[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Rules and Regulations]
[Pages 28132-28163]
[FR Doc No: 2011-11367]

Vol. 76

Friday,

No. 93

May 13, 2011

Part II

Department of Transportation

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National Highway Traffic Safety Administration

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49 CFR Part 571

Federal Motor Vehicle Safety Standards; Motorcycle Helmets; Final Rule

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

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2011-0050]
RIN 2127-AK15

Federal Motor Vehicle Safety Standards; Motorcycle Helmets

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

ACTION: Final rule.

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SUMMARY: This final rule amends the Federal motor vehicle safety
standard that specifies performance requirements for motorcycle helmets
to reduce traumatic brain injury and other types of head injury. Some
of the amendments will help to increase the benefits of that standard
by making it easier for State and local law enforcement officials to
enforce State laws requiring the use of helmets meeting that standard.
Some motorcyclists use noncompliant helmets known as novelty helmets.
These helmets are not certified to the agency's helmet standard and
have been shown in testing to fail all or almost all of the safety
performance requirements in that standard. Some novelty helmet users
attempt to make their helmets appear to law enforcement agencies and
the courts to be compliant by misleadingly attaching labels that have
the appearance of legitimate ``DOT'' certification labels. This final
rule revises the existing requirements for the ``DOT'' certification
label and other labels and adds new requirements to make it more
difficult to label novelty helmets misleadingly.
    The other amendments will aid NHTSA in enforcing the standard by
setting reasonable tolerances for certain test conditions, devices and
procedures. Specifically, this final rule sets a quasi-static load
application rate for the helmet retention system; revises the impact
attenuation test by specifying test velocity and tolerance limits and
removing the drop height test specification; provides tolerances for
the helmet conditioning specifications and drop assembly weights; and
revises requirements related to size labeling and location of the DOT
symbol.

DATES: The final rule is effective May 13, 2013. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of May 13, 2013.
    Petitions for Reconsideration: If you wish to submit a petition for
reconsideration of this rule, your petition must be received by June
27, 2011.

ADDRESSES: Petitions for reconsideration should refer to the docket
number above and be submitted to: Administrator, National Highway
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington,
DC 20590.
    See the SUPPLEMENTARY INFORMATION portion of this document (Section
V; Rulemaking Analyses and Notices) for DOT's Privacy Act Statement
regarding documents submitted to the agency's dockets.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Ms.
Shashi Kuppa, Office of Crashworthiness Standards (Telephone: 202-366-
6206) (Fax:<PHONE_NUMBER>). For legal issues, you may call Mr. Steve
Wood, Office of the Chief Counsel (Telephone:<PHONE_NUMBER>) (Fax: 202-
366-3820). You may send mail to both of these officials at National
Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    a. Background
    b. Summary of Final Rule and Differences Between Final Rule and
NPRM
    c. Estimated Benefits and Costs
II. Background and Notice of Proposed Rulemaking
    a. Background
    1. Motorcycle Fatalities
    A. There Were 11 Consecutive Years of Motorcycle Fatality
Increases Beginning in 1998
    B. There were Sharp Decreases in 2009 in All Categories of Motor
Vehicle Fatalities, Including Motorcycle Fatalities
    C. Motorcycle Training Is an Unlikely Cause for the Sudden
Decline in Motorcycle Fatalities
    D. The 2009 Fatalities Decreases Coincided With the Current
Recession
    E. The Two Other Sharp Decreases in Motor Vehicle Fatalities in
the Last 35 Years Also Coincided With Recessions and Were Mostly
Temporary
    F. Regardless of the 2009 Decreases and the Reasons for Those
Decreases, Motorcycle Fatalities Remain Far Above the 1997 Levels
    2. Motorcyclist Head Injuries
    3. NHTSA's Comprehensive Motorcycle Safety Plan and the
Indispensable Role Played by Helmet Use
    A. Haddon Matrix and Motorcycle Safety Program Planning
    B. Training's Place in the Matrix; Not a Substitute for Helmet
Use
    C. Key Contributions by Helmets
    D. Motorcyclists Who Either Wear Noncompliant Helmets or Do Not
Wear Any Helmet
    3. Enforceability Concerns
    A. Novelty Helmets and Enforcement of Helmet Use Laws
    i. Are Novelty Helmets Safe?
    ii. How are novelty helmets used in an attempt to avoid being
ticketed and fined for violating state requirements to wear a FMVSS
No. 218-certified helmet?
    B. Enforcement of FMVSS No. 218
    b. Notice of Proposed Rulemaking
    1. Labeling Revisions to Reduce Misleading Labeling of Novelty
Helmets
    2. Size Labeling and Location of the ``DOT'' Certification Label
    3. Retention Test
    4. Impact Attenuation Test
    5. Helmet Conditioning Tolerances
III. The Final Rule and Responses to Comments
    a. Certification Labeling
    1. Addition of the Terms ``Certified'' and ``FMVSS No. 218''
    2. Manufacturer Name and Model Designation
    3. Water Decal and Application of a Clear Coating
    A. Comments Received
    B. NHTSA Analysis
    C. Alternatives Considered
    4. Location of the Certification Label
    5. Size of Letters/Numbers
    6. Current and New Certification Labels
    7. Information Required on New Certification and Other Labels
    b. Size Labeling
    1. Comments Received
    2. NHTSA Analysis and Conclusion
    c. Impact Attenuation Test
    1. Definition of ``Impact Site''
    2. Specification of Test Velocity Tolerance Range
    A. Impact Energy
    B. Achievable Tolerances
    d. Penetration Test
    1. Comments Received
    2. NHTSA Analysis and Conclusion
    e. Quasi-Static Retention Test
    f. Helmet Conditioning Tolerances
    g. Other Tolerances
    h. Other Issues Addressed in the NPRM
    i. Other Issues Raised by Commenters
    1. Necessity of Universal Helmet Use Laws and Specifications
    2. Recent Actions by the National Transportation Safety Board
and American Academy of Orthopaedic Surgeons in Support of Universal
State Motorcycle Helmet Use Laws
    3. Role of Rider Education
    4. Allegations of Potential for Helmets to Cause Harm
    5. Allegations that Helmets Reduce Vision and Hearing
    6. Impact of Traumatic Brain Injury on Family, Friends and Co-
Workers
    7. Recommended Changes to the Helmet Standard
    8. Compliance Date
IV. Estimated Costs and Benefits
V. Related Issues for Future Action
    a. Are there examples of novelty ``safety'' equipment other than
novelty helmets?
    b. Where are novelty helmets manufactured?
    c. How do novelty helmet manufacturers, importers and dealers
attempt to rationalize their manufacture,

importation and sale of noncompliant, non-protective helmets?
    d. Is it permissible to sell noncompliant helmets in a state
that does not have a law requiring the use of helmets?
VI. Rulemaking Analyses and Notices
    a. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
    b. Regulatory Flexibility Act
    c. Executive Order 13132 (Federalism)
    d. Executive Order 12988 (Civil Justice Reform)
    e. National Technology Transfer and Advancement Act
    f. Unfunded Mandates Reform Act
    g. National Environmental Policy Act
    h. Paperwork Reduction Act
    i. Regulation Identifier Number (RIN)

I. Executive Summary

a. Background

    The National Highway Traffic Safety Administration (NHTSA) is very
concerned about the sharp and steady increases in injuries and
fatalities among motorcyclists that occurred prior to the current
recession. Beginning with 1998, motorcycle rider fatalities increased
every year through 2008. They more than doubled, according to the
Fatality Analysis Reporting System (FARS), from 2,116 deaths in 1997 to
5,290 deaths in 2008.\1\ These increases are all the more significant
because the total number of deaths involving all types of motor vehicle
occupants remained fairly unchanging during most of that time and then
began declining in 2007.
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    \1\ See Final Regulatory Evaluation (FRE), which is in the
docket for this rulemaking action.
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    This means that motorcycle occupant deaths were also steadily
increasing as a percentage of all motor vehicle occupant deaths. In
2008, motorcycle fatalities accounted for 14 percent of all traffic
fatalities.\2\ This total is particularly concerning given the fact
that motorcycles make up less than 3 percent of all registered vehicles
in the United States, and account for only 0.4 percent of all vehicle
miles traveled.\3\
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    \2\ ``Determining Estimates of Lives and Costs Saved by
Motorcycle Helmets,'' Traffic Safety Facts Research Note March 2011
DOT HS 811 433, available at http://www-nrd.nhtsa.dot.gov/Pubs/811433.pdf. (Last accessed March 16, 2011).
    \3\ Ibid.
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    Over the past decade, the age group with the largest increase in
motorcyclist fatalities (from 760 in 1998 to 2,687 in 2008) was not the
under 21 age group, the only group covered by the motorcycle helmet use
laws of many states, but the 40-and-older age group.\4\ The 40-and-
older age group accounted for half of the total motorcycle fatalities
in the United States that year.
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    \4\ Ibid.
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    While 2009 FARS data indicate that deaths among motorcyclists and
other categories of highway users decreased in 2009, the agency is
concerned that the current death toll remains far above the level in
1997. Further, the 2009 reductions seem likely in large measure to be
temporary as they coincide with the current recession with its
attendant heightened levels of unemployment.\5\
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    \5\ Longthorne, Anders, Subramanian, Rajesh and Chen, Chou-Lin,
``An Analysis of the Significant Decline in Motor Vehicle Traffic
Fatalities in 2008,'' pp. 1-2 and 15-17, DOT HS 811 346 June 2010.
Available at http://www-nrd.nhtsa.dot.gov/Pubs/811346.pdf:
    In the past, similar significant declines in fatalities were
seen during the early 1980s and the early 1990s. Both of these
periods coincided with significant economic recessions in the United
States. During both these time periods, fatalities in crashes
involving younger drivers (16 to 24) declined significantly as
compared to drivers in the other, older age groups. Both of these
periods of traffic fatality decline were followed by periods of
increasing fatalities and the magnitude of the increase was the
greatest in crashes involving the younger drivers. This trend was
also observed in multiple-vehicle fatal crashes. However, during
each period of increase following a period of decline, the annual
fatality counts did not rise back to the level they were at prior to
the decline.
    Pp. 1-2.
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    To reduce motorcyclist deaths from traumatic brain injury and other
types of head injury, NHTSA long ago (1973) issued Federal Motor
Vehicle Safety Standard (FMVSS) No. 218, ``Motorcycle helmets.'' This
standard specifies performance (e.g., energy attenuation, penetration
resistance, and retention system (chin strap) structural integrity) and
labeling requirements for on-road motorcycle helmets. The safety value
of those requirements is shown by NHTSA's research finding that wearing
a helmet certified as conforming to the FMVSS No. 218 reduces the risk
of dying in a motorcycle crash by 37 percent.\6\
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    \6\ Motorcycle Helmet Effectiveness Revisited, March 2004, DOT
HS 809 715, Technical Report, National Center for Statistics and
Analysis, NHTSA.
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    However, not all of the helmets worn by motorcycle riders are FMVSS
No. 218-compliant. NHTSA estimates that a significant portion \7\ of
riders wear so-called ``novelty'' helmets when riding, despite warnings
that those helmets are not safe for on-road use. When NHTSA tested
these novelty helmets under FMVSS No. 218, the agency found that they
failed all or almost all of the safety performance requirements in the
standard.\8\ Based on these tests, the agency concluded that novelty
helmets will not protect motorcycle riders during a crash from either
impact or penetration threats, and will not likely be retained on
motorcycle riders' heads during crashes.
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    \7\ In 2010, 54 percent of motorcyclists wore a FMVSS No. 218-
compliant helmet, 14 percent wore novelty helmets, and 32 percent
wore no helmet at all. These figures represent a significant
reduction in FMVSS No. 218-compliant helmet use compared to 2009
when the comparable figures were 67 percent, 9 percent and 24
percent. (2010 figures from ``Motorcycle Helmet Use in 2010--Overall
Results,'' Traffic Safety Facts Research Note December 2010 DOT HS
811 419, available at http://www-nrd.nhtsa.dot.gov/Pubs/811419.pdf.
2009 figures from Traffic Safety Facts Research Note December 2010
DOT HS 811 254, available at http://www-nrd.nhtsa.dot.gov/Pubs/811254.pdf.) This reduction in FMVSS No. 218-compliant helmet use is
especially significant in the jurisdictions (20 States and the
District of Columbia) with universal helmet use laws where the use
of compliant helmets dropped from 86 percent in 2009 to 76 percent
in 2010 and the use of novelty helmets increased from 11 percent in
2009 to 22 percent in 2010. This 11 percentage point increase in
novelty helmet use in jurisdictions with universal helmet use laws
between 2009 and 2010 is evidence of the difficulty encountered by
law enforcement officials in enforcing helmet use laws.
    \8\ ``Summary of Novelty Helmet Performance Testing,'' Traffic
Safety Facts Research Note, April 2007 DOT HS 810 752. Available at
http://www.nhtsa.gov/DOT/NHTSA/Traffic%20Injury%20Control/Studies%20&%20Reports/Associated%20Files/Novelty_Helmets_TSF.pdf.
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    Some sellers and users of novelty helmets take advantage of the
very simple design of the current certification label, which merely
bears the letters ``DOT,'' to create the superficial appearance of a
FMVSS No. 218-compliant helmet. Various individuals and organizations
sell or distribute labels bearing the letters ``D.O.T.,'' claiming that
those letters stand for something other than ``Department of
Transportation'' and that the labels only coincidentally closely
resemble legitimate certification labels. Examples of online sellers of
these misleading labels can readily be found through Internet searches.
People who obtain these labels can simply attach them to their novelty
helmets to create the appearance of compliant helmets. As a result,
they impair the ability of State and local law enforcement officials to
establish probable cause for stopping motorcyclists and to prove
violations of their State motorcycle helmet use laws.
    On October 2, 2008,\9\ NHTSA published a notice of proposed
rulemaking (NPRM) in the Federal Register proposing to amend FMVSS No.
218 to address these and other issues. The notice proposed several
changes to encourage the use of compliant helmets, require more
informative certification labels (thereby making the production of
misleadingly similar labels more difficult), and improve testing
procedures for better enforcement of the performance requirements.
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    \9\ 73 FR 57297, Docket NHTSA-2008-0157.
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    Specifically, we proposed enhancements to the certification label
(attached to the helmet exterior), such as including the manufacturer's
name, the

model number, and the term ``certified'' on the label, to make more
difficult protestations of innocent intent in producing, selling and
attaching labels that misleadingly resemble legitimate certification
labels. We also proposed that a clear coating be applied over the
certification label. We proposed that information on the discrete size
of the helmet, as opposed to a simple general size designation such as
``small'' or ``large,'' be included on the information and instruction
label (typically attached to the helmet interior). Finally, we also
proposed slight changes to some of the test specifications in order to
aid NHTSA's enforcement efforts.

b. Summary of Final Rule and Differences Between Final Rule and NPRM

    After having considered the more than 160 public comments on the
NPRM, the agency is publishing this final rule. It adopts many of the
proposals in the NPRM, with some differences. As the NPRM proposed, the
final rule will:
     Require an enhanced certification label, which will bear
the manufacturer's name and helmet model, as well as the word
``Certified.'' \10\ We believe that this will discourage the
production, sale and attachment of labels that misleadingly resemble
legitimate certification labels and thereby facilitate the enforcement
of State helmet use laws. This effect will be strengthened if the
States make it clear that their requirements to use helmets that comply
with Standard No. 218 include the requirement that the helmets bear a
label affixed by the helmet manufacturer. This effect will be further
strengthened if the States decide that, at some appropriate point in
the future after the implementation of the new certification label
requirements, only helmets bearing the new certification labels will be
considered compliant.
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    \10\ As noted below, the final rule also adds the term ``FMVSS
No. 218'' between ``DOT'' and ``Certified'' on the certification
label.
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     Permit the certification label to be located on the helmet
exterior between 1 and 3 inches (2.5 to 7.6 centimeters (cm)) from the
lower rear edge of the helmet, instead of the current limit of between
1\1/8\-1\3/8\ inches (2.9-3.5 cm), increasing manufacturer flexibility
in label placement.
     Require that the size label state the helmet size in
discrete, numerical terms, instead of generally stating that the helmet
is ``small,'' ``medium,'' or ``large,'' for example.
     Amend the test procedure for the retention system by
specifying a load application rate of 0.4 to 1.2 inches per minute (1-3
cm per minute), and recharacterizing it as a quasi-static test, instead
of a static test. Specifying the application rate will aid
enforceability of the standard.
     Amend the impact attenuation test by specifying a test
velocity and tolerance limits to the test velocity (although the final
tolerances have been altered from those proposed in the NPRM) and
removing the drop height specification, which is not needed given the
new specifications.
     Define ``impact site'' and clarify the meaning of
``identical impacts'' for the impact attenuation tests.
     Adopt helmet conditioning tolerances (although one of the
final tolerances has been altered from that proposed in the NPRM).
     Update the reference to Society of Automotive Engineers
(SAE) Recommended Practice J211, ``Instrumentation for Impact Test--
Part 1--Electronic Instrumentation,'' to use a more current version, as
well as fix a clerical error where Figures 7 and 8 were inadvertently
swapped.
    While NHTSA has made some changes to what it proposed in the NPRM,
we believe that these changes are relatively minor, and note that they
were made in response to reasoned arguments in the comments. The most
significant differences between the NPRM and the final rule involve the
labeling requirement.
    As one measure to discourage the producing and attaching of labels
that misleadingly resemble legitimate certification labels, the agency
had proposed requiring the application of a clear coating to the
exterior shell of a FMVSS No. 218-compliant helmet after the
manufacturer attached a valid certification label to it. The agency
believed that such a measure would make it more difficult for a non-
manufacturer to attach a label that misleadingly resembles a
certification label to a novelty helmet and attempt to pass the helmet
off as a compliant helmet.
    However, commenters responded to the clear coating proposal with
three counter-arguments that the agency found convincing. First,
commenters stated that such a requirement would not pose a significant
obstacle to attaching a misleading label since a post-manufacture clear
coat could be readily applied to most helmets by anyone. Second,
commenters stated that a clear coating requirement was incompatible
with certain helmet designs, including those with matte finishes or
cloth or leather exteriors. Third and finally, the commenters submitted
information indicating that many helmets with solid exterior colors
such as white, red, and yellow, are not manufactured with clear
coating. Requiring clear coating for these helmets would cost
significantly more than the agency originally believed ($0.60 to $1.00
per helmet compared to the $0.02 that the agency estimated). The agency
found merit in these arguments and accordingly has not included the
clear coat requirement for any helmets in the final rule. Nonetheless,
we believe that the requirements we have adopted for improved labeling
will help to deter the attaching of misleading labels to helmets even
without the adoption of the clear coat proposal.
    Other differences between the NPRM and final rule are listed below,
and are explained in detail in the later sections of this preamble:
     In response to comments, the final rule adds the term
``FMVSS No. 218'' between ``DOT'' and ``Certified'' on the
certification label. The addition clarifies that what is being
certified is a helmet's compliance with the standard.
     The final rule modifies the proposed definition of
``impact site'' for the anvil test as the point on the helmet where the
falling helmet shell first contacts the test anvil during the impact
attenuation test. We believe that this change will reduce any current
potential for misinterpretation of the test requirements.
     This final rule narrows the specified velocity tolerance
ranges for the impact attenuation tests in response to comments. The
final values are 16.4 feet/second (ft/s) to 17.7 ft/s (5.0 to 5.4
meters/second (m/s)) on the hemispherical anvil, and 19.0 ft/s to 20.3
ft/s (5.8 to 6.2 m/s) on the flat anvil (a tolerance of
7.9 inch/second (in/s) ( 0.2 m/s) for each test). Several
commenters argued that the proposed tolerance levels of 15.8 in/s (0.4
m/s) resulted in potentially up to 30 percent energy variation, which
could cause some helmets to fail the impact attenuation requirements.
The final tolerance levels permit much less variation, but are still
within the capability limits of common test equipment.

     The final rule adds a test tolerance of  0.22
pound (lb) ( 0.1 kilogram (kg)) for the drop assembly
weights for all headform sizes, as part of our efforts to improve test
procedures. These tolerances will provide test laboratories with a
slight measure of leeway on their headform weights and will aid

enforceability of the standard. The final rule adds test tolerances for
the penetration test parameters (drop height) and striker properties
(striker mass, striker point included angle, cone height, and tip
radius).
     The final rule also changes the ranges for helmet
conditioning time, allowing helmets to be conditioned for periods of
between 4 and 24 hours. It will also allow indefinite conditioning time
for the ambient condition. These changes will allow helmets to be
conditioned during normal business hours as well as prevent indefinite
conditioning for non-ambient conditions.
    NHTSA believes that the effect of these changes will be to improve
significantly the enforceability of the helmet standard, specify
clearer instructions for compliance laboratories, as well as help to
reduce the number of novelty helmets being used by motorcycle riders.
We believe that these changes will, in turn, increase the effectiveness
of the standard and produce important safety benefits at marginal costs
to legitimate, reputable helmet manufacturers, as summarized in the
next section.

c. Estimated Benefits and Costs

    The benefits and costs of the rule would depend on how many
motorcycle riders will change from using novelty helmets to FMVSS No.
218-certified helmets. Behavior change among motorcycle riders as a
result of the rule is difficult to predict. However, the agency
believes that 5 to 10 percent of the novelty helmet users in States
that have a universal helmet use law would make a switch, and that this
is a modest and achievable projection. Therefore, the agency estimated
benefits and costs of the rule for the 5 and 10 percent projected
switch from novelty helmet to compliant helmet use.
    The total equivalent lives saved ranges from a low estimate of 22
lives (scenario where 5 percent of the riders convert from novelty
helmets to compliant helmet use) to a high estimate of 75 lives
(scenario where 10 percent of the riders convert from novelty helmets
to compliant helmet use). The costs come from two sources--the direct
increased costs of labeling for manufacturers due to the improved
certification label requirements, and the indirect cost to
motorcyclists, in States with helmet use laws, of replacing a novelty
helmet with a FMVSS No. 218-compliant motorcycle helmet.
    We believe that the additional labeling costs are extremely low. We
estimate the marginal cost difference between the old certification
labels and the new ones to be approximately 2 cents per helmet. As
approximately 5.2 million helmets are sold annually, we expect the
industry-wide effect of this increase to be $0.1 million.
    A greater cost will be incurred if a motorcycle rider, as a result
of this rule, discards a novelty helmet and purchases a new FMVSS No.
218-compliant helmet. We estimate the average difference in cost
between a new compliant helmet and a new novelty helmet to be $46.02.
The total costs range from $2.2 million (if 5 percent of these riders
convert to compliant helmets) to $4.3 million (if 10 percent convert).
The commonly-used metric of net costs per equivalent life saved (NCELS)
ranges from $63,763 to $130,586 for the scenario when 5 to 10 percent
of the riders convert to compliant helmets. These figures are very low
compared to the figure of $6.31 million currently used by the agency to
justify issuance of a rule.

II. Background and Notice of Proposed Rulemaking

a. Background

1. Motorcycle Fatalities
A. There Were 11 Consecutive Years of Motorcycle Fatality Increases
Beginning in 1998
    There is a pressing need for improvements in motorcycle safety. For
eleven straight years, from 1998 through 2008, motorcycle rider
fatalities increased every year. Fatalities more than doubled in that
time, according to FARS, from 2,116 deaths in 1997 to 5,290 deaths in
2008. In 2006, motorcycle rider fatalities exceeded the number of
pedestrian fatalities for the first time since NHTSA began collecting
fatal motor vehicle crash data in 1975, and in 2009 accounted for 13
percent of all annual motor vehicle fatalities.
    A number of explanations have been offered for the steady increase
from 1998 through 2008, including increases in motorcycle sales,
increases in the percentage of older riders, and increases in engine
size. However, as shown in research by NHTSA's National Center for
Statistics and Analysis (NCSA) \11\ and discussed in the Final
Regulatory Evaluation (FRE), the increase in the number of deaths
resulting from motorcycle crashes has been disproportionately large and
fast compared to the increases in the number of motorcycles on the road
and the distance they are driven. In 2007, motorcycles accounted for
only about 3 percent of all registered vehicles and 0.4 percent of all
vehicle miles traveled (VMT), but accounted for 14 percent of all
traffic crash fatalities in 2008, compared to 5 percent in 1997. This
represents a significant increase in their proportion of the annual
loss of life in traffic crashes. In recent years, fatality rates for
motorcycle riders have increased faster than the increase in motorcycle
exposure (VMT on motorcycles as well as the number of registered
motorcycles). The number of fatalities per 100 million VMT on
motorcycles has almost doubled, increasing from 21 in 1997 to 38 in
2007.\12\ Similarly, the number of fatalities per 100,000 registered
motorcycles increased from 59 in 1998 to 72 in 2007. Compared with a
passenger car occupant, a motorcycle rider is 37 times more likely to
die in a crash and 9 times more likely to be injured, based on VMT.\13\
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    \11\ Traffic Safety Facts, 2008 Data--Motorcycles, DOT HS 811
159, National Center for Statistics and Analysis, NHTSA.
    \12\ The Federal Highway Administration (FHWA) recognizes the
need to improve the accuracy of their VMT estimate for motorcycles
and is currently implementing new requirements for motorcycle VMT
data.
    \13\ Traffic Safety Facts, 2008 Data--Motorcycles, DOT HS 811
159.
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    The National Transportation Safety Board (NTSB) has also made a
similar assessment of the motorcycle safety problem. The assessment
appeared in a safety alert, ``Motorcycle Deaths Remain High,'' issued
in November 2010, and included the following findings:\14\
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    \14\ Available at http://www.ntsb.gov/alerts/SA_012.pdf.
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     Deaths from motorcycle crashes have more than doubled in
the past 10 years--from 2,294 in 1998 to 5,290 in 2008--an alarming
trend. Another 96,000 people were injured in motorcycle crashes in
2008.
     The yearly number of motorcycle deaths is more than double
the annual total number of people killed in all aviation, rail, marine
and pipeline accidents combined.
     Head injuries are a leading cause of death in motorcycle
crashes.
B. There Were Sharp Decreases in 2009 in All Categories of Motor
Vehicle Fatalities, Including Motorcycle Fatalities
    In 2009, overall traffic fatalities fell by almost 10 percent
compared to 2008. Occupant fatalities fell by 11 percent in passenger
cars, almost 5 percent in light trucks, 26 percent in large trucks and
16 percent on motorcycles. In addition, fatalities fell by 7.3 percent
for pedestrians and 12 percent for pedalcylists.

C. Motorcycle Training Is an Unlikely Cause for the Sudden Decline in
Motorcycle Fatalities
    Some commenters suggested that motorcyclist training produced the
decline. This explanation for the decline seems highly questionable. As
explained below in the discussion of NHTSA's comprehensive motorcycle
safety plan, the results of studies of such training are mixed as to
whether the training has any measurable effect on fatalities. In
addition, even if the results were not mixed and instead uniformly
demonstrated that training had a significant effect on fatalities,
there is no indication that there has been a recent substantial
increase in the number of trained motorcyclists that could explain the
sudden significant decline in motorcycle fatalities.
D. The 2009 Fatalities Decreases Coincided With the Current Recession
    The more likely explanation can be found in the fact that the
relatively sudden, significant and almost across-the-board declines in
all categories of traffic fatalities coincide with the current
recession.\15\
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    \15\ Longthorne, Anders, Subramanian, Rajesh and Chen, Chou-Lin,
``An Analysis of the Significant Decline in Motor Vehicle Traffic
Fatalities in 2008,'' DOT HS 811 346 June 2010. Available at http://www-nrd.nhtsa.dot.gov/Pubs/811346.pdf.
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E. The Two Other Sharp Decreases in Motor Vehicle Fatalities in the
Last 35 Years Also Coincided With Recessions and Were Mostly Temporary
    There have been three periods, including the current one, since the
early 1970's in which there were the most significant across-the-board
declines in overall traffic fatalities. The declines coincided with the
three most significant recessions since the early 1970's. After the
first and second recessions, the overall number of fatalities rebounded
to nearly the pre-recession levels. The agency anticipates that
fatalities will likewise rebound this time. Thus, the agency remains
concerned about the trend in motorcycle death totals in future years.
F. Regardless of the 2009 Decreases and the Reasons for Those
Decreases, Motorcycle Fatalities Remain Far Above the 1997 Levels
    The essential facts are that motorcycle fatalities remain far above
the 1997 levels and that use of motorcycle helmets is the single most
effective way of preventing motorcyclist fatalities.
2. Motorcyclist Head Injuries
    The main function of motorcycle helmets is to reduce injuries to
the head and, especially, the brain. Brain injury is more likely to
result in expensive and long-lasting treatment, sometimes resulting in
lifelong disability, while other head injuries, concussions and skull
fractures (without damage to the brain itself), are more likely to
result in full recovery.\16\
---------------------------------------------------------------------------

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

3. NHTSA's Comprehensive Motorcycle Safety Plan and the Indispensable
Role Played by Helmet Use
A. Haddon Matrix and Motorcycle Safety Program Planning
    NHTSA's comprehensive motorcycle safety program \17\ seeks to: (1)
Prevent motorcycle crashes; (2) mitigate rider injury when crashes do
occur; and (3) provide rapid and appropriate emergency medical services
response and better treatment for crash victims. As shown in Table 1
below, the elements of the problem of motorcycle fatalities and
injuries and the initiatives for addressing them can be systematically
organized using the Haddon Matrix, a paradigm used for systematically
identifying opportunities for preventing, mitigating and treating
particular sources of injury. As adapted for use in addressing motor
vehicle injuries, the matrix is composed of the three time phases of a
crash event (I-Crash Prevention--Pre-Crash, II-Injury Mitigation--
During a Crash, and III-Emergency Response--Post-Crash), along with the
three areas influencing each phase (A-Human Factors, B-Vehicle Role,
and C-Environmental Conditions).
---------------------------------------------------------------------------

    \17\ The program can be found at http://www.nhtsa.gov/DOT/NHTSA/Communication%20&%20Consumer%20Information/Articles/Associated%20Files/4640-report2.pdf. See also Countermeasures that
Work: A Highway Safety Countermeasure Guide for State Highway Safety
Offices, Fifth Edition, pp. 5-1 through 5-28, DOT HS 811 258,
January 2010.
---------------------------------------------------------------------------

    Effectively addressing motorcyclist head injuries or any other
motor vehicle safety problem requires a multi-pronged, coordinated
program in all of the areas of the Haddon matrix, as shown in Table 1.
As no measure in any of the nine areas is a panacea or even remotely
approaches being one, the implementation of a measure in one area does
not eliminate or reduce the need to implement measures in the other
areas.
B. Training's Place in the Matrix; Not a Substitute for Helmet Use
    For example, while NHTSA encourages efforts in all areas of the
motorcycle safety matrix below, including the offering of training for
motorcyclists, such training cannot substitute for the wearing of
helmets complying with FMVSS No. 218. This is particularly true because
the results of studies regarding the effectiveness of such training in
actually reducing crash involvement are, at best, mixed.\18\ To use an
example more closely related to the experiences of most people who
travel on the Nation's roadways, arguing that taking a motorcycle
operating course eliminates the need for using motorcycle helmets is
akin to arguing that taking a driver's education course for driving a
passenger vehicle eliminates the need for people to use seat belts or
to place children in safety seats or even for vehicle manufacturers to
install seat belts, air bags, padding and other safety equipment and
features in motor vehicles.
---------------------------------------------------------------------------

    \18\ Office of Behavioral Safety Research, National Highway
Traffic Safety Administration, Approaches to the Assessment of
Entry-Level Motorcycle Training: An Expert Panel Discussion, DOT HS
811 242, March 2010. http://www.nhtsa.gov/staticfiles/nti/motorcycles/pdf/811242.pdf. The report concluded:
    While basic rider courses teach important skills, the
effectiveness of training as a safety countermeasure to reduce
motorcycle crashes is unclear. Studies conducted in the United
States and abroad to evaluate rider training have found mixed
evidence for the effect of rider training on motorcycle crashes.
    \19\ Activities shown in italics are either implemented jointly
with, or conducted by, the Federal Highway Administration.

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

II-Injury Mitigation (Crash).........   Use of           Occupant         Roadway
                                        Protective Gear.         Protection.              Design, Construction,
                                                                                & Preservation.
III-Emergency Response (Post-Crash)..   Automatic        Education &
                                        Crash Notification.      Assistance to EMS.
                                                                 Bystander
                                                                 Care..
                                                                 Data
                                                                 collection & analysis..
----------------------------------------------------------------------------------------------------------------

C. Key Contributions by Helmets
    Mitigating rider injury in crashes through the use of motorcycle
helmets is a highly effective measure for improving motorcycle safety.
The steadily increasing toll of motorcyclist fatalities would have been
significantly lower had all motorcyclists been wearing motorcycle
helmets that meet the performance requirements issued by this agency.
In potentially fatal crashes, helmets have an overall effectiveness of
37 percent in preventing fatalities.\20\ Based on the data for 2008,
the agency estimates that helmets saved 1,829 lives in that year. If
there had been 100 percent helmet use among motorcycle riders, an
additional 823 lives could have been saved that year.\21\
---------------------------------------------------------------------------

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

    Again, in its November 2010 Safety Alert, the NTSB came to similar
conclusions about the value in increasing the use of helmets that
comply with FMVSS No. 218:
     DOT-compliant helmets are extremely effective. They can
prevent injury and death from motorcycle crashes.
     If you are in a crash without a helmet, you are three
times more likely to have brain injuries.
     Wearing a helmet reduces the overall risk of dying in a
crash by 37%.
     In addition to preventing fatalities, helmets reduce the
need for ambulance service, hospitalization, intensive care,
rehabilitation, and long-term care.
     Wearing a helmet does not increase the risk of other types
of injury.
    The value of helmet use can be demonstrated in other ways. Data
from the agency's Fatality Analysis Reporting System (FARS) for the
period 1995-2004 also show the importance of motorcycle helmet use.
Even though the percentage of riders who use motorcycle helmets is
larger than the percentage of riders who do not, non-users suffer more
fatal head injuries. For example, from 2000 to 2002, an average of 35
percent of helmeted riders who died suffered a head injury, while an
average of 51 percent of the non-users who died suffered a head
injury.\22\
---------------------------------------------------------------------------

    \22\ Rajesh Subramanian, Technical Report: Crash Stats, Bodily
Injury Locations in Fatally Injured Motorcycle Riders, National
Center for Statistics & Analysis, National Highway Traffic Safety
Administration, DOT HS 810 856, October 2007. Available at http://www-nrd.nhtsa.dot.gov/Pubs/810856.pdf.
---------------------------------------------------------------------------

D. Motorcyclists Who Either Wear Noncompliant Helmets or Do Not Wear
Any Helmet
    Unfortunately, a significant percentage of motorcyclists either
wear noncompliant helmets or do not wear any helmet at all. In 2009, 20
States and the District of Columbia had universal helmet use laws,
i.e., ones requiring all motorcyclists to wear helmets. In those 21
jurisdictions, FMVSS No. 218-compliant helmets were used by 86 percent
of motorcyclists; noncompliant helmets were used by 11 percent of
motorcyclists; and no helmets were used by an estimated 3 percent of
motorcyclists. Comparatively, in the 30 States with partial \23\ or no
helmet use laws, only 55 percent of motorcyclists used FMVSS No. 218-
compliant helmets; 8 percent used noncompliant helmets; and 37 percent
did not use a helmet at all.\24\ These data are presented below in
tabular form:
---------------------------------------------------------------------------

    \23\ The partial laws typically require helmet use only by
persons 17 years of age or younger, even though 70 percent of the
teenagers killed on motorcycles are 18 or 19 years of age and even
though teenagers of all ages account for only about 4.5 percent of
all motorcycle fatalities. Insurance Institute for Highway Safety,
Fatality Facts 2008, Teenagers. Available at http://www.iihs.org/research/fatality_facts_2008/teenagers.html.
    \24\ Motorcycle Helmet Use in 2009--Overall Results, Traffic
Safety Facts Research Note, DOT HS 811 254.

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

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

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

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

Percentage not using any helmet.....                 2                52
------------------------------------------------------------------------

    These data show that a considerable number of motorcyclists both in
States with universal helmet use laws and States with partial or no
helmet use laws are wearing noncompliant helmets. As briefly discussed
immediately below and at greater length under ``Enforceability
Concerns,'' such helmets do not provide adequate protection.
    The noncompliant helmets are commonly called ``novelty'' helmets.
They are not designed or manufactured for highway use, and lack the
strength, energy absorption capability, and size necessary to protect
their users. They do not meet the safety requirements of FMVSS No. 218
and are not certified as doing so. In fact, recent compliance test data
on novelty helmets showed that they failed all or almost all of the
FMVSS No. 218 performance requirements.\26\ Manufacturers of these
helmets frequently make disclaimers that contend the helmets are not
intended for protecting the persons who wear them from injury, despite
the fact that helmets for all types of recreational activities
(including sporting ones) generally have a protective purpose and the
novelty helmets, labeling aside, likewise appear to have a protective
purpose. These manufacturers further claim that the helmets are not
intended for highway use, despite the fact that the helmets are
predictably used precisely and primarily for that purpose. As the above
tables show, a significant proportion of motorcyclists use novelty
helmets on the highway, especially in states with universal helmet use
laws.
---------------------------------------------------------------------------

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

3. Enforceability Concerns
    This rulemaking seeks to increase the benefits of FMVSS No. 218 in
two ways. The first way is improve the exterior certification label to
reduce the attaching of labels that misleadingly resemble legitimate
certification labels to novelty helmets and encourage more use of
compliant helmets and assist State law enforcement officers in
enforcing helmet use laws. The second is to add tolerances to the test
conditions and procedures and clarify language in the standard. This
will provide clear guidance to manufacturers for conducting compliance
tests and will increase the ability of the agency to bring successful
enforcement actions when a noncompliance is discovered.
A. Novelty Helmets and Enforcement of Helmet Use Laws
    In order to reap the benefits of compliant helmets more fully,
changes to the labeling requirements are needed to make it easier for
State and local law enforcement officials to enforce State motorcycle
helmet use laws against motorcyclists using novelty helmets. Novelty
motorcycle helmets are not certified by their manufacturers as being
compliant with FMVSS No. 218 and in fact offer the wearer little or no
protection against injury.\27\
---------------------------------------------------------------------------

    \27\ Compliance test data on novelty helmets showed that they
failed almost all of the FMVSS No. 218 performance requirements.
(Compliance test results can be found at http://www-odi.nhtsa.dot.gov/tis/index.cfm). In fact, in all tests performed by
the Office of Vehicle Safety Compliance (OVSC), novelty helmets were
found to be inadequate in offering their users even minimal
protection during a crash.
---------------------------------------------------------------------------

i. Are novelty helmets safe?
    No. When NHTSA tested novelty helmets under FMVSS No. 218, the
agency found that they failed all or almost all of the safety
performance requirements in the standard.\28\ Based on these tests, the
agency concluded that novelty helmets will not protect motorcycle
riders during a crash from either impact or penetration threats.
Likewise, their chin straps are incapable of keeping the helmets on the
heads of their users during crashes.
---------------------------------------------------------------------------

    \28\ ``Summary of Novelty Helmet Performance Testing,'' Traffic
Safety Facts Research Note, April 2007 DOT HS 810 752. Available at
http://www.nhtsa.gov/DOT/NHTSA/Traffic%20Injury%20Control/Studies%20&%20Reports/Associated%20Files/Novelty_Helmets_TSF.pdf.
---------------------------------------------------------------------------

ii. How are novelty helmets used in an attempt to avoid being ticketed
and fined for violating state requirements to wear a FMVSS No. 218-
certified helmet?
    Some motorcyclists who wear novelty helmets have been affixing
labels bearing the symbol ``DOT'' to their helmets in order to create
the misleading appearance of properly certified, compliant helmets.\29\
These labels closely and not simply coincidently resemble the ``DOT''
certification symbol required by FMVSS No. 218. They can be readily
purchased from stores selling novelty helmets or from online retailers.
States report that when these motorcyclists are stopped by law
enforcement officers, they falsely claim that the label was on their
helmet when they bought it and that the label led them to believe that
their helmet was certified to FMVSS No. 218. Other motorcyclists do not
add a label that misleadingly resembles a legitimate ``DOT''
certification label to their novelty helmets and instead falsely claim
they assumed that there must have been a legitimate certification label
on the helmet originally and that that label must have fallen off or
been removed by a prior owner.
---------------------------------------------------------------------------

    \29\ Using the search term ``DOT helmet labels'' or ``DOT helmet
stickers,'' sellers of these labels can be readily found, for
example, on eBay or via Google. Various Web sites also sell novelty
helmets with a free DOT label.
---------------------------------------------------------------------------

    The ability of novelty helmet users to attach inexpensive, easy-to-
produce and easy-to-obtain labels having essentially the same
appearance of legitimate certification labels has complicated the
efforts of State and local law enforcement personnel to enforce
requirements for the use of properly certified helmets. The
availability and use of these labels make it difficult for law
enforcement officials in States with helmet use laws to determine
whether or not a rider is wearing a helmet certified to FMVSS No. 218.
The misleading look-alike ``DOT'' labels make it difficult to prove
that a motorcyclist is deliberately flouting helmet use laws by wearing
a novelty helmet with a look-alike ``DOT'' label that falsely suggests
the helmet is certified. More importantly, the use of noncompliant
helmets puts motorcyclists at much greater risk of head injury or death
in the event of a crash.
    In some cases, the use of these look-alike labels has enabled
motorcyclists either to assert successfully in court that he or she
believed in good faith that the helmet he or she was using had been
certified to the Federal standard and/or to put State authorities to
the time and expense of conducting tests to prove that the helmet is
noncompliant. Further, sellers and distributors of these labels, which
bear the letters ``DOT,''

attempt to avoid any responsibility for their sale and use. They assert
that the labels are not counterfeit or misleading look-alike
``certification'' labels, but merely labels that coincidentally
resemble legitimate ``DOT'' certification labels and whose letters
stand for ``Doing Our Thing,'' not ``Department of Transportation.''
The agency notes its understanding that these look-alike labels
appeared only after the implementation of FMVSS No. 218. As a result,
application of these labels to noncompliant helmets enables
motorcyclists to avoid conviction and penalties in situations in which
State and local helmet laws require the use of a certified FMVSS No.
218-compliant motorcycle helmet.
    In NHTSA's judgment, the mere presence of a ``DOT'' label on a
helmet that otherwise lacks the construction and appearance of a FMVSS
No. 218-compliant helmet cannot reasonably be thought to be indicative
that the helmet is a compliant helmet. The plausibility of that
indication is negated by the helmet's lack of the visible physical
attributes \30\ typically possessed by a compliant helmet. The presence
of a label on such a helmet is instead actually indicative that the
label is a misleading look-alike label applied by a helmet seller or
user, not by its manufacturer.
---------------------------------------------------------------------------

    \30\ Examples of such attributes include adequate thickness and
composition of the shock absorbing liner and the presence of the
interior label required by FMVSS No. 218. Any layman can determine
that a thick liner composed of easily compressed sponge rubber would
have no protective value in a crash.
---------------------------------------------------------------------------

    In addition to the enforcement problems, improper use of the
``DOT'' symbol on noncomplying helmets has the additional undesirable
effect of placing legitimate motorcycle helmet manufacturers that
responsibly design, test, and certify their helmets to FMVSS No. 218
requirements at a financial competitive disadvantage. Novelty helmets
are made of inferior materials and based on inferior designs. Further,
they are not subjected by their manufacturers to any testing to assure
a suitable level of safety performance.
B. Enforcement of FMVSS No. 218
    The other main issue concerns the enforceability of determinations
of noncompliance with the performance requirements in FMVSS No. 218.
During fiscal year (FY) 2002 and 2003 compliance testing, the agency
discovered ambiguities in the language of the impact attenuation test
and the retention test when testing helmets manufactured by NexL Sports
Products (NexL). NHTSA compliance testing indicated that NexL's helmets
failed to meet the performance requirements of FMVSS No. 218 on helmet
impact attenuation, penetration, and retention.
    In its response to the agency's finding of noncompliance, NexL
claimed that the agency's impact attenuation tests were invalid because
the agency violated S7.1.4(b) of the standard by testing the helmets at
velocities lower than the minimum required 19.7 ft/s (6 m/s). NHTSA
found that the helmets did not comply with the impact attenuation
requirements of FMVSS No. 218 during agency testing, which is typically
conducted at speeds somewhat less than 19.7 ft/s. Because the impact
attenuation test, as written, requires a minimum impact speed of 19.7
ft/s, the agency tentatively concluded that there was arguably merit of
a technical, not substantive, nature to NexL's arguments \31\ and that
this language should therefore be clarified.
---------------------------------------------------------------------------

    \31\ If NexL's helmets fell short of the required level of
performance in tests below 19.7 ft/s, they would almost certainly
have fallen farther short of that level in tests at 19.7 ft/s, given
that the difficulty of compliance increases as speed increases.
---------------------------------------------------------------------------

    With regard to the retention test, NexL stated that it tested its
helmets at the required static load condition, and that its testing did
not result in any displacement failures. In its investigation, NHTSA
found that NexL was able to achieve passing results by adjusting the
load application rate of the test equipment until a passing
displacement result (less than one inch, or 2.54 cm, of displacement)
was achieved. In other words, by applying the required tensile load to
the helmet at one rate, NexL was able to achieve a passing result,
while in a similar test where the load was applied at a different rate,
NHTSA results showed a noncompliance. Because the rate of application
of the static load was unspecified in the standard, NHTSA decided not
to undertake an enforcement action.

b. Notice of Proposed Rulemaking

1. Labeling Revisions to Reduce Misleading Labeling of Novelty Helmets
    We proposed three requirements for helmet certification labeling:
\32\ (1) The application of a FMVSS No. 218 certification label to the
helmet beneath a clear coating; (2) lettering on the label indicating
the manufacturer's name and/or brand and the helmet model designation
in the space above the ``DOT'' symbol; and (3) the word ``certified''
in a horizontally centered position beneath the ``DOT'' symbol on that
label.
---------------------------------------------------------------------------

    \32\ There were some discrepancies between the proposals as
described in the NPRM preamble and the proposals as set forth in the
NPRM regulatory text. For example, the preamble stated that the
agency was proposing that the certification label be a water decal
and that it be placed under a clear coating. The regulatory text
made no mention of a water decal. Also, the preamble proposed one
set of tolerances for the water temperature specified in the water
immersion procedure and the regulatory text set forth a slightly
different set of tolerances.
---------------------------------------------------------------------------

2. Size Labeling and Location of the ``DOT'' Certification Label
    The agency proposed that helmets be labeled with a ``discrete
size,'' which would be used to select the appropriate headform for
compliance testing purposes. In addition, the agency proposed that the
required certification label on the exterior surface of helmets be
positioned such that the horizontal centerline of the DOT symbol is
located between one and three inches (2.5-7.6 cm) from the lower edge
of the helmet.
3. Retention Test
    The agency proposed specifying a load application rate for the
retention test of 1.0 to 3.0 cm/min and reclassifying the test as a
quasi-static test instead of the current static test.
4. Impact Attenuation Test
    NHTSA proposed to specify test velocity and tolerance limits for
the impact attenuation test. Specifically, we proposed that the test
velocity be any speed between 15.7 ft/s to and including 18.4 ft/s
(from 4.8 m/s to and including 5.6 m/s) for the impact on the
hemispherical anvil, and any speed from 18.4 ft/s to and including 21.0
ft/s (from 5.6 m/s to and including 6.4 m/s) for the impact on the flat
anvil. In addition, we proposed to remove the drop height requirement
from the impact attenuation test.
5. Helmet Conditioning Tolerances
    NHTSA proposed to set tolerances for the helmet conditioning
procedures. For the ambient condition, the range was any temperature
from 61 [deg]F to and including 79 [deg]F (from 16 [deg]C to and
including 26 [deg]C) and any relative humidity from 30 to and including
70 percent. For the low temperature condition, the range was any
temperature from 5 [deg]F to and including 23 [deg]F (from -15 [deg]C
to and including -5 [deg]C). For the high temperature condition, the
range was any temperature from 113 [deg]F to and including 131 [deg]F
(from 45 [deg]C to and including 55 [deg]C). For the water immersion
test, the range for the water temperature was from 61 [deg]F to and
including 79 [deg]F (from 16 [deg]C to and including 26 [deg]C). In
addition, NHTSA proposed that the 12 hour duration be specified as a
minimum duration.

III. The Final Rule and Responses to Comments

    NHTSA received 162 comments in response to NPRM. Three
international manufacturers of FMVSS No. 218-compliant motorcycle
helmets provided comments: Shoei Co., Ltd (Shoei),\33\ Arai Helmet,
Limited (Arai),\34\ and Shark Helmets (Shark).\35\ The agency also
received comments from the Motorcycle Industry Council (MIC),\36\ a
trade association representing manufacturers of, among other things,
motorcycles and motorcycle parts and accessories, including many helmet
distributors in the United States.
---------------------------------------------------------------------------

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

    Various organizations with a focus on vehicle or helmet safety and
enforcement submitted comments to the docket. One entity that provided
extensive information is the Snell Memorial Foundation (Snell),\37\ a
not-for-profit organization that promotes the development, manufacture,
and use of effective helmets for a variety of purposes. NHTSA also
received comments from the Washington Association of Sheriffs and
Police Chiefs (WASPC),\38\ the Governors Highway Safety Association
(GHSA),\39\ the Insurance Institute for Highway Safety (IIHS),\40\ and
one independent governmental entity, the NTSB,\41\ organizations which
generally promote safety and law enforcement interests. The Motorcycle
Riders Foundation (MRF),\42\ an organization representing interests of
some motorcycle riders, also submitted comments.
---------------------------------------------------------------------------

    \37\ Docket NHTSA-2008-0157-0129 and 0164.
    \38\ Docket NHTSA-2008-0157-0161.
    \39\ Docket NHTSA-2008-0157-0021.
    \40\ Docket NHTSA-2008-0157-0157.
    \41\ Docket NHTSA-2008-0157-0143.
    \42\ Docket NHTSA-2008-0157-0058 and 0088.
---------------------------------------------------------------------------

    Finally, this rulemaking action elicited comments from a wide
variety of individual commenters expressing personal or professional
views, including some anonymous comments. People expressed a wide
variety of thoughts to this agency, with many people praising the
agency for its efforts to regulate motorcycle helmets, and others
questioning the value of such efforts. Where individual comments are
discussed in this document, a docket citation for the specific comment
is provided.
    The following sections address all of the issues raised by the
various comments and the agency's response to each of them. While each
comment is not discussed individually in this document, we have
attempted to group many of the common ideas, questions, and arguments
in the comments together and respond to issues as a whole where
possible instead of each comment individually.

a. Certification Labeling

    One of the central purposes of the proposal to update FMVSS No. 218
was to improve the exterior label in an attempt to reduce the number of
motorcyclists who wear novelty helmets. We believe that fewer
motorcyclists will use novelty helmets if it is harder to produce and
obtain misleading look-alike ``certification'' labels, and thus harder
for novelty helmet users to continue to claim falsely that their helmet
bears a valid FMVSS No. 218 certification label and the helmet was sold
to them as a FMVSS No. 218-compliant helmet. Further, we believe that
improved labels can make it easier for law enforcement officers to
identify novelty helmets on the road. Currently, due to the use by
novelty helmet users of misleading look-alike ``certification'' labels,
law enforcement officers must try and use other characteristics to
determine if a rider is wearing a FMVSS No. 218-compliant helmet. By
making the producing and obtaining of misleading look-alike
``certification'' labels harder, we hope to facilitate State law
enforcement.
    As stated above, due to the simplicity of the current certification
label, it is easy to produce and acquire misleading look-alike
``certification'' labels. Because the label bears only the letters
``DOT,'' label manufacturers can manufacture them cheaply and in large
quantities. The labels are available online, and sometimes available
for a nominal or no fee at shops that sell novelty motorcycle helmets.
Label manufacturers and label distributors or sellers claim that the
labels are merely novelty labels and that DOT stands for ``Doing Our
Thing.'' It is also easy for riders to affix a label, as they merely
need attach one of these easily-available labels to the outside of
their novelty helmet.
    The NPRM proposed several elements that would make it more
difficult for label manufacturers to manufacture, and novelty helmet
users to obtain a misleading look-alike ``certification'' label. First,
we proposed to add the word ``Certified'' to the label. This, we
believed, would eliminate any plausibility to the argument that the
``DOT'' labels they manufactured are mere novelty labels. Second, we
proposed that the label contain the manufacturer's name and model
designation. This would require a different certification label for
each helmet model, and make manufacture of misleading look-alike
``certification'' labels far more complicated than merely manufacturing
generic ``DOT'' labels that can be used on any novelty helmet. Third,
NHTSA examined a variety of means to make application of the
certification label more difficult than merely attaching a label to the
exterior of the helmet. In the NPRM, NHTSA examined numerous
alternative means of accomplishing this, including using a hologram,
embossing the certification onto the helmet, sewing the certification
mark on the chinstrap, and applying a clear coating above the
certification label. Ultimately, NHTSA proposed regulatory text
requiring that the certification label be applied by the manufacturer
under a clear coating, believing that this would make it more difficult
for end-users to apply misleading look-alike ``certification'' labels.
In addition, it sought comment on adopting the alternatives in the
final rule.
1. Addition of the Terms ``Certified'' and ``FMVSS No. 218''
    While most commenters supported the addition of the word
``Certified'' to the certification label, there was some disagreement.
On the one hand, many commenters suggested that the addition of the
word ``Certified'' was not enough, and that the agency should also
require the addition of some iteration of the term ``FMVSS No. 218'' to
make clear that the label conveys certification of a Federal motor
vehicle safety standard. On the other hand, some commenters did not
support the change to the label, believing that it would add cost and
be of no value to safety.
    Some commenters expressed concern that the term ``certified'' was
ambiguous. Shoei commented that introduction of the word ``certified''
would imply that the Department of Transportation had certified the
helmet itself, which would be incorrect, as NHTSA relies on
manufacturer self-certification. Shoei stated that, even with just the
current label, some customers request to see documentation indicating
that the DOT has approved of or certified the helmet. While we
sympathize with Shoei, we do not believe that use of a term other than
``certified'' (e.g., ``compliant'') would completely eliminate
confusion. Other commenters stated that ambiguity could be lessened by
a reference to FMVSS No. 218, which could be added to the label in
addition to or in lieu of the word ``certified.'' These commenters
included IIHS, Arai, and Shark. IIHS stated that a reference to FMVSS
No. 218 would deny producers of misleading look-alike ``certification''

labels the plausible argument that their labels have any other meaning
besides referencing and indicating compliance with the Federal
standard. Shark and Arai also both stated that a reference to FMVSS No.
218 would better convey the intent of the certification label.
    MRF argued against the necessity of adding language to the
certification label. It stated that the label is the least important
part of the helmet, and that changing it will only force producers of
misleading look-alike ``certification'' labels to become more creative
and eventually circumvent the standard. While we disagree with MRF's
conclusion, we are heartened that it states the changes will make it
more difficult to produce misleading look-alike ``certification''
labels. It is our hope that this marginal increase in difficulty will
translate into a decrease in on-road use of novelty helmets.
    After considering the comments, we have decided to retain the word
``Certified'' on the helmet, but also add the phrase ``FMVSS No. 218.''
The goal of this part of the proposal was to clearly indicate
compliance with Federal standards, and we believe the addition of
``FMVSS No. 218'' makes this abundantly clear.
2. Manufacturer Name and Model Designation
    We believe that addition of the helmet manufacturer's name and/or
brand \43\ and precise model designation on the certification label is
one of the most important parts of this rulemaking. Requiring this
information would force producers of misleading look-alike
``certification'' either to fabricate information or to use a
legitimate manufacturer's existing name and/or brand, thereby likely
infringing upon a trademark. The manufacturer whose trademark has been
infringed could take action against the infringing party under
trademark law. Should the producer of the misleading look-alike
``certification'' labels produce a label bearing a fabricated
manufacturer name and/or brand name or should a motorcyclist attach
such label to his or her novelty helmet, law enforcement officials may
be able to identify these labels as misleading look-alike
``certification'' labels.
---------------------------------------------------------------------------

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

    NHTSA received several comments relating to this requirement. The
American Society for Testing and Materials (ASTM), MIC, and Shark all
recommended dropping the model designation requirement (but not the
manufacturer's designation) from the label. They claimed that requiring
manufacturers to produce a different label for each helmet model would
increase costs, and that the manufacturer designation alone would have
a similar effect at lower costs. Arai suggested allowing manufacturers
to use trademarks as their manufacturer designation. Finally, one
commenter, Max Rettig,\44\ stated that the manufacturer's name should
be removed from the outer label to reduce variability between helmets.
---------------------------------------------------------------------------

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

    After considering the comments, we are amending the standard to
require the manufacturer name and/or brand name as well as the model
designation on the certification label. With regard to the comments
that such a requirement could increase costs, we believe that those
costs are so low as to be far outweighed by the safety benefits. As
shown in more detail below, we believe that the total incremental cost
for this final rule is on the order of two cents per helmet. We believe
that requiring helmet manufacturers to design and produce a unique
label for each helmet model is a very small and reasonable burden. We
estimate that the costs to label design will be minimal, as only one
design is needed for each helmet model, and most helmet manufacturers
produce a relatively small number of helmet models, on the order of 10.
    On the other hand, including both the helmet manufacturer's
designation, i.e., name or brand name, and model designation makes the
label far more difficult to produce than just including the helmet
manufacturer's designation. As noted above, several commenters
requested that we require only the manufacturer's designation on the
helmet, as our doing so would allow them to continue to produce only
one label design for all their helmets. However, the cost of preserving
that relatively small convenience would be greatly facilitating the
work of producers of misleading look-alike ``certification'' labels.
These producers could similarly simply produce such labels with the
designations of any known novelty helmet manufacturers. If there are
any known novelty manufacturers and if they have any intellectual
property rights, we would not expect them to act to protect those
rights in this instance.
    With regard to Mr. Rettig's comment that the manufacturer's
designation should be removed from the exterior (i.e., certification)
label, we do not agree with the suggestion. The commenter suggested
that this would reduce variability between authentic helmet labels and
allow easier enforcement against novelty helmets. We do not agree. One
main rationale for this change is to make labels somewhat unique to
each helmet model, so that producing and obtaining misleading look-
alike ``certification'' labels suitable for a particular helmet model
are more difficult. While the commenter believes that the
manufacturer's designation on the interior label would be sufficient,
we note that law enforcement officers can only be certain of having the
opportunity to see the exterior certification label. Mr. Rettig's
suggestion would not make enforcement any easier. Further, if the
manufacturer's designation were eliminated, that step would make it
easier to produce misleading look-alike ``certification'' labels. In
his comment, Mr. Rettig also suggested that NHTSA create a serial
number system that would correspond to the make and model of the
helmet, in order to identify helmets containing manufacturing defects
more quickly. We decline to do so, because such a system is unnecessary
given NHTSA's enforcement procedures, and would impose additional costs
on manufacturers.
3. Water Decal and Application of a Clear Coating
    As stated above, in addition to proposing additional and more
distinct information on the certification label, NHTSA also considered
a variety of requirements that would make it physically more difficult
to apply a misleading look-alike ``certification'' label after the
helmet had been manufactured. Among the alternatives considered in the
NPRM were requiring a hologram, a trademarked DOT symbol, etching the
DOT symbol into the outer surface of the helmet, and sewing the
certification into the chinstrap. Ultimately, NHTSA decided not to
propose regulatory text for these approaches due to tentative concerns
about cost, practicability, safety, or other concerns. It stated in the
preamble of the NPRM that it was proposing that the certification label
be a water decal and that a clear coat be applied over it, but included
in the proposed regulatory text only a requirement for clear coating on
the exterior of the helmet. The agency believed that this would provide
a fast and reliable way for law enforcement officers to detect
misleading look-alike ``certification'' labels applied by end users,
because these labels would present a different tactile feel than those
located under the manufacturer's clear coating.

    The rationale for requiring the certification label to be located
underneath a clear coating was described in the NPRM.\45\ The proposal
was based on three assumptions. First, NHTSA stated that it believed
that all current FMVSS No. 218-compliant motorcycle helmets already had
a clear coat, and that it did not know of any compliant helmet model of
a type for which clear coats would be impracticable (e.g., leather-
shelled helmets). Second, because clear coats with water decals beneath
were assumed to be universal, the agency believed that the application
of a water decal under the clear coat would be essentially ``costless''
for manufacturers, as they would essentially add only the one-time cost
of designing the decal. Third, the agency believed that it would be
extremely difficult or costly for end users to duplicate the effect of
a certification underneath a clear coat.
---------------------------------------------------------------------------

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

A. Comments Received
    NHTSA received comments on the issue of clear coating from Shoei,
Arai, Shark, ASTM, MIC, and three members of the general public on this
issue. The comments made several points that directly impacted the
agency's analysis of the issue. First, several commenters pointed out
that, contrary to NHTSA's assumption, there were several FMVSS-
compliant helmets available on the market with finishes that rendered
clear coating impracticable. These included helmets with matte
finishes, leather or cloth coverings, and some dyed resin plastics.
Commenters stated that requiring a clear coating would, at the least,
add substantial cost to some of these helmets, and be impossible for
others (e.g., leather or cloth-covered helmets).
    Helmet manufacturers all stated that, contrary to NHTSA's belief,
many helmets do not use a clear coat finish. Shark was the only
manufacturer to support the proposed clear coating requirement, even as
it noted two models it produced without one. Arai stated that many
types of helmets, including non-glossy colors and matte finishes, do
not have a clear coating applied, and that the requirement that all
helmets have a clear coat would thereby limit consumer choice with
regard to helmet styles. Shoei did not support the requirement either,
stating that the clear coat imposes design restrictions on
manufacturers, and arguing that the cost of the clear coating was much
higher than NHTSA anticipated, in the range of 60 cents to one dollar
per helmet.
    ASTM and MIC made similar remarks in their comments. ASTM, in
addition to stating that a clear coat would be inappropriate for
helmets with matte or cloth finishes, pointed out that many plastic
helmets are made of color impregnated thermoplastic and are not
painted, and that a water decal would not be appropriate for those
helmets either. ASTM argued that the labeling requirement must not
restrict available exterior finishes and must allow greater flexibility
to allow manufacturers to provide the requested information on the
exterior of helmets. MIC listed ``flat or matte finishes,
polycarbonate, vacuum thermoforming finish, and [helmets with] leather
or cloth exteriors'' as examples where a clear coat requirement would
be inappropriate, and provided Web sites where examples of those
helmets could be seen. It instead requested that the proposed rule be
modified to permit non clear-coat finished helmets. In the alternative,
MIC requested that if a clear coat amendment is adopted, the final rule
could also permit any of the ``alternatives considered'' in the NPRM
(i.e., etching, hologram, or sewn into the chinstrap) as alternative
means of compliance.
B. NHTSA Analysis
    As stated above, the proposed requirement for using a water decal
as the certification label and placing it under clear coating rested on
three assumptions. First, it assumed that the requirement was
practicable, meaning that all helmet manufacturers could comply with
the requirement. Second, it assumed that because all FMVSS No. 218-
compliant helmets already had a clear coat, affixing a water decal
certification label under the coating would be essentially costless,
but for the cost of the decal itself and a change in the manufacturing
process. Third, it assumed that the requirement would be effective in
preventing users from attaching a misleading look-alike
``certification'' label to a helmet that could confuse a law
enforcement officer. However, after considering the comments, re-
analyzing the market, and conducting further testing, we have changed
our position on all three of these assumptions. For the reasons
described below, we are not adopting the water decal or clear coating
requirement.
    First, using the information supplied by the commenters, NHTSA was
able to locate several examples of helmets certified to comply with
FMVSS No. 218 on the market with leather or matte finishes, for which a
clear coating would be an impracticable addition. Second, considering
that it is now evident that there are many helmets that do not have a
clear coat, we would need to revise our cost estimates. We have
concluded that Shoei's estimate of $0.60 to $1.00 per helmet is a
reasonably accurate measurement of the cost to add a clear coat and
water decal to a helmet that does not already have these features.
    Third and finally, NHTSA undertook additional in-house testing to
verify the claims of commenters that the clear coat requirement would
not be as effective a deterrent to attaching misleading look-alike
``certification'' labels as originally believed. The agency
investigated the Web site doingourthing.com, which purported to
describe a step-by-step set of instructions on how to affix a DOT label
to a motorcycle helmet and apply a clear coating over the top of it.
Based on the instructions on the Web site, we applied a DOT label
purchased from the internet to the back of a test helmet and applied
two coats of spray-on clear coat (polyurethane). This was a relatively
simple process, and the results, while not so good as a manufacturer-
applied water decal, were judged sufficient to allow a user to avoid
arousing the suspicions of a law enforcement officer.
    As a result of our testing, we no longer believe that using a water
decal and placing it under a clear coating would be an effective means
of thwarting the production and application of misleading look-alike
``certification'' labels. We note that in the NPRM, we reasoned that
applying a ``[c]lear coating over the ``DOT'' symbol would result in a
smooth surface that is visually and tactilely different from a label
applied to the surface after the clear coating process is completed.''
\46\ Based on our experience, however, we have seen that an end user
can create the look and tactile feel of a clear coating with minimal
cost and difficulty. Combined with the impracticality of applying clear
coats to some helmets, and substantial cost of adding it to the other
helmets, we have decided not to require the certification label on any
helmet to be placed under a clear coating.
---------------------------------------------------------------------------

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

C. Alternatives Considered
    Despite deciding, ultimately, to not adopt the clear coat
requirement, we have also decided not to adopt any of the alternative
methods discussed in the NPRM for making the certification to make it
more tamper-resistant. As stated above, in the NPRM, the agency
analyzed three alternative methods of applying the DOT symbol: sewing
the symbol into the chinstrap, etching the

symbol into the helmet, and using a hologram to make the symbol more
difficult to duplicate and thus make the misleading labeling of novelty
helmets more difficult. The reasons that the agency is declining to
adopt any of these alternatives, in lieu of the unadopted proposal of a
clear coat requirement, are unchanged from the reasons cited in the
NPRM. As discussed below, we did invite public comments on whether any
or all of the alternatives should be adopted in the final rule. Our
reasons for not adopting any of them are summarized below.
    The agency considered each alternative to clear coating, but
ultimately did not propose regulatory text for any of them because of
tentative concerns regarding effectiveness or cost. Sewing the symbol
onto the chinstrap was tentatively rejected because law enforcement
personnel stated that it would be difficult for officers to see the
symbol in that location.
    Etching or embossing the symbol into the material of the helmet was
tentatively rejected because the manufacturers claimed that it would be
a significant economic burden to them due to higher manufacturing costs
and to substantially higher scrap rates, up to 5 percent for plastic
constructed helmets and 15 percent for fiberglass constructed helmet
shells. The manufacturers claimed further that sharp radii, which would
exist at the interface between the molded surface of the shell and the
raised or recessed letters of the ``DOT'' symbol, would cause
production problems in the molding and finishing, leading to higher
manufacturing costs. Therefore, etching and embossing the DOT symbol on
the helmet was tentatively judged to be an unjustified economic cost.
Finally, using a hologram was tentatively rejected given the agency's
belief that it would add 70 cents to the cost of a label (and thus to
the cost of FMVSS No. 218-compliant helmets) and that there are other
effective methods to reduce the production and application of
misleading look-alike ``certification'' available that impose a lower
burden on manufacturers.
    Several commenters discussed these alternatives, or presented
additional alternatives. One commenter from the law enforcement
community, Mr. Steven Rust, said that a molded symbol would greatly
benefit officers' ability to distinguish compliant helmets.\47\ While
we agree that a molded DOT symbol would make identification of novelty
helmets easier, we do not believe it would be foolproof, as novelty
helmet manufacturers or end users could also etch a reasonable
facsimile into noncompliant helmets. Further, as explained above, this
option could be very costly, due to the reported increase in
manufacturing costs and scrappage rates of some helmet types.
---------------------------------------------------------------------------

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

    Another commenter suggested replacing the exterior compliance label
with a radio-frequency identification (RFID) tagging system,\48\ which
would allow law enforcement officers to simply ``scan'' a helmet to
determine if it is compliant. A third commenter suggested replacing the
manufacturer and model designation with a bar code. With regard to
these two options, we believe that they would also impose
disproportionate costs as they would make it necessary for law
enforcement officers to purchase and carry additional equipment.\49\
---------------------------------------------------------------------------

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

    One commenter suggested trademarking the DOT symbol to prevent
label manufacturers from producing misleading look-alike
``certification'' labels.\50\ We did not pursue this course of action
because first, and most importantly, the agency is not able to license
a trademark for manufacturers to use at their discretion. Second,
trademarks are easily counterfeited and the agency has limited
resources to enforce trademark rights against the printers, sellers and
distributors of labels inappropriately bearing a trade-marked symbol.
Therefore, we do not believe that trademarking the DOT symbol would
pose an obstacle for unscrupulous producers of misleading look-alike
``certification'' labels.
---------------------------------------------------------------------------

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

    Finally, GHSA suggested incorporating the month and year of
manufacture into the information on the exterior label.\51\ We are not
adopting that suggestion, because it would require helmet manufacturers
to update their designs monthly, at some cost, while makers of
misleading look-alike ``certification'' labels could simply include any
month and date on their designs, which would necessarily not be
detectable by law enforcement. Therefore, the agency concluded that
this was not an effective method for reducing the producing and
applying of misleading look-alike ``certification'' labels.
---------------------------------------------------------------------------

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

4. Location of the Certification Label
    Another change proposed in the NPRM was to widen the range of
acceptable locations for the certification. Currently, paragraph
S5.6.1(e) requires that the certification label be located with the
horizontal centerline of the DOT symbol between 1\1/8\ inches (2.9 cm)
and 1\3/8\ inches (3.5 cm) from the bottom edge of the posterior of the
helmet. The reason for this requirement is to prevent the certification
label from being mounted in an area that would be difficult for a law
enforcement officer to see easily, such as the top of a helmet.
However, due to issues of practicality, such as having large edge
rolls, some manufacturers have judged it necessary to mount the
certification labels a little higher than the maximum allowed distance
in order to assure complete label-to-helmet contact. We note that the
certification labels at issue met all other requirements. However, to
address such circumstances, the agency proposed to extend the range of
allowable locations for the certification label to anywhere from 1 to 3
inches (2.5 to 7.6 cm). This change would allow manufacturers more
flexibility in their label placement, while still allowing law
enforcement officers to observe the labels easily in the course of
their duties.
    Commenters universally supported the expansion of the permitted
range. ASTM noted that it had petitioned the agency to make a similar
change in an earlier petition for rulemaking. MIC said that for years,
the current label position requirement has been problematic for any
helmet with an edge cover or trim more than one inch vertically or
other design feature influencing label position. Arai supported the
proposal, stating that this change would give manufacturers more
flexibility. Shoei also had no objections to the change.
    Shark supported the proposal, but requested that there be an
allowance that enables manufacturers to position the DOT label slightly
off the vertical. Currently, paragraph S5.6.1(e) of the standard
specifies that the DOT label be ``centered laterally'' and with the
``horizontal centerline of the symbol located * * * [2.9 to 3.5 cm] * *
* from the posterior portion of the helmet.'' Shark argued that in some
instances, the design of a helmet precludes positioning the
certification label in the center of the helmet, and that there should
be an allowance for the label to be located slightly to the sides, as
indicated in the photographs in Shark's comment.
    Despite Shark's comment, we are not adopting a horizontal allowance
for positioning the DOT label. We believe that the centered position of
the exterior DOT label is important because law enforcement officers
need to be able to spot the DOT label quickly and easily.

That is why there is a specified position location, as well as a
requirement that the symbol shall appear in a color that contrasts with
the background, and a minimum requirement for letter size.
5. Size of Letters/Numbers
    Regarding the lettering for the certification label, the NPRM
proposed a minimum lettering height of 0.09 inch (.23 cm) for the
manufacturer and model designations, as well as the word ``certified.''
As the agency received no comments on this issue, we are adopting the
requirement as proposed in the NPRM.
6. Current and New Certification Labels

                  Figure 1--Current Certification Label

                                   DOT

               Figure 2--New Certification Label (Example)

                         Mfr. Name and/or Brand
                            Model Designation

                                   DOT

                              FMVSS No. 218
                                CERTIFIED

7. Information Required on New Certification and Other Labels

                                 Table 4
------------------------------------------------------------------------
                          Required information
-------------------------------------------------------------------------
 On certification label  (required       On separate label or labels
         to be on exterior)             (typically placed in interior)
------------------------------------------------------------------------
Manufacturer's name and/or brand                 Manufacturer's name
------------------------------------------------------------------------
              Model designation                        Discrete size
------------------------------------------------------------------------
                        ``DOT''        Month and year of manufacture
------------------------------------------------------------------------
              ``FMVSS No. 218''        Instructions to the purchaser
                                     regarding construction, handling,
                                     cleaning, use, modifications, and
                                                              damage
------------------------------------------------------------------------
                             ``CERTIF...................................
------------------------------------------------------------------------

b. Size Labeling

    In the NPRM, the agency indicated in the preamble it was proposing
to replace the current requirement in paragraph S5.6.1(c) to specify
the ``size'' with a requirement to specify the ``discrete size or
discrete size range.'' However, in the proposed regulatory text
(S5.6.1(b)), the agency proposed simply to change ``size'' to
``discrete size.''
    The reason for the proposal was to preclude FMVSS No. 218
enforcement difficulties that could arise under the existing standard
which requires that helmets be labeled only with a generic size
specification (e.g., Small, Medium, or Large). Enforceability problems
can arise because while S6.1 specifies which headform is used to test
helmets with a particular ``designated discrete size or size range,''
\52\ a helmet's labeled generic size may not correspond to the same
size ranges that the agency uses to determine which headform to use for
testing. To ensure that this issue does not cause problems in the
future, the agency proposed to require the label to specify the
``discrete size'' of the helmet. The agency further proposed to define
``discrete size'' as meaning ``a numerical value that corresponds to
the diameter of an equivalent ( .25 inch or
.64 cm) circle.'' The agency said that this definition would have two
benefits. First, it would provide certainty as to the headform on which
the helmet would be tested by NHTSA, thereby improving the
enforceability of the standard. Second, it would provide more precise
information to customers. Further, we note that the requirement would
in no way preclude the manufacturer from specifying a generic size in
addition to the discrete size on the size label.
---------------------------------------------------------------------------

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

1. Comments Received
    NHTSA received numerous comments on the issue of size labeling.
Several commenters questioned whether the proposed labeling
requirements would improve the information given to consumers or aid in
resolving enforceability concerns.
    With regard to customer information, commenters generally stated
that either the proposed labeling was not necessary, or that the
discrete size information should refer to the circumference of the
helmet, rather than the diameter, as proposed in the NPRM. MIC and ASTM
stated that use of the diameter is essentially another way to use ``hat
sizes'' as a means to indicate the helmet size, albeit with the
precision reduced to \1/4 \inch increments.\53\ Both commenters
recommended that the label refer to the circumference, instead of the
diameter, because it would allow comparison to a measurement of a
consumer's head or the test headform without multiplying by the
mathematical operator, pi. Shoei stated that while it had no particular
objection to the proposed change in the size labeling requirement, it
believes that the indication of the helmet size is only for reference
purposes. On the other hand, Shark commented that the discrete size
would be confusing to customers, an idea that was seconded by David
Morena,\54\ and that it would not reflect the actual headform sizes
used for testing, although Shark did not explain why this latter
statement would be so.
---------------------------------------------------------------------------

    \53\ ASTM noted that traditional hat sizes are unitless numbers
in \1/8\ [inch] increments corresponding to the average diameter of
the hat. See Docket NHTSA-2008-0157-0149, p. 4.
    \54\ Docket NHTSA-2008-0157-0106.
---------------------------------------------------------------------------

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

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

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

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

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

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

c. Impact Attenuation Test

    The impact attenuation test is designed to ensure that a motorcycle
helmet is capable of absorbing sufficient energy upon impact with a
fixed hard object. Under paragraph S5.1, Impact attenuation, the peak
acceleration of the test headform is required not to exceed 400g,
accelerations above 200g not to exceed a cumulative duration of 2.0
milliseconds, and accelerations above 150g not to exceed a cumulative
duration of 4.0 milliseconds.
    The current impact attenuation test is specified in paragraph S7.1,
Impact attenuation test. In this test, the helmet is first fitted on a
test headform. The helmet/headform assembly is then dropped in a guided
free fall onto two types of steel anvils, one flat and the other
hemispherical. The first part of the test specifies two identical
impacts onto the flat steel anvil, and the second part of the test
requires two identical impacts onto the hemispherical steel anvil. The
performance requirement is that the headform acceleration profile must
be less than the specified accelerations given in S5.1.
    In our 2008 proposal, NHTSA identified two aspects of the impact
attenuation test that we believed needed modification. The first was
the definition of the term ``identical impacts,'' which is currently
not defined in the text of the regulation. We believed that this could
lead to substantial confusion for manufacturers. The second issue was
the range of acceptable velocities of the impacts. This issue arose
when the agency attempted to determine whether certain helmets,
manufactured by NexL, complied with the impact attenuation
requirements.\55\ To summarize the NPRM, the agency indicated that in
the absence of both a minimum and maximum acceptable velocity, it could
be difficult to take enforcement action against a helmet in the event
that NHTSA testing revealed a noncompliance.
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    \55\ See 73 FR at 57306.
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1. Definition of ``Impact Site''
    The ``identical impacts'' requirement was originally derived from
American National Standards Institute (ANSI) Z90.1-1971,
``Specifications for Protective Headgear for Vehicular Users,'' which
defined the term as impacts centered not more than \1/4\ inch (0.6 cm)
apart.\56\ However, because NHTSA neither adopted the ANSI definition
nor incorporated it by reference, the term is undefined in the agency's
standard. The standard currently reads as follows:
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    \56\ See, ANSI Z90.1, 9.3.1.

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

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

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

     S7.1.2 Each helmet is impacted at four sites with two
successive impacts at each site. For each site, the location where
the helmet contacts the center of the anvil on the second impact
shall not be greater than 0.75 inch \57\ (1.9 cm) from the location
where the helmet contacts the center of the anvil on the first
impact. Two of these sites are impacted upon a flat steel anvil and
two upon a hemispherical steel anvil as specified in S7.1.10 and
S7.1.11. The impact sites are at any point on the area above the
test line described in paragraph S6.2.3, and separated by a distance
not less than one-sixth of the maximum circumference of the helmet
in the test area.
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    \57\ Due to a typographical error, this was incorrectly
published as .075 inch in the NPRM. The correct value is 0.75 inch.
The error has been corrected in this document.

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

     The impact sites are at any point on the area above the
test line described in paragraph S6.2.3, and separated by a distance
not less than one-sixth of the maximum circumference of the helmet
in the test area.\58\
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    \58\ 49 CFR 571.218, S7.1.2.

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

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

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

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

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

which the assembly should be dropped. The agency translated this height
requirement into the aforementioned impact velocities. Since the intent
of the agency was to adopt a similar test to that of ANSI Z90.1, and
since ANSI Z90.1 specified drop heights that would result in a
specified velocity in a guided free fall drop, it is the agency's
intent that the impact attenuation be performed close to the converted
ANSI speeds for the respective tests, and not at undefined impact
speeds above these respective values. The agency therefore proposed to
set the tolerance for the impact attenuation velocity at
1.2 ft/s (0.4 m/s) from the nominal values of either 19.7 ft/s (6.0 m/
s) or 17.1 ft/s (5.2 m/s) depending on the anvil test. The tolerance
was based on typical calibration limits and the uncertainty associated
with the test system and test setup, and was described in detail in the
NPRM.\60\
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    \60\ See 73 FR at 57307.
---------------------------------------------------------------------------

    In response to the proposal, NHTSA received a number of comments.
Comments received from Snell, Shoei, Shark, Arai, MIC, and ASTM all
stated that the proposed velocity tolerance was too large. The concern
expressed by these commenters was that if tested at the extreme upper
end of the tolerance range (for example, 6.4 m/s on the flat anvil), a
helmet that would comply at the nominal value of 6.0 m/s would not meet
the impact attenuation requirements at the higher speed. Most
commenters offered specific alternative suggestions for velocity
tolerances, ranging from  0.15 m/s to 3 percent overall
tolerances. Specifically, Arai and Shark suggested a velocity tolerance
of  0.15 m/s, ASTM and MIC suggested a velocity tolerance
of  3 percent (which would equal  0.156 m/s on
the hemispherical anvil test, and  0.18 m/s on the flat
anvil), and Shoei stated that it was capable of achieving tolerances
under  0.2 m/s. The agency has carefully considered the
comments received, and for the reasons described below, has decided to
narrow the range of acceptable tolerances from  0.4 m/s to
 0.2 m/s.
    There are two major factors that NHTSA considered when evaluating
the range of acceptable tolerances. First, the agency considered impact
energy with respect to helmet design. Commenters generally prefer the
smallest tolerance possible because increasing the allowable tolerance
can subject helmets to more force upon impact, thereby having a
substantial effect on helmet performance. This could cause some
currently-compliant helmets to become noncompliant based merely on a
change in testing procedures, a result we hope to avoid to the extent
practicable. On the other hand, the agency is also constrained in how
narrow a tolerance band it can specify due to the limitations on its
own testing capabilities. Because the agency tests a large number of
helmets and uses a variety of laboratories to do so, it is subject to
somewhat more test variability than an individual manufacturer may be.
Therefore, in the sections below, we analyze both factors.
A. Impact Energy
    As stated above, the concern of most commenters was that the
proposed tolerance range of  0.4 m/s was too great, and
that many helmets that meet the acceptable limits imposed by the
standard at 6.0 m/s would not pass if tested at the upper limit of 6.4
m/s. For example, ASTM stated simply that ``[f]rom a practical
standpoint, the NPRM would increase the test velocity and energy by a
significant amount without any analysis of the effect on current
helmets''.\61\ The reason for this statement is that, in order to
ensure that a helmet could pass a NHTSA performance test, a
manufacturer would need to ensure that it would pass if tested at the
upper extreme of the tolerance range.\62\ ASTM and Snell provided
information in their comments about the problems the impact attenuation
test could cause, as well as recommended narrower ranges that would not
present problems ( 3 percent).\63\ In a similar fashion,
Shark and Arai suggested that the tolerance be reduced similarly, to a
range of  0.15 m/s. Based on the comments received, as well
as further analysis of the issue, we believe that reducing the
permitting tolerance to  0.2 m/s would alleviate as many of
the concerns regarding this final rule as the values suggested by the
commenters. The  0.2 m/s figure was selected because it is
similar to the figures recommended by the commenters ( 0.15
m/s and 3 percent, which is  0.18 m/s for the flat anvil
test), but rounded to the nearest tenth of a meter per second.
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    \61\ Docket NHTSA-2008-0157-0150, p. 6.
    \62\ While the tolerance range would apply to both the flat and
hemispherical anvil tests, the flat anvil test is generally where
one would expect any failures to occur. Therefore, this notice
generally refers to the velocities specified in the flat anvil tests
(6.0 m/s plus a tolerance interval), instead of those in the
hemispherical test (5.2 m/s plus a tolerance interval).
    \63\ This translates to a range of  0.18 m/s for the
flat anvil test, and  0.156 m/s for the hemispherical
anvil test.
---------------------------------------------------------------------------

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

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

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

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

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

meet the requirements if tested at 6.0 m/s (ranging from marginal to
exceptional compliance with the S5.1(b) requirement), three would not
pass if tested at 6.4 m/s.\67\ The performance of the six hypothetical
helmets, if tested at a velocity of precisely 6.0 m/s, is shown in
Table 5 below. Note that helmet 1 barely meets the performance
requirement when tested at this speed, as paragraph S5.1(b) limits the
duration above 200g to 2.0 milliseconds or less.
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    \66\ The formula for computing the amount of time a helmet's
acceleration is at or above 200g is (T@200g) = 1.25 * (1-
2 * arcsin(200/PG)/[pi]) se * TL where PG is the peak
acceleration of the impact pulse (quarter sine wave) and
TL is the time duration during the loading phase. Details
provided in docket NHTSA-2008-0157-164.3.
    \67\ Pursuant to paragraph S5.1(b), accelerations in excess of
200g shall not exceed a cumulate duration of 2.0 milliseconds. It is
this requirement that is most likely to cause a helmet to fail to
comply with FMVSS No. 218.

                                                     Table 5
----------------------------------------------------------------------------------------------------------------
                                                                                Pulse time at
       Velocity (6.0 m/s)             Peak G        Pulse time-     Pulse time-    Pulse  time-   or above 200 G
                                                      loading        unloading         total         (T@200g)
                                             (G)          (msec)          (msec)          (msec)          (msec)