[Federal Register Volume 80, Number 98 (Thursday, May 21, 2015)]
[Proposed Rules]
[Pages 29457-29487]
[FR Doc No: 2015-11756]

Vol. 80

Thursday,

No. 98

May 21, 2015

Part IV

Department of Transportation

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National Highway Traffic Safety Administration

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49 CFR Part 571

Federal Motor Vehicle Safety Standards; Motorcycle Helmets; Proposed
Rule

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

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

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

Federal Motor Vehicle Safety Standards; Motorcycle Helmets

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

ACTION: Notice of proposed rulemaking (NPRM).

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

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

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

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

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

I. Executive Summary

A. Purpose of the Regulatory Action

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

Use Survey (NOPUS) has consistently shown that a portion of the
motorcycling community wears novelty helmets. Specifically, in states
where use is required for all motorcyclists, between 8-27% of
motorcyclists have been observed wearing helmets that likely do not
comply with FMVSS No. 218.1 2
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    \1\ Motorcycle Helmet Use in XXXX--Overall Results, Traffic
Safety Facts Research Notes, DOT HS 809 867, 809 937, 810 840, 811
254, 811 610, and 811 759 available at http://www.nrd.nhtsa.dot.gov/cats/listpublications.aspx?Id=7&ShowBy=Category (last accessed on 5/
14/13).
    \2\ Data represent an aggregation of sampling units located in
states where use is required for all motorcyclists.
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    These helmets, frequently marketed as ``novelty'' helmets, are
seldom certified by the manufacturer as meeting Standard No. 218, but
are sold to, and used by, on-road motorcycle riders and passengers.\3\
Data from a study of motorcycle operators injured in crashes and
transported to a shock trauma center indicates that 56 percent of those
wearing a novelty helmet received head injuries as compared to 19
percent of those wearing a certified helmet.\4\
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    \3\ When NHTSA becomes aware that a manufacturer is fraudulently
certifying non-compliant helmets, the agency can take legal action
and impose fines on the manufacturer.
    \4\ An Analysis of Hospitalized Motorcyclists in the State of
Maryland Based on Helmet Use and Outcome, available at http://www.nhtsa.gov/Research/Crashworthiness (last accessed on 04/08/13).
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    These novelty helmets are frequently sold as ``motorcycle novelty
helmets'' or otherwise marketed to on-road motorcycle riders. However,
these novelty helmets are usually offered along with a disclaimer that
the helmet does not meet Standard No. 218, is not a protective device
or is not intended for highway use. In States where universal helmet
use laws often require riders and passengers to wear helmets meeting
Standard No. 218, helmet users wearing novelty helmets often affix
labels to their helmets that mimic the certification labels applied by
manufacturers of helmets that are certified as meeting the Standard.
Consequently, officials attempting to enforce compulsory helmet use
laws in those States requiring that riders use helmets meeting Standard
No. 218 currently find it difficult to enforce these laws to prevent
the use of these novelty helmets.
    In 2011, NHTSA attempted to make it easier for riders and law
enforcement officials to identify non-compliant helmets by amending
FMVSS No. 218 to require that all compliant helmets manufactured after
May 13, 2013 have a certification decal which includes the phrase
``FMVSS No. 218'', the helmet manufacturer's name or brand name of the
helmet and the word ``certified.'' The new requirements were intended
to make decals more difficult to counterfeit. However, this regulatory
change has not been sufficient to solve the problem. Prior to May 13,
2013, the certification label requirements of FMVSS No. 218 stated
simply that the certification label must consist of the letters ``DOT''
printed in a specified size range and located in a designated area on
the rear of helmet. Facsimiles of that earlier label are widely
available and are often added by ``novelty helmet'' users in mandatory
helmet law states to their helmets to give them the appearance of a
compliant helmet certified before the May 2013 change to the labeling
requirements.
    There are no regulatory limits on the age of motorcycle helmets
that may be used to comply with a state motorcycle helmet use law.
Therefore, a helmet user could assert that the wearing of a helmet
manufactured prior to the May 2013 change to the certification label
requirements meets the requirements of state helmet laws requiring use
of an FMVSS No. 218 compliant helmet if the manufacturer properly
certified the helmet with the three character ``DOT'' label. Until a
sufficient period of time passes to establish that a helmet bearing the
older certification label is likely to have not been certified as FMVSS
No. 218 compliant by the manufacturer, a helmet with the older
certification label would appear to be a compliant helmet. Novelty
helmet users will be able to employ the counterfeit versions of the old
certification label for many years into the future.
    To enhance NHTSA's ability to restrict the sale and subsequent use
of novelty helmets, as well as assisting State law enforcement
officials in enforcing laws requiring use of compliant helmets, this
document contains an interpretation of the definition of ``motor
vehicle equipment'' as defined by the National Traffic and Motor
Vehicle Safety Act of 1966 (Safety Act), proposes adding a definition
of ``motorcycle helmet'' to FMVSS No. 218 consistent with 49 U.S.C.
30102(a)(7)(C) as amended by the MAP-21 Act, and also proposes
modifying the existing requirements of Standard No. 218. It is the
agency's view that adoption of these proposals will reduce fatalities
and injuries attributable to the use of non-compliant helmets by
increasing successful prosecutions in mandatory helmet law states,
reducing the demand for novelty helmets and augmenting NHTSA's ability
to prevent the importation and sale of non-compliant helmets.

B. Need for Regulation

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

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

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

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

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

D. Costs and Benefits

    The benefits of the proposed rule are based on the use of the
dimensional and compression requirements and the proposed Appendix as
criteria to distinguish certified from non-certified motorcycle
helmets. Behavioral change among motorcycle riders as a result of the
rule is difficult to predict. However, the agency believes that 5 to 10
percent of the novelty helmet users in States that have a Universal
Helmet Law would eventually make a switch to avoid being ticketed or
fined, and that this is a modest and achievable projection. As a
result, the proposal would save 12 to 48 lives annually. In addition,
the analysis also estimates the maximum potential benefit of the rule
which corresponds to a hypothetical scenario of all novelty helmet
users in States that have universal helmet laws becoming 218-certified
helmet users (the 100-percent scenario). Under this hypothetical 100-
percent scenario, 235 to 481 lives would be saved. Note that this 100-
percent scenario is theoretical since some novelty-helmeted
motorcyclists would still be expected to circumvent the helmet laws by
continuing taking the risk of wearing novelty helmets. Therefore, the
estimated costs and benefits for the 100-percent scenario are not used
(and not appropriate) for determining the effects of the proposed rule.
However, they do indicate the potential savings in social costs that
are offered by FMVSS No. 218-compliant helmets and the importance of
educating the public to this potential. The discounted annualized costs
and benefits are presented below. The numbers exclude benefits from
nonfatal injuries prevented as well as private disbenefits to riders
who prefer to wear novelty helmets, but switch to compliant helmets to
avoid law enforcement. Since these benefits are obtained in violation
of State law, their status is uncertain. A more detailed discussion of
this issue is included in the Non-quantified impacts section of the
PRIA. We are not assuming for this analysis that any novelty helmet
users in States that do not have Universal Helmet Laws will switch to
218-certified helmets; however, we note that this may occur if users
voluntarily make this switch.

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

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

II. Background

A. Increased Motorcycle Related Fatalities and Injuries

    There is a pressing need for improvements in motorcycle safety. As
shown in NHTSA's research, motorcycle crash-related fatalities have
been disproportionately high, compared as a measure of exposure, among
all motor vehicle crash fatalities. According to the Fatality Analysis
Reporting System (FARS), motorcyclist \5\ fatalities increased from
3,270 fatalities in 2002 to 4,612 fatalities in 2011. During this time,
motorcyclist fatalities as a percent of motor vehicle occupants and
non-occupants killed in traffic crashes nearly doubled from 8% to 14%.
Refer to Figure 1.
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    \5\ ``Motorcyclist'' refers to both motorcycle drivers and
motorcycle passengers.
[GRAPHIC] [TIFF OMITTED] TP21MY15.008

    In contrast to the total number of passenger vehicle and pedestrian
fatalities, which have decreased over the past decade, motorcyclist
fatalities increased significantly. Some claim this is due to increased
exposure; however, registrations for both motorcycle and passenger
vehicles have increased over this time period, yet it is only
motorcyclist fatalities which have risen. In 2011, motorcycles
accounted for only about 3 percent of all registered vehicles and 0.6
percent of all vehicle miles traveled (VMT) \6\ yet present themselves
as a much larger proportion of the overall motor vehicle related
fatalities due to traffic crashes. Compared with a passenger vehicle
occupant, a motorcyclist is over 30 times more likely to die in a
crash, based on VMT.\7\
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    \6\ In August 2011, starting with 2009 data, FHWA implemented an
enhanced methodology for estimating registered vehicles and vehicle
miles traveled by vehicle type. In addition, revisions were made to
2008 and 2007 data using the enhanced methodology. As a result,
vehicle involvement rates may differ, and in some cases
significantly, from previously published rates.
    \7\ Motorcycles: 2011 Data, Traffic Safety Facts, DOT HS 811
765, available at http://www.nrd.nhtsa.dot.gov/Pubs/811765.pdf (last
accessed on 5/14/13).
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    Over the same time period, the number of motorcyclists injured
increased from 65,000 in 2002 to 81,000 in 2011 accounting for 4
percent of all occupant injuries.\8\ Simultaneously, the number of
passenger vehicle occupants injured decreased by 25 percent.\9\

Compared with a passenger vehicle occupant, a motorcyclist is 5 times
more likely to be injured, based on VMT.\10\
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    \8\ Ibid.
    \9\ Traffic Safety Facts 2011, Annual Report Overview, DOT HS
811 753, available at http://www.nrd.nhtsa.dot.gov/pubs/811753.pdf
(last accessed on 5/14/13). Based on calculations using data
provided in Table 1.
    \10\ Motorcycles: 2011 Data, Traffic Safety Facts, DOT HS 811
765, available at http://www.nrd.nhtsa.dot.gov/Pubs/811765.pdf (last
accessed on 5/14/13).
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    The most common fatal injuries sustained by motorcyclists are
injuries to the head.\11\ Head injuries are common among non-fatal
injuries as well. A study of data from the Crash Outcome Data
Evaluation System (CODES) indicates that median charges for
hospitalized motorcyclists who survived to discharge were 13 times
higher for those incurring a traumatic brain injury (TBI) compared to
those who did not sustain a TBI ($31,979 versus $2,461).\12\
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    \11\ Bodily Injury Locations in Fatally Injured Motorcycle
Riders Traffic Safety Facts, DOT HS 810 856, available at http://www.nrd.nhtsa.dot.gov/Pubs/810856.pdf (last accessed on 2/1/12).
    \12\ Motorcycle Helmet Use and Head and Facial Injuries: Crash
Outcomes in CODES-Linked Data, DOT HS 811 208 available at http://www.nrd.nhtsa.dot.gov/Pubs/811208.pdf (last accessed on 1/31/12).
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    The National Transportation Safety Board (NTSB) has also made a
similar assessment of the motorcycle safety problem. They issued a
November 2010 safety alert titled ``Motorcycle Deaths Remain
High''.\13\
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    \13\ Motorcycle Deaths Remain High, National Transportation
Safety Board Safety Alert SA-012, November 2010, available at http://www.ntsb.gov/doclib/safetyalerts/SA_012.pdf (last accessed on 1/31/
12).
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B. Recent Downturns in Motorcyclist Fatalities Do Not Appear To Be a
Reversal of a Decade--Long Trend

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

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

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

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

    NHTSA's comprehensive motorcycle safety program15 16
seeks to: (1) Prevent motorcycle crashes; (2) mitigate rider injury
when crashes do occur; and (3) provide rapid and appropriate emergency
medical services response and better treatment for crash victims. As
shown in Table 1 below, the elements of the problem of motorcyclist
fatalities and injuries and the initiatives for addressing them can be
organized using the Haddon Matrix, a paradigm used for systematically
identifying opportunities for preventing, mitigating and treating
particular sources of injury. As adapted for use in addressing motor
vehicle injuries, the matrix is composed of the three time phases of a
crash event (I-Crash Prevention--Pre-Crash, II-Injury Mitigation--
During a Crash, and III-Emergency Response--Post-Crash), along with the
three areas influencing each phase (A-Human Factors, B-Vehicle Role,
and C-Environmental Conditions).
---------------------------------------------------------------------------

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

    While a number of factors are believed to account for this increase
in fatalities, including expanding motorcycle sales, increases in the
percentage of older riders, and increases in engine size, motorcyclist
head injuries are a leading cause of death. Effectively addressing
motorcyclist head injuries or any other motor vehicle safety problem
requires a multi-pronged, coordinated program in all of the areas of
the Haddon Matrix, as shown in Table 1. Because no measure in any of
the nine areas is a complete solution, the implementation of a measure
in one area does not eliminate or reduce the need to implement measures
in the other areas.
    For example, while NHTSA encourages efforts in all areas of the
motorcycle safety matrix below, including the offering of motorcyclist
training, such training cannot substitute for wearing a helmet that
complies with FMVSS No. 218. The results of studies examining the
effectiveness of motorcyclist training in actually reducing crash
involvement are mixed.\17\ To argue that taking a motorcycle operating
course eliminates the need for motorcycle helmets is akin to arguing
that taking a driver's education course for driving a passenger vehicle
eliminates the need for seat belts, air bags, padding, and other safety
equipment in motor vehicles.
---------------------------------------------------------------------------

    \17\ Approaches to the Assessment of Entry-Level Motorcycle
Training: An Expert Panel Discussion, Traffic Safety Facts Research
Note, February 2010, DOT HS 811 242, available at http://www.nhtsa.gov/staticfiles/nti/motorcycles/pdf/811242.pdf (last
accessed on 1/31/12). The report concluded:
    While basic rider courses teach important skills, the
effectiveness of training as a safety countermeasure to reduce
motorcycle crashes is unclear. Studies conducted in the United
States and abroad to evaluate rider training have found mixed
evidence for the effect of rider training on motorcycle crashes.

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

    Mitigating rider injury in crashes through the use of motorcycle
helmets is a highly effective measure for improving motorcycle safety.
The steady toll of motorcyclist fatalities would have been
significantly lower had all motorcyclists been wearing motorcycle
helmets that meet the performance requirements issued by this agency.
Additional information about helmet effectiveness and the real world
risk of not using helmets is discussed later in this document.
---------------------------------------------------------------------------

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

    In November 2010, the NTSB issued a Safety Alert in which that
agency expressed similar conclusions about the value of increased use
of helmets that comply with FMVSS No. 218. The Safety Alert said:
     FMVSS No. 218-compliant helmets are extremely effective.
They can prevent injury and death from motorcycle crashes.
     A motorcyclist without a helmet, who is involved in a
crash, is three times more likely to sustain brain injuries.
     Wearing a helmet reduces the overall risk of dying in a
crash by 37%.
     In addition to preventing fatalities, FMVSS No. 218-
compliant helmets reduce the need for ambulance service,
hospitalization, intensive care, rehabilitation, and long-term care.
     Wearing a helmet does not increase the risk of other types
of injury.

The value of helmet use has been demonstrated in studies of injuries
resulting from crashes, as discussed below in the section titled ``Real
World Injury Risks and Novelty Helmets.''

D. Novelty Helmets

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

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

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

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

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

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

    Throughout this document, we will refer to these types of helmets
as novelty helmets.
2. Novelty Helmet Use
    Although use of a properly certified FMVSS No. 218-compliant
motorcycle helmet can significantly reduce the possibility of death or
injury in a crash, a significant percentage of motorcyclists either
wear novelty helmets or do not wear any helmet at all. In fact,
motorcyclists appear to be forsaking the use of compliant helmets in
favor of novelty helmets in high numbers in States with universal
helmet use laws. (See Table 2.)
    In 2011, 20 States and the District of Columbia had helmet use laws
requiring all motorcyclists to wear helmets. According to a NHTSA
survey, in States where use is required for all motorcyclists, FMVSS
No. 218-compliant helmets had an observed use rate of 84%; novelty
helmets had an observed use rate of 12%; and no helmets were worn by an
estimated 4 percent of motorcyclists. Comparatively, in the States with
partial or no helmet use laws, the observed use rate of FMVSS No. 218-
compliant helmets was 50%; 5 percent used novelty helmets; and 45
percent did not use a helmet at all.\22\ Partial helmet use laws
typically require helmet use only by persons 17 years of age or
younger, even though 70 percent of the teenagers killed on motorcycles
are 18 or 19 years of age and even though teenagers of all ages account
for only about 4.5 percent of all motorcyclist fatalities.\23\
---------------------------------------------------------------------------

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

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

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

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

E. Safety Consequences of Novelty Helmet Use

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F. Novelty Helmets and the Enforcement of State Helmet Laws

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

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

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

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

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

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

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

G. Federal Motor Vehicle Safety Standard No. 218

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

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

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

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

H. Recent Amendments to FMVSS No. 218

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

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

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

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

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

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

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

    While the final rule will make it easier for State and local law
enforcement officials to enforce State laws requiring the use of FMVSS
No. 218-compliant helmets, the agency anticipates that, based on the
improved labeling alone, only 5 to 10 percent of motorcyclists using
novelty helmets in States with universal helmet use laws will switch to
using compliant helmets. Therefore, the agency acknowledged that more
is needed to be done to further reduce novelty helmet use by
motorcyclists. Citing comments by the Governors Highway Safety
Association that novelty helmet use had become a means of expressing
displeasure with helmet use laws and evading the operation of such
laws, NHTSA indicated that it was assessing other actions that should
be taken to address the marketing and selling of novelty helmets to
motorcyclists for highway use.\42\
---------------------------------------------------------------------------

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

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

    ``Novelty seat belts are intended for display. They are not
intended to be used in motor vehicles and are not designed to
provide protection in a crash. Their use in a crash may result in
serious injury. Use this seat belt at your own risk.''

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

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

    Furthermore, the agency explained that ``In some cases, the use of
these look-alike labels has enabled motorcyclists either to assert
successfully in court that he or she believed in good faith that the
helmet he or she was using had been certified to the federal standard
and/or to put State authorities to the time and expense of conducting
tests to prove that the helmet is noncompliant.'' Further, sellers and
distributors of these labels, which bear the letters ``DOT,'' attempt
to avoid any responsibility for their sale and use. They assert that
the labels are not counterfeit or misleading look-alike
``certification'' labels, but merely labels that coincidentally
resemble legitimate ``DOT'' certification labels and whose letters
stand for ``Doing Our Thing,'' not ``Department of Transportation.''
The agency notes its understanding that these look-alike labels
appeared only after the implementation of FMVSS No. 218. As a result,
application of these labels to noncompliant helmets enables
motorcyclists to avoid conviction and penalties in situations in which
State and local helmet laws require the use of a certified FMVSS No.
218-compliant motorcycle helmet.
    In NHTSA's judgment, the mere presence of a ``DOT'' label on a
helmet that otherwise lacks the construction and appearance of a FMVSS
No. 218-compliant helmet cannot reasonably be thought to be a reliable
indication that the helmet is a compliant helmet. The plausibility of
such a false indicator of compliance is negated by a lack of critical
visible physical attributes such as an impact absorbing liner of
adequate thickness and composition to protect a user in the event of a
crash, as well as the presence of interior labeling required by FMVSS
No. 218. The presence of a label on such a helmet is instead actually
indicative that the label is a misleading look-alike label applied by a
helmet seller or user, not by its manufacturer. This has led the agency
to propose criteria to assist the public and law enforcement in
identifying novelty helmets. This proposal is discussed further in the
section of this document titled Proposed Amendments to Performance
Requirements.

I. NHTSA's Compliance Test Program

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

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

III. Interpretation--Novelty Helmets Are Motor Vehicle Equipment

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

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

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

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

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

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

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

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

IV. Proposed Amendments to FMVSS No. 218

A. Adding a Definition for Motorcycle Helmet

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

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

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

entities selling other products for motorcyclists, then it follows that
the helmet is intended for use by those same motorcyclists. If, when
viewed by a reasonable observer, the helmet is promoted or displayed as
suitable for uses including use as a motorcycle helmet, then it
similarly follows that the helmet is actually made and sold as a
motorcycle helmet. Of course, the agency recognizes that helmets of all
kinds may be sold by entities that sell motorcycle equipment and
accessories as well as a variety of other products. Marketing and
promotion materials may also be broad or enigmatic. To clarify the
definition and prevent the operation of the presumption when
inappropriate, the definition also states that helmets within the scope
of subsections (1)(B) and (1)(C) would not presumptively be a
motorcycle helmet when it is certified by a recognized body for use as
protective gear for purposes other than as a motorcycle helmet or is
permanently labeled as not intended for highway use.
    NHTSA believes that including helmets worn by motorcyclists using
public highways is supported by the expanded definition of motor
vehicle equipment adopted by Congress in 1970 and the recent MAP-21
amendments. As we interpret that definition, the manner of actual use
is compelling objective evidence of the intended use of a product
regardless of any disclaimers issued by a manufacturer or seller.
Nonetheless, the agency has tentatively decided not to propose
incorporating this criterion in the definition of motorcycle helmet.
This tentative determination is based on the current lack of data
regarding which helmets are actually being used on public highways. As
stated elsewhere in this document, if NHTSA were to adopt an actual use
component in the definition of motorcycle helmet, the agency would not
consider incidental use as evidence that a particular type of helmet is
a motorcycle helmet. Instead, only those helmets being used on-road by
a sufficient number of motorcyclists would be considered as evidence
that the helmet being worn is intended for highway use.
    Although NHTSA has tentatively decided not to include a use-based
criterion in the definition of ``motorcycle helmet'' the agency may
include such a provision in the definition contained in the final rule.
The agency therefore requests comments on including a provision in the
final rule that helmets used on the highways are motorcycle helmets and
motor vehicle equipment under the Safety Act.
    NHTSA's proposed definition of ``motorcycle helmet'' establishes
that ``hard shell headgear'' meeting certain conditions are motorcycle
helmets. As employed in the definition, hard shell headgear refers to
headgear that retains its shape when removed from the user's head,
whether or not covered by a decorative surface such as leather. ``Hard
shell'' distinguishes motorcycle helmets from other non-hard shelled
headgear such as soft caps and bandannas that are also used by
motorcyclists on road. If an item of headgear meets this threshold
requirement, additional criteria are employed to determine if the item
is a motorcycle helmet.
    The criteria relate to the manufacture, importation, sale, and use
of the headgear in question. First, a helmet is a motorcycle helmet
under subsection (1)(A) if it is manufactured for sale, sold, offered
for sale, introduced or delivered for introduction in interstate
commerce, or imported into the United States, for use on public
streets, roads, and highways with the apparent purpose of safeguarding
highway users against risk of accident, injury, or death. The apparent
purpose of a product stems from its essential physical characteristics
such as the size, shape, design and general appearance of the helmet.
For example, a small bicycle with small diameter wheels and a
correspondingly small frame would have the apparent purpose of being
used by a child for short distances on sidewalks and driveways.
Conversely, a bicycle with large wheels and a large frame would have
the apparent purpose of being used by an adult on roads and highways.
In the case of helmets, an unperforated hard shell helmet with a chin
strap or retention system would have the apparent purpose of being a
protective motorcycle helmet. If that helmet also has snaps for
attaching a visor or face shield, the apparent purpose becomes even
clearer. Further, if such a helmet is similar to helmets certified by
their manufacturers as meeting the requirements of FMVSS No. 218, the
helmet would have the apparent purpose of being a protective helmet.
    Under subsection (1)(B) a helmet is a motorcycle helmet if it is
manufactured, sold, introduced into interstate commerce, or imported by
entities also manufacturing, offering, selling or importing certified
helmets or other motor vehicle equipment and apparel for motorcycles or
motorcyclists. Under this standard, if a helmet is manufactured,
imported, sold, offered for sale or introduced into interstate
commerce, or imported into the United States, by entities that
undertake the same activities for other products, services or goods
used by on-road motorcyclists, the apparent purpose of the helmet is
on-road use and the helmet is a motorcycle helmet. Proposed subsection
(1)(C) states that a helmet is a motorcycle helmet if it is described
or depicted as a motorcycle helmet in packaging, display, promotional
information or advertising. This criterion is met if the helmet is
described or depicted as a motorcycle helmet in packaging, display,
promotional materials or advertising. Such materials may include
obvious characteristics such as the word ``motorcycle'' in a
description of the helmet or more subtle factors such as a depiction of
a user who is also wearing goggles, sunglasses, or other protective
clothing or gear normally worn by motorcyclists.
    Subsection (1)(D) states that helmets presented for importation
under applicable designation(s) for motorcycle helmets in the
Harmonized Tariff Schedule of the United States would also be deemed to
be on-road motorcycle helmets. This fourth criterion relates to the
manner in which imported goods enter the United States and would
specify that any helmet imported into the United States under the
designations reserved for motorcycle helmets in the Harmonized Tariff
Schedule of the United States (HTS) is intended for highway use. The
HTS, which replaced former US Tariff Schedules, was enacted by Congress
and made effective on January 1, 1989. The HTS establishes a
hierarchical structure for describing all imported goods for duty,
quota, and statistical purposes. The United States International Trade
Commission (USITC) maintains and publishes the HTS, which is enforced
and interpreted by the Bureau of Customs and Border Protection of the
Department of Homeland Security.\49\
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    \49\ Depending on the materials used in their construction,
motorcycle helmets are currently found in 6506.10.3030, HTSUS, or
subheading 6506.10.6000, HTSUS.
---------------------------------------------------------------------------

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

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

B. Proposed Amendments to Performance Requirements

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

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

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

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

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

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

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

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

    NHTSA examined each helmet and took multiple measurements in the
vicinity of the apex. Two measurements are being reported: Thickness at
the low end of the range (i.e., a thin location) and thickness at the
upper end of the range (i.e., a thick location). See Table 5. The
methodology used was not designed to identify the absolute minimum or
maximum thickness values, but rather to obtain a general
characterization of the inner liner, shell, and non-impact attenuating
liner thicknesses. Summaries are reported in Tables 6 and 7. The
certified helmets in this group had impact attenuating liners that were
at least 1 inch (25 mm) thick and an overall thickness from the inside
of the impact attenuating liner to the outside of the shell measured at
least 1.1 inch (28 mm). On the other hand, the novelty helmets examined
had no impact attenuating liners or liners that were less than 0.59
inch (15 mm) thick and a combined thicknesses of liner and shell that