[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Proposed Rules]
[Pages 57297-57314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23187]


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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).

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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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> 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.

[[Page 57298]]

    <bullet> 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.
    <bullet> 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 (E-mail: <a href="/cdn-cgi/l/email-protection#5c2f393d327238332530391c383328723b332a"><span class="__cf_email__" data-cfemail="e695838788c882899f8a83a6828992c8818990">[email protected]</span></a>) 
(Telephone: 202-493-0188) (Fax: 202-493-2739).
    For legal issues, you may contact Mr. Ari Scott, Office of Chief 
Counsel (E-mail: <a href="/cdn-cgi/l/email-protection#79180b10570a1a160d0d391d160d571e160f"><span class="__cf_email__" data-cfemail="68091a01461b0b071c1c280c071c460f071e">[email protected]</span></a>) (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\
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    \1\ National 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.
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    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\
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    \4\ Available at http://www.ntsb.gov/alerts/SA_012.pdf.
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    <bullet> 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.
    <bullet> 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.
    <bullet> Head injuries are a leading cause of death in motorcycle 
crashes.

[[Page 57299]]

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\
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    \5\ DOT HS 810 620, at 6.
    \6\ Ibid.
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    Again, in its September 2007 Safety Alert, the NTSB came to similar 
conclusions:
    <bullet> DOT-compliant helmets are extremely effective. They can 
prevent injury and death from motorcycle crashes.
    <bullet> If you are in a crash without a helmet, you are three 
times more likely to have brain injuries.
    <bullet> Wearing a helmet reduces the overall risk of dying in a 
crash by 37%.
    <bullet> In addition to preventing fatalities, helmets reduce the 
need for ambulance service, hospitalization, intensive care, 
rehabilitation, and long-term care.
    <bullet> 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\
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    \7\ National 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.
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    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:
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    \8\ National 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.

------------------------------------------------------------------------
                                                          States without
              Motorcyclists                States with a   a helmet use
                                          helmet use law        law
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Percentage using FMVSS No. 218 compliant              68              37
 helmets................................
Percentage using non-compliant helmets..              15              13
Percentage not using any helmet.........              17              50
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    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.
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    \9\ National 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_downloader.jsp?file=/staticfiles/DOT/NHTSA/Traffic%20Injury%20Control/Studies%20%20Reports/Associated%20Files/Novelty_Helmets_TSF.pdf.
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    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.

[[Page 57300]]

    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.
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    \10\ Recent 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.
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    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 non-compliant 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.
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    \11\ For 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.
    \12\ For an example of a ``DOT'' label being sold as a ``Doing 
our Thing'' sticker, see http://www.chopperstickers.com/DOT-Sticker-pr-130.html.
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    In addition to this problem, improper use of the ``DOT'' symbol on 
non-complying 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 properly-certified 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 1\1/8\ inches and 1\3/8\ 
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

[[Page 57301]]

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.
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    \13\ On 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.\
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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 [deg]F to and including 79 [deg]F (from 16 [deg]C to and 
including 26 [deg]C) and any relative humidity from 30 to and including 
70 percent. For the low temperature condition, the range is any 
temperature from 5 [deg]F to and including 23 [deg]F (from -15 [deg]C 
to and including -5 [deg]C). For the high temperature condition, the 
range is any temperature from 113 [deg]F to and including 131 [deg]F 
(from 45 [deg]C to and including 55 [deg]C). For the water immersion 
test, the range for the water temperature is from 68 [deg]F to and 
including 86 [deg]F (from 20 [deg]C to and including 30 [deg]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.
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    \14\ Many 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-pr-130.html.
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    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 1\1/
8\ inches (2.9 cm) and a maximum of 1\3/8\ inches (3.5 cm) from the 
bottom edge of the posterior portion of the helmet.

[[Page 57302]]

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

    \15\ The seven law enforcement offices surveyed were Pittsburgh 
Bureau of Police; Louisiana State Police; Pennsylvania Department of 
Transportation; Canadian Officers; Riverside, California Police 
Department; Nebraska State Police; and the Maryland Department of 
Transportation.
    \16\ The law enforcement organization surveyed was the American 
Association of Motor Vehicle Administrators, Law Enforcement 
Committee.
    \17\ The five manufacturers surveyed were AFX North America, 
Inc.; Shoei Safety Helmet Corp.; Zamp & Associates LLC; Wombat 
Trading Company, Inc.; and Soaring Helmets Corp., Inc.
    \18\ Available at: http://www.nhtsa.dot.gov/people/injury/pedbimot/motorcycle/MotorcycleSafety.pdf
---------------------------------------------------------------------------

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.

[[Page 57303]]

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

    \19\ A 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).
---------------------------------------------------------------------------

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

    \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).
---------------------------------------------------------------------------

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

    \23\ The 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).
---------------------------------------------------------------------------

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

    \24\ We 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 re-
delegation 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.
---------------------------------------------------------------------------

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 D-rings.\25\ Because of these possible problems, 
NHTSA tentatively concluded not to pursue this approach.
---------------------------------------------------------------------------

    \25\ A 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.
---------------------------------------------------------------------------

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

[[Page 57304]]

``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 1\1/8\ 
inches (2.9 cm) and a maximum of 1\3/8\ 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.
---------------------------------------------------------------------------

    \26\ NHTSA data indicate that from FY 2000-2003, 14 percent of 
helmets tested failed to comply with this portion of the standard.
    \27\ An 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.
---------------------------------------------------------------------------

    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 
non-permanent. 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 1\3/8\ inches 
(3.5 cm) to 3 inches (7.6 cm), and lower the minimum distance from 1\1/
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.
---------------------------------------------------------------------------

    \28\ Helmets with a designated discrete size not exceeding 6\3/
4\ (European size: 54) are tested on a small headform, those with a 
size above 6\3/4\, but do not exceed 7\1/2\ (European size: 60) are 
tested on a medium headform, and those with a size exceeding 7\1/2\ 
are tested on a large headform. See S6.1.1.

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

[[Page 57305]]

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

    \29\ When 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<greek-i>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.
---------------------------------------------------------------------------

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

    \30\ See, ANSI Z90.1, S9.3.1.
    \31\ Id.
---------------------------------------------------------------------------

    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

[[Page 57306]]

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

    \32\ The Snell Memorial Foundation is a private, non-profit 
organization that sets voluntary standards for motorcycle helmets.
    \33\ See Appendix A, Table 4: ``Distance between Successive 
Impacts.''
---------------------------------------------------------------------------

    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 appropriately-sized 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.
---------------------------------------------------------------------------

    \34\ See http://www.smf.org/standards/2005/m2005/m2005_final.html.
---------------------------------------------------------------------------

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

    \35\ Velocity is related to drop height according to the 
relationship V=[radic]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.
---------------------------------------------------------------------------

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 high-
speed 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

[[Page 57307]]

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

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

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

    \37\ The tests were analyzed using the Statistical Package for 
Social Sciences (SPSS) computer program. See http://www.spss.com for 
more information.
    \38\ See Appendix A Tables 5-8, Figures 1 & 2 and corresponding 
discussion, which is available in the docket.
---------------------------------------------------------------------------

    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 cost-prohibitive, as it significantly 
increased the cost of performing an FMVSS No. 218 test.

[[Page 57308]]

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 [deg]C 
(9[deg]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 [deg]C 
(9 [deg]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.
---------------------------------------------------------------------------

    \39\ The 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.
    \40\ See ANSI Z90.1 and ECE Conditioning Requirements, in the 
docket.
---------------------------------------------------------------------------

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). Cost-effectiveness and net 
benefits of the proposal were also estimated based on these three 
scenarios.
---------------------------------------------------------------------------

    \41\ This estimate is based upon effectiveness of similar rules. 
Comments on this estimate are sought.
---------------------------------------------------------------------------

    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,

[[Page 57309]]

$2.9, and $28.8 million, respectively. Therefore, the net cost of the 
proposal would be:
    <bullet> $1.5 million for the 5-percent scenario (= $0.1 + $1.4 
million)
    <bullet> $3.0 million for the 10-percent scenario (= $0.1 + $2.9 
million)
    <bullet> $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 non-compliant 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.
---------------------------------------------------------------------------

    \42\ DOT HS 809 715, March 2004.
    \43\ National 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.
---------------------------------------------------------------------------

    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,

[[Page 57310]]

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

[[Page 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:
    <bullet> Have we organized the material to suit the public's needs?
    <bullet> Are the requirements in the rule clearly stated?
    <bullet> Does the rule contain technical language or jargon that 
isn't clear?
    <bullet> Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
    <bullet> Would more (but shorter) sections be better?
    <bullet> Could we improve clarity by adding tables, lists, or 
diagrams?
    <bullet> 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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[[Page 57313]]


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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:


Sec.  571.218  Standard No. 218; Motorcycle Helmets.

* * * * *
    S4 * * *
    Clear coating means the clear (non-pigmented), 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:

[[Page 57314]]

    (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 [deg]F to 
and including 79 [deg]F (from 16 [deg]C to and including 26 [deg]C) and 
any relative humidity from 30 to and including 70 percent for a minimum 
of 12 hours.
    (b) Low temperature. Expose to any temperature from 5 [deg]F to and 
including 23 [deg]F (from -15 [deg]C to and including -5 [deg]C) for a 
minimum of 12 hours.
    (c) High temperature. Expose to any temperature from 113 [deg]F to 
and including 131 [deg]F (from 45 [deg]C to and including 55 [deg]C) 
for a minimum of 12 hours.
    (d) Water immersion. Immerse in water at any temperature from 61 
[deg]F to and including 79 [deg]F (from 16 [deg]C to and including 26 
[deg]C) for a minimum of 12 hours.
* * * * *
    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[deg] of vertical when the test headform assembly is in the data 
impact position. The acceleration data channel complies with the SAE 
recommended practice J211 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 quasi-static tensile load is 
applied at any rate from 0.4 to and including 1.2 inch/min (from 1.0 to 
and including 3.0 cm/min) to the helmet retention assembly and a means 
for holding the test headform and helmet stationary. The retention 
assembly is 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


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