Responsibility
It is no exaggeration to say that New York's motorcyclists, and New York City's in particular, face more challenges than any others in the United States -- not just in terms of trying to stay alive amidst the nation's most hurried, distracted drivers, careless pedestrians and crumbling streets, but also in terms of making an honest effort to locate, understand and obey the myriad applicable laws.
In order for a New Yorker to make sense of all the motorcycle laws he or she must at the very least read the NYS DMV Motorcycle Manual, study the NYS Vehicle & Traffic Laws and review the Department of Motor Vehicle section of New York's Codes, Rules & Regulations.
Do you know ANYONE who does all that? Do you know anyone who would even know where to start?
The State of New York, by scattering its motorcycle laws over several books and by supplying misleading and inconsistent legal advice, seems to intentionally create a scenario that literally guarantees motorcyclists' failure to comply with all of the laws. Considering how long this scenario has persisted, we are forced to believe that the legal obfuscation is designed to drive revenue generation through the issuance of summonses, and to drive an anti-motorcycle political agenda by putting the state's motorcyclists at a statistical disadvantage for compliance. The statistics are then used to drive funding for unconstitutional police checkpoints, in a self-perpetuating circle of compliance through profitable punishment instead of through education. Further reinforcing our opinion is the matter of NYS raiding motorcyclists' funds year after year instead of using them for their promised purpose of training and education. This is systematic oppression, plain and simple.
Helmet and Eyewear Law Examples
Updated 2010! The good news is, until recently we had a four-page diatribe here about New York's convoluted and inconsistent laws regarding helmets and eyewear. In late 2009 NYS quietly introduced a few fixes. In summary:
1. For many years NYS specified in their DMV Motorcycle Manual that "motorcycle operators and passengers must wear approved motorcycle helmets as defined by USDOT federal motor vehicle safety standards (FMVSS 218)." NYS Vehicle & Traffic Law § 381 (6) reinforced this. The VTL allows that the "commissioner [of motor vehicles] is hereby authorized and directed to adopt regulations for helmets which are consistent with the requirements as specified in section 571.218 of the federal motor vehicle safety standards". The NYS Motorcycle Manual "recommend[s] that helmets have at least four square inches of reflective material on both sides" but NYCRR Title 15 (Subchapter G, Part 54, Section 54.5) stated that helmets "shall have a reflectorized surface or have securely affixed thereto reflectorized material on both the left and right side of such helmet".
The Motorcycle Manual published by New York State mislead its readers into believing helmet reflectorization was optional but the NYCRR defined it as mandatory.
The helmet reflectorization requirement has been removed by the repeal of 15 NYCRR 54.5. It was a useless law anyway since it never specified reflectivity requirements or material durability and it attempted to attribute the quality of "sides" to roughly spherical shape.
2. New York repealed 15 NYCRR 54.4, which specified helmet safety standard Z90.1-1966, which was written over four decades ago and nearly a decade prior to 571.218, which is based on the later ANSI Z90.1-1971, not Z90.1-1966.
Just to make this perfectly clear... The Z90.1-1966 standard was finalized in the year 1966. FORTY-FOUR YEARS AGO as of this writing.
15 NYCRR 54.3 has been changed accordingly to refer to the requirements "set forth in Federal Motor Vehicle Safety Standards of 49 Code of Federal Regulations standard 571.218 Motorcycle Helmets."
3. For many years the NYS DMV Motorcycle Manual specified that "eye protection must be manufactured in conformity with the regulations established by the American National Standard Institute (ANSI – Z87.1)." NYS Vehicle & Traffic Law instead specified that the operator (not passenger, by the way) must wear "goggles or a face shield of a type approved by the commissioner." The VTL specified that the "commissioner [of motor vehicles] is hereby authorized and directed to adopt regulations for helmets which are consistent with the requirements as specified in section 571.218 of the federal motor vehicle safety standards" and "is hereby authorized and empowered to adopt and amend regulations covering types of goggles and face shields and the specifications therefor and to establish and maintain a list of approved goggles and face shields which meet the specifications as established hereunder."
The commissioner, in Title 15 (the Department of Motor Vehicles section) of the New York Codes, Rules and Regulations, or NYCRR, Subchapter D (Equipment), Part 54 (Protective Helmets, Goggles, Face Shields and Wind Screens for Motorcycles), decided was too much trouble to maintain a list of approved equipment, so it instead refers to equipment that meets VESC-8 (eighth regulation of the Vehicle Equipment Safety Commission) for eyewear and for helmets, a modified version of USA Standard Specifications for Protective Headgear for Vehicular Users Z90.1--1966.
The organization that developed VESC-8 ceased to exist over 25 years ago and which most eye care professionals never even heard of it, and it's based on a 44 year old standard, while the Motorcycle Manual specified the newer and very different ANSI Z87.1 specification.
This has been fixed by changing Title 15 of the NYCRR to specify the ANSI Z87 specification for eyewear, consistent with the DMV manual.
4. New York has also abolished its additional helmet labeling requirements specified in 15 NYCRR 54.6 - "Each helmet approved by the commissioner shall be labelled on the outside of the helmet above the base of the rear of the helmet with letters or numbers at least one-quarter inch in height with the manufacturer's trade name and model name or number, which shall be the same name or number under which the helmet has been approved." This language contradicted FMVSS 218 which in S5.6.1 only requires that "the label(s) can be read easily without removing padding or any other permanent part".
According to the NHTSA, State laws can only determine who must wear a helmet when riding, and may not preempt the regulations set forth in FMVSS 218.
Helmets and Eyewear, Continued
So the New York State DMV finally fixed a few things. Great. There's still lots of work left to do. We wonder for example why we cannot read the Z87.1 (eyewear) specification without having to pay ANSI $69 for the privilege, or pay a personal visit to the Library of Congress. So much for transparent governance.
And our Federal government has some issues too. Motorcyclists in the US are still stuck with a helmet specification that is nearly forty years old. FMVSS 218 remains mostly un-evolved over the last several decades - even the NHTSA admits that 218 is badly in need of updates - and clearly superior specifications from the ECE and the SMF (Snell) are not legal without the US DOT's additional "approval". The word "approval" is quoted because the NHTSA only performs random, limited helmet testing, performs no recalls and establishes no penalties. The DOT takes the manufacturer's word that the helmet will pass the NHTSA's tests.
Now remember, ANSI and FMVSS standards are exactly that. They are standards. They are not law until incorporated into administrative laws such as the NYCRR or the VTL. The only difference is that the FMVSS 218 is mandatory - that is, in order for something to be sold as a motorcycle helmet in the US it must conform to FMVSS 218. The VTL incorporates the FMVSS standard but also defers to the NYCRR, which incorporates the outdated ANSI standard written prior to the existence of the FMVSS. Just want to make that clear.
FMVSS 218, a.k.a. section 571.218 of the Federal Motor Vehicle Safety Standards is in the Code of Federal Regulations, Title 49. The FMVSS is where the federal government regulates nearly every aspect of the vehicles manufactured for sale in the US, right down to the proximity of the ignition lock and the direction the keyhole faces! Section 218 of the FMVSS section of the CFR details the tests that a helmet must pass before it is considered acceptable for sale to motorcyclists in the USA.
Have you been wondering yet about the connections between the FMVSS and the DOT and the NHTSA? The NHTSA is one of over a dozen agencies governed by the US DOT. The NHTSA writes and enforces the FMVSS but the DOT is who actually approves the helmets based on the NHTSA's test results. Go figure.
Helmet Wearing and Face Shields
There are those who feel that as long as the motorcycle helmet is in proximity to their head, that they are "wearing" the helmet and are compliant with the law. The unsurprising bad news is that this case was decided in 1985 in People of the State of New York v. Warren D. Bloomfield (130 Misc.2d 151, 495 N.Y.S.2d 133), which mentions 15 NYCRR 54.2 defining a protective helmet as a "device primarily intended to protect the upper part of the wearer's head against a blow."
The judge writes: "In order to achieve its intended purpose, therefore, the helmet must be worn so that it covers the entire parietal and temporal bones and most of the frontal and occipital bones of the skull." Interestingly the decision avoids the constitutional issues around the requirement to wear a helmet and steers widely around personal injury issues, reasoning the helmet to be necessary for protection from "injury by gravel, small stones, or other objects thrown backward could easily cause a motorcyclist to veer from his course into the travel lane of other vehicles on the highway, or into the path of pedestrians on or near the highway" and the "object of the helmet was to protect the entire head and not just part of it."
One of the reasons we're telling you about this is because of the current practice of the NYPD stopping motorcyclists wearing full-face helmets for having their face shields lifted even to small degrees. To the NYPD a helmet's face shield is either fully closed or it is not, and is therefore in violation. Some officers have confided that this practice is indeed just a way to bootstrap reasonable suspicion for further fishing expeditions (to check for licenses, registration, insurance, inspection, etc.) but we already knew that. What concerns us more is the officers are convinced that the law does actually prohibit lifting a face shield from the fully closed position while operating a motorcycle.
New York State law does NOT prohibit lifting the face shield of a helmet.
15 NY ADC 54.2 defines: "Goggles or face shield. An eye protection device as defined in American National Standard Institute's Z87.1 as most recently amended". Unlike the helmet definition which specifies the goal of protecting the wearer's head against a blow, the eye protection definition does not specify against what the wearer's eyes are supposed to be protected.
15 NY ADC 54.11 states: "A motorcyclist may use any eye protection device that has been manufactured in conformity with the American National Standard Institute's Z87.1 standard Occupational and Educational Personal Eye and Face Protection Devices. A motorcyclist may not operate a motorcycle unless he or she is wearing such eye protection".
NYS VTL § 381 (7) states "It shall be unlawful [...] for any person to operate a motorcycle unless he wears goggles or a face shield of a type approved by the commissioner.
There is no case law in NY defining how motorcyclists must wear eye protection devices and the case law for helmet use establishes a standard of useful purpose which we believe to be relevant to summonses issued for lifted face shields.
The useful purpose of a face shield is in fact to protect the motorcyclist's eyes from flying debris, with similar goals to helmets, of personal and public safety.
We do not believe that a police officer or even a judge is qualified to estimate the degree of compromise in eye protection or its impact on safety offered by a partially lifted faceshield without considering the particular helmet design, the exact degree of lift, the angle of the motorcyclist's head, the speed of the vehicle and meteorological conditions, and without a wind tunnel study of air flow around and through that helmet in those conditions.
Helmets with moveable face shields are in fact designed that way in accordance with FMVSS 218 and are approved by the US DOT. We have never seen a full-face helmet without a moveable face shield. The DOT does not mandate the position of the face shield during use and does not even test the face shield for impact resistance or its optical qualities. The position of the face shield is not a parameter to the DOT's testing procedures. The ability of a face shield to to deflect debris - particulate and/or larger - in varying positions is not evaluated by the DOT or the manufacturer. The VTL and the NYCRR do not specify exactly how the eye protection device must be used, only that it be used or worn. The ability to reposition the face shield is in fact a practical necessity for mitigating fogging and to permit comfortable breathing in varying speeds and conditions.
Protective Eyewear
Another unfortunate practice in New York has been the issuance of summonses for "non-DOT" eyewear, as well as for "non-DOT" helmets. The officers who write these summonses claim that eyewear and helmets are supposed to have "DOT labeling."
This is not correct. In the case of eyewear the labeling will indicate compliance with ANSI Z87.1 or later. Labeling is dictated by ANSI. FMVSS 218 (CFR § 571.1, meaning Federal DOT) does not address eye protection devices for motorcyclists at all, much less the labeling. The VTL and the NYCRR (meaning State DOT) do not address the labeling of eye protection devices either.
There is no such thing as a "DOT" label for motorcyclists' eyewear, at least not legitimately.
In the case of helmet labeling, FMVSS 218 does require 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
This marking is a manufacturer's certification to the consumer. There are no laws prohibiting removal, painting over or otherwise obscuring that symbol, and the 2009 amendment to the NYCRR further establishes that by abolishing any labeling requirements. Neither the VTL or the NYCRR establish labeling requirements for motorcycle helmets, only compliance with FMVSS 218 at the time of manufacture.
Think About This...
Think about all the discussions about helmets and eye protection for a moment, from the perspective of an ordinary motorist. You step into your car, buckle your seat/shoulder belt, and drive. Right?
Can you imagine having to worry that a police officer would inspect your seat belt and its markings for compliance with the Federal Motor Vehicle Safety Standards?
Have you ever heard of someone being cited for their seatbelt being adjusted too loosely?
Have you ever heard of someone having been cited for having his or her head too close to an open window?
Can you even imagine being cited for driving a convertible without glasses?
Of course not!
This is a sample of the kinds of zealous enforcement that New York's motorcyclists must tolerate every day.
Noise Laws
The City of New York further complicates matters with its noise laws. Motorcyclists in NYC must be aware of the many noise limits set by the city's Administrative Code, Title 24, Chapter 2, Subchapters 5 and 6, and how they compare to the state's laws.
NYC § 24-228.1 prohibits "unreasonable [exhaust] noise" and refers to § 24-228 (1), which prohibits sound which "exceeds 85 dB(A) as measured 50 or more feet from the source or sources at a point outside the property line where the source or sources are located or as measured 50 or more feet from the source or sources on a public right-of-way"
New York City's new "completely revamped" noise code, passed with much fanfare in 2007 after several years of reportedly hard work, states additionally in § 24-236 (b) "No person shall cause or permit any motorcycle to operate on a public right-of-way where the muffler or exhaust generates a sound that is plainly audible to another individual at a distance of 200 feet or more from the motorcycle."
This is all in addition to the Vehicle & Traffic Law which states in § 381: "No person shall operate a motorcycle on any highway which is: (1) not equipped with a muffler to prevent excessive or unusual noise; (2) equipped with a muffler from which the baffle plates, screens or other original internal parts have been removed or altered; (3) equipped with an exhaust device without internal baffles, known as "straight pipes"; or (4) equipped with an exhaust system that has been modified in a manner that will amplify or increase the noise emitted by the motor of such vehicle above that emitted by the exhaust system originally installed on the vehicle. No person shall operate a motorcycle on any highway which is equipped with an exhaust device that is intentionally designed to allow for the internal baffling to be fully or partially removed or interchangeable."
To the best of our knowledge, § 24-236 (a), (b) and (c) have never been tested legally in NYC because after two years of supposedly diligent efforts to compose and pass this new law, it was decided that the law is too vague! If anyone wonders why motorcyclists are resistant to the continual onslaught of legislation, § 24-236 is an outstanding example of why we resist. Two years of taxpayer -funded work to write a law that will never be utilized.
Other Equipment - Reflectors
It has come to our attention that consumers of so-called "fender eliminator kits" (typically sportbike owners) have been receiving summonses in NYC "for not having reflective fasteners on their license plates". This is a peculiar cop-law interpretation, or perhaps just a misunderstanding, of the New York State Vehicle & Traffic Law § 381 (4) which requires at least one rear-facing red reflector. As usual, the actual laws are full of contradictions and dead-ends.
In full, NYS VTL § 381 (4) states:
"Every motorcycle shall have at least one adequate red reflector securely attached to the rear. Such reflector may be a part of the rear lamp. No reflector shall be deemed adequate within the meaning of this subdivision unless it is of a size and type approved by the commissioner, and unless it is so designed, located and maintained as to be visible for at least two hundred feet when opposed by a motor vehicle displaying lawful undimmed headlights at night on an unlighted highway. The provisions of this subdivision with respect to reflectors shall be applicable, both day and night, whenever the motorcycle is on a public highway."
What is interesting is that § 376 (1) (a) states:
"It shall be unlawful to operate, drive or park a vehicle, except a motorcycle operated during the period from one-half hour before sunrise to one-half hour after sunset, on any public highway or street in this state at any time during the day or night unless such vehicle is equipped with signaling devices and reflectors of a type approved by the commissioner which are in good working condition".
So § 381 - the motorcycle -specific section of the VTL - says it applies day and night, and § 376 (which is more general) specifically mentions motorcycles and exempts them from reflectors and in fact, all signaling devices, during daylight periods. But maybe they saw this coming and rather than fix it, added § 376 (4) which states:
"All existing provisions of this chapter governing the use of headlamps, front parking lamps and license plate lamps and other lamps, reflectors, lights and directional signals on vehicles shall continue to apply, except to the extent irreconcilably inconsistent with the provisions of this section or regulations promulgated thereunder."
We THINK that means § 381 supersedes §376 but we're not sure. What do you think? After all, §376 does specifically mention motorcycles. We're not done yet...
Remember that "size and type approved by the commissioner" part! That language might sound familiar because of the helmet and eyewear discussions. But unlike helmets and eyewear which are specified in Part 54 of the NYCRR Title 15 (DMV) Chapter I (Regulations by the Commissioner) Subchapter D (Equipment), the commissioner (of the NYS DMV) never outlined specifications for motorcycle reflectors.
We can fish around the NYCRR a bit but it is pointless. Part 43 dictates Motor Vehicle Lighting and in Section 43.7 states "All equipment required by section 376 of the Vehicle and Traffic Law shall be of a type approved by the commissioner", and that reflectors "will be approved by the commissioner if [they] have the lens markings required by Federal Motor Vehicle Safety Standard 108 (49 CFR 571.108) and conform to the specifications established by the Society of Automotive Engineers for such equipment". The problem is that in 43.1 the law states clearly that it does not apply to motorcycles, and its reference to the VTL § 376 only confuses the matter of applicability. Part 45 dictates Emergency Lighting Equipment but it only applies to buses and trucks.
The last straw is that 49 CFR 571.108 discusses in great lengths specifications for things like color and durability and makes plenty of references to SAE specifications which are not freely available unless you live within walking distance of the Library of Congress. The specifications for reflex reflectors is general with regards to size and the CFR offers little motorcycle -specific advice, so trying to discern suitable "size and type" is an impossible task.
The fact that the VTL requires a reflector (red and rear-facing) but the NYCRR
fails to make any further useful specification - even indirectly through the
language in VTL § 376 (1) (b) which states: "In promulgating such rules and
regulations the commissioner shall be guided by the requirements with regard to
lights, reflectors, signaling devices and associated equipment on vehicles of
rules and regulations promulgated by the United States department of
transportation", and that the CFR only requires DOT markings on reflectors
meant for trucks and buses - is surely why local law enforcement thinks those little reflectorized license plate bolts are just fine.
Your Responsibilities
Regardless of legal loopholes and inconsistencies, riders should do their best to maintain compliance with applicable laws. Civil disobedience is one way to get the laws changed but it is not always the best way. Carelessness will always end in tears.
TIP SHEETS
An NYMSTF Exclusive!!!. Here are a couple of tip sheets to help motorcyclists ride safely and responsibly, and help factor the cost benefits of riding motorcycles.
We
wish to remind our fellow motorcycle riders that regardless of laws, it is their
responsibility to be fair to their fellow citizens and maintain their exhaust
systems to remain within Federal noise guidelines. Please read this
PDF version of the
Sound Management article from the September 2009 American Motorcyclist magazine.
[Adobe Acrobat(tm) reader required]
*Reprinted with permission of the American Motorcyclist Association (AMA), AmericanMotorcyclist.com.
The NYMSTF supports - with some reservations - the AMA's model noise legislation (link to PDF from the AMA web site) for highway -legal motorcycles. While we find some of the wording objectionable, the legislation and the measurement standard which it incorporates appears to be essentially fair to motorcycle owners, shop owners, aftermarket exhaust manufacturers, etc. as well as to law enforcement and to the public.
