[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Notices]
[Pages 22016-22019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07824]


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

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0015; Notice 2]


Arai Helmet, Inc., Grant of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Grant of petition.

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

SUMMARY: Arai Helmet, Inc. (Arai), has determined that certain Arai 
Corsair X Mamola Edge motorcycle helmets, do not comply with Federal 
Motor Vehicle Safety Standard (FMVSS) No. 218, Motorcycle Helmets. Arai 
filed a noncompliance report dated March 6, 2019, and later amended it 
on March 28, 2019. Arai subsequently petitioned NHTSA on March 28, 
2019, and later amended its petition on July 9, 2020, for a decision 
that the subject noncompliance is inconsequential as it relates to 
motor vehicle safety. This notice announces the grant of Arai's 
petition.

FOR FURTHER INFORMATION CONTACT: Paloma Lampert, Office of Vehicle 
Safety Compliance, NHTSA, (202) 366-5299, [email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    Arai has determined that certain Arai Corsair X Mamola Edge 
helmets, size small, do not comply with paragraph S5.6.1(b) of FMVSS 
No. 218, Motorcycle Helmets (49 CFR 571.218). Arai filed a 
noncompliance report dated March 6, 2019, and later amended it on March 
28, 2019, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Arai subsequently petitioned NHTSA on March 
28, 2019, and later amended its petition on July 9, 2020, for an 
exemption from the notification and remedy requirement of 49 U.S.C. 
Chapter 301 on the basis that this noncompliance is inconsequential as 
it relates to motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 
30120(h) and 49 CFR part 556, Exemption for Inconsequential Defect or 
Noncompliance.
    Notice of receipt of Arai's petition was published with a 30-day 
public comment period on September 12, 2019, in the Federal Register 
(84 FR 48211). One comment was received. To view the petition, all 
supporting documents, and the comment received from the public, log 
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Then follow the online search instructions to 
locate docket number ``NHTSA-2019-0015.''

II. Equipment Involved

    Approximately 24 Arai Corsair X Mamola Edge helmets, size small, 
manufactured between June 29, 2018, and January 31, 2019, are 
potentially involved.

III. Noncompliance

    Arai explains that the noncompliance is that the discrete size 
label may not be permanently attached as required by S5.6.1(b) of FMVSS 
No. 218.

IV. Rule Requirements

    Paragraph S5.6.1(b) of FMVSS No. 218, provides the requirements 
relevant to this petition. Each helmet must be labeled permanently and 
legibly, in a manner such that the label can be read easily without 
removing padding or any other permanent part, with ``discrete size.''

V. Summary of Arai's Petition

    The following views and arguments presented in this section, ``V. 
Summary of Arai's Petition,'' are the views and arguments provided by 
Arai and do not reflect the views of the agency. Arai describes the 
subject noncompliance and contends that the noncompliance is 
inconsequential as it relates to motor vehicle safety.
    In support of its petition, Arai submits the following reasoning:
    1. Arai states that the subject motorcycle helmets comply with all 
the performance requirements under FMVSS No. 218 and all labeling 
requirements of FMVSS No. 218, except that the discrete size label does 
not appear to be permanent as required by paragraph S5.6.1(b). Arai 
cites FMVSS No. 218, which says the discrete size means ``a numerical 
value that corresponds to the diameter of an equivalent circle 
representing the helmet interior in inches (0.25 inch) or 
to the circumference of the equivalent circle in centimeters (0.64 centimeters).''
    2. Arai believes NHTSA's reason for requiring the helmet's discrete 
size is primarily to determine the appropriate headform for conducting 
the performance testing of paragraph S6.1 of FMVSS No. 218. In 
promulgating the discrete size label, Arai cites the agency as saying 
that it added the discrete size requirement to the standard to 
``eliminate enforcement problems.'' See 73 FR 57297, 57304 (October 2, 
2008). Arai says that the agency had previously permitted generic head 
sizes on helmet labels, however, they lacked the precision the agency 
desired for enforcing the helmet standard, raising potential problems 
with the objective requirements of 49 U.S.C. 30111(a). Arai says that 
NHTSA explained its reasoning in the rulemaking for specifying the 
discrete size and cited the following:
    a. The reason for this is to eliminate enforcement problems that 
arise when helmets are labeled only with a generic size specification 
(e.g., Small, Medium, or Large).
    b. Enforceability problems can arise because while S6.1 specifies 
which headform is used to test helmets with a particular ``designated 
discrete size or size range,'' a helmet's generic size may not 
correspond to the same size ranges that the agency uses to determine 
which headform to use for testing.
    3. Arai states that in the final rule, NHTSA further elaborated 
that defining the discrete size ``would have two benefits.'' First, it 
would provide certainty as to the headform on which the helmet would be 
tested by NHTSA, thereby, improving the enforceability of the standard. 
Second, it would provide more precise information to customers. Arai 
further notes that the requirement would in no way preclude 
manufacturers from specifying a generic size in addition to the 
discrete size on the size label.
    4. Arai believes that the primary reason for requiring the discrete 
size is related to enforceability of the performance tests and that a 
label that is present on the helmet at the time of NHTSA's testing, but 
that may not be permanently attached to the helmet does not expose the 
user of the noncompliant helmet to a ``significantly greater risk'' 
than to a user of a compliant helmet.

[[Page 22017]]

    5. Arai states that NHTSA tested the subject Arai Helmet under 
FMVSS No. 218, and that the testing demonstrated that these helmets 
meet the performance standards. The discrete label on the helmet tested 
by NHTSA permitted the Agency to select the correct headform for the 
size small Arai Corsair-X helmet that was tested.
    6. Arai believes that in the FMVSS No. 218 final rule, NHTSA 
explained that while the discrete label would provide ``more precise 
information to customers,'' NHTSA acknowledged that generic sizes could 
also be used on helmets. Arai believes this indicates that the value to 
customers of a ``more precise'' helmet size serves limited safety 
benefits. Arai says that NHTSA did not claim the discrete size served a 
safety purpose, but stated that ``discrete size labeling requirements 
will both improve customer information regarding the size of the helmet 
and avert potential enforceability problems.'' \1\
---------------------------------------------------------------------------

    \1\ See 76 FR 28145 (May 13, 2011).
---------------------------------------------------------------------------

    7. Arai states that the noncompliance arose from the nonpermanency 
of the label, not the content and that the label would be present, at a 
minimum, to the first purchaser. Further, Arai states that another 
label showing the discrete size of the helmet is sewn into a tag in the 
headliner; moreover, the helmet's packaging provides the size 
information and secondhand purchasers could try on the helmet to 
determine whether it properly fits; accordingly, the consumer would 
have sizing information available to determine the correct helmet size 
for purchase.
    8. Arai says that in a petition related to a noncompliance that 
resulted from a goggle strap potentially obscuring the DOT label of a 
motorcycle helmet, NHTSA agreed that the noncompliance was 
inconsequential to motor vehicle safety. See 79 FR 47720. Arai went on 
to write that NHTSA reasoned that ``the presence of the strap holder 
which obscures the DOT label does not affect the helmet's ability to 
protect the wearer in the event of a crash if that helmet meets or 
exceeds the performance requirements of FMVSS No. 218.'' Arai believes 
the same reasoning applies here as well.
    9. Arai stated their belief that the helmets' potential failure to 
permanently provide ``customer information'' does not pose a 
``significantly greater risk'' to the user of a noncompliant helmet 
compared to the user of a compliant helmet. Arai says they are not 
aware of any warranty claims, field reports, customer complaints, legal 
claims, or any incidents or injuries related to the subject 
noncompliance.
    In response to a request from NHTSA, Arai submitted a supplement to 
the subject petition to include additional information regarding how 
consumers would identify helmets subject to a potential recall in the 
event of a future performance-related concern. Arai describes the 
general approach it would use in the event a recall becomes necessary 
to address a future safety concern.
    Arai explains that to assist consumers in identifying Arai helmets, 
every Arai helmet is labeled with a unique serialized number on a Snell 
label,\2\ which is cross-referenced to the helmet model, the date of 
manufacture, the outer shell size, the corresponding fit of the helmet, 
and the distributor to whom Arai sold the helmet--or for direct-
consumer sales, the customer information for the first retail sale. 
Further, Arai states that while NHTSA does not require Snell 
certification and the Snell label, these labels are permanently affixed 
to the helmet and removing these labels leaves evidence of tampering.
---------------------------------------------------------------------------

    \2\ Arai states that it certifies its helmets through the Snell 
Foundation, a not-for-profit organization dedicated to research, 
education, testing, and development of helmet safety standards. 
Additional information about the Snell Foundation can be found at 
https://www.smf.org/about.
---------------------------------------------------------------------------

    In the event of a recall, Arai would direct consumers to the Snell 
label to determine whether a specific helmet was subject to the recall. 
Depending on the scope and context of the recall, Arai may also rely on 
other information on the helmet to guide consumers. This additional 
information that is on every helmet includes the helmet model and 
style, the graphics package on the shell of the helmet, the date code 
laser-etched into the chinstrap's D-ring, and the information listed on 
the label sewn into the headliner.\3\ To the extent necessary, Arai 
would provide this information in the owner notification letter 
required by 49 Part 577 to assist consumers. For example, photographs 
of the Snell label and other relevant identifying information would be 
included to assist consumers. Arai would also provide a customer 
service line staffed by agents prepared to explain to consumers how to 
locate the relevant identifying information.
---------------------------------------------------------------------------

    \3\ The headliners are snapped into the helmet and may be 
removed. Arai does sell replacement headliners, which would have a 
sewn-in label containing the helmet thickness, the generic helmet 
size, and the country of origin. The liners are snapped into the 
helmet, and replacement headliners must have corresponding snaps. 
Accordingly, a size small headliner would not fit into a size MIL 
shell and vice versa. Arai is not aware of any third-party 
headliners for its helmets.
---------------------------------------------------------------------------

    With respect to equipment such as motorcycle helmets, the scope of 
any potential recall would be determined based on identifying 
information available to the consumers. If any Arai helmet is involved 
in a future recall, Arai would follow the general approach explained 
above, looking first to the serial number on the Snell label and, if 
necessary, to the other information depending on the context of the 
recall. Arai states that FMVSS No. 218 does not define an objective 
test for the label's permanency and Arai claims that NHTSA has not 
generally defined the meaning of ``permanently affixed'' in other 
contexts within the safety standards themselves. Rather, NHTSA has 
generally dealt with the question of permanency through various legal 
interpretations.\4\ Further, Arai states that within the context of the 
labels required under FMVSS No. 208, NHTSA determined ``that a label is 
permanent if it cannot be removed without destroying or defacing it and 
that the label should remain legible for the expected life of the 
product under normal conditions.'' \5\ Based on these interpretations, 
Arai contends, the permanency of the label depends on the purpose of 
the label. For these determinations, the underlying purposes of these 
labeling requirements were to provide useful safety information to 
users over the life of the equipment or vehicle. Thus, it is 
understandable that ``permanency'' in these contexts would mean that 
the label could not be easily removed throughout the life of the 
product.
---------------------------------------------------------------------------

    \4\ See Letter to Todd Mitchell, 19 Mar. 2001, https://isearch.nhtsa.gov/files/22512.rbm.html Letter to R. Mark Willingham, 
1 Apr 1994; https://isearch.nhtsa.gov/files/9640.html (specifying 
precisely how the label is to be permanently affixed would be design 
restrictive).
    \5\ See Letter to Todd Mitchell; see also Letter to Tony 
Dosmann, 15 Apr 2005, https://isearch.nhtsa.gov/files/GF002565.html 
(stating that the rim label ``must be affixed in a manner that would 
make it likely to stay attached and legible during the lifetime of 
the vehicle, under normal conditions'').
---------------------------------------------------------------------------

    With respect to the discrete size label, Arai reiterated its 
argument that the label's primary purpose is to assist NHTSA in 
selecting the correct headform to test a new helmet. The content of the 
subject labels met this primary purpose, as NHTSA was able to select 
the correct headform for the subject helmets. Moreover, the label did 
not (and would not likely have) become detached from the helmet prior 
to the final sale of the helmets. Indeed, removal of the label would 
require a deliberate act; these labels would not fall off on their own 
and, therefore,

[[Page 22018]]

would remain in place at the time of any NHTSA compliance test.
    Likewise, the secondary purpose of the label--to provide more 
precise information to consumers--would remain satisfied as, again, the 
label would be in place on the helmet at the time of purchase. Size 
information is also available to consumers on the helmet's packaging 
and on a label sewn into the helmet's headliner providing the generic 
size.\6\ Moreover, Arai explains, that consumers are more likely to 
rely on the fit of the helmet by trying it on, rather than the discrete 
size listed on the label. And, as noted, this labeling issue does not 
affect the helmet's ability to protect the wearer in the event of a 
crash.
---------------------------------------------------------------------------

    \6\ Arai's March 28, 2019 petition erroneously stated that the 
label sewn into the headliner of the subject helmets included the 
discrete size. Further investigation revealed that the size small 
headliners that are used in the subject helmets do not include the 
discrete size information.
---------------------------------------------------------------------------

    Arai concludes by again contending that the subject noncompliance 
is inconsequential as it relates to motor vehicle safety, and that its 
petition to be exempted from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.

VI. Public Comment

    NHTSA received one comment concerning Arai's petition, from Mr. 
Zach Robertson. Mr. Robertson was of the opinion that Arai's subject 
helmets were likely noncompliant with the letter of the regulation. He 
believes, however, that the helmet is mostly, if not completely, 
meeting the intent of the regulation since the discrete size is 
included on the headliner and helmet packaging and there were no 
performance failures during NHTSA's testing. NHTSA appreciates Mr. 
Robertson's input and agrees that there were no performance failures 
during testing but disagrees that a discrete size on the removable 
comfort liner (headliner) or packaging is sufficient to meet the 
labeling requirements since FMVSS No. 218 states the helmet shall be 
labeled permanently with the discrete size.

VII. NHTSA's Analysis

    Discrete size labels on motorcycle helmets offer important 
information to consumers, sellers, testing laboratories, and regulatory 
entities. For NHTSA's enforcement purposes, the discrete size label 
provides precise information necessary to determine the appropriate 
headform for conducting performance testing per FMVSS No. 218. For 
consumers and sellers, the discrete size label provides specific 
information to help them determine the size of the helmet to aid them 
in selling or purchasing a helmet that fits properly, which is 
important to realizing the safety benefits a helmet offers in the event 
of a crash. Furthermore, the discrete size label may be useful to 
determine if a particular motorcycle helmet falls within the scope of a 
recall when a remedy campaign is being conducted. It is worth 
reiterating that the noncompliance in this case is not that the helmet 
lacked a discrete size label, but that the discrete size label was not 
permanent. All labels on a motorcycle helmet are required to be 
permanent. This permanency requirement is related to the safety of the 
helmet in that the labels, including the discrete size label, provide a 
safety benefit for the life of the motorcycle helmet.
    Arai raises several points in support of its request to be exempt 
from the notification and remedy requirements for this helmet. Arai 
believes the primary reason for NHTSA requiring the discrete size is 
related to enforceability of the performance tests in FMVSS No. 218 and 
that a label that is present on the helmet at the time of NHTSA's 
testing, but that may not be permanently attached to the helmet, does 
not expose the user of the noncompliant helmet to a ``significantly 
greater risk'' than to a user of a compliant helmet. NHTSA responds 
that the discrete size label has other critical roles besides 
enforceability of performance tests. It is important for motorcycle 
helmets to be labeled permanently and legibly with a discrete size in a 
manner that the label can be read easily without removing padding or 
any other permanent part for the duration of the life of the product. 
NHTSA disagrees with Arai's claim that the reason for requiring the 
helmet's discrete size is restricted to determining the appropriate 
headform for conducting the performance testing, and that therefore 
having a permanent label is not necessary. Motorcyle helmets are safety 
equipment and the ability of a consumer to select a well-fitting helmet 
is a safety goal. Arai's claim that consumers are more likely to rely 
on the fit of the helmet by trying it on, rather than the discrete size 
listed on the label is not supported by data. Additionally, a permanent 
discrete size label on a motorcycle helmet is important in the event a 
recall is filed. A recall is necessary when a motor vehicle or item of 
motor vehicle equipment does not comply with an FMVSS or when there is 
a safety-related defect in the vehicle or equipment. A motorcycle 
helmet with a discrete size label that is not permanent may hinder the 
user from being able to determine if the motorcycle helmet is part of a 
remedy campaign that includes a specific range of sizes.
    Regarding how permanency is assessed, NHTSA has published a test 
procedure titled Laboratory Test Procedure for FMVSS No. 218 (TP-218-
07), which explains how permanency of the discrete size label (as well 
as the other required labels) is evaluated as part of its motorcycle 
helmet compliance program. That information follows:
    OVSC compliance labs shall attempt to remove labels without tools 
and inspect for the following:
    (a) Labels according to S5.6.1(a) through (c) would be determined 
to be permanent if they are located in a place such that it is intended 
to remain there for the life of the product (i.e. not on the visor or a 
removable padding) and at least one of the following five conditions:
    (1) It cannot be removed without the aid of tools or solvents, or
    (2) Attached by a seam, or
    (3) Tears into at least 3 or more pieces with no single piece being 
larger than 50% of the total area of the label when removed, or
    (4) Removal damages the surface to which it is attached and the 
size of the damage is greater than 50% of the size of the label, or
    (5) Removal creates physical evidence that an affixation was 
originally present or required to be present. Physical evidence may 
include such things as adhesive residue or an area of contrasting color 
showing some information is missing.
    The tested helmets had a discrete size label, but the label failed 
permanency requirements because it was removed without the aid of tools 
or solvents, it was not attached by a seam, it did not tear into at 
least 3 or more pieces, the removal did not damage the surface to which 
it was attached, and the removal did not create physical evidence that 
an affixation was originally present.
    Arai stated in its petition that another label showing the discrete 
size of the helmet is sewn into a tag in the headliner and that the 
helmet's packaging provides the size information. The Arai Corsair X 
motorcycle helmets tested by NHTSA did not contain an additional 
discrete size label sewn onto a tag in the headliner (removable comfort 
liner). Furthermore, an additional size label sewn onto a removable 
comfort liner (headliner) or placed on the packaging is not a suitable

[[Page 22019]]

replacement for a permanent discrete size label since the removable 
comfort liner (headliner) is made to be exchanged for a new liner that 
may not contain a size label (or may have an incorrect size label), and 
expecting a consumer to rely on the original packaging is unrealistic 
since product packaging is often discarded.
    Arai refers to a petition related to a noncompliance that resulted 
from a goggle strap potentially obscuring the DOT label of a motorcycle 
helmet and that NHTSA agreed that the noncompliance was inconsequential 
to motor vehicle safety. See 79 FR 47720. NHTSA responds that the 
agency determines whether a particular noncompliance is inconsequential 
to motor vehicle safety based on the specific facts of each case. NHTSA 
does not agree that this petition supports granting Arai's petition 
because the goggle strap petition does not seem related. For example, 
(1) the noncompliance in the case referenced by Arai resulted from a 
goggle strap potentially obscuring the DOT symbol which is completely 
unrelated to a discrete size label; (2) the issue of permanency was not 
examined; and (3) the purposes of the DOT symbol are significantly 
different than the purposes for discrete size labels. NHTSA is not 
persuaded to grant the Arai petition based on facts concerning the 
goggle strap petition (79 FR 47720).
    However, Arai states, and NHTSA agrees, that the discrete label on 
the helmet tested by NHTSA permitted the agency to select the correct 
headform and that the Arai Corsair-X helmet samples tested by NHTSA met 
the performance standards under FMVSS No. 218. In this instance, NHTSA 
agrees the discrete size label non-permanency did not affect the 
helmet's ability to be tested in accordance with FMVSS No. 218.
    The key issue in determining inconsequentiality is whether the 
noncompliance in question is likely to increase the safety risk to the 
individual persons who experience the type of injurious event against 
which the standard is designed to protect.
    In response to Arai's statement that NHTSA tested the subject Arai 
Helmet under FMVSS No. 218, and that the testing ``demonstrated that 
these helmets meet the performance standards,'' NHTSA is clarifying 
that testing performed on behalf of NHTSA is neither sufficient nor 
intended to ensure that the item tested, nor similar products, meet or 
exceed FMVSS. The burden to certify products and ensure every product 
manufactured and imported into the United States meets or exceeds all 
applicable FMVSS, falls squarely on the manufacturer. Arai has provided 
NHTSA with its basis for certification of the Arai Corsai-X motorcycle 
helmet.
    In this specific case, the subject helmets are labeled with a 
unique serial number which helps satisfy the safety need associated 
with the discrete size being permanent. In addition to certifying its 
helmets to FMVSS No. 218, Arai also certifies its helmets through the 
Snell Foundation. Every Arai helmet is permanently labeled with a 
unique serialized number on a Snell label, which is cross-referenced to 
the helmet model, the date of manufacture, the outer shell size, the 
corresponding fit of the helmet, and the distributor to whom Arai sold 
the helmet. Arai stated that in the event of a recall, it would direct 
consumers to the Snell label to determine whether a specific helmet was 
subject to the recall.
    Therefore, in this specific instance, NHTSA agrees that, because 
the helmet was labeled with the discrete size and had additional 
permanent labeling, the safety needs of consumers would be met despite 
the discrete size label not being permanent.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Arai has met 
its burden of persuasion that the FMVSS No. 218 noncompliance is 
inconsequential as it relates to motor vehicle safety. Accordingly, 
Arai's petition is hereby granted, and Arai is exempted from the 
obligation to provide notification of and remedy for the subject 
noncompliance under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the subject equipment that Arai no longer controlled at 
the time it determined that the noncompliance existed. However, the 
granting of this petition does not relieve equipment distributors and 
dealers of the prohibitions on the sale, offer for sale, or 
introduction or delivery for introduction into interstate commerce of 
the noncompliant equipment under their control after Arai notified them 
that the subject noncompliance existed.

(Authority: 49 U.S.C. 30118, 30120: Delegations of authority at 49 
CFR 1.95 and 501.8)

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2022-07824 Filed 4-12-22; 8:45 am]
BILLING CODE 4910-59-P