Thanks to Bulldog, the Region 15 Coordinator, for doing the basic research involved. Download this article as an MS Word document HERE. It becomes a handy one-page, both-sides paper you can hand out to friends or mail to legislators, judges, newspaper editors and newspaper writers. This article appeared in the December 2002 issue of the Michigan Rider and the January/February 2003 issue of the Michigan Motorcyclist.
What's an
approved helmet? PART 2 |
Last year you found out the Michigan State Police (MSP) must approve helmets. It's right there in state law. But on July 27, 2000 they tried to bypass the clear intent of the legislature and adopted federal standards, by reference, with rule R28.951.
Federal standards though leaves helmet testing up to the manufacturers. NHTSA tests only a few of the available helmets for sale each year. Out of the 1302 helmets tested from 1980 through 2002, 462 passed but 840 failed, equaling a 65% failure rate. Since these were helmets chosen randomly off store shelves or were ready to be sent to motorcycle dealerships or after-market shops, you couldn't be sure whether the helmets you looked at were actually approved or not, especially if they were of the many not tested by NHTSA. But you bought a helmet anyway and it's a sunny day and you're out for a ride.
Uh oh, you see flashing lights in your mirrors. It's a state police car and the officer wants you to park it. You get your license, registration and proof of insurance ready to show him but he's not so much interested in your paperwork as he is in your helmet. Somehow, just by looking at it, he can tell whether or not it's approved. He writes out a ticket for an equipment violation and a month or so later you're preparing to stand before a judge.
You're under the gun now, so you're back trying to discover what an approved helmet is. Maybe you should first take a close look at rule R28.951 and see what it says.
Under the section titled, Recognizing Approved Helmets, it says, "Per the Michigan Administrative Code Rule R28.951, only motorcycle helmets meeting all of the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 218 are legal for use in Michigan." Not much help really. NHTSA has a contemptible record making sure manufacturers comply with helmet testing. But it also says, "The following guidelines are useful in recognizing approved helmets..."
So the MSP came up with guidelines to use when looking at a helmet. There's lots here about the label on the inside. You wonder how that state policeman could see the label inside the helmet you were wearing... It also says the symbol DOT should be on the outside of the helmet but the existence of a DOT label doesn't necessarily mean it's approved.
Wait, there's more - other guidelines can also be used: there's wording here about the thickness of the polyfoam inner liner, chin straps, and protrusions outside the helmet.
So the MSP rule consists of guidelines. But how can guidelines tell you if the specific helmet you bought was approved or not? Let's take another look at the law...
Current Michigan law MCL 257.658 still reads: "Crash helmets shall be approved by the department of state police. The department of state police shall promulgate rules for the implementation of this section pursuant to the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.315 of the Michigan Compiled Laws." Remember, the MSP doesn't have a choice - when the state legislature says shall, they mean the department of state police must approve helmets.
But what's all that gobbledygook about the "administrative procedures act of 1969?" You would assume the MSP, a department of state government and charged with enforcing the law, would follow all that when they set up rule R28.951. But did they? Let's see...
The Administrative Procedures Act of 1969, Act 306 of 1969, states that it is
AN ACT to provide for the effect, processing, promulgation, publication, and inspection of state agency rules, determinations, and other matters; to provide for the printing, publishing, and distribution of certain publications; to provide for state agency administrative procedures and contested cases and appeals from contested cases in licensing and other matters; to create and establish certain committees and offices; to provide for declaratory judgments as to rules; to repeal certain acts and parts of acts; and to repeal certain parts of this act on a specific date.
Ok. So when the MSP was figuring this out, they had to follow these procedures. You decide to dig deeper and it's all right there - Chapter 1 General Provisions (24.201 - 24.211), document 306-1969-1.
Under 24.203 Definitions; A to G. Sec. 3, it says
(1) “Adoption of a rule” means that step in the processing of a rule consisting of the formal action of an agency establishing a rule before its promulgation.
So far, so good. But the MSP rule R28.951 consisted of guidelines. Further down, you find the definition of a guideline:
(6) “Guideline” means an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person.
But what's an agency and what's a person?
(2) “Agency” means a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action...
The agency here must be the department of state police. And under 24.205 Definitions; L to P Sec. 5, it says:
(6) “Person” means an individual, partnership, association, corporation, governmental subdivision, or public or private organization of any kind other than the agency engaged in the particular processing of a rule, declaratory ruling, or contested case.
So you must be the person. From the definitions, looks like the department of state police can follow guidelines but you don't have to. Interesting...
But how did the state legislature define a rule? Under 24.207 “Rule” defined. Sec. 7, a
“Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency. Rule does not include any of the following:
And there's alot of items here (17 in all). But looky here - one of them is a guideline.
(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.
You put all this together and can only determine the MSP rule R28.951 consisting of guidelines does not have "the force and effect of law." And because NHTSA's own procedure of helmet testing cannot ensure the helmet you bought was approved or not... You must still ask: What's an approved helmet?
The Michigan State Police to comply with law must approve helmets and using R28.951, they still haven't. With ticket in hand, you're ready to stand before the judge.
Dave Atchison
ABATE of Michigan, Region 15
Webmaster of the Region 15 Information Center
http://www.atch.com/abate/Read the additional information below then see What's an approved helmet? part 3.
See why the Michigan State Police will never comply with the law and approve helmets and how a Reasonable Person standard applies to Michigan's mandatory helmet law.
The bottom line:
Neither you nor the courts are bound, by law, to follow state police guidelines. In fact, the MSP rule R28.951, cannot even include guidelines. So let's throw out all the guidelines and examine some of the other statements in R28.951:
"The Michigan Department of State Police has been given the legislative responsibility to approve crash helmets and to promulgate rules to implement this law."
So the MSP, by its own admission, recognizes their statutory responsibility to approve helmets.
Further down, under Recognizing Approved Helmets it says, "...only motorcycle helmets meeting all of the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 218 are legal for use in Michigan." This is what's meant when the MSP adopts federal standards by reference. You gotta look somewhere else.
And under the section R28.951 Approved Equipment, Rule 1, it says, in part:
"Motorcycle helmets shall meet the model specifications established by the United States Department of Transportation, National Highway Safety Administration..."
But here's some real gobbledygook! The requirements and model specifications referred to is an engineering document which prescribes how helmets are to be tested. But you tell me... Can you read FMVSS No. 218 then use it to buy a helmet you're looking at on a store shelf? Can you tell whether that helmet is approved? No one can. Not even the state police.
So the bottom line is - the MSP rule R28.951 is not worth the paper of the Michigan Register it's printed in. Any judge who looks at the law can only determine that Michigan's Mandatory Helmet Law is unenforceable. The Michigan State Police have ignored their statutory responsibility - that "Crash helmets shall be approved by the department of state police."
See also
What's an approved helmet? part 1 Can a reasonable person read Michigan law and figure out what an approved helmet is according to the Michigan State Police? Follow 20+ links for the story of civil disobedience in Michigan and a common sense argument that Michigan's mandatory helmet law is unenforceable.
What's an approved helmet? part 3 See why the Michigan State Police will never comply with the law and approve helmets and how a Reasonable Person standard applies to Michigan's mandatory helmet law.
Michigan Helmet Law page with links to all the essential documents for understanding the current state of Michigan's mandatory helmet law.
ABATE of Michigan, Inc. : Region 15 : Wayne County - http://www.atch.com/abate/