ID: 3264o

Mr. Wayne Ivie
Manager, Vehicle Support Service Section
Oregon Department of Transportation
1905 Lana Avenue NE
Salem, OR 97314

Dear Mr. Ivie:

This responds to your letter seeking information about the labeling requirements in Standard No. 218, Motorcycle Helmets (49 CFR 571.218). You noted that Oregon recently enacted a mandatory helmet use law which adopted Standard No. 218 as the minimum standard for helmets. You correctly noted that section S5.6.1 of Standard No. 218 requires subject motorcycle helmets to be permanently and legibly labeled with specified information, including the symbol "DOT" as a certification that the helmet complies with Standard No. 218. However, you stated that you have received reports that the labeling required by Standard No. 218 is not present on many helmets, either because it has fallen off or been removed by someone. You said that there is often no other identification of the manufacturer or brand name on the helmet. Accordingly, it is not possible for the owner of a helmet without the Standard 218 label present to contact a dealer or manufacturer for information about the helmet. You then asked several questions about the labeling requirements set forth in Standard No. 218.

Before answering your specific questions, I would like to provide some general background information on Standard No. 218. Prior to October 3, 1988, Standard No. 218 applied only to helmets that could be placed on the size C headform. The helmet manufacturers estimated that approximately 90 percent of all motorcycle helmets were subject to Standard No. 218, because they could be placed on the size C headform. However, helmets manufactured before October 3, 1988 that could not be placed on the size C headform (these were typically smaller sizes of helmets) were not subject to Standard No. 218. Hence, manufacturers of helmets that could not be placed on the size C headform were not required by Standard No. 218 or any of our other regulations to label any information on these helmets. In fact, manufacturers could not label the DOT certification symbol on those helmets that were not subject to Standard No. 218. See the enclosed December 4, 1987 letter to Mr. Hoppe for more information on this subject.

We published a final rule on April 6, 1988 that extended the requirements of Standard No. 218 to all motorcycle helmet sizes (53 FR 11280). This rule became effective on October 3, 1988. Accordingly, all motorcycle helmets manufactured on or after October 3, 1988 are subject to Standard No. 218 and must be labeled in accordance with the requirements of S5.6 of that standard.

With this background, your question can be answered as follows. For the approximately 10 percent of helmets manufactured before October 3, 1988 that could not be placed on the size C headform, Standard No. 218 did not apply to them, so there was no requirement for any information to be labeled on these helmets. Any such helmets would not display a "DOT sticker" because they were not required or permitted to display such a sticker when they were new, not because the sticker "fell off" or was removed.

However, Standard No. 218 applied to approximately 90 percent of all helmets manufactured before October 3, 1988 and applies to every motorcycle helmet manufactured on or after that date. For those helmets, S5.6.1 of Standard No. 218 requires that: "Each helmet shall be permanently and legibly labeled . . ." with the manufacturers name or identification, the precise model designation, the size, the month and year of manufacture, the DOT certification mark, and warning instructions. (emphasis added) In an October 16, 1973 letter to the Cycraft Co., NHTSA stated that the requirement that helmets be permanently labeled prohibits the use of labels that can be removed easily by hand without tools or chemicals.

You stated that you have heard of two reasons why helmets that originally had a DOT certification label would no longer have such a label. One of the reasons was that the affixed label was a "sticker" and it "fell off." Standard No. 218 permits manufacturers to label the required information on the helmet by means of a "sticker," provided that the label is permanent and legible and contains all the information required by S5.6. A "sticker" that falls off the helmet would not appear to be permanent within the meaning of Standard No. 218, so this would be an apparent noncompliance with the standard. If you have any evidence that "stickers" are falling off helmets, please forward that information to our Office of Vehicle Safety Compliance at this address, and we will take appropriate actions.

The second reason that you have heard for helmets no longer having the labeling required by Standard No. 218 is that someone removed the label to paint the helmet and failed to put the label back on the helmet. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C 1397(a)(2)(A)) prohibits any manufacturer, distributor, dealer, or repair business from "knowingly render[ing] inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard." In this case, the label on motorcycle helmets is a device or element of design installed on the helmet in compliance with Standard No. 218. If a manufacturer, distributor, dealer, or repair business removed that label and failed to put it back on the helmet, then those entities would be rendering the label inoperative, in violation of Federal law. Again, if you have any evidence that violations of Federal law have occurred in your State, please forward that evidence to our Office of Vehicle Safety Compliance and we will take appropriate actions.

Please note that Federal law does not prohibit the helmet's owner or any other person that is not a manufacturer, distributor, dealer, or repair business from removing the label from motorcycle helmets. Thus, the owner of a motorcycle helmet is permitted to remove the label from his or her helmet for any reason without violating any provision of Federal law. The individual States are free to establish requirements for motorcycle helmets used in their State, and could prohibit an owner from removing the label.

You suggested that the problem of missing labels could be solved if this agency were to require that the DOT symbol be embossed on or in the helmet. NHTSA considered and rejected this suggestion 15 years ago when it established Standard No. 218. In the August 20, 1973 preamble to the final rule that established FMVSS 218, we said:

With respect to providing important safety information in the form of labeling, one comment recommended that, due to possible label deterioration, both the manufacturer's identification and the helmet model designation should be permanently marked by etching, branding, stamping, embossing, or molding on the exterior of the helmet shell or on a permanently attached component so as to be visible when the helmet is in use. The NHTSA has determined that the practical effect of this recommendation is accomplished by requiring each helmet to be permanently and legibly labeled. The method to be used to permanently and legibly affix a label for each helmet is therefore left to the discretion of the manufacturer. (38 FR 22391)

You finally asked if other jurisdictions have informed NHTSA of similar problems and sought suggestions on methods to resolve the situation where an apparently undamaged helmet would be in compliance with the standard except that it is not properly labeled. As noted above, approximately 10 percent of the motorcycle helmets manufactured before October 3, 1988 were not subject to Standard No. 218 and were not required to be labeled. To my knowledge, no other jurisdictions have informed this agency of problems akin to those raised in your letter aside from more general questions about labeling. I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Marvin Shaw of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure ref:VSA#218 d:l2/8/88

ID: 3315o

Mr. Wayne Ivie
Manager, Vehicle Support Service Section
Oregon Department of Transportation
1905 Lana Avenue NE
Salem, OR 97314

Dear Mr. Ivie:

This responds to your letter seeking information about the labeling requirements in Standard No. 218, Motorcycle Helmets (49 CFR 571.218). You noted that Oregon recently enacted a mandatory helmet use law which adopted Standard No. 218 as the minimum standard for helmets. You correctly noted that section S5.6.1 of Standard No. 218 requires subject motorcycle helmets to be permanently and legibly labeled with specified information, including the symbol "DOT" as a certification that the helmet complies with Standard No. 218. However, you stated that you have received reports that the labeling required by Standard No. 218 is not present on many helmets, either because it has fallen off or been removed by someone. You said that there is often no other identification of the manufacturer or brand name on the helmet. Accordingly, it is not possible for the owner of a helmet without the Standard 218 label present to contact a dealer or manufacturer for information about the helmet. You then asked several questions about the labeling requirements set forth in Standard No. 218.

Before answering your specific questions, I would like to provide some general background information on Standard No. 218. Prior to October 3, 1988, Standard No. 218 applied only to helmets that could be placed on the size C headform. The helmet manufacturers estimated that approximately 90 percent of all motorcycle helmets were subject to Standard No. 218, because they could be placed on the size C headform. However, helmets manufactured before October 3, 1988 that could not be placed on the size C headform (these were typically smaller sizes of helmets) were not subject to Standard No. 218. Hence, manufacturers of helmets that could not be placed on the size C headform were not required by Standard No. 218 or any of our other regulations to label any information on these helmets. In fact, manufacturers could not label the DOT certification symbol on those helmets that were not subject to Standard No. 218. See the enclosed December 4, 1987 letter to Mr. Hoppe for more information on this subject.

We published a final rule on April 6, 1988 that extended the requirements of Standard No. 218 to all motorcycle helmet sizes (53 FR 11280). This rule became effective on October 3, 1988. Accordingly, all motorcycle helmets manufactured on or after October 3, 1988 are subject to Standard No. 218 and must be labeled in accordance with the requirements of S5.6 of that standard.

With this background, your question can be answered as follows. For the approximately 10 percent of helmets manufactured before October 3, 1988 that could not be placed on the size C headform, Standard No. 218 did not apply to them, so there was no requirement for any information to be labeled on these helmets. Any such helmets would not display a "DOT sticker" because they were not required or permitted to display such a sticker when they were new, not because the sticker "fell off" or was removed.

However, Standard No. 218 applied to approximately 90 percent of all helmets manufactured before October 3, 1988 and applies to every motorcycle helmet manufactured on or after that date. For those helmets, S5.6.1 of Standard No. 218 requires that: "Each helmet shall be permanently and legibly labeled . . ." with the manufacturers name or identification, the precise model designation, the size, the month and year of manufacture, the DOT certification mark, and warning instructions. (emphasis added) In an October 16, 1973 letter to the Cycraft Co., NHTSA stated that the requirement that helmets be permanently labeled prohibits the use of labels that can be removed easily by hand without tools or chemicals.

You stated that you have heard of two reasons why helmets that originally had a DOT certification label would no longer have such a label. One of the reasons was that the affixed label was a "sticker" and it "fell off." Standard No. 218 permits manufacturers to label the required information on the helmet by means of a "sticker," provided that the label is permanent and legible and contains all the information required by S5.6. A "sticker" that falls off the helmet would not appear to be permanent within the meaning of Standard No. 218, so this would be an apparent noncompliance with the standard. If you have any evidence that "stickers" are falling off helmets, please forward that information to our Office of Vehicle Safety Compliance at this address, and we will take appropriate actions.

The second reason that you have heard for helmets no longer having the labeling required by Standard No. 218 is that someone removed the label to paint the helmet and failed to put the label back on the helmet. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C 1397(a)(2)(A)) prohibits any manufacturer, distributor, dealer, or repair business from "knowingly render[ing] inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard." In this case, the label on motorcycle helmets is a device or element of design installed on the helmet in compliance with Standard No. 218. If a manufacturer, distributor, dealer, or repair business removed that label and failed to put it back on the helmet, then those entities would be rendering the label inoperative, in violation of Federal law. Again, if you have any evidence that violations of Federal law have occurred in your State, please forward that evidence to our Office of Vehicle Safety Compliance and we will take appropriate actions.

Please note that Federal law does not prohibit the helmet's owner or any other person that is not a manufacturer, distributor, dealer, or repair business from removing the label from motorcycle helmets. Thus, the owner of a motorcycle helmet is permitted to remove the label from his or her helmet for any reason without violating any provision of Federal law. The individual States are free to establish requirements for motorcycle helmets used in their State, and could prohibit an owner from removing the label.

You suggested that the problem of missing labels could be solved if this agency were to require that the DOT symbol be embossed on or in the helmet. NHTSA considered and rejected this suggestion 15 years ago when it established Standard No. 218. In the August 20, 1973 preamble to the final rule that established FMVSS 218, we said:

With respect to providing important safety information in the form of labeling, one comment recommended that, due to possible label deterioration, both the manufacturer's identification and the helmet model designation should be permanently marked by etching, branding, stamping, embossing, or molding on the exterior of the helmet shell or on a permanently attached component so as to be visible when the helmet is in use. The NHTSA has determined that the practical effect of this recommendation is accomplished by requiring each helmet to be permanently and legibly labeled. The method to be used to permanently and legibly affix a label for each helmet is therefore left to the discretion of the manufacturer. (38 FR 22391)

You finally asked if other jurisdictions have informed NHTSA of similar problems and sought suggestions on methods to resolve the situation where an apparently undamaged helmet would be in compliance with the standard except that it is not properly labeled. As noted above, approximately 10 percent of the motorcycle helmets manufactured before October 3, 1988 were not subject to Standard No. 218 and were not required to be labeled. To my knowledge, no other jurisdictions have informed this agency of problems akin to those raised in your letter aside from more general questions about labeling. I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Marvin Shaw of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure /ref:VSA#218 d:12/8/88

ID: 08_002292-df

ID: 07-002269drn

ID: 1985-02.47

TYPE: INTERPRETATION-NHTSA

DATE: 06/24/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. L. D. Pitts, Jr.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. L. D. Pitts, Jr P. O. Box 52592 Houston, Texas 77002

Thank you for your letter of March 12, 1985, asking about the effect of our regulations on a product you would like to manufacture. I hope the following discussion explains that effect.

You described your product, which you call a glare-shield, as a 1/8-inch thick sheet of "Lexan" plastic with a special scratch resistant coating. Your product is designed to be mounted inside a motor vehicle, as close to the windshield as possible, to reduce glare-related vision problems caused by the sun. You stated that your product would cover the entire windshield and is designed to be held in place by three or six latches. The latches can be released by the driver and the shield can be removed from the car.

Pursuant to the National Traffic and Motor Vehicle Safety Act, we have issued Federal Motor Vehicle Safety Standard No. 205, Glazing Materials, (49 CFR 571.205) which specifies performance and location requirements for glazing used in vehicles. These requirements include specifications for minimum levels of light transmittance (70% in areas requisite for driving visibility, which includes all windows in passenger cars).

Any manufacturer, dealer or other person who installs tinting films or other sun screen devices, such as the one described in your letter, in new vehicles must certify that the vehicle as altered continues to comply with the requirements of the standard. Thus, for example, the light transmittance through the combination of the sun-screening material and the glazing must be at least 70 percent in the case of glazing used in windows requisite for driving visibility. Similarly, the combination must also meet the other applicable requirements of the standard, such as the abrasion resistance requirements.

After a vehicle is sold to the consumer, owners may themselves alter their vehicles as they please, so long as they adhere to all State requirements. Under Federal law, an owner may install any device regardless of whether the installation adversely affects light transmittance. The agency does, however, urge owners not to install equipment which would render inoperative the compliance of a vehicle with our standards. Individual States govern the operational use of vehicles by their owners and therefore it is within the authority of the States to preclude owners from using sun screens on their vehicles.

If a manufacturer, dealer, distributor or motor vehicle repair business installs the sun screen device for the owner of a used vehicle, then S108(a)(2)(A) of the Vehicle Safety Act may apply. That section provides that none of those persons may knowingly render inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with a Federal motor vehicle safety standard. Violation of the "render inoperative" provision can result in Federal civil penalties of up to $1,000 for each violation.

Sincerely,

Jeffrey R. Miller Chief Counsel

P. O. Box 52592 Houston Texas 77002 March 12, 1985

Mr. George Berndt, Chief Counsel Office of the Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C., 20590

Dear Mr. Berndt:

I am writing about a product that I would like to manufacture and market in the United States. Since the product is for use on vehicles being driven on public roads, I respectfully request your comments as to whether or not you think the product is in compliance with the laws as they are now written.

The product name is glare-shield. Its' purpose is to reduce motor vehicle accidents. It functions on the same principal as do sunglasses. except it has several advantages over sunglasses. Some people have vision defects for which prescription sunglasses cannot be made. Other people would prefer a glare-shield rather than sunglasses because of the fatigue caused by the physical discomfort of the sunglasses while being worn.

A glare--shield is made from a 1/8" thick sheet of "Lexan" plastic with a special scratch resistant coating. It is the same plastic manufactured by the General Electric Company and known as MR-50T4. Lexan MR-50T4 sheeting has been successfully tested for compliance with FMVSS-217 by bus manufacturers (A.M. General Corporation, General Motor Truck and Coach and Flxible/Rohr). MR-50T4 is approved by the American Association of Motor Vehicle Administrators. MR-50T4 meets or exceeds the requirements of items 4 and 5 of FMVSS-205.

A glare-shield can come in either one or two pieces, depending on the vehicle. A glare-shield is large enough in size to cover the entire area of the windshield of the vehicle it was designed to fit. A glare-shield is mounted on the inside of the vehicle as close to the windshield as possible. It is mounted in such a position that it does not interfere with the defroster device and can actually aid in its' operation, by directing more air toward the windshield. A glare-shield is not a permanent installation and can be removed for night driving in less than ten (10) seconds. Three or six stainless steel latches are used to hold the glare-shield in place. depending on whether it is a one or two piece unit. These latches are separately and permanently mounted to the vehicle using stainless steel rivets and rubber washers. Each latch has been designed to support the full weight of the glare-shield, should the other two latches not be functioning for some unknown reason. The latches cannot be accidentally opened by vibration, because they are mounted in rubber. Stainless steel sheet metal guards are attached to the edge of the glare-shield in the area where the latches make contact, in order to prevent damage to the coating on the Lexan. A vinyl molding is glued around the edge of the glareshield, to prevent the "Lexan" from coming in contact with any hard surface of the vehicle which could cause rattling from road vibration. The light transmission of various glare-shields will be equal to the various shades obtained from sunglasses found on the market today. The driver will decide which light transmission percentage is best for him, just as he now does when choosing sunglasses.

The main function of a glare-shield is to reduce the blinding glare from the sun at both sun-up and sun-down. The second important function is to reduce driver fatigue caused by reflections of shiny surfaces on a sunny day. An added benefit of using glare-shield is that windshields will no longer be tinted on their top part, or lightly tinted all over, which is a common practice today to reduce daytime glare. This tinting of windshields is bad, of course, because it reduces the driver's visibility at night. Another advantage of a glare-shield is that in the event of an accident, it will keep the driver's and passenger's heads from coming in contact with the windshield which usually results in facial lacerations. The glare-shield also helps in preventing a body being thrown through the windshield. The last advantage of a glare-shield, is that it acts as a protective shield against windshield glass fragments and foreign objects which strike and may penetrate the windshield.

Your immediate attention is requested on this project, as it appears to all those who have heard about glare-shields that they can reduce the number of accidents, and reduce bodily injuries and deaths, when accidents do occur.

Sincerely yours, L. D. Pitts, Jr. LDP/bjs

ID: 00946.ztv

James T. Pitts, Esq.
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, N.W., Suite 1000
Washington, D.C. 20005-3917

Dear Mr. Pitts:




This is in reply to your letter of October 1, 2002, to Stephen R. Kratzke, Associate Administrator for Rulemaking.You wrote on behalf of your client, TBC Corporation ("TBC"), whose Director of Engineering and Quality Assurance, L. M. Hardy, was notified by Claude Harris, Director of Crash Avoidance Standards, NHTSA, on September 4, 2002, that its petition for an inconsequentiality determination was moot.The basis for this conclusion was that all the noncomplying tires covered by the petition remained in the possession of the company, and had not been distributed or sold.You have asked us to reconsider our position on the basis of alternative arguments that you presented.

By way of background, paragraph S6.4 Treadwear indicators of 49 CFR 571.119, Motor Vehicle Safety Standard No. 119, "New Pneumatic Tires for Vehicles Other Than Passenger Cars," specifies that each tire to which the standard applies "shall have at least six treadwear indicators . . . ." TBC determined that certain of its tires had only five treadwear indicators.It then properly determined that this was a failure to comply with Standard No. 119, notified NHTSA as required by 49 CFR Part 573, and petitioned for a determination that the noncompliance was inconsequential to motor vehicle safety.As noted in the first paragraph, we considered the petition to be moot and further informed TBC that its noncompliant tires could not be legally sold (letter of Claude Harris, attached).

In your first argument, you analogized to a 1979 case involving Vespa of America Corporation which had failed to provide a turn signal indicator on its motorcycles.We concurred with the company's argument that the rapid flashing of the front turn signal lamps to indicate a failure of the rear turn signal lamps was a functional equivalent of a turn signal indicator which would indicate a failure in the turn signal system (letter of Chief Counsel Frank Berndt, March 16, 1979).You have asked us to make a similar decision with respect to TBC's noncompliance.

We have reviewed Mr. Berndt's letter.Significantly, Mr. Berndt stated that "we have determined that there is no failure to comply with the standard and your petition is moot." NHTSA's determination that there was no failure to comply with Standard No. 108 permitted Vespa to sell its complying motorcycles.With respect to TBC, we cannot make a determination that there was no failure to comply with Standard No. 119 on the basis of functional equivalence.The standard requires a minimum of six treadwear indicators.We cannot interpret this as meaning five treadwear indicators are the functional equivalent of "at least six treadwear indicators."

In the alternative, you have presented your interpretations of 49 U.S.C. Sections 30112, 30118, and 30120.You asserted that "there is nothing in Section 30118(d)" or Section 30120. . . that requires that there be 'owners, purchasers, and dealers' as a prerequisite to an inconsequentiality determination." You concluded that "it is clear that NHTSA can make an 'inconsequential to safety determination' at a time when the noncomplying equipment is still in the hands of the manufacturer."You next argued that "The ability of the manufacturers to then sell that equipment turns on the language in section 30112(b)(2)(A), which excludes certain persons and equipment from the prohibitions in section 30112(a) relating to the sale of non-complying equipment." Specifically, you asserted that subsection (b)(2)(A) excludes persons exercising reasonable care who had no reason to know that the equipment "does not comply." You argued that "The exclusion, written in the present tense, does not assume that any of the actions prohibited in subsection (a) have already taken place. Otherwise, the exclusion would reference the lack of knowledge regarding the noncompliance of the equipment at the time the equipment was imported or sold, i.e., a past action, and not a present condition."You concluded that "TBC imported the tires in questions (sic) and had no reason to know then of their noncompliance.The equipment does not comply with an applicable standard.The exclusion from the flat prohibition of sale is thus satisfied and the tires can be sold without penalty if, and only if, NHTSA determines that the noncompliance is inconsequential to safety."

The Motor Vehicle and School Bus Safety Amendments of 1974 amended the National Traffic and Motor Vehicle Safety Act of 1966 to add Section 157, Exemption for Inconsequential Defect or Failure to Comply (the Safety Act was recodified in 1994 and the provisions of Section 157 were divided between Section 30118(d), regarding notice, and Section 30120(h), regarding remedy.The 1974 Amendments required manufacturers of motor vehicles and motor vehicle equipment to remedy noncompliances and safety-related defects without charge.The obligation was absolute and Section 157 was added as a means of relieving manufacturers of the need to notify and remedy where noncompliances, such as those involving labels, and defects were inconsequential as they related to motor vehicle safety.The legislative history clearly indicates that this was the purpose of the inconsequentiality provisions:

This section [157] enables a manufacturer to apply to the Secretary for an exemption from the obligation to give notice with respect to, or to remedy, a motor vehicle or item of motor vehicle equipment, which contains a defect relating to motor vehicle safety or which fails to comply with an applicable Federal motor vehicle safety standard. * * * Your Committee believes that this provision is a reasonable corollary to the new statutory obligation for manufacturer to remedy without charge. [H. Rep. 93-1191. 93d Cong. 2d Sess. 31 (1974)]

We disagree with your analysis of Section 30112.Significantly, Section 157 referred only to relief from the notice and remedy provisions.It did not alter what is now Section 30112(a).Under Section 30112(a), sale of the noncomplying tires remains unlawful. We further read Section 30112 in context with Section 30165(a)(1).That section authorizes civil penalties for a person that violates Section 30112 (and other statutory provisions).TBC's importation of non-complying tires into the United States is a prima facie violation of Section 30112(a).However, if TBC can establish that, in the exercise of reasonable care, it did not know of the noncompliance at the time of importation, it will not be held to have violated Section 30112(a) for purposes of civil penalties.The existence of a reasonable care defense does not alter the fact that non-complying tires have been imported. If TBC then proceeds to engage in further violations of Section 30112(a), i.e., to "sell, offer for sale, introduce or deliver for introduction into interstate commerce" the defense of Section 30112(b)(2)(A) will no longer be available to it, and it will be liable for civil penalties under Section 30165.A determination that a noncompliance is inconsequential does not bring a noncompliant product into compliance, and such a determination is immaterial for purposes of knowing violations of Section 30112(a) (but an inconsequentiality determination would be relevant for the agency to weigh in determining the amount of a civil penalty for a violation of Section 30112(a), because the agency is required to consider the gravity of the violation that has occurred.See Section 30165(c)).

For NHTSA to relieve a manufacturer of the obligation to notify owners, purchasers, and dealers when none of the noncomplying products have been delivered to them would be a meaningless exercise; under these circumstances the obligation does not arise in the first instance and the petition is moot. Similarly, the obligation to remedy under Section 30120 arises only when notification of a defect is required under Section 30118(c), and if this obligation is moot, so is the obligation to remedy.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:591
d.11/1/02

ID: nht76-2.7

DATE: 05/05/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Blue Bird Body Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Blue Bird Body Company's March 29 and 31, 1976, and April 14, 1976, requests for confirmation of several interpretations you have made regarding the new safety standards for school buses and the definition of "school bus" as they become effective in October 1976.

Your interpretation is correct that "bus passenger compartment" as used in S5.2.3.1 of Standard No. 217, Bus Window Retention and Release, means that portion of the bus that is rearward of the forwardmost point on the windshield.

Your request confirmation that the requirement in S5.7(a) of Standard No. 220, School Bus Rollover Protection, to open emergency exits during the application of force to the bus roof are inappropriate and therefore not applicable in the case of roof exits. Your interpretation is correct, and the NHTSA intends to modify the language of Standard No. 220 appropriately.

You request confirmation that the knee impact requirement of S5.3.2.1 of Standard No. 222, School Bus Passenger Seating and Crash Protection, does not apply to the rear row of seating in a school bus because there is no passenger seating behind this row. Your interpretation is correct. I would like to point out that the seat back of the rear row of seating also is not subject to the requirements of S5.3.1.1 for the same reason. You are also correct that "school bus passenger seat" as defined in S4 does not include a wheelchair that is placed in a school bus to transport non-ambulatory bus passengers. Our response on other issues concerning special arrangements for handicapped passengers will be forthcoming as a response to the outstanding Sheller-Globe petition for reconsideration of Standard No. 222.

In your March 31, 1976, letter you asked whether a bus that is sold for purposes that include carrying kindergarten and nursery school children to and from school or related events would be considered a school bus under the redefinition of "school bus" that becomes effective October 27, 1976 (40 FR 60033, December 31, 1975). The answer to your question is yes, because the statutory definition underlying the NHTSA definition of school bus specifically lists preprimary students as passengers of school buses. See 15 U.S.C. @ 1391(14).

In your April 14, 1976, letter you ask whether the requirement of S5.3.1.3 of Standard No. 222 for a minimum "contact area" on a described spherical head form refers to the area of actual contact on the surface of the spherical head form, or the area of contact on the head form as seen in projected view. The "contact area" refers to the area of actual contact on the surface of the head form.

SINCERELY,

BLUE BIRD BODY COMPANY March 29, 1976

Thomas W. Herlihy Office of Chief Counsel National Highway Traffic Safety Administration

We have several questions requiring interpretations for recently issued safety standards which apply to school buses.

FMVSS 217

S5.2.3.1 states in part "Each school bus shall provide at the manufacturer's option one emergency door on each side in the rear half of the bus passenger compartment . . .". We need a definition of the term "bus passenger compartment." Are we correct in assuming that this means the front of front windshield to the back of the bus body so that the engine hood on a Conventional type school bus is effectively eliminated? This in effect would define the bus passenger compartment as the "box" which the passengers occupy. We feel that this is the most workable definition of the term since any other definition would have to reference some other bus component which would not be easily identified in all bus configurations.

FMVSS 220

S4b states in part "each emergency exit of the vehicle provided in accordance with Standard 217 (571.217) shall be capable of opening as specified in that standard during the full application of the force and after release of the force . . .".

S5.7a states in part "In the case of testing under the full application of force, open the emergency exits as specified in S4b while maintaining the force applied in accordance with S5.4 and S5.5."

These requirements seem unrealistic and indeed practically impossible with respect to roof emergency exits. As written the force application plate would have to have an access hole through which the roof emergency exit would open. Obviously, roof emergency exits will be in different protions of the bus for different bus sizes and, therefore, would necessitate a variety of complicated force application plates. More importantly would be the questionable meaning of such a test since the configuration of the access hole in the force application plate would significantly affect the deflection in the area of the roof emergency exit. This, of course, would affect the operation of the emergency exit as far as latch forces and opening forces are concerned. In addition, this requirement does not seem to be realistically required in accident situations. The only time a roof load would be imposed is when the bus is in the rolled over orientation. Obviously, in this condition passengers would not be able to use roof emergency exits and would choose one of the other emergency exits that are required on all bus configurations.

We, therefore, request that roof emergency exits need not be tested during the application of the roof load but rather before and after the application of the roof load. Because of the timing involved, we must proceed on this assumption in order to meet tooling deadlines for the October 26 effective date.

We request your written approval of this approach and rulemaking action which would clarify this requirement.

FMVSS 222

We are somewhat unsure of the requirements of S5.3.2.1 with respect to knee impact requirements for the last row of seats in a bus. As we understand this requirement the rearmost seat in a bus does not have to meet the knee impact requirements on its seat back since there will be no occupants behind it. These are special seats because of the rear emergency door exit requirements of FMVSS 217 and, therefore, require special tooling. We are committing tooling on this assumption and request your concurrence.

From previous conversations with NHTSA personnel it is our understanding that wheelchair seating positions in buses for transporting handicapped students need not meet the requirements of FMVSS 222. For buses which have occupant positions for both wheelchair confined passengers and ambulatory passengers we are assuming that the seating and barrier requirements of FMVSS 222 only apply to those ambulatory passengers who will occupy a standard type school bus passenger seat. In other words, we are assuming that the definition of "school bus passenger seat" in FMVSS 222 does not apply to a wheelchair in a school bus.

We feel that there will be many questions regarding the applicability of FMVSS 222 to handicapped buses in the future. Some general guidelines form NHTSA concerning this matter should be considered.

May we have your early written reply to each of these matters?

W. G. Milby Staff Engineer

BLUE BIRD BODY COMPANY

April 14, 1976

Tad Herlihy Office of Chief Counsel National Highway Traffic Safety Administration

SUBJECT: FMVSS 222

We need an interpretation on Paragraph S5.3.1.3, head form force distribution, of the subject standard. The last sentence of this paragraph reads: "Where any contactable surface within such zones is impacted by the head form from any direction at 5 feet per second, the contact area on the head form surface shall be not less than three square inches."

Do the words "contact area" refer to the spherical contact area on the head form or the projected contact area?

W. G. Milby Staff Engineer

BLUE BIRD BODY COMPANY

March 31, 1976

Thomas W. Herlihy Office of Chief Counsel National Highway Traffic Safety Administration

Part 571, Docket No. 75-24; Notice 02, Redefinition of "School Bus."

The question has arisen as to whether a bus that carries kindergarten and nursery school children would be defined as a "school bus."

Thanks for a ruling on this matter.

W. G. Milby Staff Engineer

ID: nht76-3.44

DATE: 01/22/76

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Wagner Electric Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Wagner Electric Corporation's October 21, 1975, question whether a trailer would satisfy the requirements of S5.2.1.1 of Standard No. 121, Air Brake Systems, to provide a reservoir "that is unaffected by a loss of air pressure in the service brake system," if the reservoir provided is either of two service brake system reservoirs on the vehicle, equipped with a pressure protection valve directly adjacent to each reservoir. The drawings enclosed in your letter indicate that the "protected tank" that is normally provided, separate from the service brake system, would be eliminated and either of the service brake system reservoirs would be used to satisfy S5.2.1.1 in the event of a parking brake application.

Your interpretation of S5.2.1.1 is correct. That section calls for a reservoir of air as an energy source that is used to release the vehicle's parking brakes after an automatic or manual application. In requiring that this reservoir be "unaffected by a loss of air pressure in the service brake system," the NHTSA means that a single failure of the service brake system would not result in loss of this air supply. With the pressure protection valves located as described in your enclosures, it appears that the system would comply with Section S5.2.1.1.

This "single failure" requirement must be distinguished from the requirement of S5.6.3 that the energy source for application of the parking brake be "not affected by loss of air pressure or brake fluid pressure in the service brake system." The NHTSA has interpreted this requirement to require an uninterrupted energy source despite loss of all air pressure from the service brake system. We recognize that the language of the two passages is substantially identical, and should be changed for clarity.

In a recent proposal to revise the parking brake requirements of the standard (40 FR 56920, December 5, 1975), the NHTSA inadvertently failed to make this distinction clear in its newly-proposed definition of "parking brake system" and intends to publish a correction of the proposal in the near future.

Yours truly,

ATTACH.

WAGNER ELECTRIC CORPORATION

October 21, 1975

Chief Counsel -- National Highway Traffic Safety Administration

Re: 49 CFR 571.121

Dear Sir: The early or first generation systems for FMVSS 121 complying trailers have completed almost a year of evaluation. Serious consideration for more economical systems has naturally evolved in this period of time.

In comparing tractor air brake systems and trailer air brake systems it is apparent that a good level of safety is provided on two axle tractors which employ only service reservoirs, i.e., do not have an isolated reservoir for the parking brake system. This introduced the probability that a (Illegible Word) axle trailer could benefit from a similar system schematic.

Our review of FMVSS 121 indicates that the equipment requirements are minimal - in keeping with the NHTSA policy of issuing performance oriented requirements. The system to be discussed later in this document meets all of the equipment requirements and will satisfy the related performance criteria.

In addition, all of the benefits for commercial or non-regulated necessities are maintained.

For introductory purpose we have reproduced the section from FMVSS 121 that deals with trailer equipment requirements:

S5.2.1.1 A reservoir shall be provided that is unaffected by a loss of air pressure in the service brake system.

On single axle trailers utilizing one service reservoir, a separate reservoir or protected reservoir compartment for parking brake control is clearly required to meet S5.2.1.1.

Tandem axle trailers afford other opportunities for system considerations. The system shown on Figure 1 introduces a new set of operating parameters which will in fact eliminate the expense of adding a third (parking brake control) reservoir on tandem axle trailers. We interpret S5.2.1.1 to mean that a single loss of air pressure in the service brake system following pressurization of the reservoir system to 90 psi shall not prevent a single release of the parking brakes.

The system shown on Figure 1 provides a separate reservoir and anti-lock system for the service brakes on each axle. Failure of system A will not reduce the pressure in service reservoir B or vise versa. The presence of one service reservoir pressurized to 90 psi will permit a full release of the parking brakes when the supply line is pressurized to the maximum 45 to 48 psi. The supply line pressure will be limited to this value by the pressure protection valve [which has an integral check valve] in the supply line immediately adjacent to the failed service reservoir. The four parking chambers will then receive a pressure of approximately 66 psi as delivered by the amplifying relay valve which receives air from the intact service reservoir.

This evaluation is based on the venting of one trailer service reservoir to atmosphere after the system is charged to 90 psi. We consider this to be the most extreme service brake system failure which can occur on the trailer. Note that a pressure loss in both service reservoirs would require two service brake system failures. Functional requirements following multiple service system failures is not required in any other section of FMVSS 121 and is not required in S5.2.1.1. We, therefore, conclude that the system shown on Figure 1 meets the intended requirements of S5.2.1.1.

The proposed system provides an opportunity to reduce the cost of the brake system required on tandem axle trailers. A comparison of the proposed system, which is Figure 1, with the existing system as shown on Figure 2 will show that the modification entails the addition of two check valves, one tee and three short lines to the amplifying relay valve and permits the elimination of the large parking brake reservoir, reservoir drain cock, supply line to the reservoir, and the cost of installing the reservoir on the vehicle. All of the parts shown on the schematics are currently being supplied for production FMVSS 121 trailer systems. The cost reduction can not be accurately defined by Wagner, but we estimate that the saving could range from $ 20.00 to $ 30.00 per vehicle depending on variable labor costs, reservoir cost, and vehicle configuration.

We encourage any NHTSA comments or questions regarding the system shown on Figure 1 and the requirements of S5.2.1.1 of FMVSS 121. It has been customary for requests for interpretation to the Chief Counsel's office which seek system or product "endorsement" to be answered by stating that the requesting party should be able to make that determination themselves.

In the instant case, we have made the determination that the dual service - two reservoir brake system for tandem axle trailers (Figure 1) is functionally acceptable and in compliance, and are therefore reporting it as such.

The dual service - two reservoir brake system for tandem axle trailers will be entering production in the immediate future. We would appreciate an acknowledgement of receipt of this letter and are anxious to answer any questions or supply additional information.

If you have any concern for the performance of the dual service - two reservoir brake system for tandem axle trailers or its compliance with respect to FMVSS 121 an early response from you will avoid the possibility of economic loss to the depressed trailer industry if, for some reason, they would have to reconvert this more economical system to earlier configurations.

Very truly yours,

John W. Kourik -- Chief Engineer, Automotive Products

Attachment

(Graphics omitted)

FIGURE 1

DUAL SERVICE - TWO RESERVOIR BRAKE SYSTEM FOR TANDEM AXLE TRAILER

(Graphics omitted)

FIGURE 1

DUAL SERVICE - TWO RESERVOIR BRAKE SYSTEM FOR TANDEM AXLE TRAILER

(Graphics omitted) FIGURE 2

DUAL SERVICE - THREE RESERVOIR BRAKE SYSTEM FOR TANDEM AXLE TRAILER

ID: nht88-2.37

TYPE: INTERPRETATION-NHTSA

DATE: 05/31/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: ROBIN C. GELBURD -- MORRISON & FOERSTER

TITLE: NONE

ATTACHMT: JANUARY 12, 1988 LETTER FROM GELBURD TO JONES IS ATTACHED

TEXT: This is a response to your letter of January 12, 1988, asking for NHTSA's evaluation of your client's product intended for use with an add-on child restraint system to "cushion and insulate the child." The product, a sample of which was enclosed with you r letter, is a fabric-covered rectangular seat-pad about 1/2 inch thick, surrounded at the top and both legs by a fabric-covered cushion. The product has a crotch-strap in the front, through which is inserted a belt that anchors on the legs of the recta ngle. On the back of this product are two clips apparently to be used for anchoring the seat pad to the child restraint system. You asked generally whether this product will "contravene or compromise" Federal safety standards, particularly Standard 213 , Child Restraint Systems (49 CFR @ 571.213). Additionally, you asked us to "determine whether the product complies with relevant statutes and regulations within (NHTSA's) jurisdiction."

Your client's product falls within NHTSA's jurisdiction if it is an item of "motor vehicle equipment" as that term is defined in @ 102(4) of the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act). Section 102(4) defines "motor vehicle eq uipment" 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 v ehicle.

In determining whether an item is an "accessory," the agency assesses two factors: first, whether the item has no ostensible purpose other than use with a motor vehicle; and second, whether the item is intended to be used principally by ordinary users of motor vehicles. Applying these criteria to your client's seat-pad, we conclude that the seat-pad has no purpose other than use with a child restraint system and that it is intended to be used principally by consumers. Thus, the seat-pad would be an "a ccessory," and, therefore, is "motor vehicle equipment" within the meaning of the Vehicle Safety Act.

The Vehicle Safety Act gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard 213, which applies to all new child restra int systems sold in this country. However, Standard 213 does not apply to aftermarket items for child restraint systems, such as your client's seat-pad. Hence, your client is not required to certify that this product complies with that standard before selling the seat-pad.

Although Standard 213 does not directly apply to your client's product, there are several statutory provisions of which you should be aware. First, @ 108(a)(2)(A) of the Vehicle Safety Act states that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item or motor vehicle equipment in compliance with an ap plicable Federal motor vehicle safety standard. . .

There is an element of design incorporated in a child restraint system that may be affected by installing Hasbro's seat-pad. Standard 213 sets flame-retardant performance requirements for materials used in a child restraint system. (See 49 CFR @ 571.21 3, S7, referencing 49 CFR @ 571.302, S4. For your information, I enclose a copy of @ 571.302.)

If installing this seat-pad would denigrate the flammability resistance attributes of the child restraint system, then a manufacturer, distributor, dealer, or repair business installing this product would "render inoperative" a design element installed i n the child restraint system in compliance with a Federal motor vehicle safety standard. The person who committed such an act would have violated @ 108(a)(2)(A), and would be subject to a civil penalty of up to $ 1000 for each @ 108 violation on each ch ild restraint system where this design element was "rendered inoperative."

Second, your client should know that it will be a motor vehicle equipment manufacturer if it offers this product for sale. As a manufacturer, your client will be subject to the requirements of @@ 151-159 of the Vehicle Safety Act (15 U.S.C. 1411-1419), concerning the recall and remedy of products with defects related to motor vehicle safety. If your client or the agency determined that this seat-pad had a defect related to motor vehicle safety, your client would have to notify all product purchasers o f the defect, and either:

1. repair the seat-pad so that the defect is removed; or

2. replace the seat-pad with an identical or reasonably equivalent product that does not have the defect.

Your client, as the manufacturer, would have to bear the full expense of the notice-and-recall campaign, irrespective of the option chosen, for any owner who purchased the product less than eight years before the notice-and-recall campaign. Except in th e context of a defect proceeding, the agency does not determine the existence of safety-related defects. Therefore, we are unable to say whether your client's seat-pad might contain such a defect.

However, I wish to express my concern with one aspect of this product. The cushion that surrounds the seat pad is uninterrupted, and seems to have no provision for passing the child restraint system belt around or through the pad and cushion. If the in stallation of your seat-pad would impair the function of a belt installed to restrain the child, then any manufacturer, distributor, dealer, or motor vehicle repair business installing the seat-pad would render inoperative a Federally required element of design that applies to child restraint systems. That kind of action would violate @ 108(a)(2)(A) of the Vehicle Safety Act, and subject the offender to a civil penalty of $ 1000.00 for each violation.

Further, the seat pad has a crotch and lap belt assembly. I think it is possible that some parents may use the belt assembly on the seat-pad as a lap restraint for restraining a child's lower torso. Given that your client's seat-pad has a belt configur ation similar to that which a user might expect to see in a child restraint with a crotch strap and lap belt assembly, parents may assume that the belt meets the performance requirements that apply to belts installed on child restraint systems. For exam ple, a nonmetallic belt buckle (such as the buckle on the Hasbro sample) in a child restraint system must meet the temperature resistant specifications of the American Society for Testing and Materials "Standard Practice for Determination of Weight and S hape Changes in Plastic," D756-78. (49 CFR @ 571.213, S5.4.2.) There are load requirements for both the buckle assembly and the webbing in a lap belt restraint system. (49 CFR @ 571.213, S5.4.1.) There are several other performance requirements in Stand ards 209 and 213 applicable to belts, buckles, and materials used on belts installed in child restraint systems.

I am sure that your client will want to minimize the chances of a parent mistakenly using the seat-pad belt assembly as a torso restraint. Hasbro may choose to alert parents not to misuse the belt on the seat-pad. One possible means of alerting parents would be to affix a "warning label" to the product.

Please understand that this explanation is not an agency "recommendation". NHTSA does not offer its opinion as to the value or practicality of motor vehicles or equipment. When a potential motor vehicle or equipment manufacturer presents us with questio ns concerning a product, we use the information presented to explain how our statute and regulations may apply to such products. It is up to the manufacturer to assess the value and practicality of the product.

I hope you find this information helpful.

Enclosure

ID: nht88-4.28

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/88 EST

FROM: ERIKA Z. JONES -- CHIEF COUNSEL, NHTSA

TO: WAYNE IVIE -- MANAGER, VEHICLE SUPPORT SERVICE SECTION, OREGON DEPARTMENT OF TRANSPORTATION

ATTACHMT: LETTER DATED JULY 12, 1988 FROM WAYNE IVIE, MGR., VEHICLE SUPPORT SERVICE SECTION, OREGON DEPT. OF TRANSPORTATION TO NHTSA; OCC2420

TEXT: This responds to your letter seeking information about the labeling requirements in Standard No. 218, Motorcycle Helmets (49 CFR @ 571.218). You noted that Oregon recently enacted a mandatory helmet use law which adopted Standard No. 218 as the minimum standard for helmets. You correctly noted that section S5.6.1 of Standard No. 218 requires subject motorcycle helmets to be permanently and legibly labeled with specified information, including the symbol "DOT" as a certification that the helmet complie s with Standard No. 218. However, you stated that you have received reports that the labeling required by Standard No. 218 is not present on many helmets, either because it has fallen off or been removed by someone. You said that there is often no othe r identification of the manufacturer or brand name on the helmet. Accordingly, it is not possible for the owner of a helmet without the Standard 218 label present to contact a dealer or manufacturer for information about the helmet. You then asked seve ral questions about the labeling requirements set forth in Standard No. 218.

Before answering your specific questions, I would like to provide some general background information on Standard No. 218. Prior to October 3, 1988, Standard No. 218 applied only to helmets that could be placed on the size C headform. The helmet manufac turers estimated that approximately 90 percent of all motorcycle helmets were subject to Standard No. 218, because they could be placed on the size C headform. However, helmets manufactured before October 3, 1988 that could not be placed on the size C h eadform (these were typically smaller sizes of helmets) were not subject to Standard No. 218. Hence, manufacturers of helmets that could not be placed on the size C headform were not required by Standard No. 218 or any of our other regulations to label any information on these helmets. In fact, manufacturers could not label the DOT certification symbol on those helmets that were not subject to Standard No. 218. See the enclosed December 4, 1987 letter to Mr. Hoppe for more information on this subject.

We published a final rule on April 6, 1988 that extended the requirements of Standard No. 218 to all motorcycle helmet sizes (53 FR 11280). This rule became effective on October 3, 1988. Accordingly, all motorcycle No. 218 and must be labeled in accord ance with the requirements of S5.6 of that standard.

With this background, your question can be answered as follows. For the approximately 10 percent of helmets manufactured before October 3, 1988 that could not be placed on the size C headform, Standard No. 218 did not apply to them, so there was no requ irement for any information to be labeled on these helmets. Any such helmets would not display a "DOT sticker" because they were not required or permitted to display such a sticker when they were new, not because the sticker "fell off" or was removed.

However, Standard No. 218 applied to approximately 90 percent of all helmets manufactured before October 3, 1988 and applies to every motorcycle helmet manufactured on or after that date. For those helmets, S5.6.1 of Standard No. 218 requires that: "Eac h helmet shall be permanently and legibly labeled . . ." with the manufacturers name or identification, the precise model designation, the size, the month and year of manufacture, the DOT certification mark, and warning instructions. (emphasis added) In an October 16, 1973 letter to the Cycraft Co., NHTSA stated that the requirement that helmets be permanently labeled prohibits the use of labels that can be removed easily by hand without tools or chemicals.

You stated that you have heard of two reasons why helmets that originally had a DOT certification label would no longer have such a label. One of the reasons was that the affixed label was a "sticker" and it "fell off." Standard No. 218 permits manufact urers to label the required information on the helmet by means of a "sticker," provided that the label is permanent and legible and contains all the information required by S5.6. A "sticker" that falls off the helmet would not appear to be permanent wit hin the meaning of Standard No. 218, so this would be an apparent noncompliance with the standard. If you have any evidence that "stickers" are falling off helmets, please forward that information to our Office of Vehicle Safety Compliance at this addre ss, and we will take appropriate actions.

The second reason that you have heard for helmets no longer having the labeling required by Standard No. 218 is that someone removed the label to paint the helmet and failed to put the label back on the helmet. Section 108(a)(2)(A) of the National Traff ic and Motor Vehicle Safety Act (15 U.S.C 1397(a)(2)(A)) prohibits any manufacturer, distributor, dealer, or repair business from "knowingly render[ing] inoperative any device or element of design installed on or in a motor vehicle or item of motor vehic le equipment in compliance with an applicable Federal motor vehicle safety standard." In this case, the label on motorcycle helmets is a device or element of design installed on the helmet in compliance with Standard No. 218. If a manufacturer, distribu tor, dealer, or repair

business removed that label and failed to put it back on the helmet, then those entities would be rendering the label inoperative, in violation of Federal law. Again, if you have any evidence that violations of Federal law have occurred in your State, pl ease forward that evidence to our Office of Vehicle Safety Compliance and we will take appropriate actions.

Please note that Federal law does not prohibit the helmet's owner or any other person that is not a manufacturer, distributor, dealer, or repair business from removing the label from motorcycle helmets. Thus, the owner of a motorcycle helmet is permitte d to remove the label from his or her helmet for any reason without violating any provision of Federal law. The individual States are free to establish requirements for motorcycle helmets used in their State, and could prohibit an owner from removing th e label.

You suggested that the problem of missing labels could be solved if this agency were to require that the DOT symbol be embossed on or in the helmet. NHTSA considered and rejected this suggestion 15 years ago when it established Standard No. 218. In the August 20, 1973 preamble to the final rule that established FMVSS 218, we said:

With respect to providing important safety information in the form of labeling, one comment recommended that, due to possible label deterioration, both the manufacturer's identification and the helmet model designation should be permanently marked by etching, branding, stamping, embossing, or molding on the exterior of the helmet shell or on a permanently attached component so as to be visible when the helmet is in use. The NHTSA has determined that the practical effect of this recommendation is acc omplished by requiring each helmet to be permanently and legibly labeled. The method to be used to permanently and legibly affix a label for each helmet is therefore left to the discretion of the manufacturer. (38 FR 22391)

You finally asked if other jurisdictions have informed NHTSA of similar problems and sought suggestions on methods to resolve the situation where an apparently undamaged helmet would be in compliance with the standard except that it is not properly label ed. As noted above, approximately 10 percent of the motorcycle helmets manufactured before October 3, 1988 were not subject to Standard No. 218 and were not required to be labeled. To my knowledge, no other jurisdictions have informed this agency of pr oblems akin to those raised in your letter aside from more general questions about labeling.

I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Marvin Shaw of my staff at this address, or by telephone at (202) 366-2992.

Enclosure