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OPINION

    Defendant was given tickets for Failing to Wear a Motorcycle Helmet on August 1, 2001, August 4, 2001, August 10, 2001, and August 19, 2001. Each ticket was issued in the City of Wayne. On August 1, he wore no helmet. On August 2, he was wearing a rubber band and a small bottle cap. On August 10, he was wearing no headgear. On August 19, he was wearing a bandanna. These tickets were contested on September 27, 2001, and the District Court found that the Michigan State Police had not promulgated the rules that would implement the statute; therefore the law was not valid. The plaintiff appeals to this Court. The basis of appellate jurisdiction in this Court is MCR 4.100(G)(1), and MCR 7.101(A)(1).

    Effective July 27, 2000, the Michigan Department of State Police adopted new regulations. The wording of the regulation reads in part as follows:

R: 28.951 Approved Equipment Rule 1. Motorcycle helmets shall meet the model specifications established by the United States Department of Transportation, National Highway Safety Administration. These specifications, located at and identified as "Motorcycle Helmets," 49 C.F.R. § 571.218, published April 15, 1988 in the Federal Register (53 Fr 12529), effective 3, 1988, are adopted in these rules by reference. Printed copies of 49 C.F.R. § 571.218 are available for inspection and for distribution to the public at cost at the offices of the Michigan Department of state police, Special Operations Division, Traffic Services Section, 714 S. Harrison Road, East Lansing, Michigan 48823. Printed Copies of Chapter 49, Transportation, Pts. 400-999, containing 49 C.F.R. § 571.218, are also available from the United States Government Printing Office, Superintendent of Documents, P.O. Box 371954, Pittsburgh Pa 15250-7954, at a cost of 557.00 at the time of the adoption of this rule.

DEPARTMENT OF STATE POLICE SERVICES SECTION MOTORCYCLE HELMETS (by authority conferred on the Department of State Police by section 658 of Act No. 300 of the Public Acts of 1949, as amended, being § 257.658 of the Michigan Compiled Laws.)

    On the same day as the new regulation went into effect, the Department of State Police faxed an Administrative Message from its MSP Spec Operations Division to all Michigan Law Enforcement Agencies, stating, among other things, in part:

Note that the presence of a DOT sticker is a factor to be considered in the recognition of an approved helmet. However, the presence or lack of a DOT sticker is not always an accurate indication of whether a helmet is an approved model.

R 28.951 states "Motorcycle helmets shall meet the model specifications established by the United States Department of Transportation" which they state is located at 49 C.F.R. §571.218, while the first sentence of 49 C.F.R. §571.218, S1. Scope, state, "This standard establishes minimum performance requirements for helmets designed for use by motorcyclists and other motor vehicle uses."

    A clear reading of the federal standard, 49 C.F.R. §571.218, discloses that there are no model specifications set forth therein. There is nothing describing a helmet, what it looks like, what its dimensions are, and clearly nothing purporting to approve helmets.

    Model specifications do not equal performance specifications.

   The Federal government, in fact, has stated in its interpretive letters, that the government does not approve helmets and that 49 C.F.R. §571.218 does not approve helmets. [NHTSA counsel letter] The Michigan law requires that the Department of State Police approve helmets.

   MCL 257.658(4) requires the Department of State Police to promulgate regulations pursuant to the Administrative Procedures Act that inform the motorcyclist what helmets are approved in order for the statute to be enforceable. MCL 257.658(4) states:

A person operating or riding on a motorcycle ... shall wear a crash helmet on his or her head. 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 being sections 24.201 or 24.315 of the Michigan Compiled Laws. Rules in effect on June 1, 1970 shall apply to helmets required by this act.

   Therefore, the Michigan Department of State Police was required to approve crash helmets. Furthermore the State Police were required to promulgate rules for the implementation of MCL 257.658(4). The law in question cannot be enforced unless it has been implemented by the Department of State Police by the promulgation of rules under the APA that approve helmets. The DOT Rules do not and never have approved helmets, and they have never approved models of helmets. The adoption of 49 C.F.R. §571.218 by the Department of State Police does not implement MCL 257.658 because 49 C.F.R. §571.218 does not approve helmets.

Therefore, for the reasons stated above, this Court finds that at the time the four tickets in question were issued, the Michigan Department of State Police had not complied with the statutory mandate to promulgate rules for the approval of crash helmets to be worn by persons riding motorcycles, rendering the statute unenforceable. The District Court's ruling is

__________.

Dated: 1-30-03

HATHAWAY
Circuit Court Judge

ORDER

At s session of said Court held in the Frank
Murphy Hall of Justice on 1 - 30

PRESENT: Hon

    For the reasons stated in the foregoing Opinion; IT IS HEREBY ORDERED that the District Court's ruling is AFFIRMED.

Dated:

HON. Cynthia Gray Hathaway
Circuit Court Judge