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Continental Tire the Americas, LLC, Receipt of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Otto G. Matheke III Date: 13 April 2022 Subjects: American Government  , Motorcycles, Safety
Topic: Arai |
[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]
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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.
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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, Paloma.Lampert@dot.gov.
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\
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\1\ See 76 FR 28145 (May 13, 2011).
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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.
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\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.
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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.
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\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.
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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.
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\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'').
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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.
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\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.
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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