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KBC America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance


American Government Motorcycles Topics:  Harley-Davidson

KBC America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance

Jeffrey M. Giuseppe
National Highway Traffic Safety Administration
August 14, 2014


[Federal Register Volume 79, Number 157 (Thursday, August 14, 2014)]
[Notices]
[Pages 47720-47722]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19190]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2013-0145; Notice 2]


KBC America, 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: KBC America, Inc. ``KBCA'' has determined that certain 
motorcycle helmets manufactured by KBC Corporation for Harley-Davidson 
as Harley-Davidson brand helmets do not fully comply with paragraph 
S5.6 of Federal Motor Vehicle Safety Standard (FMVSS) No. 218, 
Motorcycle Helmets. KBCA has filed an appropriate report dated December 
12, 2013, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports.

ADDRESSES: For further information on this decision contact Claudia 
Covell, Office of Vehicle Safety Compliance, the National Highway 
Traffic Safety Administration (NHTSA), telephone (202) 366-5293, 
facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION: 
    I. KBCA's Petition: Pursuant to 49 U.S.C. 30118(d) and 30120(h) 
(see implementing rule at 49 CFR part 556), KBCA submitted a petition 
for an exemption from the notification and remedy requirements of 49 
U.S.C. Chapter 301 on the basis that this noncompliance is 
inconsequential to motor vehicle safety.
    Notice of receipt of KBCA's petition was published, with a 30-day 
public comment period, on June 6, 2014 in the Federal Register (79 FR 
32817). One comment was received. In that comment, Harley-Davidson 
Motor Company reiterated KBCA's points supporting their belief that the 
noncompliance is inconsequential to

[[Page 47721]]

motor vehicle safety. To view the petition and all supporting documents 
log onto the Federal Docket Management System (FDMS) Web site at: 
http://www.regulations.gov/. Then follow the online search instructions 
to locate docket number ``NHTSA-2013-0145.''
    II. Helmets Involved: Affected are approximately 566 Jet model 
helmets that KBC Corporation manufactured in December 2012 for Harley 
Davidson, who in turn marketed these helmets under its own brand by the 
model name ``Black Label Retro \3/4\.''
    III. Noncompliance: KBCA explains that the subject helmets fail to 
fully comply with the requirements of S5.6.1(e) of FMVSS No. 218 that 
was in effect on the date of manufacture of these helmets because the 
goggle strap holders on the rear of the helmets can obscure the DOT 
certification label from view.
    IV. Rule Text: Paragraph S5.6.1(e) of FMVSS No. 218 requires in 
pertinent part:

    S5.6.1 Each helmet shall be labeled permanently and legibly, in 
a manner such that the label(s) can be read easily without removing 
padding or any other permanent part, with the following: . . .
    (e) The symbol DOT, constituting the manufacturer's 
certification that the helmet conforms to the applicable Federal 
motor vehicle safety standards. This symbol shall appear on the 
outer surface, in a color that contrasts with the background, in 
letters at least 3/8 inch (1 cm) high, centered laterally with the 
horizontal centerline of the symbol located a minimum of 1 1/8 
inches (2.9 cm) and a maximum of 1 3/8 inches (3.5 cm) from the 
bottom edge of the posterior portion of the helmet.

    V. Summary of KBCA's Analyses: KBCA stated its belief that the 
subject noncompliance is inconsequential to motor vehicle safety for 
the following reasons:

    1. KBCA believes that the subject helmets comply with the 
performance requirements of FMVSS No. 218 and that neither the 
presence of the strap holder nor the fact that it can obscure the 
DOT label affects the helmet's ability to protect the wearer in the 
event of a crash.
    2. KBCA states that other than the subject noncompliance the DOT 
label on the subject helmets comply with the requirements of FMVSS 
No. 218.
    3. KBCA also believes that while the DOT label is not visible 
when the strap holder is fastened, a user can easily view the label 
by unfastening the strap holder to confirm that the helmet has been 
certified and thus complies with the requirements set forth in FMVSS 
No. 218.
    4. KBCA further believes that if their company were required to 
do a recall of the subject helmets, it would be likely that a very 
low percentage of helmets would be returned, if any, and that in 
doing so would leave the owners without a helmet while the subject 
helmets are retrofitted with a new label.
    5. KBCA expressed its belief that in similar situations NHTSA 
has granted petitions for inconsequential noncompliance regarding 
other products that have incorrect or missing label information 
required by other FMVSS's.

    KBCA has additionally informed NHTSA that it no longer manufactures 
the subject helmets.
    In summation, KBCA believes that the described noncompliance of the 
subject helmets is inconsequential to motor vehicle safety, and that 
its petition, to exempt KBCA from providing recall notification of 
noncompliance as required by 49 U.S.C. 30118 and remedying the recall 
noncompliance as required by 49 U.S.C. 30120 should be granted.
    VI. NHTSA'S DECISION:
    NHTSA's Analysis of KBCA's Petition:
    Because the goggle strap on this helmet can cover the certification 
label and prevents it from being easily read, KBCA acknowledges and 
NHTSA agrees that the subject helmets do not comply with the following 
language of Paragraph S5.6.1(e) of FMVSS No. 218:

    S5.6.1 Each helmet shall be labeled . . . in a manner such that 
the label(s) can be read easily . . . with the following: . . .
    (e) The symbol DOT . . . This symbol shall appear on the outer 
surface . . .

    The certification label indicates that the manufacturer has 
certified the helmet to meet or exceed all requirements of FMVSS No. 
218. FMVSS No. 218 requires the certification label be placed in a 
specified location so that it is readily visible. Being visible to 
consumers is important so that consumers can ensure motorcycle helmets 
they purchase are certified to the standard. In addition, law 
enforcement personnel need to be able to easily read certification 
labels to enforce motorcycle helmet laws. This point was recently 
discussed in a Notice of Proposed Rulemaking \1\ issued by NHTSA.
---------------------------------------------------------------------------

    \1\ 73 FR 57297 published October 2, 2008.
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    KBCA raises several points in support of its request to be exempt 
from the notification and remedy requirements for this helmet. KBCA 
believes that a very low percentage of helmets would be returned if a 
recall were conducted. In addition, they believe conducting a recall 
would leave owners without a helmet while the subject helmets are 
retrofitted with a new label. NHTSA notes that anticipating a low 
recall completion rate is no justification for not conducting a 
notification and remedy campaign. Furthermore, NHTSA has worked with 
many manufacturers who have devised strategies to minimize customers' 
inconvenience while having their recalled products remedied.
    KBCA states and NHTSA agrees 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. In this 
instance, KBCA has certified this helmet and states in their petition 
that this helmet complies with all aspects of the standard other than 
the aspect for which it is requesting relief.
    KBCA points out that when the goggle strap holder is unfastened, 
the helmet certification label can be read easily. Consumers, who might 
be asked by law enforcement personnel about the certification of this 
helmet, would be able to unfasten the goggle strap holder to reveal the 
certification label which conforms in content and location to the 
requirements of FMVSS No. 218.
    KBCA expressed its belief that in similar situations NHTSA has 
granted petitions for inconsequential noncompliance regarding other 
products that have incorrect or missing label information required by 
other FMVSS's. 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's Decision: In consideration of the foregoing, NHTSA has 
decided that KBCA has met its burden of persuasion and that in this 
instance, the subject FMVSS No. 218 noncompliance is inconsequential to 
motor vehicle safety. Accordingly, KBCA's petition is hereby granted 
and KBCA is exempted from the obligation of providing notification of, 
and a remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.
    However, a recent publication of changes to FMVSS No. 218 became 
effective on May 13, 2013 and allowed helmets manufactured on or after 
May 13, 2013 to display the certification label in a wider range of 
locations and therefore accommodate a variety of helmet designs. Along 
with the recently published changes came an emphasis on the importance 
of label visibility to law enforcement. For these reasons and others, 
NHTSA may not view future, similar requests for inconsequential non-
compliance as inconsequential to safety.
    NHTSA also notes that the statutory provisions (49 U.S.C. 30118(d) 
and 30120(h)) that permit manufacturers to file petitions for a 
determination of

[[Page 47722]]

inconsequentiality allows 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 helmets that KBCA no longer controlled at the 
time it determined that the noncompliance existed. However, the 
granting of this petition does not relieve distributors and dealers of 
the prohibitions on the sale, offer for sale, or introduction or 
delivery for introduction into interstate commerce of the noncompliant 
helmets under their control after KBCA 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).

Jeffrey M. Giuseppe,
Acting Director, Office of Vehicle Safety Compliance.
[FR Doc. 2014-19190 Filed 8-13-14; 8:45 am]
BILLING CODE 4910-59-P

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