]

conventional helmets would be difficult and expensive.
    The agency is therefore proposing modifications to FMVSS No. 218 to 
lessen NHTSA's test burden and allow a more comprehensive examination 
of helmets being sold and marketed to highway users. The proposed 
amendments would incorporate certain physical criteria into FMVSS No. 
218 in order to facilitate simplified test procedures. The physical 
characteristics being proposed are, in NHTSA's view, excellent 
indicators that a helmet will be unable to comply with the impact 
attenuation and penetration tests already incorporated in the standard.
    With the issuance of the NPRM, the agency will simultaneously be 
contacting States with universal helmet laws for feedback on the 
proposals contained herein. Specifically, the agency requests the 
following feedback:
     Does your State's helmet law require use of a DOT-
certified helmet?
     Has your State had difficulty with prosecuting cases 
against users of novelty helmets in the past and, if so, why?
     Has your State had difficulty with prosecuting cases 
against manufacturers of novelty helmets in the past and, if so, why?
     Have law enforcement officers in your state had difficulty 
distinguishing novelty helmets from certified helmets?
     Will these criteria help your state to distinguish novelty 
helmets from certified helmets?
     Will the tools described in the regulatory text be useful 
to you?
     Will you use the tools in the field or during court 
hearings?
     Do you believe this rule will encourage greater use of 
DOT-certified helmets in your state?
     Are there other actions that NHTSA can take to assist the 
States in this area?
    To the extent that advances in technology and materials may permit 
the development of helmets meeting all the requirements of Standard No. 
218 excluding the proposed preliminary screening requirements, we are 
also proposing to establish an alternative compliance process 
encompassing a petition procedure allowing helmet manufacturers an 
opportunity to establish that a specific helmet design qualifies for 
further testing. In so doing, NHTSA acknowledges that such a petition 
process appears to present an increased burden to both manufacturers 
and the agency. The agency believes, however, that the likelihood that 
the proposed petition process will be frequently employed is small. The 
proposed preliminary screening requirements are quite conservative. We 
believe that it is extremely unlikely that any helmet constructed using 
presently known techniques and materials can meet the performance 
requirements of Standard No. 218 without also complying with the 
proposed preliminary screening requirements.
    The alternative compliance process being proposed allows 
manufacturers to petition the agency and demonstrate that new 
technologies allow their helmets to comply with the requirements of 
S5.2-S5.7 (as renumbered) of the Standard even if they do not meet the 
proposed preliminary screening requirements in S5.1. They do this by 
providing information specified in the proposed Appendix including the 
evidence on which they base their belief that the helmet complies with 
all requirements of S5.2-S5.7. The Agency reviews their petition and 
has an option to conduct validation testing. Manufacturers who have all 
required information on file and whose helmets are determined by the 
agency to be capable of meeting Standard No. 218 S5.2-S5.7 and yet do 
not meet the preliminary screening criteria of S5.1, will be identified 
in an Appendix to the Standard and this information will be made 
available on the NHTSA Web site.
    Adoption of these proposed requirements will also have ancillary 
benefits for State officials charged with enforcing helmet laws 
requiring the use of FMVSS No. 218 compliant helmets. Many States with 
helmet use laws have adopted a requirement that riders subject to the 
law must use a helmet that complies with FMVSS No. 218. Although such a 
requirement advances the laudable goal of ensuring that motorcyclists 
use helmets meeting minimum performance requirements, it creates an 
additional burden for State and local authorities who must enforce 
these helmet laws. In many jurisdictions, establishing a violation 
requires the State to prove either that a rider was not wearing any 
helmet or that the helmet worn by the rider did not meet the 
performance requirements incorporated in the State helmet law. Given 
the popularity of novelty helmets and the widespread availability of 
``DOT'' stickers and other facsimiles of actual manufacturer 
certifications, successful enforcement of such a State helmet law 
requires proof that a particular helmet, even when marked with the 
symbol ``DOT,'' does not meet FMVSS No. 218.
    These helmets are typically not certified by the manufacturer as 
meeting FMVSS No. 218 and are not designed or manufactured to comply 
with FMVSS No. 218. Nonetheless, the availability of misleading look-
alike or ``counterfeit'' certification labels provides users with the 
opportunity to give the helmet the appearance of having been properly 
certified. In jurisdictions where motorcycle helmet laws require the 
use of an FMVSS No. 218-compliant helmet, riders using novelty helmets 
are violating the law. However, proving the violation requires 
establishing that a helmet does not comply with FMVSS No. 218. This can 
be especially difficult when a helmet has a fraudulent certification 
label. Under the current regulations, the only recourse enforcement 
officials may have is to establish that a helmet does not meet the 
performance requirements of FMVSS No. 218. If NHTSA has not tested the 
helmet at issue, State and local officials attempting to establish that 
a helmet does not comply with FMVSS No. 218 are often asked to present 
their own data. Although manufacturers of properly certified helmets 
routinely perform compliance testing before releasing a product for 
sale, such testing is obviously not performed by novelty helmet 
manufacturers claiming their products are not for highway use. If 
agency or manufacturer test data are not available, it is impractical 
to expect State and local enforcement officials to commission or 
perform such tests to prosecute individual cases.
    To reduce NHTSA's test burdens, prevent or reduce the entry of 
novelty helmets into the United States, and assist State and local 
governments with the means to effectively enforce their helmet laws, 
NHTSA undertook an examination of the physical characteristics of 
helmets certified to FMVSS No. 218 and novelty helmets to determine if 
a set of simple criteria could be developed to differentiate between 
the two groups of helmets. In doing so, the agency's goal was to 
develop a test, or set of tests, that would employ commonly available 
tools or measurement devices in a manner that would not impair or 
compromise the performance of the helmet being examined.
    In an effort to reduce the agency's test burden and provide a means 
for State officials and consumers to differentiate compliant and non-
compliant helmets, NHTSA examined the possibility of comparing the 
weight and/or dimensions of the two classes of helmets and positing a 
test based on weight or size. However, because novelty helmets are 
produced in a wide variety of sizes and are not necessarily labeled as 
being a particular size, comparing the weight or exterior dimensions of 
large novelty helmets to

[[Page 29474]]

those of small compliant helmets does not produce meaningful results.
    Next, NHTSA examined the possibility of comparing liners of the two 
classes of helmets. The importance of an energy absorbing liner in 
preventing and reducing brain injuries was first established in the 
United States shortly after World War II by research directed toward 
developing effective protective helmets for military pilots.\50\ Since 
that time, expanded polystyrene (EPS) foam has become the predominant 
helmet liner material in FMVSS No. 218 compliant helmets because it 
combines light weight, manufacturing advantages, affordability, and an 
ability to ``crush'' and absorb energy in an impact. Because some 
amount of ``crush'' in a motorcycle helmet's liner is needed to absorb 
a sufficient amount of energy during a crash, EPS foam liners (or their 
equivalents) must have a certain minimum thickness to prevent or reduce 
injury. Therefore, the configuration and composition of a semi-rigid 
liner is a critical factor in a protective helmet's ability to reduce 
or prevent injury and was considered a potentially useful criterion for 
differentiating novelty helmets from certified helmets.
---------------------------------------------------------------------------

    \50\ N. Yoganandan et al. (Eds.), FRONTIERS IN HEAD AND NECK 
TRAUMA Clinical and Biomechanical, IOS Press, OHMSHA, 1998, 
retrieved from http://www.smf.org/docs/articles/helmet_development.html, July 18, 2011 (last accessed on 1/19/12).
---------------------------------------------------------------------------

    NHTSA therefore examined the thickness of the liners, liners and 
shells, and compression characteristics of a sample of motorcycle 
helmets commercially available in 2009 and 2010. Two critical physical 
differences between novelty and FMVSS No. 218 certified helmets were 
revealed: The thickness and compression characteristics of the padding 
and/or energy absorbing material inside the shell of the helmet. 
Novelty helmets are typically manufactured with a relatively thin 
comfort liner between the wearer's head and the exterior shell. These 
comfort liners consist of a layer of cloth immediately next to the 
wearer's head and possibly a thin layer of foam between the cloth and 
the inside of the helmet shell.
    NHTSA attempted to quantify the differences in the thickness and 
response of helmet liner materials to compression in order to determine 
if threshold values for thickness and compression could be identified 
to distinguish certified from novelty helmets. Measurements were taken 
near the apex of 30 helmets obtained from the market place. The apex of 
the helmet is the highest point when a helmet is oriented so the brow 
opening is parallel to the ground. Inner liner thickness was measured 
by inserting a push pin into the liner, marking its depth along the 
shaft of the pin, withdrawing the pin, and measuring the depth of 
penetration to the shell. The combined thickness of the shell and liner 
was measured using digital calipers. The combined thickness of the 
shell and liners were measured before and after being compressed with a 
specified force. In order to measure the thickness when the comfort 
liner was compressed, a 5 pound-force (lbf) (22 Newton (N)) was applied 
using a dial force gauge. This force was selected because it is 
sufficient to distinguish EPS foam from foam that does not have 
sufficient compressive resistance to attenuate energy during an impact, 
not damage the EPS foam, and can readily be achieved using a thumb-
fingertip grip should a gauge not be available.\51\ The purpose of this 
test is to distinguish relatively dense impact attenuating liners, 
typically made of expanded polystyrene (EPS) or urethane, from comfort 
liners made of foams that are easily indented and unable to adequately 
attenuate energy of a head hitting a surface during a crash. The EPS 
and urethane foams do not crush under this very minor force whereas the 
comfort liners typically do.
---------------------------------------------------------------------------

    \51\ Per MIL-STD-1472F Department of Defense's Design Criteria 
Standard for Human Engineering revised 23 August 1999, data 
contained in Figures 23.
---------------------------------------------------------------------------

    The tools used to measure helmet characteristics are described in 
Table 4. These tools were selected because they are commercially 
available, relatively inexpensive, and are easy to use. While these 
tools will not measure the criteria with high precision, we believe 
they are minimally sufficient to perform the preliminary screening 
tests proposed in the standard. Other tools may be useful as well. 
Based on useful life, the tool kit in 2012 dollars is estimated to be 
$81.43 per kit per year.

                                    Table 4--Tools Used To Examine the Physical Characteristics of Motorcycle Helmets
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Purpose                    Description                Manufacturer                 Part No.                    Approximate cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Measure inner liner thickness....  Size 28--1\3/4\ inch  Dritz..........................  6828................  $3.50 for a 40-count pack.
                                    Nickel Plated Steel
                                    T-Pin.
Measure combined thickness of      0-8 inch Outside      iGAGING........................  35-OD8..............  $28.00.
 shell & inner liner.               Diameter Caliper.
Apply compressive force to the     Push style force      Wagner Instruments.............  FDK 10..............  $225.
 non impact-attenuating liner.      gauge 1-10 lbf
                                    range 6.3 mm
                                    diameter flat probe.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    NHTSA examined each helmet and took multiple measurements in the 
vicinity of the apex. Two measurements are being reported: Thickness at 
the low end of the range (i.e., a thin location) and thickness at the 
upper end of the range (i.e., a thick location). See Table 5. The 
methodology used was not designed to identify the absolute minimum or 
maximum thickness values, but rather to obtain a general 
characterization of the inner liner, shell, and non-impact attenuating 
liner thicknesses. Summaries are reported in Tables 6 and 7. The 
certified helmets in this group had impact attenuating liners that were 
at least 1 inch (25 mm) thick and an overall thickness from the inside 
of the impact attenuating liner to the outside of the shell measured at 
least 1.1 inch (28 mm). On the other hand, the novelty helmets examined 
had no impact attenuating liners or liners that were less than 0.59 
inch (15 mm) thick and a combined thicknesses of liner and shell that 
measured less than or equal to 0.75 inch (19 mm). The certified helmets 
examined had an inner liner that would not deform when subject to a 
load of 5 lbf (22 N); whereas the liners (inner and comfort) on novelty 
helmets that we examined deformed readily. It is possible to foresee 
that a user of a novelty helmet might mistake the comfort liner of non-
energy attenuating foam for an inner liner; therefore NHTSA measured 
the amount that the liners would deform under such a small load. The 
measurements made on these

[[Page 29475]]

helmets are reported in Table 5. In one case, the comfort liner on the 
novelty helmet deformed 0.6 inch (15.1 mm).
[GRAPHIC] [TIFF OMITTED] TP21MY15.009


[[Page 29476]]


[GRAPHIC] [TIFF OMITTED] TP21MY15.010

    In comparison, the liners of helmets certified by manufacturers as 
complying with FMVSS No. 218 are thicker and are composed of materials 
with different physical properties. Certified helmets employ an energy 
absorbing non-resilient material in the helmet liner. Typically, this 
non-resilient liner, which fits between the cloth comfort liner and the 
inside of the helmet shell, is made from a semi-rigid material such as 
EPS or polyurethane foam \52\ that deforms when subjected to certain 
pressure and does not spring back to shape. This semi-rigid foam liners 
in the examined helmets were all greater than 1.0 inch (25 mm) thick 
near the apex of the helmet and did not deform when subjected to a 
force up to 5 lbf (22 N) distributed over a circular area approximately 
\1/4\ inch (6 mm) in diameter. However, at some force greater than 5 
lbf (22 N) over the same area, the certified helmet liners will begin 
to crush or deform.
---------------------------------------------------------------------------

    \52\ Newman, James A. ``Chapter 14: Biomechanics of Head Trauma: 
Head Protection'' from Nahum, Alan M. and Melvin, John W., ed. 
Accidental Injury: Biomechanics and Prevention. 2nd ed. New York: 
Springer Science+Business Media, Inc., 2002.
---------------------------------------------------------------------------

    NHTSA is not alone in its efforts to characterize helmet liners. A 
study of helmet design and effectiveness published in the 1990s 
concluded that a helmet must have a combined shell and liner minimum 
thickness of 1.5 inch (40 mm) in order to meet the impact attenuation 
requirements of the then-current Snell M90 standard.\53\ The Snell M90 
standard differs from FMVSS No. 218 in several respects, but the 
general concept that a certain thickness of energy absorbing material 
must be present still prevails. By conducting FMVSS No. 218 compliance 
tests over several decades and recently examining the thickness of 
commercially available motorcycle helmets, NHTSA concludes that those 
helmets meeting the NHTSA standard must have an energy absorbing liner 
that is greater than 0.75 inch (19 mm) thick. Such a liner dissipates 
energy during a crash and allows the wearer's head to come to a stop 
more slowly in order to reduce head injuries. By contrast, novelty 
helmets have very soft liners of foam that cannot absorb energy or 
provide an adequate amount of cushion to a wearer's head during a 
crash.
---------------------------------------------------------------------------

    \53\ Hurt, H.H., Jr. and Thorn, D.R., ``Accident Performance of 
Contemporary Safety Helmets,'' Head and Neck Injuries in Sports, p. 
15. ASTM STP 1229, American Society for Testing and Materials, 
Philadelphia, 1993.
---------------------------------------------------------------------------

    Based on the examination of these certified and novelty helmets, 
the threshold thickness value of 0.75 inch (19 mm), measured within 4-
inches of the apex, would allow for variability in helmet design, test 
equipment usage, and materials, while serving as an objective thickness 
criterion to distinguish certified from novelty helmets. Accordingly, 
NHTSA proposes to amend FMVSS No. 218 to incorporate a series of simple 
tests that would evaluate the physical characteristics required to meet 
current standards of helmet performance. These tests would serve to 
establish whether further testing is needed to fully and fairly 
determine if a helmet meets the existing performance requirements of 
FMVSS No. 218. Helmets not meeting the proposed requirements would be 
deemed to be non-compliant.\54\ Helmets

[[Page 29477]]

meeting the proposed requirements would be subject to further 
evaluation through laboratory tests to determine if they provide the 
required minimum levels of performance needed to adequately protect 
users. Any helmet with an inner liner that is less than 0.75 inch (19 
mm) thick would be considered incapable of complying with FMVSS No. 
218. Moreover, NHTSA proposes that any helmet with a liner meeting the 
minimum thickness criteria must also be sufficiently resistant to 
deformation to ensure that the liner is capable of some level of energy 
absorption. Finally, because the combined thickness of the liner and 
the shell together is also an excellent predictor that a helmet will be 
unable to comply with the performance requirements of FMVSS No. 218, 
NHTSA also proposes that any helmet whose combined shell and inner 
liner thickness is less than 1 inch (25 mm) and whose liner meets the 
same resistance to deformation would also presumably not be able to 
comply with the standard. NHTSA seeks comments and data from helmet 
manufacturers of compliant helmets pertaining to the thickness of 
impact attenuating liners and of shell and liner combinations.
---------------------------------------------------------------------------

    \54\ Excluding helmets that have been listed in Appendix B of 
FMVSS No. 218 as discussed elsewhere in this document.
---------------------------------------------------------------------------

    The aforementioned criteria are of little use to NHTSA or to State 
and local law enforcement officials if tools and techniques for 
ascertaining helmet inner liner thickness and composition are not 
readily available or are only available at significant cost. Similarly, 
the procedures employed in examining helmets should not be complex. 
Accordingly, this preamble discusses tests that could be performed on 
easily accessible areas of a helmet using simple tools and provides a 
guideline that could be adapted to reference cards carried by law 
enforcement personnel conducting traffic stops.
    Inner liner thickness could be measured in a number of ways. One 
method could be to penetrate the helmet liner with a pin, needle, or 
similarly small diameter wire probe until the inside of the helmet 
shell is reached and measuring the depth of the penetration. NHTSA is 
confident that measurements of inner liner thickness taken in this 
fashion will not impair helmet performance and that a single 
penetration, or a limited number of similar penetrations, of the energy 
attenuating foam liners employed in compliant motorcycle helmets by a 
pin, needle or other small diameter probe would not degrade a helmet's 
ability to protect a user in a crash. Because we recognize that some 
organizations may be reluctant to conduct such a test, we request 
comment on this method of measuring inner liner thickness, its 
potential impact on helmet performance and any alternative means that 
may be employed using simple tools to readily and accurately find liner 
depth.
    NHTSA is also proposing a measure of the combined thickness of the 
outer shell and inner liner as another means of identifying helmets 
that do not comply with FMVSS No. 218. As discussed above, the combined 
shell and inner liner thickness are good predictors of how well a 
helmet will perform in compliance testing. Because the combination of 
the outer shell and the impact absorbing inner liner are critical 
determinants of a helmets' ability to meet the performance requirements 
of FMVSS No. 218, NHTSA proposes that any helmet whose outer shell and 
liner are less than 25 mm (1 inch) thick would not comply with FMVSS 
No. 218. This measurement could be taken using a large caliper. Another 
method would be to place a helmet on a headform or stand so that the 
inner liner is seated against that stand, measure the combined height 
of the helmet and the stand, and then remove the helmet and measure the 
height of the stand alone. The difference between the two measurements 
would yield the thickness of the combined shell and liner.
    Measuring inner liner thickness, or combined shell and inner liner 
thickness, represents only one component of a test for identifying 
helmets that do not comply with FMVSS No. 218. NHTSA proposes a second 
component of this test that involves examining the resistance of helmet 
liners to crush when low forces are applied. This technique is useful 
because, as previously explained, novelty helmets have thin, non-
substantial inner liners that are too soft to absorb energy if they 
have any liner at all. NHTSA is proposing guidance stating that an 
inner liner that meets the appropriate thickness requirements but which 
may be deformed \1/12\ inch (2 mm) by the application of a force 
between 1 lbf (4.4 N) and 5 lbf (22 N) distributed over a circle 
approximately 0.20-0.30 inch (5-7 mm) in diameter is incapable of 
complying with FMVSS No. 218. The area over which the proposed force 
would be applied is the diameter of most common pencils. The specified 
force range of 1 lbf (4.4 N) to 5 lbf (22 N) is sufficient to deform 
soft liners and may be applied using a weighted probe or a dial 
indicator force gauge.\55\ The amount of deformation of the inner liner 
could be ascertained either by observation or by measurement using a 
small ruler or use of the force gauge and calipers in combination. By 
examining and testing novelty and certified helmets, NHTSA has observed 
the force proposed produces little to no deformation on the impact 
absorbing liners made of EPS or urethane in helmets meeting FMVSS No. 
218, while novelty helmets with thick soft ``comfort'' liners 
experience a noticeable degree of deformation. Again, NHTSA requests 
comments on the means employed to make this measurement.
---------------------------------------------------------------------------

    \55\ Mechanical dial force gauges suitable for this measurement 
may be acquired for approximately $225. An example of one such gauge 
is found at http://www.wagnerinstruments.com/force_gauges/fdk_mechanical_dial_force_gauge.php (last accessed on 1/19/12).
---------------------------------------------------------------------------

    To reduce the possibility of error caused by variations in helmet 
designs, NHTSA is proposing that the measurements of inner liner 
thickness, combined helmet/inner liner thickness and inner liner 
compression characteristics be conducted in a limited area near the 
crown or apex of the helmet. Helmets providing the minimum level of 
impact and penetration resistance required to meet FMVSS No. 218 must 
have a robust shell and liner in this area. In addition, the test area 
proposed in this document is intended to be located, measured and 
marked using simple tools that are readily available at low cost. This 
is best achieved by focusing at the topmost area of the helmet. 
Finally, it is not NHTSA's intention to discourage manufacturers from 
designing helmets with ventilation channels. NHTSA requests feedback 
about the following issues as they relate to this proposal:
     How will the proposed measurements be affected by the 
presence of ventilation channels?
     How will the proposed measurements stand up to the effects 
of wear and aging on certified motorcycle helmets?
     Will compliant motorcycle helmets that are currently 
manufactured meet the newly proposed performance requirements?
     What emerging motorcycle helmet technologies will be 
affected if this proposal moves forward?
    The proposal specifies that the measurements of inner liner 
thickness, combined shell and inner liner thickness and inner liner 
resilience be made within a circular zone having a 4 inch (104 mm) 
radius centered at the apex of the helmet. We are proposing the term 
``inner liner'' to mean an energy absorbing material that is molded to 
conform to the inner shape of the helmet's shell and serves to protect

[[Page 29478]]

the user's head from impact forces during a crash. We are also 
proposing the term ``apex'' to mean the upper most point on the shell 
of the helmet when the helmet is oriented such that that brow opening 
is parallel to the ground. The agency does not intend that measurements 
must be made with such precision that they could only be taken at a 
single point. Instead, we are proposing that measurements be taken 
within a circle centered on the apex. The center point of this circle 
need not be precisely located at the single point constituting the 
``apex'' of a helmet. To that end, we solicit comments on using an 
alternative definition for the topmost area of a helmet, including the 
use of the term ``crown'' to designate the measurement area. 
Alternatively, we also solicit comments on locating the center of the 
measurement circle within a specified tolerance range--i.e. a 4 inch 
(104 mm) radius of the actual apex. Once the approximate location of 
the apex is determined, a flexible cloth tape may be used to measure 
the outer bounds of the circular measurement area. Alternatively, a 
circle having a 4 inch (104 mm) radius cut out of a flexible material 
capable of conforming to the contours of the liner could be employed 
for the same purpose. Helmet measurements would be made within this 
circle.
    NHTSA's intention is that thickness measurements are made along the 
shortest line that passes through the helmet to measure the thinnest 
cross section and avoid artificially inflating the thickness. 
Therefore, we propose that this measurement be made along a line that 
is at or near perpendicular to a plane tangent to a point on the outer 
shell near the apex of the helmet. We are proposing to add to FMVSS No. 
218, a figure of an exemplar helmet to demonstrate the general location 
and meaning of these terms, so the public will know where and how the 
measurement should be made and a new Table 3 to specify which 
certification label is required based on the helmet's manufacture date.
    NHTSA is also proposing the establishment of an alternative 
compliance process for manufacturers whose helmets do not meet the 
aforementioned preliminary screening criteria, to prove that their 
products are capable of meeting the remaining requirements of Standard 
No. 218. As noted above, we are proposing this process to ensure that 
the preliminary screening criteria do not stifle advances in helmet 
technology and materials. To accomplish this end, the Agency proposes 
that manufacturers of advanced technology helmets that do not meet the 
preliminary screening criteria be allowed to petition the agency for a 
determination that a particular helmet is capable of meeting S5.2-S5.7 
(as renumbered) of the Standard.
    The proposed requirements for such a petition are straightforward 
and stated in the proposed regulatory section (Appendix B) of this 
document. Manufacturers of helmets, including importers of helmets, 
would be eligible to file a petition provided that such manufacturer or 
importer has identified itself to NHTSA in compliance with 49 CFR part 
566 and, in the case of helmets manufactured outside of the United 
States, the manufacturer of the helmet has designated a U.S. agent for 
service of process as required by subpart D of 49 CFR part 551 (49 CFR 
551.45 et seq.). Petitions must be in writing, be written in English, 
properly identify the manufacturer of the helmet, provide contact 
information for the petitioner and identify the precise model and name 
brand of the helmet at issue. Petitioners would be required to submit 
test data, photographs, videos, and other evidence establishing that 
the helmet at issue is capable of meeting the requirements of Standard 
No. 218 with the exception of the proposed preliminary screening 
criteria of S5.1. Petitions that are incomplete or fail to comply with 
any of the foregoing requirements would be rejected. Otherwise, the 
Agency will seek to inform the manufacturer not later than 60 days 
after receipt of the written submission, if the information is 
complete.
    If the petition is complete, NHTSA's review of the petition may, at 
the agency's discretion, result in subsequent testing of sample 
helmets. If NHTSA is unable to obtain sample helmets that are the 
subject of the petition, it will reject the request. If the Agency 
determines that a particular model helmet that does not comply with the 
preliminary screening requirements of S5.1 is otherwise capable of 
meeting Standard No. 218, it will publish this determination in the 
Federal Register and make a copy of the determination available on the 
agency's Web site. The brand name, model and size of any helmet not 
meeting the preliminary screening requirements of S5.1 that is 
determined by NHTSA to be capable of meeting Standard No. 218 will be 
published in an appendix to Standard No. 218 and be made available on 
the Agency's Web site.
    The proposed petition process would also allow for termination or 
modification of a determination if doing so is in the public interest, 
if additional information indicates that the determination was 
erroneous or if the petition was granted on the basis of false, 
fraudulent or misleading information.
    If adopted, the petition process proposed here would exist 
alongside existing provisions that offer similar relief. Manufacturers 
of motor vehicles and motor vehicle equipment, along with other 
interested parties, currently have the ability to petition NHTSA to 
initiate rulemaking to amend a safety standard under 49 CFR part 552. 
Therefore, a helmet manufacturer that has developed new materials or 
technologies allowing the use of thinner helmet liners than those 
currently needed to meet Standard No. 218 could address their inability 
to meet the proposed preliminary screening requirements through a 
petition for rulemaking rather than the special petition procedures 
being proposed in this document. We therefore note that NHTSA may 
decide that the proposed petition process described above may not be 
needed and may be deleted from a final rule.
    NHTSA solicits comments on the proposed petition process in general 
and the following specific issues related to this portion of our 
proposal:
     Are the existing provisions of part 552 adequate to 
minimize or alleviate the risk that the proposed preliminary screening 
requirements for helmets would stifle innovation?
     What is the likelihood that new cost effective 
technologies or materials would allow for helmet liners to meet the 
performance requirements of Standard No. 218 while not meeting the 
preliminary screening requirements proposed in this document?
     What means should the Agency employ to ensure that helmet 
users and state and local law enforcement agencies are adequately 
informed about determinations made under the proposed petition process?

V. Effective Date

    NHTSA is proposing a lead time of two years from the publication of 
the final rule for manufacturers to comply with the new requirements. 
Based on NHTSA's survey of helmets, NHTSA believes that helmets 
currently sold in the market place will comply with the new screening 
criteria; however, responsible manufacturers may wish to submit their 
products to independent laboratories to generate data on which they 
base their certification. The agency believes that a lead time of two 
years to be a sufficient and reasonable time to allow the manufacturers 
the opportunity

[[Page 29479]]

to recertify their products to the updated regulations.

VI. Benefits/Costs

    To calculate the benefits and costs of this proposed rulemaking, 
the agency has prepared a Preliminary Regulatory Impact Analysis 
(PRIA). The results of the PRIA indicate that the proposed rule is 
cost-effective. The goal of this rule is have motorcyclists wearing 
novelty helmets switch to FMVSS No. 218-certified helmets (certified 
helmets). Depending on the degree of effectiveness of the rule, the 
costs and benefits can vary substantially. The benefits and costs of 
the proposal depend on how many additional motorcycle riders change 
from wearing novelty helmets to wearing certified helmets in States 
that have a Universal Helmet Laws beyond the benefits estimated for the 
final rule that becomes effective on May 13, 2013.\56\ This NPRM 
proposes two amendments to FMVSS No. 218 that affect the benefits 
calculation: Inclusion of a definition of ``motorcycle helmet'' and the 
addition of dimensional and compression requirements to identify 
helmets that, under the current state of the art of helmet design and 
construction, would not be capable of complying with FMVSS No. 218 
because they lack characteristics needed to absorb and dissipate impact 
energy.
---------------------------------------------------------------------------

    \56\ Office of Regulatory Analysis and Evaluation, National 
Center for Statistics and Analysis, ``Final Regulatory Evaluation: 
FMVSS No. 218 Motorcycle Helmet Labeling,'' May 2011, Docket NHTSA-
2011-0050.
---------------------------------------------------------------------------

    The benefit of the proposed definition is seen to the extent that 
it clarifies and supports the other actions in this proposed rule, and 
the benefits and costs of such will not be estimated independently in 
this analysis. The preliminary screening requirements will be 
beneficial to enforcement. The costs and benefits of the proposal are 
described in detail in the accompanying PRIA.
    Behavioral change among motorcycle riders as a result of the rule 
is difficult to predict. However, the agency believes that this 
proposal would further improve the ability to enforce helmet laws and 
that an additional 5 to 10 percent of the novelty helmet users in 
States that have a Universal Helmet Law would eventually make a switch 
to avoid being ticketed or fined, and that this is a modest and 
achievable projection. In addition, the analysis also estimates the 
maximum potential benefit of the rule which corresponds to a 
hypothetical scenario of all novelty helmet users in States that have 
universal helmet laws becoming 218-certified helmet users (the 100-
percent scenario). Note that this 100-percent scenario is considered 
theoretical since some novelty-helmeted motorcyclists would still be 
expected to circumvent the helmet laws by continuing taking the risk of 
wearing novelty helmets. Therefore, the estimated costs and benefits 
for the 100-percent scenario are not used (and not appropriate) for 
determining the effects of the proposed rule. However, they do indicate 
the potential savings in social costs that are offered by FMVSS No. 
218-compliant helmets and the importance of educating the public to 
this potential.
    The following table lists the discounted injury benefits from lives 
saved and monetized savings. It excludes benefits from non-fatal 
injuries prevented and any utility lost by novelty helmet riders who 
switch to FMVSS 218 compliant helmets. Since any such utility is 
obtained in violation of State law, its status is uncertain. See ``Non-
quantified Impacts'' section of the PRIA for further discussion. The 
lower bounds represent the savings for the 7 percent discount rate and 
the higher bounds represent savings for the 3 percent discount rate. In 
addition to discount rates, the estimated benefit ranges also reflect 
two different approaches that were used to derive the benefit target 
population and the injury risk reduction rates as described in the 
accompanying PRIA. Furthermore, due to great uncertainty in deriving 
the estimated portion of non-fatal injuries attributed to the head, the 
benefits attributed to non-fatal head injuries are not quantified in 
this analysis.\57\
---------------------------------------------------------------------------

    \57\ See Chapter IV, Benefits of the Preliminary Regulatory 
Evaluation, FMVSS No. 218 Motorcycle Helmet Labeling (Docket No. 
NHTSA-2011-0050-0001). Based on 2003-2005 Crash Outcome Data 
Evaluation System (CODES) data from Maryland, Utah and Wisconsin, 
and 2005-2007 NASS-GES.

                                Table 8--Discounted Benefits of the Proposed Rule
                                           [Millions of 2012 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                 Total benefits
                                       Number of lives   Societal economic     VSL benefits     from fatalities
                                            saved             benefits                             prevented
----------------------------------------------------------------------------------------------------------------
5-percent scenario..................               9-22          $3.0-$7.4       $92.9-$211.9       $95.9-$219.3
10-percent scenario.................              19-43           6.4-14.4        185.8-423.9        192.2-438.3
100-percent scenario................            186-433         62.5-145.4    1,819.3-4,247.4    1,881.7-4,392.7
----------------------------------------------------------------------------------------------------------------
VSL: Value of statistical life.
Note: The lower bounds represent the estimated benefits at a 7 discount rate and the higher bounds represent the
  estimated benefits at a 3 percent discount rate. Additionally, the wide range of benefits also reflects the
  two approaches that were used for deriving the benefit target population and risk reduction rates.

    The regulatory costs of the proposed rule are derived from the 
incremental cost increase due to purchasing a 218-certified helmet 
versus a novelty helmet, and the cost of State and local law 
enforcement acquiring preliminary screening tools.
    The incremental cost per replaced novelty helmet is estimated to be 
$48.92. The estimated costs of the proposed rule are based on 5 percent 
and 10 percent of consumers in Law States replacing novelty helmets 
with compliant helmets. The estimated consumer cost ranged from $0.6 
million to $1.2 million, where 12,150 to 24,300 novelty helmets would 
be replaced by compliant helmets. Under the maximum benefit scenario in 
which 100 percent of novelty helmet users would switch to compliant 
helmets, the incremental cost to consumers is $11.9 million, where 
243,000 novelty helmets would be replaced by compliant helmets.
    The cost of the preliminary screening tool kit is estimated to be 
$81.43 per kit per year,\58\ for a total cost of $0.6 million

[[Page 29480]]

(assuming each of the 7,214 State and local law enforcement agencies in 
only the States that require motorcycle helmet use will purchase one 
screening tool kit).
---------------------------------------------------------------------------

    \58\ A complete kit includes three tools. We estimated the cost 
is $264.67 per complete kit. The total first year investment in 
screening tools for the 7,214 State and local law enforcement 
agencies would be $1.9 million. Because one of the tools would need 
to be replaced only every five years, one-fifth cost for that 
specific component was used for estimating for the annual costs of 
the screening tools. In other words, the difference between the 
first year cost and the annual cost is the allocation of the tool 
costs over their useful life.
---------------------------------------------------------------------------

    The total regulatory cost of the proposed rule including the cost 
of novelty helmet replacement and screening tool kits ranged from $1.2 
million to $1.8 million. For achieving the maximum benefit (i.e., 100-
percent scenario), the estimated total regulatory cost is $12.5 
million.

                                 Table 9--Regulatory Costs of the Proposed Rule
                                           [Millions of 2012 dollars]
----------------------------------------------------------------------------------------------------------------
                                      Number of novelty    Total cost of      Annual cost of
                                       helmets assumed   replacing novelty   screening tools    Total regulatory
                                        to be replaced       helmets *              **                cost
----------------------------------------------------------------------------------------------------------------
5-percent scenario..................             12,150               $0.6               $0.6               $1.2
10-percent scenario.................             24,300                1.2                0.6                1.8
100-percent scenario................            243,000               11.9                0.6               12.5
----------------------------------------------------------------------------------------------------------------
* $48.92 per minimally-compliant helmet which replace novelty helmets.
** $81.43 per screening tool kit per year.

    The net benefit of the proposed rule is the regulatory cost minus 
the societal economic savings. The societal economic savings is greater 
than the regulatory cost for all three scenarios.

VII. Public Participation

How do I prepare and submit comments?

    Your comments must be written and in English. To ensure that your 
comments are filed correctly in the docket, please include the docket 
identification number of this document in your comments. Your comments 
must not be more than 15 pages long. (49 CFR 553.21) NHTSA established 
this limit to encourage you to write your primary comments in a concise 
fashion. However, you may attach necessary additional documents to your 
comments. There is no limit on the length of the attachments. Please 
note that pursuant to the Data Quality Act, in order for substantive 
data to be relied upon and used by the agency, it must meet the 
information quality standards set forth in the OMB and DOT Data Quality 
Act guidelines. Accordingly, we encourage you to consult the guidelines 
in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.

How do I submit confidential business information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. In addition, you should 
submit a copy, from which you have deleted the claimed confidential 
business information, to the docket at the address given above under 
ADDRESSES. When you send a comment containing information claimed to be 
confidential business information, you should include a cover letter 
setting forth the information specified in NHTSA's confidential 
business information regulation (49 CFR part 512).

Will the Agency consider late comments?

    NHTSA will consider all comments received before the close of 
business on the comment closing date indicated above under DATES. To 
the extent possible, the agency will also consider comments that the 
docket receives after that date. If the docket receives a comment too 
late for the agency to consider it in developing a final rule (assuming 
that one is issued), the agency will consider that comment as an 
informal suggestion for future rulemaking action.

How can I read the comments submitted by other people?

    You may read the comments received by the docket at the address 
given above under ADDRESSES. The hours of the docket are indicated 
above in the same location. You may also read the comments on the 
internet. Please note that even after the comment closing date, NHTSA 
will continue to file relevant information in the docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
the agency recommends that you periodically check the docket for new 
material. You can arrange with the docket to be notified when others 
file comments in the docket. See http://www.regulations.gov for more 
information. Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

VIII. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    The agency has considered the impact of this rulemaking action 
under Executive Order 12866 and the Department of Transportation's 
regulatory policies and procedures. This rulemaking is economically 
significant and was reviewed by the Office of Management and Budget 
under E.O. 12866, ``Regulatory Planning and Review.'' The rulemaking 
action has also been determined to be significant under the 
Department's regulatory policies and procedures. NHTSA has placed in 
the docket a Preliminary Regulatory Impact Analysis describing the 
costs and benefits of this rulemaking action and summarized those 
findings in Section V titled Benefits/Costs.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act of 1980 (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

[[Page 29481]]

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 proposed rule under the 
Regulatory Flexibility Act. Manufacturers not currently producing 
compliant helmets that switch to manufacturing compliant helmets will 
recapture the increased costs associated with manufacturing such 
compliant helmets as reflected in this analysis. Small entities selling 
motorcycle equipment and accessories would be precluded from selling 
non-compliant novelty helmets but would still have the ability to 
obtain and sell compliant helmets from numerous suppliers and 
wholesalers. Similarly, to the extent that there are any small entities 
whose business is based solely on the sale of non-compliant novelty 
helmets, these entities would be able to obtain, market and sell 
compliant helmets. 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 this proposed 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 rulemaking process. The proposed rule does not 
directly require a state or local government entity to take any action 
or refrain from acting. This proposed rule would not alter the 
relationship between the national government and the States or the 
distribution of power and responsibilities among the various levels of 
government. To the extent that any state is impacted by this proposed 
rule, the principal effect of today's proposed rule will be to assist 
mandatory helmet law states in enforcing helmet laws requiring 
motorcyclists to wear helmets complying with FMVSS No. 218. As noted 
above, NHTSA consulted with certain state officials regarding 
enforcement of such laws prior to issuing this proposed rule. 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.
    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 proposed 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 
proposed rule and finds that this proposed rule, like many NHTSA rules, 
prescribes only a minimum safety standard. As such, NHTSA does not 
intend that this proposed rule preempt State tort law that would 
effectively impose a higher standard on motor vehicle equipment 
manufacturers than that established by today's proposed 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 proposed 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.

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.''

[[Page 29482]]

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 MAR 95, ``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.
    Paragraph 2 of the definition of ``motorcycle helmet'' proposed in 
this document employs compliance with voluntary standards for 
protective helmets (other than motorcycle helmets) as a means of 
delineating those helmets that are not motorcycle helmets subject to 
NHTSA's jurisdiction.

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).
    Adjusting this amount by the implicit gross domestic product price 
deflator for the year 2012 results in $141 million (115.366/81.602 = 
1.414). The assessment may be included in conjunction with other 
assessments, as it is here.
    This proposed rule would not result in expenditures by State, local 
or tribal governments of more than $141 million annually as the Federal 
government (1) is not requiring States to purchase all of the 
preliminary screening tools described in the cost section and (2) 
provides grants to States for other motorcycle safety related programs 
and would likely aid in offsetting the costs estimated in this 
analysis.

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 procedures established by 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. The proposed rule would require manufacturers of 
motorcycle helmets to submit a petition and provide data on motorcycle 
helmets to NHTSA if they wish to utilize the alternative compliance 
path proposed in this NPRM.
    In compliance with the PRA, we announce that NHTSA is seeking 
comment on a new information collection.
    Agency: National Highway Traffic Safety Administration (NHTSA).
    Title: 49 CFR 571.218 Motorcycle helmets.
    OMB Control Number: Not assigned.
    Form Number: The collection of this information uses no standard 
form.
    Requested Expiration Date of Approval: Three years from the date of 
approval.
Summary of the Collection of Information
    NHTSA is proposing a new requirement in section 571.218 which would 
permit manufacturers of motorcycle helmets to petition the agency 
regarding their belief that their helmet meets the requirements of 
FMVSS No. 218, excluding the proposed S5.1 which contains preliminary 
screening requirements. This collection of information would be used by 
the agency to evaluate the manufacturers' claims and determine if 
confirmation testing of their product is warranted. If the information 
submitted to the agency by the manufacturer together with confirmation 
testing, shows the helmet that is the subject of the petition can meet 
the requirement of FMVSS No. 218, the brand, model, and size of the 
helmet will be added to an appendix in the standard and the information 
will be published in the docket for public reference.
    The information would be provided by manufacturers to NHTSA under a 
reporting requirement that allows them an alternate process in lieu of 
complying with S5.1(a) through S5.1(c). NHTSA would make the 
manufacturer's submission available to the public via the Internet if 
it can be supported by NHTSA testing.
Estimated Annual Burden
    The total estimated annual burden to manufacturers is based on the 
cost to manufacturers to review the regulatory text, conduct testing of 
their products, complete and review the collection of information, and 
transmitting that information to NHTSA.
    The cost to review the collection requirement is small. The 
collection requirement is documented in FMVSS No. 218, Appendix B which 
will be publicly available through the Internet once the rule is 
finalized. It is estimated that a management level employee will spend 
less than one hour reviewing the regulatory text pertaining to the 
optional reporting requirement. The labor rate for this type of manager 
is $62.19 per hour \59\ to which we have applied a fringe-benefit 
factor of 0.41 \60\ and an overhead factor of 0.17 to obtain a fully 
loaded staff cost per hour of $102.59 for engineering managers.
---------------------------------------------------------------------------

    \59\ Occupational Employment and Wages, May 2011 for Standard 
Occupational Classification Code 11-9041 Architectural and 
Engineering Managers, http://www.bls.gov/oes/current/oes119041.htm, 
last accessed on May 31, 2012.
    \60\ BLS, Employer Costs for Employee Compensation, May 2010.
---------------------------------------------------------------------------

    Second, we considered the cost burden imposed by the proposed 
petition process for motorcycle helmets which requires testing of 
products. However, testing of products is usual and customary for 
manufacturers of motorcycle helmets wishing to introduce their products 
into interstate commerce in the United States. Responsible 
manufacturers conduct tests during the development phase of their 
product and again prior to the introduction of their product to market 
as well as throughout production. Per 49 U.S.C. 30115, manufacturers 
shall exercise reasonable care in certifying that their equipment 
complies with applicable FMVSS. This testing often serves, in part, as 
the basis for exercising reasonable care that their products comply 
with FMVSS 218. However, the proposed process requests that 
photographic and video documentation of the testing be provided, which 
is typically more documentation than is obtained during a standard 
helmet test. A motorcycle helmet test of four samples is estimated to 
cost $1,500 and this additional requirement is estimated to cost 
approximately 7% more than a standard

[[Page 29483]]

test, which can be attributed to initial purchase of video recording 
equipment, and recurring costs associated with recording media, labor 
to execute the recording, and profit. Since the base cost ($1,500) is 
considered usual and customary, it will not be factored into the 
estimated annual burden; yet, the additional burden ($100 for each 
unique shell/liner combination and model) will be included into the 
burden for the collection requirement.
    Next, the cost to complete and review the collection of information 
is expected to require 15 hours of technical labor which costs $40.17 
\61\/hour to which we have applied a fringe-benefit factor of 0.41 and 
an overhead factor of 0.17 to obtain a fully loaded staff cost per hour 
of $66.27 for engineering managers and one hour of fully loaded 
managerial labor ($102.59/hour) for a total cost of $1,096.64.
---------------------------------------------------------------------------

    \61\ Occupational Employment and Wages, May 2011 for Standard 
Occupational Classification Code 17-2141 Mechanical Engineers, 
http://www.bls.gov/oes/current/oes172141.htm, last accessed on May 
31, 2012.
---------------------------------------------------------------------------

    Finally, the cost to transmit the data to the agency using a 
contract carrier is expected to be $10.
    Therefore, the total estimated cost burden to each manufacturer who 
chooses to pursue this alternative compliance process is $1,206.64 and 
the total number of burden hours is 16 per company. Given an annual 
estimate of three respondents, the total cost burden to manufacturers 
is $3,619.92 and 48 hours.
Estimated Annual Cost to the Government
    The estimated annual cost to the Federal Government is $9,500. This 
cost includes approximately $4,500 for enforcement testing and 
approximately $5,000 annually to process, respond to, and publish 
determinations for the anticipated respondents.
Estimated Number of Respondents
    Because this option is being included in the NPRM as a means 
facilitating the introduction of innovative helmet technologies and 
materials, it is anticipated that approximately three companies will 
attempt to pursue this option on an annual basis.
Comments Are Invited On
    Whether the proposed collection of information is necessary for the 
proper performance of the functions of the Department, including 
whether the information will have practical utility; the accuracy of 
the Department's estimate of the burden of the proposed information 
collection; ways to enhance the quality, utility and clarity of the 
information to be collected; and ways to minimize the burden of the 
collection of information on respondents, including the use of 
automated collection techniques or other forms of information 
technology. Please submit any comments to the NHTSA Docket Number 
referenced in the heading of this document, and to Claudia Covell as 
referenced in the FOR FURTHER INFORMATION CONTACT section of this 
document.

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, Motor vehicle safety, Motor vehicles, Tires.

    In consideration of the foregoing, NHTSA proposes to amend 49 CFR 
part 571 as set forth below.

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 1.95.

0
2. Amend Sec.  571.218 by:
0
a. Revising S1;
0
b. Revising S3;
0
c. Adding definitions of ``Apex'', ``Inner Liner'', and ``Motorcycle 
Helmet'' in alphabetical order in S4;
0
d. Revising S5;
0
e. Redesignating S5.1 through S5.7 as follows:

------------------------------------------------------------------------
            Old section                           New section
------------------------------------------------------------------------
                    S5.1                                 S5.2
                    S5.2                                 S5.3
                    S5.3                                 S5.4
                  S5.3.1                               S5.4.1
                  S5.3.2                               S5.4.2
                    S5.4                                 S5.5
                    S5.5                                 S5.6
                    S5.6                                 S5.7
                  S5.6.1                               S5.7.1
                    S5.7                                 S5.8
------------------------------------------------------------------------

0
f. Adding S5.1;
0
g. Revising S6;
0
h. Revising S6.3.2;
0
i. Revising the introductory text of S6.4.1;
0
j. Revising S6.4.2;
0
k. Redesignating S7.1 through S7.3.4 as follows:

------------------------------------------------------------------------
            Old section                           New section
------------------------------------------------------------------------
                    S7.1                                 S7.2
                  S7.1.1                               S7.2.1
                  S7.1.2                               S7.2.2
                  S7.1.3                               S7.2.3
                  S7.1.4                               S7.2.4
                  S7.1.5                               S7.2.5
                  S7.1.6                               S7.2.6
                  S7.1.7                               S7.2.7
                  S7.1.8                               S7.2.8
                  S7.1.9                               S7.2.9
                 S7.1.10                              S7.2.10
                 S7.1.11                              S7.2.11
                    S7.2                                 S7.3
                  S7.2.1                               S7.3.1
                  S7.2.2                               S7.3.2
                  S7.2.3                               S7.3.3
                  S7.2.4                               S7.3.4
                  S7.2.5                               S7.3.5
                  S7.2.6                               S7.3.6
                  S7.2.7                               S7.3.7
                  S7.2.8                               S7.3.8
                    S7.3                                 S7.4
                  S7.3.1                               S7.4.1
                  S7.3.2                               S7.4.2
                  S7.3.3                               S7.4.3
                  S7.3.4                               S7.4.4
------------------------------------------------------------------------

0
l. Adding S7.1, S7.1.1, S7.1.2, S7.1.3, and S7.1.4;
0
m. Revising the heading of the Appendix to Sec.  571.218;
0
n. Adding Figure 9 and Table 3 at the end of Appendix A; and
0
o. Adding appendices B and C.
    The revisions and additions read as follows:


Sec.  571.218  Standard No. 218; Motorcycle helmets.

    S1. Scope. This standard establishes minimum performance 
requirements for motorcycle helmets.
* * * * *
    S3. Application. This standard applies to all motorcycle helmets.
    S4. * * *
    Apex means the upper most point on the shell of the helmet when the 
helmet is oriented such that that brow opening is parallel to the 
ground.
* * * * *
    Inner liner means an energy absorbing material that is molded to 
conform to the inner shape of the helmet's shell and serves to protect 
the user's head from impact forces during a crash.
* * * * *
    Motorcycle helmet (1) Except as provided in paragraph (2) of this 
definition, any hard shell headgear is a motorcycle helmet and an item 
of motor vehicle equipment if it is either--
    (A) Manufactured for sale, sold, offered for sale, introduced or 
delivered for introduction in interstate commerce,

[[Page 29484]]

or imported into the United States, for use on public streets, roads, 
and highways with the apparent purpose of safeguarding highway users 
against risk of accident, injury, or death, or
    (B) manufactured for sale, sold, offered for sale, introduced or 
delivered for introduction in interstate commerce, or imported into the 
United States by entities that also manufacture for sale, sell, offer 
for sale, introduce or deliver for introduction in interstate commerce, 
or import into the United States either motorcycles, helmets certified 
to FMVSS No. 218, or other motor vehicle equipment and apparel for 
motorcycles or motorcyclists, or
    (C) described or depicted as a motorcycle helmet in packaging, 
display, promotional information or advertising, or
    (D) imported into the United States under the applicable 
designation(s) for motorcycle helmets in the Harmonized Tariff Schedule 
of the United States.
    (2) Paragraphs (1)(B), (1)(C), and (1)(D) of this definition do not 
apply to a helmet that is properly labeled and marked by its 
manufacturer as meeting a standard (other than a standard for 
motorcycle helmets) issued or adopted by the U.S. Consumer Product 
Safety Commission, ASTM International, National Operating Committee on 
Standards for Athletic Equipment, Snell Memorial Foundation, American 
National Standards Institute, The Hockey Equipment Certification 
Council, International Mountaineering and Climbing Federation, SFI 
Foundation, European Commission CE Marking (CE), or the 
F[eacute]d[eacute]ration Internationale de l'Automobile and such 
labeling and marking and the manner in which it is done are in 
accordance with that standard.
* * * * *
    S5. Requirements. Except as provided in this paragraph, each helmet 
shall meet the requirements of S5.1, when tested in accordance with 
S7.1. Helmets meeting the requirements of S5.1 when tested in 
accordance with S7.1 shall also meet the requirements of S5.2, S5.3 and 
S5.4 when subjected to any conditioning procedure specified in S6.4, 
and tested in accordance with S7.2, S7.3, and S7.4. Helmets shall also 
meet requirements of S5.5 through and including S5.7. A manufacturer 
may submit to NHTSA evidence that a helmet model complies with the 
requirements of FMVSS 218 S5.2 through and including S5.7, despite not 
meeting the requirements of S5.1 and thereby request to be included in 
appendix C of this standard. The provisions for submitting such a 
request can be found in appendix B of this standard.
    S5.1 Preliminary screening. Each helmet shall have the following 
characteristics (refer to Figure 9 of appendix A of this standard) when 
tested in accordance with S7.1:
    (a) The inner liner, excluding any cloth or fabric liner, is at 
least \3/4\ inch (19 mm) thick; and
    (b) The combined thickness of the inner liner, excluding any cloth 
or fabric liner, and outer shell is at least 1 inch (25 mm) thick; and
    (c) The inner liner shall not deform more than \1/12\ inch (2 mm) 
when measured in accordance with S7.1.4.
* * * * *
    S6. Preliminary test procedures. Before subjecting a helmet to the 
testing sequence specified in S7.2, S7.3 and S7.4, prepare it according 
to the procedures in S6.1, S6.2, and S6.3.
* * * * *
    S6.3.2 In testing as specified in S7.2 and S7.3, place the 
retention system in a position such that it does not interfere with 
free fall, impact or penetration.
* * * * *
    S6.4.1 Immediately before conducting the testing sequence specified 
in S7.2 through S7.4, condition each test helmet in accordance with any 
one of the following procedures:
* * * * *
    S6.4.2 If during testing, as specified in S7.2.3 and S7.3.3, a 
helmet is returned to the conditioning environment before the time out 
of that environment exceeds 4 minutes, the helmet is kept in the 
environment for a minimum of 3 minutes before resumption of testing 
with that helmet. If the time out of the environment exceeds 4 minutes, 
the helmet is returned to the environment for a minimum of 3 minutes 
for each minute or portion of a minute that the helmet remained out of 
the environment in excess of 4 minutes or for a maximum of 12 hours, 
whichever is less, before the resumption of testing with that helmet.
* * * * *
    S7.1 Thickness and inner liner compression test.
    S7.1.1 The thickness is measured anywhere within a 4-inch (104 mm) 
radius of the apex of the helmet.
    S7.1.2 The inner liner is measured by penetrating the helmet liner 
using a stiff metal probe having a gauge of 26-30 (nominal outer 
diameter 0.01825 inch (0.4636 mm)). The probe is inserted until it 
contacts the inner surface of the shell in a direction that measures 
the shortest distance along a line that connects a point on the outer 
shell and the closest point on the inner surface of the inner liner. 
The depth of penetration of the probe equates to the thickness of the 
helmet liner.
    S7.1.3 The combined thickness of the inner liner, excluding any 
cloth or fabric liner, and the outer shell is measured using an outside 
dimension caliper that can reach the measurement area without 
interference with the helmet. One tip of the caliper is placed on a 
point on the outer shell of the helmet and the other tip of the caliper 
is placed on the closest point on the inner surface of the inner liner.
    S7.1.4 The uncompressed thickness of the inner liner is measured in 
accordance with the procedure in S7.1.2 or the uncompressed thickness 
of the inner liner and outer shell is measured in accordance with the 
procedure in S7.1.3. A force gauge having a flat tip of 0.20-0.30 inch 
(5-7 mm) in diameter is used to apply a compression force of not less 
than 1 lbf (4.4 N) and not more than 5 lbf (22.2N) to the inner liner 
adjacent to the area measured for thickness. The compression force is 
held for 10 seconds and the thickness measurement is repeated at the 
original location. The thickness measured during compression is 
subtracted from the initial thickness measured at the original 
location.
* * * * *

[[Page 29485]]

[GRAPHIC] [TIFF OMITTED] TP21MY15.011


                     Table 3--Required Certification Label Based on Helmet Manufacture Date
----------------------------------------------------------------------------------------------------------------
                                                            Certification label shall contain the following
        Motorcycle helmet date of manufacture                                 information
----------------------------------------------------------------------------------------------------------------
Prior to May 13, 2013................................                                                       DOT
On or after May 13, 2013.............................                                    Mfr. Name and/or Brand
                                                                                              Model Designation
                                                                                                            DOT
                                                                                                  FMVSS No. 218
                                                                                                               CERTIFIED
----------------------------------------------------------------------------------------------------------------


[[Page 29486]]

Appendix B--Petition in Accordance With the Alternative Compliance 
Process for Motorcycle Helmets, Section 5 of FMVSS No. 218

    S1. Application. This section establishes procedures for the 
submission and disposition of petitions filed by manufacturers of 
motorcycle helmets whose products do not meet the requirements of 
S5.1 and do meet the requirements of S5.2 through and including 
S5.7, who wish to certify their products in accordance with the 
alternative compliance process established in S5 of FMVSS No. 218.
    S2. Form of Petition.
    (a) Information shall be furnished to: Associate Administrator 
for Enforcement, National Highway Traffic Safety Administration, 
1200 New Jersey Avenue SE., West Building, Washington, DC 20590, 
Attention: Filing for 218 Motorcycle helmet S5 Alternative 
compliance Process.
    (b) Be written entirely in the English language.
    (c) Each submission shall consist of one set of information, all 
written information shall be on 8\1/2\ by 11-inch paper, visual 
information shall be provided in printed color photographs, and 
color videos.
    (d) Petitions may be submitted by motorcycle helmet 
manufacturers.
    (e) Set forth in full the data, photographs, videos, and other 
documentation supporting the petitioner's statements and claims 
required in S4 of this appendix.
    (f) Test data shall be labeled with the appropriate units cited 
in the standard.
    (g) Not request confidential treatment for the contents of the 
petition.
    S3. Contents of petition.
    The petitioner shall provide the following information--
    (a) State the full name and address of the original equipment 
manufacturer (petitioner), the name and contact information for a 
point of contact to which the Agency can direct correspondence, the 
nature of the petitioning organization (individual, partnership, 
corporation, etc.) and the name of the State or country under the 
laws of which it is organized.
    (b) Identify the motorcycle helmet for which the petition is 
being submitted. The motorcycle helmet must be identified by 
manufacturer's name in accordance with S5.6.1(a), precise model 
designation per S5.6.2(a)(4), and manufacturer's name and/or brand 
per S5.6.2(a)(5) of FMVSS No. 218. The helmet identification 
provided in the petition must correspond to the information found on 
the helmet and in the supporting documentation submitted with the 
petition.
    (c) The petitioner shall provide evidence of current information 
on file to facilitate correspondence with NHTSA and procurement of 
test samples by NHTSA, as applicable, including, but not limited to, 
part 551 of this chapter, part 566 of this chapter, and compliance 
with other applicable legal requirements. Valid contact information 
must be made available. Submission of a petition in accordance with 
this appendix does not constitute submission of information with 
respect to any other regulation.
    (d) Submissions shall be unique and specific to the motorcycle 
helmet for which a petition is being submitted in accordance with 
this appendix. The brand and precise model designation must refer to 
a unique design and fabrication process for a specific motorcycle 
helmet. The submission shall address every size that will be made 
available for sale. Information about the differences in each size 
that will be sold shall be completely described.
    (e) The basis on which the manufacturer certifies the helmet 
must be explained and address all aspects of FMVSS No. 218 including 
data evaluating the helmet to all aspects of FMVSS No. 218. Test 
protocol(s), calibration records, test dates, information about the 
testing organization(s), photographs of test locations and test 
results, videos of the actual testing of the helmet, and any other 
relevant information must be fully documented.
    (f) The manufacturer shall provide contact information for the 
independent testing organization(s) used to collect supporting data 
and a statement granting the Agency permission to discuss the 
testing contained in the petition with that testing organization.
    (g) Photographs and other descriptive characteristics to 
adequately describe and identify the samples must be provided. 
Distinguishing features must be identified. Such photographic and 
descriptive material shall not be copyrighted, shall be of 
sufficient quality for reproduction, and may be reproduced by the 
Agency for purposes of disseminating information about the helmets 
listed in appendix C of this standard.
    S4. Processing of Petition.
    (a) NHTSA will process any petition that contains the 
information and supporting documentation specified by this section. 
If a petition fails to provide any of the information, NHTSA will 
not process the petition.
    (b) The Associate Administrator seeks to review each submission 
and inform the manufacturer not later than 60 days after its receipt 
of the written submission, if the information is complete or 
acceptable. The Associate Administrator does not accept any 
submission that does not contain all of the information specified in 
this appendix, or that contains information suggesting that the 
design or manufacture of the motorcycle helmet which is the subject 
of the petition does not conform to all aspects of FMVSS 571.218, 
Motorcycle Helmets, excluding S5.1.
    (c) At any time during the agency's consideration of a petition 
submitted under this part, the Associate Administrator for 
Enforcement may request the petitioner to submit additional 
supporting information and data. If such a request is not honored to 
the satisfaction of the agency, the petition will not receive 
further consideration until the information is submitted.
    (d) If the submission is complete, valid, and provides adequate 
indication that the helmet can comply with S5.2-S5.7 of FMVSS No. 
218, NHTSA will contact the manufacturer to obtain samples for 
testing. NTHSA will procure up to ten identical samples of each size 
motorcycle helmet for which the manufacturer is submitting a 
petition. The manufacturer must furnish the helmet positioning index 
for each size helmet at the time of procurement.
    (e) NTHSA will conduct testing of the helmet, at its discretion, 
to some or all of the requirements, in accordance with the test 
procedures established in FMVSS No. 218. If any apparent non-
compliances with FMVSS No. 218 are identified, the Associate 
Administrator shall reject the submission.
    (f) The Associate Administrator seeks to test samples within six 
months of receipt. Samples that cannot be procured for any reason 
will not be tested and the petition will not be granted. Samples 
will not be returned to the manufacturer.
    (g) If the submission is accepted, if NTHSA finds no discrepancy 
with administrative or performance information included in the 
submission, and if testing performed on behalf of NHTSA is 
acceptable, the complete submission and NHTSA's determination will 
be placed in the docket. Such motorcycle helmets identified by 
manufacturer, brand (if applicable), precise model designation, and 
size will be listed in appendix C of this standard.
    (h) Products manufactured, sold, offered for sale, introduced in 
interstate commerce, or imported into the United States under the 
brand and precise model name for which a submission was made must be 
identical in design, manufacturing processes, materials, and sizes, 
to those submitted to NHTSA for review.
    (i) The granting of the petition is valid only:
    (1) As long as the design and manufacture of the helmet does not 
vary from the make, model, and size helmet for which the petition 
was submitted; and
    (2) While the make, model, and size of helmet are listed in 
appendix C of this standard.
    (j) The Associate Administrator terminates or modifies its 
determination if--
    (1) Granting the petition is no longer consistent with the 
public interest and the objectives of the Act; or
    (2) Subsequent to granting the petition, additional information 
or testing becomes available to indicate the helmet fails to comply 
with any requirement of the standard; or
    (3) Subsequent to granting the petition, additional information 
or testing becomes available to indicate the helmet may fail to 
comply with any requirement of the standard and the responsible 
manufacturer is non-responsive or fails to comply with his 
obligations under the law; or
    (4) Subsequent to granting the petition, additional information 
or testing becomes available to indicate the helmet poses an 
unreasonable risk to safety; or
    (5) The petition was granted on the basis of false, fictitious, 
fraudulent, or misleading representations or information.
    (k) The knowing and willful submission of false, fictitious or 
fraudulent information will subject the petitioner to the civil and 
criminal penalties of 18 U.S.C. 1001.

[[Page 29487]]

Appendix C--Motorcycle Helmets That Have Complied With the Alternative 
Compliance Process for Motorcycle Helmets, Section 5 of FMVSS No. 218 
and Must Be Further Certified by the Manufacturer Before Being 
Manufactured, Sold, Offered for Sale, Introduced Into Interstate 
Commerce or Imported Into the United States

    At the time of this notification, there are no motorcycle 
helmets that meet the alternative compliance process for S5.

    Issued on May 12, 2015 in Washington, DC, under authority 
delegated in 49 CFR 1.95.
Daniel C. Smith,
Senior Associate Administrator for Vehicle Safety.

[FR Doc. 2015-11756 Filed 5-20-15; 8:45 am]
 BILLING CODE 4910-59-P