Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57297 

in the Federal Register as soon as 

practicable after its issuance. 

(2) Each order, pleading, motion, 

notice, or other document shall be 

accompanied by a certificate of service 

specifying the manner in which and the 

date on which service was made. 

(3) The emergency order shall be 

served by ‘‘hand delivery,’’ unless such 

delivery is not practicable. 

(4) Service upon a person’s duly 

authorized representative constitutes 

service upon that person. 

(h) Report and recommendation. The 

Administrative Law Judge shall issue a 

report and recommendation at the close 

of the record. The report and 

recommendation shall: 

(1) Contain findings of fact and 

conclusions of law and the grounds for 

the decision based on the material 

issues of fact or law presented on the 

record; 

(2) Be served on the parties to the 

proceeding; and 

(3) Be issued no later than 25 days 

after receipt of the petition for review by 

the Chief Safety Officer. 

(i) Expiration of order. If the Chief 

Safety Officer, or the Administrative 

Law Judge, where appropriate, has not 

disposed of the petition for review 

within 30 days of receipt, the emergency 

order shall cease to be effective unless 

the Administrator issuing the 

emergency order determines, in writing, 

that the imminent hazard providing a 

basis for the emergency order continues 

to exist. The requirements of such an 

extension shall remain in full force and 

effect pending decision on a petition for 

review unless stayed or modified by the 

Administrator. 

(j) Reconsideration. 

(1) A party aggrieved by the 

Administrative Law Judge’s report and 

recommendation may file a petition for 

reconsideration with the Chief Safety 

Officer within one calendar day of 

issuance of the report and 

recommendation. The opposing party 

may file a response to the petition 

within one calendar day. 

(2) The Chief Safety Officer shall issue 

a final agency decision within three 

calendar days, but no later than 30 days 

after receipt of the original petition for 

review. 

(3) The Chief Safety Officer’s decision 

on the merits of a petition for 

reconsideration constitutes final agency 

action. 

(k) Appellate review. A person 

aggrieved by the final agency action may 

petition for review of the final decision 

in the appropriate Court of Appeals for 

the United States as provided in 49 

U.S.C. 5127. The filing of the petition 

for review does not stay or modify the 

force and effect of the final agency. 

(l) Time. In computing any period of 

time prescribed by this part or by an 

order issued by the Administrative Law 

Judge, the day of filing of the petition 

for review or of any other act, event, or 

default from which the designated 

period of time begins to run shall not be 

included. The last day of the period so 

computed shall be included, unless it is 

a Saturday, Sunday, or Federal holiday, 

in which event the period runs until the 

end of the next day which is not one of 

the aforementioned days. 

§ 109.7 Emergency recalls. 

PHMSA’s Associate Administrator, 

Office of Hazardous Materials Safety, 

may issue an emergency order 

mandating the immediate recall of any 

packaging; packaging component; or 

container certified, represented, marked, 

or sold as qualified for use in the 

transportation of hazardous materials in 

commerce when the continued use of 

such item would constitute an 

imminent hazard. All petitions for 

review of such an emergency order will 

be governed by the procedures set forth 

at § 109.5(b). 

§ 109.9 Remedies generally. 

An Administrator may request the 

Attorney General to bring an action in 

the appropriate United States district 

court seeking temporary or permanent 

injunctive relief, punitive damages, 

assessment of civil penalties as 

provided by 49 U.S.C. 5122(a), and any 

other appropriate relief to enforce the 

Federal hazardous material 

transportation law, regulation, order, 

special permit, or approval prescribed 

or issued under the Federal hazardous 

material transportation law. 

Issued in Washington, DC on September 

26, 2008 under authority delegated in 49 CFR 

part 1. 

David K. Lehman, 

Acting Associate Administrator for 

Hazardous Materials Safety. 

[FR Doc. E8–23248 Filed 10–1–08; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2008–0157] 

RIN 2127–AK15 

Federal Motor Vehicle Safety 

Standards; Motorcycle Helmets 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: NHTSA is proposing to 

amend several aspects of Federal Motor 

Vehicle Safety Standard (FMVSS) No. 

218, Motorcycle Helmets. Some of the 

amendments would help realize the full 

potential of compliant helmets by aiding 

state and local law enforcement officials 

in enforcing state helmet use laws, 

thereby increasing the percentage of 

motorcycle riders wearing helmets 

compliant with FMVSS No. 218. The 

amendments would do this by adopting 

additional requirements and revising 

existing requirements to reduce 

misleading labeling of novelty helmets 

that creates the impression that 

uncertified, noncompliant helmets have 

been properly certified as compliant. 

The other amendments would aid 

NHTSA in enforcing the standard by 

specifying a quasi-static load 

application rate for the helmet retention 

system; revising the impact attenuation 

test by specifying test velocity and 

tolerance limits and removing the drop 

height requirement; providing 

tolerances for the helmet conditioning 

specifications; revising requirements 

related to size labeling and location of 

the DOT symbol; correcting figures 7 

and 8 in the Standard; and updating the 

reference in S7.1.9 to SAE 

recommended practice J211. 

DATES: You should submit your 

comments early enough to ensure that 

Docket Management receives them not 

later than December 1, 2008. 

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. 

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57298 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

1National Center for Statistics & Analysis, 

National Highway Traffic Safety Administration, 

Traffic Safety Facts: 2006 Traffic Safety Annual 

Assessment-A Preview, at 1 (DOT HS 810 791). 

Washington, DC (July 2007), available at http:// 

www-nrd.nhtsa.dot.gov/Pubs/810791.PDF and in 

the docket. 

National Center for Statistics & Analysis, National 

Highway Traffic Safety Administration, Traffic 

Safety Facts 2005 Data: Motorcycles, at 1 (DOT HS 

810 620). Washington, DC (2005), available at 

http://www-nrd.nhtsa.dot.gov/Pubs/810620.PDF 

and in the docket. 

2 Ibid. 

3 DOT HS 810 791, at 1. 

4Available at http://www.ntsb.gov/alerts/ 

SA_012.pdf. 

• 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. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues, you may contact Mr. 

Sean Doyle, Office of Rulemaking (Email: sean.doyle@dot.gov) (Telephone: 

202–493–0188) (Fax: 202–493–2739). 

For legal issues, you may contact Mr. 

Ari Scott, Office of Chief Counsel (Email: ari.scott@dot.gov) (Telephone: 

202–366–2992) (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: 

Table of Contents 

I. Background 

A. Overview of Motorcycle Safety Problem 

B. Benefits of Motorcycle Helmets and 

Motorcycle Helmet Use Laws 

C. Provisions of FMVSS No. 218 Addressed 

in This Rulemaking 

D. Current Enforceability Issues 

1. State Motorcycle Helmet Use Laws 

2. FMVSS No. 218 

II. The Proposed Rule 

A. Summary of Key Proposed Changes 

1. Labeling Proposal To Reduce Misleading 

labeling of Novelty Helmets 

2. Size Labeling and Location of the ‘‘DOT’’ 

Certification Label 

3. Retention Test 

4. Impact Attenuation Test 

5. Helmet Conditioning Tolerances 

B. Proposals To Aid Enforcement of State 

Motorcycle Helmet Use Laws 

1. Current Requirements for Certification 

Labeling 

2. Proposed Upgrades to the Certification 

Labeling Requirements 

a. Application of a ‘‘DOT’’ Symbol Water 

Decal 

b. Addition of Lettering Indicating the 

Manufacturer and the Helmet Model 

Designation 

c. Addition of the Word ‘‘Certified’’ Under 

the ‘‘DOT’’ Symbol 

d. Letters/Numbers 

3. Alternatives Considered 

a. Sewing the ‘‘DOT’’ Symbol to the 

Chinstrap 

b. Molding or Embossing the ‘‘DOT’’ 

Symbol into the Helmet 

c. Using a Hologram ‘‘DOT’’ Symbol 

C. Size Labeling and Location of the 

‘‘DOT’’ Certification Label 

1. Location of the Certification Label 

2. Helmet Size Labeling Requirement 

D. Retention System Quasi-Static Load 

Application Rate 

E. Impact Attenuation Test Upgrades 

1. The Impact Sites 

a. Problems With ‘‘Identical Impacts’’ 

b. NHTSA Proposal 

c. Rationale for a 1.9 cm (3⁄4-inch) 

Tolerance 

2. Impact Attenuation Test Speed 

a. Current Impact Attenuation Test 

Procedures 

b. Concerns Regarding Current Test 

Procedures 

c. Rationale for Impact Attenuation Speed 

Tolerance Level 

d. Alternative Test Methods Examined 

F. Tolerances for Helmet Conditioning 

Specifications 

G. Correction of Figures 7 and 8 

H. Update SAE Reference to J211 

III. Effective Date 

IV. Benefits/Costs 

V. Public Participation 

VI. Rulemaking Analyses and Notices 

I. Background 

A. Overview of Motorcycle Safety 

Problem 

There is a pressing need for 

improvements in motorcycle safety. 

After falling steadily during the late 

1980’s and early 1990’s, and leveling off 

in the mid-1990’s, motorcycle rider 

fatalities and the related fatality rate 

have increased every year since 1997.1

Fatalities increased 127 percent between 

1997 and 2006 (from 2,116 deaths in 

1997 to 4,810 deaths in 2006).2 In 2006, 

motorcycle rider fatalities exceeded the 

number of pedestrian fatalities for the 

first time since NHTSA began collecting 

fatal motor vehicle crash data in 1975, 

and now account for 11 percent of all 

annual motor vehicle fatalities.3

A number of explanations have been 

offered for the steady increase in the last 

10 years, including increases in 

motorcycle sales, increases in the 

percentage of older riders, and increases 

in engine size. However, the increase in 

the number of deaths resulting from 

motorcycle crashes has been 

disproportionately fast compared to the 

increases in the number of motorcycles 

on the road and the distance they are 

driven. Motorcycles make up about 2.4 

percent of all registered vehicles and 0.3 

percent of all vehicle miles traveled 

(VMT), but account for 11 percent of all 

traffic crash fatalities in 2006, compared 

to 5.0 percent in 1997. This represents 

a significant increase as a proportion of 

the annual loss of life in traffic crashes. 

In recent years, fatality rates for 

motorcycle riders have increased faster 

than the increase in motorcycle 

exposure (VMT on motorcycles as well 

as the number of registered 

motorcycles). The number of fatalities 

per 100 million VMT on motorcycles 

has more than doubled, increasing from 

21 in 1997 to 42.5 in 2005. Similarly, 

the number of fatalities per 100,000 

registered motorcycles increased from 

55 in 1997 to 73.5 in 2005. Compared 

with a passenger car occupant, a 

motorcycle rider is 37 times more likely 

to die in a crash, based on vehicle miles 

traveled. 

The National Transportation Safety 

Board (NTSB) recently made similar 

assessment of the motorcycle safety 

problem. The assessment came in a 

Safety Alert, ‘‘Alarming Rise in 

Motorcycle Deaths,’’ issued by NTSB in 

September 2007: 4

• Deaths from motorcycle crashes 

have more than doubled in the past 10 

years—from 2,116 in 1997 to 4,810 in 

2006—an alarming trend. Another 

88,000 people were injured in 

motorcycle crashes in 2006. 

• The yearly number of motorcycle 

deaths is more than double the annual 

total number of people killed in all 

aviation, rail, marine and pipeline 

accidents combined. 

• Head injuries are a leading cause of 

death in motorcycle crashes. 

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5 DOT HS 810 620, at 6. 

6 Ibid. 

7National Center for Statistics & Analysis, 

National Highway Traffic Safety Administration, 

Technical Report: Crash Stats, Bodily Injury 

Locations in Fatally Injured Motorcycle Riders, 

DOT HS 810 856, October 2007. 

8National Center for Statistics & Analysis, 

National Highway Traffic Safety Administration, 

Traffic Safety Facts Research Note: Motorcycle 

Helmet Use in 2007—Overall Results (September 

2007) (DOT HS 810 840). Washington, DC, available 

at http://www-nrd.nhtsa.dot.gov/Pubs/810840.PDF 

and in the docket. 

9National Highway Traffic Safety Administration. 

Traffic Safety Facts Research Note: Summary of 

Novelty Helmet Performance Testing (DOT HS 810 

752). Washington, D.C.: Office of Behavioral Safety 

Research, National Highway Traffic Safety 

Administration (Apr. 2007). Available at: http:// 

www.nhtsa.gov/portal/nhtsa_static_file_down

loader.jsp?file=/staticfiles/DOT/NHTSA/

Traffic%20Injury%20Control/Studies%20

%20Reports/Associated%20Files/

Novelty_Helmets_TSF.pdf. 

B. Benefits of Motorcycle Helmets and 

Motorcycle Helmet Use Laws 

Among the measures available for 

improving motorcycle safety, none is 

more effective than use of motorcycle 

helmets. The steadily increasing toll of 

motorcyclist fatalities would have been 

lower had all motorcyclists been 

wearing motorcycle helmets that meet 

the performance requirements issued by 

this agency. In potentially fatal crashes, 

helmets have an overall effectiveness of 

37 percent in preventing fatalities.5

According to the data for 2006, helmets 

saved an estimated 1,658 lives in that 

year. If there had been 100 percent 

helmet use among motorcycle riders, an 

additional 752 lives could have been 

saved that year.6

Again, in its September 2007 Safety 

Alert, the NTSB came to similar 

conclusions: 

• DOT-compliant helmets are 

extremely effective. They can prevent 

injury and death from motorcycle 

crashes. 

• If you are in a crash without a 

helmet, you are three times more likely 

to have brain injuries. 

• Wearing a helmet reduces the 

overall risk of dying in a crash by 37%. 

• In addition to preventing fatalities, 

helmets reduce the need for ambulance 

service, hospitalization, intensive care, 

rehabilitation, and long-term care. 

• Wearing a helmet does not increase 

the risk of other types of injury. 

The value of helmet use can be 

demonstrated in other ways. Data from 

the agency’s Fatality Analysis Reporting 

System (FARS) for the period 1995– 

2004 also show the importance of 

motorcycle helmets. Even though the 

percentage of riders who use motorcycle 

helmets is larger than the percentage of 

riders who do not, non-users suffer 

more fatal head injuries. From 2000 to 

2002, an average of 35 percent of 

helmeted riders who died suffered a 

head injury, while an average of 51 

percent of the non-users who died 

suffered a head injury.7

Unfortunately, a significant 

percentage of motorcyclists either wear 

noncompliant helmets or do not wear 

any helmet at all. In 2006, 20 States and 

the District of Columbia required all 

motorcyclists to wear helmets. In those 

21 jurisdictions, FMVSS No. 218- 

compliant helmets were used by 68 

percent of motorcyclists; non-compliant 

helmets were used by 15 percent of 

motorcyclists; and no helmets were 

used by an estimated 17 percent of 

motorcyclists. Comparatively, in the 30 

States with partial or no helmet use 

laws, only 37 percent of motorcyclists 

used FMVSS No. 218-compliant 

helmets; 13 percent used non-compliant 

helmets; and 50 percent did not use a 

helmet at all.8 These data are presented 

below in tabular form: 

Motorcyclists 

States with a 

helmet use 

law 

States without 

a helmet use 

law 

Percentage using FMVSS No. 218 compliant helmets ........................................................................................... 68 37 

Percentage using non-compliant helmets ............................................................................................................... 15 13 

Percentage not using any helmet ............................................................................................................................ 17 50 

This data shows that a considerable 

number of motorcyclists both in states 

with and without helmet use laws are 

wearing non-compliant helmets. As 

discussed below, such helmets do not 

provide adequate protection. 

The noncompliant helmets are 

commonly called ‘‘novelty’’ helmets. 

They are not properly constructed for 

highway use, and typically lack the 

strength, energy absorption capability, 

and size necessary to protect their users. 

They do not meet the safety 

requirements of FMVSS No. 218 and are 

not certified as such. In fact, recent 

compliance test data on novelty helmets 

showed that they failed all of the 

FMVSS No. 218 performance 

requirements.9 Manufacturers of these 

helmets frequently include disclaimers 

that contend the helmets are not 

intended for protecting the persons who 

wear them from injury. These 

manufacturers claim that they are not 

intended for highway use. Nonetheless, 

as the above table shows, a significant 

proportion of motorcyclists use novelty 

helmets on the highway. 

NHTSA is making efforts to gather 

more specific data in this area. Among 

other efforts to generate the information 

necessary to improve highway safety, 

the 3rd Edition of the Model Minimum 

Uniform Crash Criteria (MMUCC) 

Guideline, which aims to provide a data 

set for describing crashes of motor 

vehicles, has been revised to 

characterize if motorcyclists involved in 

crashes were wearing 218-compliant 

helmets, other helmets, or no helmets. 

C. Provisions of FMVSS No. 218 

Addressed in This Rulemaking 

The purpose of FMVSS No. 218 is to 

reduce deaths and injuries to 

motorcyclists and other motor vehicle 

users resulting from head impacts. To 

do so, the standard establishes 

minimum performance requirements for 

helmets. These requirements include 

three performance tests: (1) An impact 

attenuation test; (2) a penetration test; 

and (3) a retention system test; as well 

as various labeling requirements. 

The impact attenuation test is 

designed to ensure that helmets retain 

structural integrity and attenuate impact 

energy during a variety of crash 

scenarios. The test measures 

acceleration imparted to an 

instrumented test headform on which a 

complete helmet is mounted. The 

helmet/headform combination is 

dropped in a guided free fall upon 

either a fixed hemispherical anvil or a 

fixed flat anvil. 

The penetration test simulates a head 

impact with a piercing object. This test 

is conducted by dropping a penetration 

test striker in guided free fall, with its 

axis aligned vertically, onto the outer 

surface of the complete helmet when 

mounted on a headform. 

The retention system test is a test 

designed to help ensure the helmet 

remains securely fastened to the rider’s 

head. It is conducted by applying a 

tensile load to the retention assembly. 

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57300 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

10Recent compliance test data on novelty helmets 

showed that they failed all of the FMVSS No. 218 

performance requirements. (Compliance test results 

can be found at http://www-odi.nhtsa.dot.gov/tis/ 

index.cfm). In fact, in all tests performed by the 

Office of Vehicle Safety Compliance (OVSC), 

novelty helmets were found to be inadequate in 

offering their users even minimal protection during 

a crash. 

11For example, California law provides that when 

a motorcycle helmet has a DOT sticker, a state law 

enforcement officer can cite a motorcyclist for 

wearing a non-compliant helmet only if the helmet 

has been shown not to comply with the Federal 

standard and the motorcyclist has been shown to 

have actual awareness of this non-compliance. 

Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 

1486, 1499 (9th Cir. 1996). If a California law 

enforcement officer cites a motorcyclist based only 

upon his subjective belief that a helmet does not 

comply, without regard to the motorcyclist’s actual 

knowledge of whether or not the helmet is 

compliant, the citation is invalid. Id. at 1499–1500. 

12For an example of a ‘‘DOT’’ label being sold as 

a ‘‘Doing our Thing’’ sticker, see http:// 

www.chopperstickers.com/DOT-Sticker-pr130.html. 

For each test, the helmet is 

conditioned in one of four different 

ways prior to testing. These include: (1) 

An ambient condition; (2) a low 

temperature condition; (3) a high 

temperature condition; and (4) a water 

immersion condition. 

Labeling requirements are also set 

forth in Standard No. 218. These require 

that the manufacturer label each helmet 

permanently and legibly with the 

manufacturer’s name or identification, 

precise model designation, size, month 

and year of manufacture, and 

instructions to the purchaser. The 

manufacturer must permanently label 

each helmet with the ‘‘DOT’’ symbol, 

which constitutes the manufacturer’s 

certification that the helmet conforms to 

the applicable FMVSSs. Standard No. 

218 also sets forth the requirements and 

acceptable locations of these labels. 

D. Current Enforceability Issues 

This notice addresses several issues 

relating to the enforceability of state 

mandatory helmet laws and FMVSS No. 

218. The first issue relates to the 

difficulties that States have had in 

establishing that some motorcyclists are 

using helmets that have not been 

certified to the Federal Standard. A 

second issue relates to the inability of 

some helmet manufacturers to locate the 

certification label as required by the 

standard due to the presence of edge 

rolls on helmets. Third, there have been 

issues relating to determinations of 

noncompliance in the agency’s own 

testing of helmets under the guidelines 

in FMVSS No. 218. 

1. State Motorcycle Helmet Use Laws 

The first issue concerns the use of 

‘‘novelty’’ helmets by motorcyclists 

operating on the highway. In order to 

reap the benefits of compliant helmets, 

better enforcement against the use of 

novelty helmets by motorcyclists is 

needed. Novelty motorcycle helmets are 

not certified by their manufacturers as 

compliant with FMVSS No. 218 and 

offer the wearer no protection against 

injury.10 Some motorcyclists wearing 

novelty helmets have been affixing 

‘‘DOT’’ symbol stickers to their helmets 

to create the appearance of properly 

certified, compliant helmets. These 

stickers closely resemble the ‘‘DOT’’ 

certification symbol required by FMVSS 

No. 218 and can be purchased from 

stores selling novelty helmets or from 

online retailers. 

The ability of novelty helmet users to 

affix inexpensive, easy-to-obtain labels 

resembling legitimate certification labels 

has complicated the efforts of state and 

local law enforcement personnel to 

enforce requirements for the use of 

properly certified helmets. They make it 

difficult for law enforcement officials in 

states with helmet use laws to 

determine whether or not a rider is 

wearing a helmet certified to FMVSS 

No. 218. The stickers make it difficult to 

prove whether or not a motorcycle 

wearer is deliberately flouting 

mandatory helmet use laws by wearing 

a novelty helmet with a misleading 

‘‘DOT’’ label that improperly suggests 

the helmet is certified.11 The use of 

these labels provides the wearer with a 

plausible basis for the assertion that he 

or she believes that the helmet he or she 

is using has been certified to the Federal 

standard. Further, sellers of these labels, 

which currently merely contain the 

letters ‘‘DOT,’’ attempt to avoid any 

responsibility for their sale and use by 

asserting that the labels are not 

counterfeit certification labels, but 

merely labels bearing letters that stand 

for ‘‘Doing Our Thing.’’ 12 As a result, 

application of these stickers to noncompliant helmets enables 

motorcyclists to avoid arrest and 

penalties in situations where state and 

local helmet laws require the use of a 

certified DOT-compliant motorcycle 

helmet. 

In addition to this problem, improper 

use of the ‘‘DOT’’ symbol on noncomplying helmets places motorcycle 

helmet manufacturers that design, test, 

and certify their helmets to FMVSS No. 

218 requirements at a financial 

disadvantage, as novelty helmets do not 

undergo the same manufacturing or 

testing procedures to ensure their 

effectiveness in a crash, and thus can be 

marketed to unwary buyers as 

inexpensive alternatives to properlycertified helmets. 

2. FMVSS No. 218 

NHTSA has had several types of 

problems with enforcing FMVSS No. 

218. One of them involves the 

requirement regarding the location of 

the certification labels. During FY 2000– 

2003, NHTSA has found that 14 percent 

of the motorcycle helmets tested for 

compliance did not comply with the 

labeling requirements of S5.6(e) of the 

standard because the ‘‘DOT’’ symbol on 

these helmets was slightly above the 

required location. Paragraph S5.6(e) 

mandates that the horizontal centerline 

of the certification label be located 

between 11⁄8 inches and 13⁄8 inches from 

the lower edge of the helmet. This is 

partly because the helmet manufacturers 

have been concerned that making design 

changes to the helmet so that the ‘‘DOT’’ 

symbol could be placed in the required 

location would affect the helmet’s 

performance. In instances in which the 

manufacturer demonstrated that it 

placed the symbol as close to the 

required location as possible, NHTSA 

chose not to take action against the 

manufacturer. 

The other main issue concerns the 

enforceability of determinations of 

noncompliance with the performance 

requirements in FMVSS No. 218. During 

fiscal year (FY) 2002 and 2003 

compliance testing, the agency 

discovered ambiguities in the language 

of the impact attenuation test and the 

retention test when testing helmets 

manufactured by NexL Sports Products 

(NexL). NHTSA compliance testing 

found that NexL’s helmets failed to meet 

the performance requirements of 

FMVSS No. 218 on helmet impact 

attenuation, penetration, and retention. 

In its response to the agency’s finding 

of noncompliance, NexL claimed that 

the agency’s impact attenuation tests 

were invalid because the agency 

violated S7.1.4 of the standard by 

testing the helmets at velocities lower 

than the minimum required 19.7 ft/s (6 

m/s). NHTSA found that the helmets 

did not comply with the impact 

attenuation requirements of FMVSS No. 

218 during agency testing, which is 

typically conducted at speeds somewhat 

less than 19.7 ft/s. Because the impact 

attenuation test, as written, requires a 

minimum impact speed of 19.7 ft/s, the 

agency determined that this language 

could be ambiguous. 

With regard to the retention test, NexL 

stated that it tested its helmets at the 

required static load condition, and that 

its testing did not result in any 

displacement failures. In its 

investigation, NHTSA found that NexL 

was able to achieve passing results by 

adjusting the load application rate of the 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57301 

13On August 27, 2007, the ASTM International 

subcommittee on headgear and helmets petitioned 

NHTSA to make various updates to FMVSS No. 

218. Certain recommended actions in the ASTM 

petition are addressed in this notice, and the agency 

will evaluate the merits of the other 

recommendations at a later time. 

14Many merchants who sell ‘‘DOT’’ stickers for 

novelty motorcycle helmets state that the stickers 

are not intended to be counterfeit certification 

labels, and that DOT stands for ‘‘Doing Our Thing.’’ 

However, the agency is not aware that the labels are 

significantly used for any purpose other than 

application to novelty helmets. See, http:// 

www.chopperstickers.com/DOT-Sticker-pr130.html. 

test equipment until a passing 

displacement result (less than one inch, 

or 2.54 cm, of displacement) was 

achieved. In other words, by applying 

the required tensile load to the helmet 

at one rate, NexL was able to achieve a 

passing result, while in a similar test 

where the load was applied at a 

different rate, NHTSA results showed a 

noncompliance. Because the rate of 

application of the static load was 

ambiguous in the standard, NHTSA 

decided not to undertake an 

enforcement action. 

In order for NHTSA to be better able 

to take enforcement actions in these 

types of situations, both performance 

tests (impact attenuation and retention 

system) need to be revised to make them 

less ambiguous. Specifically, for the 

impact attenuation test, a velocity range 

needs to be specified; and with regard 

to the retention test, a rate of load 

application must be specified. It is 

believed that these changes will provide 

clearer guidance to manufacturers 

conducting tests specified in FMVSS 

No. 218, as well as enable NHTSA to 

better undertake enforcement actions 

when a noncompliance is discovered. 

II. The Proposed Rule 13

A. Summary of Key Proposed Changes 

1. Labeling Proposal To Reduce 

Misleading Labeling of Novelty Helmets 

We are proposing three requirements 

for helmet certification labeling: (1) The 

application of a ‘‘DOT’’ symbol water 

decal to the helmet beneath clear 

coating; (2) lettering on that decal 

indicating the manufacturer’s name 

and/or brand name and the helmet 

model designation in the space above 

the ‘‘DOT’’ symbol; and (3) the word 

‘‘certified’’ in a horizontally centered 

position beneath the ‘‘DOT’’ symbol on 

that decal. 

2. Size Labeling and Location of the 

‘‘DOT’’ Certification Label 

The agency is proposing that the 

required label on helmets be positioned 

such that the horizontal centerline of 

the DOT symbol is located between one 

and three inches (2.5–7.6 cm) from the 

lower edge of the helmet. In addition, 

the agency is proposing that helmets be 

labeled with a ‘‘discrete size,’’ which 

will correspond to the appropriate test 

headform. 

3. Retention Test 

The agency is specifying a load 

application rate for the retention test. In 

addition, in light of this requirement, 

we are reclassifying the retention test as 

a quasi-static test, instead of a static test. 

4. Impact Attenuation Test 

NHTSA is proposing to specify test 

velocity and tolerance limits for the 

impact attenuation test. Specifically, we 

are proposing that the test velocity be 

specified any speed between 15.7 ft/s to 

and including 18.4 ft/s (from 4.8 m/s to 

and including 5.6 m/s) for the impact on 

the hemispherical anvil, and any speed 

from 18.4 ft/s to and including 21.0 

ft/s (from 5.6 m/s to and including 6.4 

m/s) for the impact on the flat anvil. In 

addition, we are proposing to remove 

the drop height requirement from the 

impact attenuation test. 

5. Helmet Conditioning Tolerances 

NHTSA is proposing to set tolerances 

for the helmet conditioning procedures. 

For the ambient condition, the range is 

any temperature from 61 °F to and 

including 79 °F (from 16 °C to and 

including 26 °C) and any relative 

humidity from 30 to and including 70 

percent. For the low temperature 

condition, the range is any temperature 

from 5 °F to and including 23 °F (from 

¥15 °C to and including ¥5 °C). For the 

high temperature condition, the range is 

any temperature from 113 °F to and 

including 131 °F (from 45 °C to and 

including 55 °C). For the water 

immersion test, the range for the water 

temperature is from 68 °F to and 

including 86 °F (from 20 °C to and 

including 30 °C). In addition, NHTSA is 

proposing that the 12 hour duration be 

classified as a minimum duration. 

B. Proposals To Aid Enforcement of 

State Motorcycle Helmet Use Laws 

The proposed rule would establish 

additional requirements for certification 

labels that would entail processes that 

are inexpensive for the helmet 

manufacturer, but would be more 

difficult and expensive for those who 

may be producing false ‘‘certification’’ 

labels. The new requirements would 

also help consumers and law 

enforcement personnel distinguish 

between certified and uncertified 

helmets, facilitating the enforcement of 

state and local helmet laws. The 

proposed additional requirements 

would make it difficult for stores selling 

misleading ‘‘DOT’’ labels to claim that 

they did not intend to sell labels 

indicating certification, but were merely 

selling ‘‘Doing Our Thing’’ stickers.14 It 

is difficult to establish a plausible 

reason such a sticker would include 

manufacturing information or the word 

‘‘certified.’’ It would then be clear that 

any store selling a sticker with the 

proposed labeling requirements would 

be selling labels intended to deceive law 

enforcement officials about whether a 

helmet is certified. The above 

enforcement benefits can be obtained 

without imposing an undue burden 

upon motorcycle helmet manufacturers. 

Most important, the additional labeling 

requirements should result in a safety 

benefit through the increased use of 

proper head protection for motorcycle 

riders. 

NHTSA is proposing the use of a 

water decal for the ‘‘DOT’’ symbol 

which would be affixed to the 

motorcycle helmet before the shell’s 

clear coating is applied. Additionally, 

the label would be required to bear 

lettering indicating the manufacturer’s 

name or brand name and the helmet 

model designation in the space above 

the ‘‘DOT’’ symbol, as well as the word 

‘‘certified’’ in a horizontally centered 

position beneath the ‘‘DOT’’ symbol. 

These additional requirements would 

make production of labels that create 

the misleading impression that a helmet 

is properly certified more difficult and 

expensive, which would both deter the 

production and sale of such labels and 

help law enforcement officers enforce 

state helmet use laws. 

1. Current Requirements for 

Certification Labeling 

The current labeling standard imposes 

limited requirements regarding 

certification labeling. Aside from the 

size, location, and contrasting color, the 

configuration of the symbol is not 

specified. Motorcycle helmet 

manufacturers are required to affix the 

certifying ‘‘DOT’’ symbol to the outer 

surface of the helmet. The color of the 

symbol’s lettering must contrast with 

the background. The ‘‘DOT’’ letters must 

be at least 3⁄8 inch (1 cm) high, centered 

laterally with the horizontal centerline 

of the symbol located a minimum of 11⁄8

inches (2.9 cm) and a maximum of 13⁄8

inches (3.5 cm) from the bottom edge of 

the posterior portion of the helmet. 

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57302 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

15The seven law enforcement offices surveyed 

were Pittsburgh Bureau of Police; Louisiana State 

Police; Pennsylvania Department of Transportation; 

Canadian Officers; Riverside, California Police 

Department; Nebraska State Police; and the 

Maryland Department of Transportation. 

16The law enforcement organization surveyed 

was the American Association of Motor Vehicle 

Administrators, Law Enforcement Committee. 

17The five manufacturers surveyed were AFX 

North America, Inc.; Shoei Safety Helmet Corp.; 

Zamp & Associates LLC; Wombat Trading 

Company, Inc.; and Soaring Helmets Corp., Inc. 

18Available at: http://www.nhtsa.dot.gov/people/ 

injury/pedbimot/motorcycle/MotorcycleSafety.pdf 

2. Proposed Upgrades to the 

Certification Labeling Requirements 

NHTSA proposes several additional 

requirements for the certification 

labeling of motorcycle helmets. These 

requirements include: (1) The 

application of a ‘‘DOT’’ symbol water 

decal to the helmet beneath the clear 

coating; (2) the manufacturer’s name or 

brand name and the helmet model 

designation in the space above the 

‘‘DOT’’ symbol; and 3) the word 

‘‘certified’’ in a horizontally centered 

position beneath the ‘‘DOT’’ symbol. 

These proposals are further described in 

the following sections. The appendix 

also provides illustrations of the current 

label, as well as labels that would 

comply with the proposed 

requirements. 

The agency’s proposals regarding the 

issue of misleading labels on novelty 

helmets are based on substantial 

analysis of the needs of law enforcement 

personnel and the concerns of 

manufacturers. In 2005, NHTSA’s Office 

of Traffic Injury Control (TIC) and Office 

of Vehicle Safety Compliance (OVSC) 

conducted an informal telephone survey 

of seven law enforcement offices,15 a 

law enforcement organization,16 and 

five motorcycle helmet manufacturers 17

to discuss the problem of misleading 

‘‘DOT’’ symbols. Respondents were 

asked their opinion on various 

approaches to the problem, the 

advantages and disadvantages of 

suggested approaches, and on other 

changes in the requirements that could 

help identify noncompliant helmets. 

Additionally, NHTSA published a 

Motorcycle Safety Program Plan on July 

3, 2006.18 This plan discussed—among 

other topics—proposed initiatives to 

amend FMVSS No. 218 to address the 

problem of misleading labeling. 

a. Application of a ‘‘DOT’’ Symbol 

Water Decal 

In lieu of the current typical practice 

of applying a simple certification sticker 

with adhesive to the outer surface of a 

helmet, NHTSA proposes requiring the 

application of a ‘‘DOT’’ symbol water 

decal to the helmet and then the 

application of a layer of clear coating 

over the decal and the entire outer 

surface of the helmet. Clear coating is 

usually the final step in motorcycle 

helmet production. The agency believes 

that all current FMVSS No. 218- 

compliant helmets have clear coating. 

Clear coating over the ‘‘DOT’’ symbol 

would result in a smooth surface that is 

visually and tactilely different from a 

sticker applied to the surface after the 

clear coating process is completed. 

Requiring a water decal under clear 

coating would help make the 

production of misleading ‘‘DOT’’ 

symbols substantially more difficult. 

The agency believes that the fabrication 

of water decals for application under 

clear coating can only be done by a 

limited number of printing vendors who 

require a set-up charge that is usually 

over $1,000 for even the most simplistic 

design. Affixing the water decal would 

also require a hydration and 

dehydration (wetting and drying) 

process, while affixing a counterfeit 

‘‘DOT’’ symbol currently requires 

merely the attachment of a sticker using 

some type of adhesive. The process 

would not be burdensome for 

manufacturers because they use this 

same process to add designs to the 

helmet. NHTSA believes that 

incorporating this approach would cost 

manufacturers between one and two 

cents per helmet, but invites comment 

on the issue. 

NHTSA acknowledges that there are 

some disadvantages to the use of a water 

decal. While production of misleading 

‘‘DOT’’ symbols would become more 

expensive, it would not necessarily 

become cost prohibitive. Currently, the 

required ‘‘DOT’’ symbol can be locally 

fabricated in sheets of 50 stickers for the 

price of about one dollar. If many label 

manufacturers grouped together to 

amortize the set-up charges for water 

decals, they might reach a similar cost 

acceptable threshold. 

Another potential disadvantage is that 

clear coating does not adhere to leather 

shells. However, NHTSA is not aware of 

any leather-shell motorcycle helmet on 

the market that has been certified as 

complying with FMVSS No. 218. If a 

manufacturer develops and produces a 

leather-shell helmet that meets the 

performance requirements of FMVSS 

No. 218, we would consider amending 

the standard to provide a more 

appropriate alternative labeling method 

for leather-shell helmets, such as 

molding or embossing. The agency 

specifically invites comment on this 

issue. 

b. Addition of Lettering Indicating the 

Manufacturer and the Helmet Model 

Designation 

As noted above, Standard No. 218 

requires that the manufacturer label 

each helmet permanently and legibly 

with the manufacturer’s name or 

identification, precise model 

designation, size, month, and year of 

manufacture. The manufacturer must 

also permanently label each helmet with 

the ‘‘DOT’’ symbol, which constitutes 

the manufacturer’s certification that the 

helmet conforms to the applicable 

FMVSSs. 

NHTSA proposes to require that some 

of this information be placed on the 

label bearing the ‘‘DOT’’ symbol since it 

would make counterfeiting of the 

certification label more difficult and 

helmet use law enforcement easier. 

Manufacturers would be required to 

include the manufacturer’s name and/or 

brand name and the helmet model 

designation on the label above the 

‘‘DOT’’ symbol. FMVSS No. 218 

paragraph S5.6.1 already provides that 

‘‘[e]ach helmet shall be labeled 

permanently and legibly, in a manner 

such that the label(s) can be read easily 

without removing padding or other 

permanent part, with the following: (a) 

Manufacturer’s name or identification; 

(b) precise model designation; (c) size; 

and (d) month and year of 

manufacture.’’ While S5.6.1 requires a 

label with this information, this label is 

often placed on the inside of the helmet. 

The proposed certification labeling 

requirement would then let state law 

enforcement officials see this 

information on the outside of the 

helmet, without having to first ask a 

motorcyclist to remove a helmet. With 

the exception of the addition of the 

word ‘‘certified’’ to the certification 

label, no additional information is being 

added to the helmet as a whole. 

Requiring the inclusion of the helmet 

manufacturer’s name and/or brand 

name and precise model designation on 

the certification label would force 

counterfeiters either to fabricate 

manufacturer names or to use existing 

trademarks, thereby infringing upon 

them. The manufacturer whose 

trademark has been infringed could take 

action against the counterfeiter under 

trademark law. Should the counterfeiter 

use a false manufacturer name and/or 

brand, law enforcement officials 

familiar with motorcycle helmets may 

be able to identify these counterfeit 

labels. NHTSA believes that adding this 

information to the certification label 

would cost manufacturers 

approximately one cent per helmet, but 

invites comment on the issue. 

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19A survey of over 45 different helmet brand 

names and over 100 different models provided a 

range in length of 3–10 characters for brand name 

(including spaces) and 2–12 characters for model 

name (including spaces). 

20 In determining what would be a reasonable font 

size and type to require for the lettering, NHTSA 

looked at several other NHTSA regulations that 

required some form of labeling. The majority of the 

regulations specified a font size but not a font type. 

Similarly, NHTSA believes it is preferable to 

specify the required size of the lettering, while 

permitting manufacturers to use the font type of 

their choosing. 

21 3⁄32 of an inch is approximately 10 point font. 

22 49 CFR 567.4(k)(4). 

23The helmets examined included a Skid Lid 

helmet (5⁄8-inch-high certification label); Rodia 

helmet (5⁄8-inch-high certification label); ACC 

helmet (7⁄8-inch-high certification label); and a JIX 

model 200 helmet (5⁄8-inch-high certification label). 

24We note that NHTSA explored the possibility 

of requiring the use of the DOT official seal instead 

of, or in addition to, the currently-used ‘‘DOT’’ 

symbol on the certification label. (The DOT seal 

contains the DOT logo of a triskelion figure 

representing land, air, and sea transportation and 

with the words ‘‘Department of Transportation’’ and 

‘‘United States of America’’ surrounding the logo.) 

However, in researching this possibility, NHTSA 

determined that DOT Order 1000.14A gives 

authorization for its use only to DOT officials. 

While this authority may be re-delegated, the redelegation must ‘‘be limited to the minimum 

number consistent with essential requirements, to 

avoid misuse of the seal and to minimize 

procurement requirements for impression dies of 

the seal.’’ Further, the DOT seal cannot be used 

‘‘[i]n any manner which implies Departmental 

endorsement of commercial products.’’ Requiring 

every motorcycle helmet manufacturer to use the 

official DOT seal would not be consistent with 

these limitations. Therefore, NHTSA cannot require 

motorcycle helmet manufacturers to use the official 

DOT seal on the certification label. 

25A double D-ring is two ‘D’-shaped steel rings 

used as a fastener (instead of a buckle) to secure a 

motorcycle helmet on a rider’s head with chinstrap 

webbing material. 

As for disadvantages, the agency 

recognizes that counterfeiting is still 

possible under this approach. Also, 

depending on the length of the name, it 

may be more difficult for some 

manufacturers to apply their name 

above the ‘‘DOT’’ symbol.19 The agency 

specifically requests public comment 

regarding a requirement to place the 

manufacturer name and/or brand name 

and model designation on the label and 

regarding the location in which that 

information should be placed on the 

label. NHTSA is particularly interested 

in obtaining views as to whether placing 

the proposed information on the label 

would best serve the purpose of 

reducing counterfeit labels and the false 

or misleading certifications of helmets. 

c. Addition of the Word ‘‘Certified’’ 

Under the ‘‘DOT’’ Symbol 

NHTSA also proposes requiring the 

word ‘‘certified’’ in a horizontally 

centered position under the ‘‘DOT’’ 

symbol. The advantage to this approach 

is that it would clearly distinguish 

certified helmets from uncertified 

helmets bearing a label that merely 

bears the letters ‘‘DOT.’’ It also enhances 

the possibility of taking legal action 

against responsible parties under the 

Vehicle Safety Act, 49 U.S.C. 30115 or 

other applicable Federal or state laws. If 

the word ‘‘certified’’ were included on 

a label, those persons either producing, 

selling, or applying such misleading 

labels could not plausibly claim that 

‘‘DOT’’ meant ‘‘Doing Our Thing’’ and 

not ‘‘Department of Transportation.’’ 

Their intent to mislead would be 

undeniable. 

d. Letters/Numbers 

The NPRM proposes a minimum 

height for the lettering and numbering 

of .09 inch (.24 cm), but no limit on the 

choice of font.20 To be consistent with 

the rest of the standard, NHTSA 

proposes using English and metric units 

for the height requirement rather than a 

minimum point font.21 Nine hundredths 

of an inch (.24 cm) is the minimum 

height NHTSA currently requires for 

lettering on motor vehicle certification 

labels.22 The agency is unaware of any 

need to change this size and believes it 

provides legibility for a law enforcement 

officer who has stopped a motorcycle 

rider and wishes to determine whether 

the rider is using a helmet certified to 

FMVSS No. 218. 

While the requirement to place some 

of the information on the certification 

label would make it necessary to use a 

larger label, NHTSA believes that this 

would increase the cost of compliance 

only slightly. Currently, the only 

requirement for the certification label is 

that the ‘‘DOT’’ symbol be placed on it. 

Since the symbol has a required 

minimum size of 3⁄8-inch (1 cm), that 

requirement effectively defines the 

minimum size of current labels. 

However, an examination of several 

certification labels 23 showed that they 

were somewhat larger due to the area 

around the lettering. Under the new 

requirements, some information 

currently placed on another label will 

be required to be placed on certification 

label, thereby increasing the size of the 

latter label. Depending on the length of 

the manufacturer’s name (and/or brand 

name) and model, the labels could 

become substantially larger than their 

current size. However, we do not expect 

the increased size of the label to 

contribute substantially to the cost or 

difficulty of adding the water decal. 

Additionally, as we noted above, the 

manufacturer’s name and model 

designation are already required to be 

marked on the helmet in an unspecified 

location under S5.6.1 of the standard. 

Thus, the cost of using a larger 

certification label should be offset by 

the opportunity to reduce the size of the 

separate label on which the information 

was previously placed. 

3. Alternatives Considered 

The agency considered a variety of 

other alternatives when developing the 

proposals to upgrade the certification 

labeling requirements.24 While we have 

not chosen to include these alternatives 

in the proposed regulatory text, we 

solicit public comment on whether any 

of them should be included in the final 

rule. 

a. Sewing the ‘‘DOT’’ Symbol to the 

Chinstrap 

NHTSA also considered requiring 

manufacturers to sew the ‘‘DOT’’ 

symbol Into the motorcycle helmet 

chinstrap. Manufacturers that endorsed 

this approach in their responses to the 

survey suggested sewing a ‘‘DOT’’ 

symbol into the chinstrap every two to 

three inches. This task could be easily 

performed in the original helmet 

production. The sewn-in symbol would 

also be difficult for counterfeiters to 

falsify in the field because it would 

require removing the chinstrap from the 

helmet and then replacing it either by a 

stitching and/or riveting method. 

NHTSA has no indication that all 

motorcycle helmet chinstraps are 

riveted. However, several manufacturers 

indicated that they believe that riveting 

is the only method used to secure the 

chinstrap assembly to the helmet shell, 

regardless of whether or not the helmet 

complies with FMVSS No. 218. 

Law enforcement officers, however, 

stated that they would have difficulty 

seeing a ‘‘DOT’’ symbol sewn into a 

motorcycle helmet chinstrap (if, for 

example, the ‘‘DOT’’ symbol were on 

the inside of strap or near the wearer’s 

chin). Further, the sewn ‘‘DOT’’ symbol 

could make the chinstrap stiffer in the 

area of the stitching. Those areas might 

be more likely to slip under load if one 

of them were engaging the double Drings.25 Because of these possible 

problems, NHTSA tentatively 

concluded not to pursue this approach. 

b. Molding or Embossing the ‘‘DOT’’ 

Symbol Into the Helmet 

Another approach NHTSA considered 

was requiring manufacturers to mold a 

permanent ‘‘DOT’’ symbol into the 

motorcycle helmet shell during the 

manufacturing process. This would 

enhance compliance and enforcement 

actions against counterfeiters because a 

novelty helmet, in order to comply, the 

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26NHTSA data indicate that from FY 2000–2003, 

14 percent of helmets tested failed to comply with 

this portion of the standard. 

27An edge roll is comprised of a strip of material 

on the lower edge of the helmet with one edge 

portion attached to the helmet liner on the inner 

surface of the helmet, and the other edge portion 

attached to the outer surface of the helmet. 

28Helmets with a designated discrete size not 

exceeding 63⁄4 (European size: 54) are tested on a 

small headform, those with a size above 63⁄4, but do 

not exceed 71⁄2 (European size: 60) are tested on a 

medium headform, and those with a size exceeding 

71⁄2 are tested on a large headform. See S6.1.1. 

‘‘DOT’’ symbol would have to be 

molded into the novelty helmet at the 

time of manufacture. 

Several drawbacks, however, 

persuaded NHTSA to decide tentatively 

against the molding or embossing 

approach. First, NHTSA believes that 

this method might be too much of an 

economic burden for manufacturers. 

Second, NHTSA was concerned because 

the manufacturers said that sharp radii, 

which would exist at the interface 

between the molded surface of the shell 

and the raised or recessed letters of the 

‘‘DOT’’ symbol, would cause production 

problems in the molding and finishing 

processes, leading to higher 

manufacturing costs. According to the 

manufacturers, the molding or 

embossing process would cause some 

helmets to be malformed, and raise 

scrappage rates from about 1 percent to 

about 5 percent for plastic constructed 

helmets, and from about 1 percent to 15 

percent for fiberglass constructed 

helmets. Problems would likely range 

from purely aesthetic malformations to 

significant structural issues. 

Accordingly, NHTSA tentatively 

concluded that molding or embossing 

would not be a cost effective approach 

to prevent counterfeiting. 

c. Using a Hologram ‘‘DOT’’ Symbol 

Using a hologram ‘‘DOT’’ symbol 

would make counterfeiting more 

difficult, and it would also permit each 

manufacturer to select its own design. A 

hologram would, however, be much 

more expensive than water decals or the 

‘‘DOT’’ stickers currently being used. 

Based on its understanding of the 

market, NHTSA estimates that ‘‘DOT’’ 

holograms would cost manufacturers 

about 70 cents or more per helmet. 

NHTSA tentatively concluded that this 

approach could impose too much of an 

economic burden upon manufacturers, 

especially considering the fact that other 

effective methods to reduce 

counterfeiting are available that impose 

a lower burden on manufacturers. 

C. Size Labeling and Location of the 

‘‘DOT’’ Certification Label 

1. Location of the Certification Label 

The section of the current standard 

dealing with the placement of the 

certification label, S5.6.1(e), states that 

the label must be placed on the outer 

surface of the helmet, centered laterally 

with the horizontal centerline of the 

symbol, and located a minimum of 11⁄8

inches (2.9 cm) and a maximum of 13⁄8

inches (3.5 cm) from the bottom edge of 

the posterior portion of the helmet. 

NHTSA has found however, based on 

past investigations, that a substantial 

portion of helmets tested failed to 

comply with the requirements of 

S5.6.1(e).26 The agency’s review found 

that many of the non-compliant helmets 

have edge rolls,27 and that the 

manufacturers of these helmets had 

placed the DOT symbol above the edge 

roll at a point that allowed complete 

label-to-shell contact. Further, the 

agency found that the helmets met all 

other labeling requirements. 

NHTSA recognizes that, for these 

helmets, placing the label in the 

location required by the current 

standard (on the edge roll rather than on 

the flat surface above the edge roll) may 

make the ‘‘DOT’’ symbol nonpermanent. In the past, NHTSA’s policy 

in cases in which the label is placed in 

a location not permitted by S5.6.1, in 

order to avoid the edge roll and achieve 

complete label-to-shell contact, has been 

merely to tell the manufacturer to 

correct the problem in future 

production. However, in this 

rulemaking, NHTSA is proposing to 

adjust the standard to allow the 

placement of the label in a slightly 

wider range of locations. NHTSA 

believes that this will continue to 

require that manufacturers place the 

label in a location visible to law 

enforcement personnel, yet ensure that 

the label is permanently attached to the 

helmet. 

Based upon the intent of the standard 

and the agency’s analysis, NHTSA is 

proposing to increase the maximum 

distance from the edge of the helmet to 

the horizontal centerline of the label 

from 13⁄8 inches (3.5 cm) to 3 inches (7.6 

cm), and lower the minimum distance 

from 11⁄8 inches (2.6 cm) to 1 inch (2.5 

cm). In arriving at these values, NHTSA 

recognized that the intent in specifying 

the location of the ‘‘DOT’’ symbol in the 

standard was to ensure visibility of the 

label to law enforcement personnel, as 

well as making sure that the symbol is 

permanent. Therefore, NHTSA 

undertook an analysis to determine 

whether or not the maximum and 

minimum distances could be adjusted to 

allow additional flexibility with this 

portion of the standard without 

detriment to law enforcement efforts. 

In order to determine the maximum 

and minimum distances from the edge 

of the helmet that a label could be 

placed and still remain visible, the 

agency analyzed a ‘‘worst case’’ helmet 

design. This design is a low profile 

helmet, where the rear area of the 

helmet has a minimal flat surface area 

to apply a label. The agency found that 

at distances above three inches (7.6 cm) 

from the edge of the worst case helmet, 

the visibility of the symbol began to be 

reduced due to the curvature of the 

helmet. Similarly, the agency found that 

the ‘‘DOT’’ symbol could be lowered to 

a minimum of one inch (2.5 cm) from 

the edge and still be visible to law 

enforcement personnel, whereas 

distances below one inch resulted in 

obscured visibility. Based on these 

examinations, the agency tentatively 

determined that allowing a minimum 

distance of one inch and a maximum of 

three inches from the bottom edge of the 

helmet will provide motorcycle helmet 

manufacturers with the flexibility to 

place the ‘‘DOT’’ symbol at a location 

that ensures complete label-to-shell 

contact on the back of the motorcycle 

helmet, while keeping the symbol in a 

location to facilitate law enforcement. 

2. Helmet Size Labeling Requirement 

NHTSA is also proposing to amend 

FMVSS No. 218 S5.6.1(c) to read 

‘‘Discrete size or discrete size range’’ 

instead of ‘‘Size.’’ The reason for this is 

to eliminate enforcement problems that 

arise when helmets are labeled only 

with a generic size specification (e.g., 

Small, Medium, or Large). 

Enforceability problems can arise 

because while S6.1 specifies which 

headform is used to test helmets with a 

particular ‘‘designated discrete size or 

size range,’’ 28 a helmet’s generic size 

may not correspond to the same size 

ranges that the agency uses to determine 

which headform to use for testing. To 

ensure that this issue does not cause 

problems in the future, the agency is 

proposing to require the label to specify 

the ‘‘discrete size’’ of the helmet. The 

agency is further proposing to define 

‘‘discrete size’’ as meaning ‘‘a numerical 

value that corresponds to the diameter 

of an equivalent (+/¥.25 inch or +/¥.64 

cm) circle.’’ These minor revisions 

should result in little to no added cost 

to the manufacturers since a size label 

is already required by the standard. 

Further, these revisions would not 

preclude manufacturers from continuing 

also to include generic size labels on 

their helmets if they wish to do so. 

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29When NHTSA tested the helmets using the load 

application rate specified in the compliance 

laboratory’s test procedure (TP–218–04), which 

specifies a load application rate between 0.4 and 

1.2 in/min (1 and 3 cm/min), it found about 50 

percent non-compliance results (HS#636466). On 

the other hand, the manufacturer reported 100 

percent compliance for the same helmets. Further 

examination revealed that the manufacturer’s 

laboratory used a lesser load application rate of the 

testing equipment. Because no load application rate 

is currently specified in FMVSS No. 218, there is 

an ambiguity concerning the proper testing 

procedure. 

30See, ANSI Z90.1, S9.3.1. 

31 Id. 

D. Retention System Quasi-Static Load 

Application Rate 

The FMVSS No. 218 retention system 

test is designed to help ensure a 

motorcyclist’s helmet stays on his or her 

head in the event of a crash. The test 

currently specifies that a static tensile 

load be applied to the retention 

assembly of a complete helmet that is 

mounted on a stationary test headform. 

The performance requirements 

associated with the test specify that 

when the retention assembly is loaded, 

the retention system must withstand a 

300-pound (136.1 kg) test load without 

separation, and the adjustable portion 

shall not move more than one inch (2.54 

cm). 

When the standard was adopted from 

ANSI Z90.1, only the static load itself 

was specified, and not the application 

rate used to reach that static load. The 

lack of a load application rate has 

caused some problems regarding the 

enforcement of FMVSS No. 218. 

Specifically, a discrepancy was found 

when testing one manufacturer’s 

motorcycle helmets. While NHTSA 

found only a 50 percent compliance rate 

for the helmets, the manufacturer found 

a 100 percent compliance rate.29 This 

discrepancy was caused because the 

agency and the manufacturer had used 

substantially different load application 

rates to achieve the load specified by the 

standard. 

NHTSA believes there are several 

good reasons for specifying a load 

application rate for the retention test in 

S7.3. First, NHTSA believes that 

specifying the rate would help helmet 

manufacturers self-certify their helmets 

with a greater degree of certainty. 

Second, providing a load application 

rate would prevent manufacturers from 

using a significantly different rate from 

NHTSA’s compliance laboratories, and 

thus attaining different results than 

those attained by the agency. This, in 

turn, would help to alleviate problems 

of enforcement of the standard. 

NHTSA is proposing to specify a load 

application rate of 0.4 to 1.2 in/min 

(1 to 3 cm/min). This rate has been in 

the agency’s compliance test procedures 

since 2003. The agency believes that 

this load application rate is reasonable 

and consistent with what NHTSA and 

the majority of manufacturers have been 

using. The formal incorporation of the 

load application rate into S7.3 should 

resolve any enforcement ambiguity. 

Additionally, because the test being 

performed is no longer a purely static 

load test, but instead a quasi-static load 

test, NHTSA is proposing to revise S7.3 

accordingly. 

E. Impact Attenuation Test Upgrades 

The impact attenuation test is 

designed to ensure that a motorcycle 

helmet is capable of absorbing sufficient 

energy upon impact with a fixed hard 

object. Under S5.1, Impact attenuation, 

the peak acceleration of the test 

headform is required not to exceed 

400g, accelerations above 200g not to 

exceed a cumulative duration of 2.0 

milliseconds, and accelerations above 

150g not to exceed a cumulative 

duration of 4.0 milliseconds. 

The current impact attenuation test is 

specified in S7.1, Impact attenuation 

test. In this test, the helmet is first fitted 

on a test headform. The helmet/ 

headform assembly is then dropped in 

a guided free fall onto two types of 

anvils. The first part of the test specifies 

two ‘‘identical’’ impacts onto a flat steel 

anvil, and the second part of the test 

requires two identical impacts onto a 

hemispherical steel anvil. The 

performance requirement is that the 

headform acceleration profile must be 

less than the specified accelerations 

given in S5.1. 

1. The Impact Sites 

a. Problems With ‘‘Identical Impacts’’ 

One of the proposals of this NPRM is 

to clarify what is meant by ‘‘identical’’ 

impacts. The wording of the impact 

attenuation test was adopted from ANSI 

Z90.1, including the area on the helmet 

where the impact test can be conducted. 

The standard specifies that the impacts 

must occur at any area above a certain 

test line (described in S6.2.3),30 and 

separated by a defined distance. The 

agency also adopted the text from ANSI 

Z90.1 that stated that the two successive 

impacts must be ‘‘identical impacts at 

each site.’’ 31 One reason that the test 

described in FMVSS No. 218 is unclear 

is that while ANSI Z90.1 defined 

‘‘identical impacts’’ as impacts centered 

not more than 1⁄4 inch (0.6 cm) apart, 

FMVSS No. 218 does not define 

‘‘identical impacts,’’ nor did the 

standard incorporate the ANSI Z90.1 

definition by reference. 

Because of the lack of a definition for 

‘‘identical impacts,’’ there is no clear 

definition of the term as applied to 

NHTSA’s impact attenuation test. There 

are two reasonable interpretations of 

this term. The first is that ‘‘identical 

impacts’’ means two successive impacts 

on the exact same spot of the test 

helmet, or separated by not more than 

a reasonable tolerance (such as the ANSI 

Z90.1 tolerance of 1⁄4 inch). The second 

is that ‘‘identical impacts’’ has a broader 

meaning, implying the exact same test 

conditions (i.e., velocity, location, and 

conditioning of the helmet) for the 

successive impacts, regardless of 

whether the helmet/headform assembly 

actually impacted the fixed anvil at or 

near the same location on the helmet on 

the subsequent drop. 

b. NHTSA Proposal 

In order to remove this ambiguity, as 

well as to provide a clear method of 

enforcement, NHTSA is proposing to 

delete the term ‘‘identical impacts’’ from 

the standard and instead specify the 

location of the impacts on the helmet. 

NHTSA believes that the best approach 

is to specify that successive impacts on 

the same helmet should be in the same 

location on the helmet within a 

reasonable tolerance. This approach 

adopts the same basic approach as the 

ANSI Z90.1 meaning of ‘‘identical 

impacts,’’ and clears up any ambiguity 

about the use of the term ‘‘identical.’’ 

With regard to the allowable tolerance, 

we have tentatively concluded that the 

best approach is to specify that a 

reasonable tolerance would be no less 

than 1.9 cm (3⁄4 inch). The rationale for 

choosing this tolerance is described 

below. 

c. Rationale for a 1.9 cm (3⁄4 inch) 

Tolerance 

NHTSA tentatively believes that given 

the requirements of FMVSS No. 218, a 

greater tolerance for variation in impact 

locations is necessary than that 

provided by the ANSI Z90.1 standard. 

Specifically, because of the large variety 

of helmet sizes that must fit onto the 

three headforms specified in FMVSS 

No. 218, the 1.9 cm (3⁄4 inch) tolerance 

is necessary to ensure that the majority 

of helmets can meet the requirements of 

the standard. 

To establish a reasonable tolerance for 

the impact attenuation test drops, 

NHTSA evaluated compliance testing 

that had been conducted under FMVSS 

No. 218 by the Office of Vehicle Safety 

Compliance (OVSC). NHTSA compared 

the distances between successive 

impacts with the 0.6 cm (1⁄4 inch) 

tolerance specified in ANSI Z90.1 and 

the 1.0 cm (2⁄5 inch) tolerance specified 

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57306 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

32The Snell Memorial Foundation is a private, 

non-profit organization that sets voluntary 

standards for motorcycle helmets. 

33See Appendix A, Table 4: ‘‘Distance between 

Successive Impacts.’’ 

34See http://www.smf.org/standards/2005/ 

m2005/m2005_final.html. 

35 Velocity is related to drop height according to 

the relationship V=√2gh, where V is the velocity, h 

is the drop height, and g is the gravitational force. 

Thus, specifying the velocity implicitly defines a 

drop height. 

by the Snell Memorial Foundation 

(Snell) under its own helmet testing 

guidelines.32 In its analysis, NHTSA 

found that only a small number of 

successive impact tests were able to 

meet the 1⁄4 inch tolerance and only 

slightly more were able to meet the 2⁄5

inch tolerance set forth by these 

standards bodies. On the other hand, 

using a tolerance of 3⁄4 inch, NHTSA 

found that only 5–10 percent of 

compliance test impacts would fall 

outside this tolerance.33

The reason for allowing a greater 

tolerance for variation in impact 

location in the FMVSS No. 218 test (as 

opposed to the tolerances permitted by 

ANSI Z90.1 or the Snell guidelines) is 

because of the limited number of 

different size headforms available for 

compliance testing and the design of 

certain helmets. FMVSS No. 218 

specifies three acceptable headforms for 

use in compliance testing (small size A, 

medium size C, large size D). However, 

because of the large variety of helmet 

sizes available on the market that must 

be tested using these headforms, some 

helmets (especially very large helmets) 

do not fit as ‘‘snugly’’ on the specified 

headform as others. While every effort is 

made to secure the helmet on the 

specified headform, there are times 

when there is enough movement of the 

helmet on the headform to result in two 

successive impacts’ being up to 3⁄4 inch 

apart. This is most commonly seen in 

helmets whose size is at the upper 

limits of a particular headform. In 

addition, the design of some helmets, 

namely partial helmet designs, tends not 

to be designed to fit a headform as 

closely as full helmets, and therefore 

also have a tendency to shift during 

testing. 

Conversely, the ANSI Z90.1 standard 

and the Snell guidelines do not suffer 

from the same variations in testing as 

those of FMVSS No. 218. While ANSI 

specifies only one headform, it 

stipulates that it does not allow for 

proper testing of all protective headgear, 

a function that FMVSS No. 218 must 

perform. On the other hand, the Snell 

guidelines specify five different 

headforms that can be combined with 

the helmet to create the helmet/ 

headform assembly, making it much 

more likely that a more appropriatelysized headform will be available to 

prevent the helmet from moving as 

much.34 Therefore, because of the 

differences between the ANSI and Snell 

guidelines, and the conditions of 

FMVSS No. 218, there are ample 

reasons to choose a slightly greater 

tolerance for variation in the Federal 

standard. 

2. Impact Attenuation Test Speed 

In addition to revising the location of 

the impacts, NHTSA also believes there 

is a need to update the impact velocity 

for the attenuation test. This is because 

NHTSA believes the current regulation 

could be interpreted to mean that a 

helmet could be certified to any speed 

above the minimum impact velocity 

specified in FMVSS No. 218. In the 

agency’s view, this is inconsistent with 

the intent of the standard, which is to 

mandate testing of the helmets at 

velocities approximating those listed in 

FMVSS No. 218. Thus, NHTSA is 

proposing to replace the minimum 

impact velocity with a range of 

acceptable velocities. Further, because 

the regulation specifies both an impact 

velocity and a drop height, there is both 

a redundancy and the possibility of 

additional ambiguity in the standard.35

Therefore, the agency is also proposing 

to eliminate the drop height 

requirements. 

a. Current Impact Attenuation Test 

Procedures 

Currently, the helmet/headform 

assembly is tested by dropping it onto 

both a hemispherical and flat anvil, and 

then measuring the acceleration 

imparted to the headform at the time of 

impact. Section S7.1.4(a) specifies that 

the helmet/headform assembly must 

impact the hemispherical anvil with a 

minimum speed of 17.1 ft/s (5.2 m/s), 

while S7.1.4(b) specifies that the 

assembly must impact the flat anvil 

with a minimum speed of 19.7 ft/s (6.0 

m/s). Additionally, both S7.1.4(a) and 

(b) specify minimum drop heights from 

which the assembly is dropped onto the 

respective anvils. 

It has been NHTSA’s practice, when 

conducting compliance testing, to test 

helmets at a speed slightly below the 

minimum speeds specified in S7.1.4. A 

lower impact speed generally favors the 

manufacturer, as the impact forces 

imparted to the helmet are slightly 

lower. This has been done to ensure 

that, given the speed variations inherent 

in testing, NHTSA does not find a 

helmet not compliant due to 

inadvertently testing it at a higher 

velocity than the minimum specified in 

the standard. However, there have been 

problems with this approach. When 

testing the helmet of one manufacturer, 

NexL, NHTSA found that the helmet did 

not pass the impact attenuation test at 

speeds below the minimum specified 

impact velocity. NexL claimed that 

because the type of foam they use in 

their helmet liner, high-density 

polyethylene cross-linked foam, is 

designed to crush only during highspeed impacts, the helmet would have 

passed the test at speeds at or above the 

minimum speeds specified in the test 

procedure. NexL also claimed that the 

test procedure used by NHTSA violated 

the standard as written, and that 

helmets could only be tested at the 

minimum impact speed specified or 

higher. 

b. Concerns Regarding Current Test 

Procedures 

NHTSA believes that FMVSS No. 218, 

as written, could be interpreted to 

suggest that manufacturers are required 

to certify, and NHTSA can test, that the 

helmet complies with the impact 

attenuation requirements when tested at 

any velocity above the minimums set 

forth in the standard. This interpretation 

would permit the agency to test 

virtually any helmet to failure by testing 

at velocities considerably higher than 

the specified minimums. 

The intent of the impact attenuation 

test in FMVSS No. 218 is to ensure that 

helmets retain structural integrity and 

attenuate impact energy during a variety 

of crash scenarios. The two scenarios 

tested by the requirements in S7.1.4 are 

represented by testing helmets at 

velocities near 19.7 ft/s (6.0 m/s) for the 

flat anvil test configuration and 17.1 ft/ 

s (5.2 m/s) for the hemispherical anvil 

test configuration. These scenarios 

would not be represented by a test 

where the velocity at impact was 

considerably higher, or lower, than 

specified by the standard. 

In addition, the impact attenuation 

standard was adopted from ANSI Z90.1, 

and NHTSA did not intend for its test 

to be markedly different from the ANSI 

test. The ANSI standard specifies a 

specific height from which the assembly 

should be dropped. The agency 

translated this height requirement into 

the aforementioned impact velocities. 

Since the intent of the standard was to 

adopt a similar test to that of ANSI 

Z90.1, and since ANSI Z90.1 specified 

drop heights that would result in a 

specified velocity in a guided free fall 

drop, it is the intent of the agency’s 

standard to perform the impact 

attenuation close to the converted ANSI 

speeds for the respective tests, and not 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57307 

36 In using these ranges, NHTSA’s labs aim for a 

flat anvil nominal velocity of 5.8 m/s and a 

hemispherical anvil velocity of 5.0 m/s. This creates 

functional tolerances of +/¥.8 ft/s for the flat anvil 

test, and +/¥.7 ft/s for the hemispherical anvil test. 

37The tests were analyzed using the Statistical 

Package for Social Sciences (SPSS) computer 

program. See http://www.spss.com for more 

information. 

38See Appendix A Tables 5–8, Figures 1 & 2 and 

corresponding discussion, which is available in the 

docket. 

at undefined impact speeds above these 

respective values. 

In order to bring the language of 

FMVSS No. 218 into conformity with 

the intent of the standard, NHTSA 

proposes to replace the minimum 

impact velocity requirements with a 

range of acceptable values. These values 

would specify both minimum and 

maximum impact velocities. Using this 

system would provide more certain test 

procedures, as well as alleviate 

enforcement problems that have arisen 

in the past. NHTSA proposes to set the 

tolerance for the impact attenuation 

velocity at +/¥1.2 ft/s (.4 m/s) from the 

nominal values of either 19.7 ft/s (6.0 

m/s) or 17.1 ft/s (5.2 m/s) depending on 

the anvil test. The rationale for this 

tolerance range is set forth below. 

c. Rationale for Impact Attenuation 

Speed Tolerance Level 

In its compliance testing, NHTSA has 

consistently tested slightly below the 

velocities specified in S7.1.4. The 

tolerances are set forth in the test 

procedure (TP–218–06) used to conduct 

compliance testing, and are established 

as ¥1.6 ft/s (0.5 m/s) and +0 for the flat 

anvil test, and ¥1.4 ft/s (0.4 m/s) and 

+0 for the hemispherical anvil. This 

velocity tolerance translates to test 

velocities ranging between 18.1–19.7 

ft/s (4.8–5.2 m/s) for the flat anvil test 

and 15.7–17.1 ft/s (4.8–5.2 m/s) for the 

hemispherical one.36 However, NHTSA 

has found that with this range of 

tolerances, a number of tests fell outside 

the range of velocities specified in the 

test procedure. Therefore, the agency 

believes that a larger velocity tolerance 

must be allowed in order to account for 

the uncertainties in the test procedure. 

In order to arrive at the narrowest 

tolerance practicable, NHTSA took into 

account several factors that contribute to 

variability in the test results. These 

factors are inherent to the current 

procedure used for FMVSS No. 218 

compliance testing, using the industry 

standard flag and light emitting diode 

(LED) technology, which measures how 

fast a flag travels through an LED 

apparatus. First is the inherent 

variability found when calibrating the 

equipment for the impact velocity 

measurement; second is the variation in 

velocity due to test system uncertainty 

(i.e., friction effects, bearing effects, 

etc.); and the third is variation due to 

test setup (i.e., helmet factors, impact 

locations, and helmet condition). The 

+/¥1.2 ft/s (.4 m/s) tolerance proposed 

by NHTSA takes into account the total 

amount of variation produced by these 

factors. 

The error attributed to the calibration 

of the impact equipment is comprised of 

rotational speed and distance 

measurement error. Calibration is 

performed using a wheel, which spins at 

a known rate per minute (rpm) and a 

known distance from the central axis for 

the flag that trips the velocity trap. 

Thus, rotational speed depends on how 

accurately the rpm can be controlled 

and measured, and the distance 

depends on the accuracy with which the 

distance from the central axis to the flag 

can be measured using a Vernier 

Caliper. NHTSA has found that the error 

associated with the calibration of the 

equipment is approximately +/¥0.64 

ft/s (0.19 m/s). Investigations into other 

labs involved in impact attenuation 

testing found that alternative calibration 

methods had similar margins of error. 

The remaining error, +/¥0.56 ft/s 

(0.17 m/s), is attributable to a 

combination of the uncertainty 

associated with the test system and test 

setup. The variability associated with 

the test setup stems from friction 

resulting from use of the monorail and 

bearing system (which facilitates guided 

free fall) used in the test equipment. The 

variability associated with the test setup 

can be attributed to variations in how 

the helmet is placed on the assembly, as 

well as small variations in the condition 

of the helmet, headform, and test 

equipment. While there was no way to 

separate the variation resulting from the 

test equipment and that resulting from 

the test setup, NHTSA was able to 

undertake a statistical analysis in order 

to arrive at the figure of +/¥0.56 ft/s as 

the total variability arising from these 

factors. 

NHTSA determined the degree of 

variation by examining data from 496 

compliance test drops (using both the 

flat anvil and hemispherical anvil 

test),37 and calculating the variations in 

velocity among those drops. The 

combined test equipment/test setup 

error is quantified by determining the 

velocity range for the 512 test drops. 

Prior to performing the statistical 

analysis, the agency set a benchmark 

that a reasonable velocity range would 

be one that allows for 95 percent of the 

512 test drops to fall within the 

specified tolerance. The results of the 

study then indicated that 95 percent of 

all the test drops achieved an impact 

velocity within 0.56 ft/s of the mean 

velocity of all 512 drops. Therefore, it 

was determined that the variations in 

setup, friction, positioning, and all other 

non-calibration errors amounted to 0.56 

ft/s of variation.38

Adding the calibration error of 

+/¥0.64 ft/s (0.19 m/s) and the test 

equipment/test setup error of +/¥0.56 

ft/s (0.17 m/s) results in a total of 

+/¥1.20 ft/s (0.36 m/s). Given the 

measurement ability of the instrument 

and to avoid creating additional 

enforceability issues, the agency 

proposes rounding the tolerance to one 

significant digit, resulting in a tolerance 

of +/¥1.2 ft/s (0.4 m/s) for the impact 

attenuation tests of FMVSS No. 218. 

Finally, NHTSA is providing the 

impact velocity and the associated 

tolerances as a velocity range, rather 

than as a target with a +/¥value. This 

format provides the agency with the 

legal ability to perform the impact 

attenuation test at any velocity between 

and including the upper and lower 

bounds of the velocity range. In 

addition, it is proposed to delete the 

drop height requirements, since they 

have no influence on the effectiveness 

of the test and only introduce 

ambiguity. 

d. Alternative Test Methods Examined 

To determine if the tolerance could be 

reduced further, NHTSA investigated 

alternative velocity measurement 

technology. First, the agency 

investigated other velocity measuring 

technologies that could potentially be 

used to reduce the tolerance, such as 

laser recorded velocity, break wire 

technology (which determines velocity 

by measuring the time required for a 

dropped helmet to break through two 

wires that are a known distance apart), 

and high speed video analysis. 

However, these technologies were found 

to be either technically undesirable or 

cost prohibitive. Laser recording was 

technically undesirable because this 

technology requires placing a hole in 

the center of the impact anvil, which 

would change the anvil surface and 

create variability in the impact 

measurement. Break wire technology, 

on the other hand, frequently results in 

deflection of the wire before breakage, 

which can result in even more 

variability in the test results. Finally, 

video analysis was found to be costprohibitive, as it significantly increased 

the cost of performing an FMVSS No. 

218 test. 

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57308 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

39The United Nations Economic Commission for 

Europe (ECE) is the United Nations uniform 

provisions concerning the approval of protective 

helmets and of their visors for drivers and 

passengers of motorcycles and mopeds. 

40See ANSI Z90.1 and ECE Conditioning 

Requirements, in the docket. 

41This estimate is based upon effectiveness of 

similar rules. Comments on this estimate are 

sought. 

F. Tolerances for Helmet Conditioning 

Specifications 

In keeping with the theme of 

providing more clearly defined, 

enforceable testing procedures for 

FMVSS No. 218, NHTSA is proposing to 

provide temperature tolerances and 

clearer time measurements for the 

helmet conditioning procedures in the 

standard. Currently, S6.4.1 describes 

four conditions to which a helmet must 

be exposed for a 12-hour period of time 

before being subjected to the testing 

sequences described in S7 of the 

regulation. The regulation specifies 

temperatures, relative humidity, and the 

time period to which the helmet must 

be exposed. However, the current 

absence of tolerances on these specified 

conditions can result in unrealistic 

conditioning requirements for both 

NHTSA and helmet manufacturers’ 

certification testing. In addition, 

enforcement problems could arise 

following an otherwise proper test if an 

inexact temperature or humidity 

condition were inadvertently used. 

NHTSA is proposing to add 

reasonable tolerances for temperature 

and relative humidity conditioning, as 

well as to specify twelve hours as a 

minimum time to condition the helmet 

prior to testing. This will enable NHTSA 

to undertake legally enforceable testing 

of helmets at the conditions specified 

within the tolerances. Specifically, 

NHTSA is proposing to set the 

tolerances for temperature at +/¥5 °C 

(9°F) and the tolerance for relative 

humidity fluctuation of +/¥20 percent. 

In addition, NHTSA is proposing to 

clarify the twelve hour period for the 

time specified in S6.4.1 as a minimum 

time requirement. As discussed in 

relation to the velocity tolerances 

discussed above, NHTSA is proposing 

to provide a range for temperature and 

humidity, rather than a +/¥value, 

because it provides the agency with a 

legally enforceable ability to condition 

the helmet at any temperature between 

and including the two temperatures 

specified. 

NHTSA believes that the tolerance 

ranges it is proposing are reasonable and 

practicable. A review of eight 

compliance test reports from fiscal year 

2006 showed a maximum temperature 

range of +/¥5 °C (9 °F) and relative 

humidity fluctuation between 36 and 66 

percent. The agency considered the 

FMVSS No. 218 historical data, other 

agency regulations that provide 

tolerances, as well as industry standards 

such as the ANSI conditioning 

requirements and the ECE 39

regulations.40 In addition, we 

considered the available test equipment 

for temperature conditioning, and 

received input from the FMVSS No. 218 

test labs as to what are achievable 

tolerances. NHTSA believes that the 

recommended tolerances will not have 

any effect on the performance of the 

helmet or result in any adverse safety or 

cost impact. 

G. Correction of Figures 7 and 8 

NHTSA has discovered that Figures 7 

and 8 in FMVSS No. 218 were 

inadvertently switched at some 

unknown time in the past. To correct 

this error, NHTSA is proposing to keep 

the titles the same for each Figure, and 

to switch the diagrams so the diagrams 

for the medium and large headforms 

properly correspond to the figure titles. 

H. Update SAE Reference to J211 

FMVSS No. 218 S7.1.9 currently 

specifies that ‘‘the acceleration data 

channel complies with SAE 

Recommended Practice J211 JUN 80, 

Instrumentation for Impact Tests, 

requirements for channel class 1,000.’’ 

SAE Recommended Practice J211 has 

been revised several times since June of 

1980 and the agency proposed to update 

the cited practice to SAE Recommended 

Practice J211, Revised March 1995, 

‘‘Instrumentation for Impact Test—Part 

1—Electronic Instrumentation.’’ This 

version is consistent with the current 

requirements for the regulation’s filter 

needs, and it is also consistent with 

other recently updated standards and 

regulations. 

III. Effective Date 

NHTSA is proposing a lead time of 

two years from the publication of the 

final rule for manufacturers to comply 

with the revisions. The proposed 

changes to the standard are maintenance 

revisions, and manufacturers should not 

have to purchase new test equipment or 

make any structural changes to their 

helmets to ensure compliance with the 

revised tests or updated SAE 

recommended practice J211. The only 

changes manufacturers will have to 

make are changes to their current 

‘‘DOT’’ label to comply with the 

proposed labeling revisions, although 

this should not require the purchase of 

new equipment either. Therefore, the 

agency believes that a lead time of two 

years to be sufficient time to comply 

with the updated regulations. 

IV. Benefits/Costs 

To calculate the benefits and costs of 

this proposed rulemaking, the agency 

has prepared a Preliminary Regulatory 

Evaluation (PRE). The results of the PRE 

indicate that the proposed rule would 

be cost-effective. Part of the goal of this 

rule is to decrease the on-road use of 

‘‘novelty’’ helmets, and have those 

riders use FMVSS No. 218-certified 

helmets (certified helmets) instead. 

Depending on the degree of 

effectiveness that the rule has, the costs 

and benefits can vary substantially. The 

benefits and costs of the proposal 

depend on how many motorcycle riders 

will change from using non-compliant 

helmets (novelty helmets) to certified 

helmets. Behavior change among 

motorcycle riders as a result of the 

proposal 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 (Law States) would make a 

switch,41 and that this is a modest and 

achievable projection. Therefore, the 

analysis estimates benefits and costs of 

the proposal for the 5 and 10 percent 

projections (i.e., the 5- and 10-percent 

scenarios). In addition, the analysis also 

estimates the maximum potential 

benefit of the proposal which 

corresponds to the scenario that all 

novelty helmet users in Law States 

would become certified helmet users 

(the 100-percent scenario). Costeffectiveness and net benefits of the 

proposal were also estimated based on 

these three scenarios. 

This rulemaking imposes two sources 

of potential costs. The costs include: (a) 

The incremental cost to manufacturers 

for implementing the recommended 

labeling requirements and (b) the 

incremental cost to novelty helmet users 

in Law States who would eventually 

switch to use a certified helmet. The 

increased labeling costs, borne by 

manufacturers, are estimated to be two 

cents per helmet. For a total estimate of 

5.2 million certified helmets 

manufactured per year, the cost 

translates to $0.1 million. 

The incremental cost per replaced 

novelty helmet, borne by users who 

switch from novelty helmets to certified 

helmets, is estimated to be $45.00. 

Annually, an estimated 31,961, 63,922, 

and 639,220 novelty helmets sold in 

Law States would be replaced by 218- 

compliant helmets respectively for the 

5-, 10-, and 100-percent scenarios. The 

corresponding total cost to switched 

novelty helmet users would be $1.4, 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57309 

42 DOT HS 809 715, March 2004. 43National Highway Traffic Safety 

Administration. (2005). Traffic safety facts 2004: 

Motorcycles (DOT HS 809 908). Washington, DC: 

National Center for Statistics & Analyses, National 

Highway Traffic Safety Administration. 

$2.9, and $28.8 million, respectively. 

Therefore, the net cost of the proposal 

would be: 

• $1.5 million for the 5-percent 

scenario (= $0.1 + $1.4 million) 

• $3.0 million for the 10-percent 

scenario (= $0.1 + $2.9 million) 

• $28.9 million for the 100-percent 

scenario (= $0.1 + $28.8 million). 

The benefits of the proposal depend 

upon how many motorcycle riders in 

Law States will change from using noncompliant helmets (novelty helmets) to 

certified helmets. These actions would 

result in a safety benefit in providing 

proper head protection to motorcycle 

riders, as compliance tests of ‘‘novelty’’ 

helmets showed that they failed to meet 

all of the FMVSS No. 218 performance 

requirements. On the other hand, 

certified helmets are extremely effective 

at saving lives. One NCSA report 

concludes that the effectiveness of these 

helmets has improved from 29 percent 

in 1989 to the present rate of 37 

percent.42 The report calculates that this 

higher effectiveness of motorcycle 

helmets has saved 7,808 lives from 1993 

through 2002; that is, 2,378 more saved 

lives than was previously calculated.43

In 2006 alone, NHTSA estimates that 

helmets saved 1,658 lives. 

If five percent of the novelty helmet 

users in Law States make a switch (i.e., 

the 5-percent scenario), the proposal 

would save 17–32 lives annually. Under 

the 10-percent scenario, the proposal 

would save 35–65 lives annually. The 

proposal would potentially save a 

maximum of 346–649 lives if all Law 

State novelty helmet users switched to 

certified helmets. Due to the relatively 

small sample of non-fatal head injuries 

to fatal head injuries, the impact of the 

proposal on non-fatal head injuries 

would be negligible. In terms of cost 

effectiveness, the proposal is highly 

cost-effective. This proposal is expected 

to save 17–649 lives annually at a cost 

of $0.05 to $0.10 million per equivalent 

life saved at a three percent discount 

rate, and $0.06 to $0.12 million at a 

seven percent discount rate. 

V. Public Participation 

How do I prepare and submit 

comments? 

Your comments must be written and 

in English. To ensure that your 

comments are correctly filed in the 

Docket, please include the docket 

number of this document in your 

comments. 

Your comments must not be more 

than 15 pages long. (49 CFR 553.21). We 

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 submit two copies of your 

comments, including the attachments, 

to Docket Management at the address 

given above under ADDRESSES. 

Comments may also be submitted to 

the docket electronically by logging onto 

the Docket Management System Web 

site at http://www.regulations.gov. 

Follow the online instructions for 

submitting comments. 

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. DOT’s 

guidelines may be accessed at http:// 

dms.dot.gov. 

How can I be sure that my comments 

were received? 

If you wish Docket Management to 

notify you upon its receipt of your 

comments, enclose a self-addressed, 

stamped postcard in the envelope 

containing your comments. Upon 

receiving your comments, Docket 

Management will return the postcard by 

mail. 

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 two copies, from which you 

have deleted the claimed confidential 

business information, to Docket 

Management 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 our confidential business 

information regulation. (49 CFR Part 

512.) 

Will the agency consider late 

comments? 

We will consider all comments that 

Docket Management receives before the 

close of business on the comment 

closing date indicated above under 

DATES. To the extent possible, we will 

also consider comments that Docket 

Management receives after that date. If 

Docket Management receives a comment 

too late for us to consider in developing 

a final rule (assuming that one is 

issued), we 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 Docket Management at the address 

given above under ADDRESSES. The 

hours of the Docket are indicated above 

in the same location. You may also see 

the comments on the Internet. To read 

the comments on the Internet, go to 

http://www.regulations.gov. Follow the 

online instructions for accessing the 

dockets. 

Please note that even after the 

comment closing date, we will continue 

to file relevant information in the 

Docket as it becomes available. Further, 

some people may submit late comments. 

Accordingly, we recommend that you 

periodically check the Docket for new 

material. 

VI. Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rulemaking action would amend 

Federal Motor Vehicle Safety Standard 

No. 218 to improve enforceability and 

help reduce the use of novelty helmets. 

It was not reviewed by the Office of 

Management and Budget under E.O. 

12866. The agency has considered the 

impact of this action under the 

Department of Transportation’s 

regulatory policies and procedures (44 

FR 11034; February 26, 1979), and has 

determined that it is not ‘‘significant’’ 

under them. 

NHTSA has prepared a preliminary 

regulatory evaluation for this action that 

discusses its potential costs, benefits 

and other impacts. A copy of the 

evaluation has been placed in the 

docket for this rulemaking action. The 

evaluation suggests several issues that 

could result in potential costs to 

consumers or industry. First, this action 

proposes labeling requirements that will 

cause helmet manufacturers minimal 

costs and will not interfere with existing 

designs. The agency estimates that the 

cost of the labeling requirement would 

not exceed $0.02 per helmet. Second, 

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57310 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

this action proposes adding tolerances 

to the compliance tests of FMVSS No. 

218 that would make it easier to 

undertake enforcement actions, but the 

agency does not believe that it would 

require significant expenses or changes 

in helmet manufacture or testing 

procedures. Third, and finally, the 

agency believes that this proposed rule 

would cause a substantial number of 

people who currently own or plan to 

purchase novelty helmets to purchase 

FMVSS No. 218-compliant helmets 

instead. As compliant helmets are 

frequently more expensive than novelty 

helmets, this could result in a cost to 

those consumers who make the switch 

of approximately $45 per helmet. 

Further information about the benefits 

and costs of this rulemaking action may 

be found above in Section IV of this 

preamble. 

B. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq., as amended by 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency is required 

to publish a notice of proposed 

rulemaking or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small governmental 

jurisdictions). The Small Business 

Administration’s regulations at 13 CFR 

Part 121 define a small business, in part, 

as a business entity ‘‘which operates 

primarily within the United States.’’ (13 

CFR 121.105(a)). No regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. SBREFA amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a statement 

of the factual basis for certifying that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

NHTSA has considered the effects of 

this proposed rule under the Regulatory 

Flexibility Act. This rule imposes 

minimal cost burdens on helmet 

manufacturers, on the order of 1–2 cents 

per helmet. While it is possible that the 

costs of designing an improved label are 

fixed at about $1,000 (and therefore may 

cost more on a per-helmet basis for 

small manufacturers), the costs are still 

minimal compared to the overall cost of 

a compliant motorcycle helmet. I certify 

that this proposed rule would not have 

a significant economic impact on a 

substantial number of small entities. 

C. Executive Order 13132 (Federalism) 

NHTSA has examined today’s NPRM 

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 agency has concluded that 

the rule does not have federalism 

implications because the rule does not 

have ‘‘substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government.’’ 

Further, no consultation is needed to 

discuss the preemptive effect of today’s 

proposed rule. NHTSA rules can have 

preemptive effect in at least two ways. 

First, the National Traffic and Motor 

Vehicle Safety Act contains an express 

preemptive 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). 

In addition to the express preemption 

noted above, the Supreme Court has 

also recognized that State requirements 

imposed on motor vehicle 

manufacturers, including sanctions 

imposed by State tort law, can stand as 

an obstacle to the accomplishment and 

execution of a NHTSA safety standard. 

When such a conflict is discerned, the 

Supremacy Clause of the Constitution 

makes their State requirements 

unenforceable. See Geier v. American 

Honda Motor Co., 529 U.S. 861 (2000). 

NHTSA has not outlined such potential 

State requirements in today’s 

rulemaking, however, in part because 

such conflicts can arise in varied 

contexts, but it is conceivable that such 

a conflict may become clear through 

subsequent experience with today’s 

proposed rule. NHTSA may opine on 

such conflicts in the future, if 

warranted. See id. at 883–86. 

D. Executive Order 12988 (Civil Justice 

Reform) 

When promulgating a regulation, 

Executive Order 12988 specifically 

requires that the agency must make 

every reasonable effort to ensure that the 

regulation, as appropriate: (1) Specifies 

in clear language the preemptive effect; 

(2) specifies in clear language the effect 

on existing Federal law or regulation, 

including all provisions repealed, 

circumscribed, displaced, impaired, or 

modified; (3) provides a clear legal 

standard for affected conduct rather 

than a general standard, while 

promoting simplification and burden 

reduction; (4) specifies in clear language 

the retroactive effect; (5) specifies 

whether administrative proceedings are 

to be required before parties may file 

suit in court; (6) explicitly or implicitly 

defines key terms; and (7) addresses 

other important issues affecting clarity 

and general draftsmanship of 

regulations. 

Pursuant to this Order, NHTSA notes 

as follows. The preemptive effect of this 

rule is discussed above. NHTSA notes 

further that there is no requirement that 

individuals submit a petition for 

reconsideration or pursue other 

administrative proceeding before they 

may file suit in court. 

E. National Technology Transfer and 

Advancement Act 

Under the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA) (Pub. L. 104–113), ‘‘all Federal 

agencies and departments shall use 

technical standards that are developed 

or adopted by voluntary consensus 

standards bodies, using such technical 

standards as a means to carry out policy 

objectives or activities determined by 

the agencies and departments.’’ 

Voluntary consensus standards are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by voluntary 

consensus standards bodies, such as the 

Society of Automotive Engineers (SAE). 

The NTTAA directs us to provide 

Congress, through OMB, explanations 

when we decide not to use available and 

applicable voluntary consensus 

standards. 

FMVSS No. 218 is largely based on 

American National Standards Institute 

(ANSI) Z90.1–1971, ‘‘Specifications for 

Protective Headgear for Vehicular 

Users,’’ and incorporates the Society of 

Automotive Engineers (SAE) 

Recommended Practice J211 MAR 95, 

‘‘Instrumentation for Impact Test—Part 

1—Electronic Instrumentation,’’ both of 

which are voluntary consensus 

standards. We do not know of any other 

voluntary consensus standards 

addressing this matter. 

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 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57311 

State, local or tribal governments, in the 

aggregate, or by the private sector, of 

more than $100 million annually 

(adjusted for inflation with base year of 

1995). This final rule would not result 

in expenditures by State, local or tribal 

governments, in the aggregate, or by the 

private sector in excess of $100 million 

annually. 

G. National Environmental Policy Act 

NHTSA has analyzed this rulemaking 

action for the purposes of the National 

Environmental Policy Act. The agency 

has determined that implementation of 

this action would not have any 

significant impact on the quality of the 

human environment. 

H. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA), a person is not required 

to respond to a collection of information 

by a Federal agency unless the 

collection displays a valid OMB control 

number. This proposal does not contain 

any new reporting requirements or 

requests for information. 

I. Plain Language 

Executive Order 12866 requires each 

agency to write all rules in plain 

language. Application of the principles 

of plain language includes consideration 

of the following questions: 

• Have we organized the material to 

suit the public’s needs? 

• Are the requirements in the rule 

clearly stated? 

• Does the rule contain technical 

language or jargon that isn’t clear? 

• Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the rule easier to 

understand? 

• Would more (but shorter) sections 

be better? 

• Could we improve clarity by adding 

tables, lists, or diagrams? 

• What else could we do to make the 

rule easier to understand? 

If you have any responses to these 

questions, please include them in your 

comments on this proposal. 

J. 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. 

Appendix to Preamble 

BILLING CODE 4910–59–P 

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BILLING CODE 4910–59–C 

List of Subjects in 49 CFR Part 571 

Imports, Motor vehicle safety, Motor 

vehicles, Rubber and rubber products, 

and Tires. 

In consideration of the foregoing, we 

propose to amend 49 CFR part 571 to 

read as follows: 

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS 

1. The authority citation for part 571 

would continue to read as follows: 

Authority: 49 U.S.C. 322, 20111, 30115, 

30166 and 30177; delegation of authority at 

49 CFR 1.50. 

2. Section 571.218 is amended by 

adding paragraph S5.6.2, and three 

definitions in alphabetical order in 

paragraph S4, as well as revising 

paragraphs S5.6.1, S6.4.1, S7.1.2, S7.1.4, 

S7.1.9, S7.3.1, and S7.3.2, to read as 

follows: 

§ 571.218 Standard No. 218; Motorcycle 

Helmets. 

* * * * * 

S4 * * * 

Clear coating means the clear (nonpigmented), permanent coating applied 

by the manufacturer as the uppermost 

layer of coating covering the entire outer 

surface of a helmet’s shell. 

Discrete size means a numerical value 

that corresponds to the diameter of an 

equivalent (+/¥.25 inch or +/¥.64 cm) 

circle. 

* * * * * 

Impact site means the location where 

the helmet contacts the center of the 

anvil. 

* * * * * 

S5.6.1 Each helmet shall be labeled 

permanently and legibly, in a manner 

such that the label(s) can be read easily 

without removing padding or any other 

permanent part, with the following: 

(a) Manufacturer’s name. 

(b) Discrete size. 

(c) Month and year of manufacture. 

This may be spelled out (for example, 

June 1988), or expressed in numerals 

(for example, 6/88). 

(d) Instructions to the purchaser as 

follows: 

(1) ‘‘Shell and liner constructed of’’ 

(identify type(s) of materials). 

(2) ‘‘Helmet can be seriously damaged 

by some common substances without 

damage being visible to the user. Apply 

only the following:’’ (Recommended 

cleaning agents, paints, adhesives, etc., 

as appropriate). 

(3) ‘‘Make no modifications. Fasten 

helmet securely. If helmet experiences a 

severe blow, return it to the 

manufacturer for inspection, or destroy 

it and replace it.’’ 

(4) Any additional relevant safety 

information should be applied at the 

time of purchase by means of an 

attached tag, brochure, or other suitable 

means. 

S5.6.2 Certification. Each helmet 

shall be labeled permanently and legibly 

with a label, constituting the 

manufacturer’s certification the helmet 

conforms to the applicable Federal 

motor vehicle safety standards, that is 

separate from the label(s) used to 

comply with S5.6.1, and complies with 

paragraphs (a) through (d) of this 

section. 

(a) Content, format, and appearance. 

The label shall have the following 

content, format, and appearance: 


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(1) The symbol ‘‘DOT’’, horizontally 

centered on the label, in letters at 

least.38 inch (1.0 cm) high. 

(2) The word ‘‘CERTIFIED,’’ 

horizontally centered beneath the 

symbol DOT, in letters at least .09 

inches (.23 cm) high. 

(3) The manufacturer’s name and/or 

brand, horizontally centered above the 

symbol DOT, in letters and/or numerals 

at least .09 inch (.23 cm) high. 

(4) The precise model designation, 

horizontally centered above the symbol 

DOT, in letters and/or numerals at least 

.09 inch (.23 cm) high. 

(5) All symbols, letters and numerals 

shall be in a color that contrasts with 

the background of the label. 

(b) Other information. No 

information, other than the information 

specified in subparagraph (a), shall 

appear on the label. 

(c) Location. The label shall appear on 

the outer surface of the helmet and be 

placed so that it is centered laterally 

with the horizontal centerline of the 

DOT symbol located a minimum of 1 

inch (2.5 cm) and a maximum of 3 

inches (7.6 cm) from the bottom edge of 

the posterior portion of the helmet. 

(d) Clear coating. Clear coating shall 

cover the label, including all of the 

required content, and the outer surface 

of the helmet. 

* * * * * 

S6.4.1 Immediately before 

conducting the testing sequence 

specified in S7, condition each test 

helmet in accordance with any one of 

the following procedures: 

(a) Ambient conditions. Expose to any 

temperature from 61 °F to and including 

79 °F (from 16 °C to and including 26 

°C) and any relative humidity from 30 

to and including 70 percent for a 

minimum of 12 hours. 

(b) Low temperature. Expose to any 

temperature from 5 °F to and including 

23 °F (from ¥15 °C to and including ¥5 

°C) for a minimum of 12 hours. 

(c) High temperature. Expose to any 

temperature from 113 °F to and 

including 131 °F (from 45 °C to and 

including 55 °C) for a minimum of 12 

hours. 

(d) Water immersion. Immerse in 

water at any temperature from 61 °F to 

and including 79 °F (from 16 °C to and 

including 26 °C) for a minimum of 12 

hours. 

* * * * * 

S7.1.2 Each helmet is impacted at 

four sites with two successive impacts 

at each site. For each site, the location 

where the helmet contacts the center of 

the anvil on the second impact shall not 

be greater than .075 inch (1.9 cm) from 

the location where the helmet contacts 

the center of the anvil on the first 

impact. Two of these sites are impacted 

upon a flat steel anvil and two upon a 

hemispherical steel anvil as specified in 

S7.1.10 and S7.1.11. The impact sites 

are at any point on the area above the 

test line described in paragraph S6.2.3, 

and separated by a distance not less 

than one-sixth of the maximum 

circumference of the helmet in the test 

area. 

* * * * * 

S7.1.4(a) The guided free fall drop 

height for the helmet and test headform 

combination onto the hemispherical 

anvil shall be such that the impact 

speed is any speed from 15.7 ft/s to and 

including 18.4 ft/s (from 4.8 m/s to and 

including 5.6 m/s). 

(b) The guided free fall drop height for 

the helmet and test headform 

combination onto the flat anvil shall be 

such that the impact speed is any speed 

from 18.4 ft/s to and including 21.0 

ft/s (from 5.6 m/s to and including 6.4 

m/s). 

* * * * * 

S7.1.9 The acceleration transducer is 

mounted at the center of gravity of the 

test headform with the sensitive axis 

aligned to within 5° of vertical when the 

test headform assembly is in the data 

impact position. The acceleration data 

channel complies with the SAE 

recommended practice J211 MAR 95, 

‘‘Instrumentation for Impact Test—Part 

1—Electronic Instrumentation.’’ 

* * * * * 

S7.3.1 The retention system test is 

conducted by applying a quasi-static 

tensile load at any rate from 0.4 to and 

including 1.2 inch/min (from 1.0 to and 

including 3.0 cm/min) to the retention 

assembly of a complete helmet, which is 

mounted, as described in S6.3, on a 

stationary test headform as shown in 

Figure 4, and by measuring the 

movement of the adjustable portion of 

the retention system test device under 

tension. 

S7.3.2 The retention system test 

device consists of both an adjustable 

loading mechanism by which a quasistatic tensile load is applied at any rate 

from 0.4 to and including 1.2 inch/min 

(from 1.0 to and including 3.0 cm/min) 

to the helmet retention assembly and a 

means for holding the test headform and 

helmet stationary. The retention 

assembly is fasted around two freely 

moving rollers, both of which have a 0.5 

inch (1.3 cm) diameter and a 3-inch (7.6 

cm) center-to-center separation, and 

which are mounted on the adjustable 

portion of the tensile loading device 

(Figure 4). The helmet is fixed on the 

test headform as necessary to ensure 

that it does not move during the 

application of the test loads to retention 

assembly. 

* * * * * 

Issued: September 26, 2008. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking. 

[FR Doc. E8–23187 Filed 9–29–08; 11:15 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2008–0095; 92220–1113– 

0000–C5] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To Remove the California, 

Oregon, and Washington Population of 

the Marbled Murrelet (Brachyramphus 

marmoratus) From the List of 

Endangered and Threatened Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90-day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90-day finding on a petition to remove 

the California, Oregon, and Washington 

population of the marbled murrelet 

(Brachyramphus marmoratus) from the 

Federal List of Endangered and 

Threatened Wildlife (List) under the 

Endangered Species Act of 1973, as 

amended (Act). We find that the petition 

presents substantial information 

indicating that the petitioned action 

may be warranted. Therefore, with the 

publication of this notice, we are 

initiating a status review of the marbled 

murrelet, which will also serve as our 

5-year status review for the species. 

Concurrent with making our 12-month 

finding on the petition and conducting 

a 5-year status review, we intend to 

review the rangewide status of the 

species, and if necessary, the 

configuration and status of any distinct 

population segments. To ensure a 

comprehensive review, we are soliciting 

scientific and commercial data and 

other information on the marbled 

murrelet relevant to its listing status 

under the Act. At the conclusion of our 

status review, we will issue a 12-month 

finding on the petition. 

DATES: We made the finding announced 

in this document on October 2, 2008. To 

allow us adequate time to conduct this 

review, we request that we receive 

information on or before December 1, 

2008. 

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