[Federal Register Volume 62, Number 225 (Friday, November 21, 1997)]
[Rules and Regulations]
[Pages 62406-62455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30485]
[[Page 62405]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
National Highway Traffic Safety Administration
_______________________________________________________________________
49 CFR Parts 571 and 595
Air Bag On-Off Switches; Final Rule
Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 /
Rules and Regulations
[[Page 62406]]
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 571 and 595
[Docket No. NHTSA-97-3111]
RIN 2127--AG61
Air Bag On-Off Switches
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule; denial of petition for reconsideration.
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SUMMARY: This final rule seeks to preserve the benefits of air bags,
while providing a means for reducing the risk of serious or fatal
injury that current air bags pose to identifiable groups of people,
e.g., people who cannot avoid sitting extremely close to air bags,
people with certain medical conditions, and young children. The
benefits are substantial; current air bags had saved about 2,620
drivers and passengers, as of November 1, 1997. However, those air bags
had also caused the death of 87 people in low speed crashes, as of that
same date. Most of those people were unbelted or improperly belted.
Although vehicle manufacturers are beginning to replace current air
bags with new air bags having some advanced attributes, i.e.,
attributes that will automatically avoid the risks created by current
air bags, an interim solution is needed now for those groups of people
at risk from current air bags in existing vehicles.
This final rule exempts motor vehicle dealers and repair businesses
from the statutory prohibition against making federally-required safety
equipment inoperative so that, beginning January 19, 1998, they may
install retrofit manual on-off switches for air bags in vehicles owned
by or used by persons whose requests for switches have been approved by
the agency. While the administrative process necessary to provide prior
approval is more complex than the process proposed by the agency in
January 1997 for enabling vehicle owners to obtain switches, prior
approval is warranted by several considerations. The requirement for
prior approval of requests for switches emphasizes to vehicle owners
the importance of taking the safety consequences of a decision to seek
and use on-off switches very seriously. While some people need and will
be benefited by on-off switches, the vast majority of people will not
be. Further, checking the requests for switches is more appropriately
performed by the agency than by the dealers and repair businesses who
will install the switches. Finally, prior approval will enable the
agency to monitor directly, from the very beginning, the implementation
of the regulation and the effectiveness of its regulation and the
associated educational materials in promoting informed decisionmaking
about on-off switches.
Under the exemption, vehicle owners can request an on-off switch by
filling out an agency request form and submitting the form to the
agency. On the form, owners must certify that they have read an
information brochure discussing air bag safety and risks. The brochure
describes the steps that the vast majority of people can take to
minimize the risk of serious injuries from air bags while preserving
the benefits of air bags, without going to the expense of buying an on-
off switch. The brochure was developed by the agency to enable owners
to determine whether they are, or a user of their vehicle is, in one of
the groups of people at risk of a serious air bag injury and to make a
careful, informed decision about requesting an on-off switch. Owners
must also certify that they or another user of their vehicle is a
member of one or the risk groups. Since the risk groups for drivers are
different from those for passengers, a separate certification must be
made on an agency request form for each air bag to be equipped with an
on-off switch.
If NHTSA approves a request, the agency will send the owner a
letter authorizing the installation of one or more on-off switches in
the owner's vehicle. The owner may give the authorization letter to any
dealer or repair business, which may then install an on-off switch for
the driver or passenger air bag or both, as approved by the agency. The
on-off switch must meet certain criteria, such as being equipped with a
telltale light to alert vehicle occupants when an air bag has been
turned off. The dealer or repair business must then fill in information
about itself and its installation in a form in the letter and return
the form to the agency.
This final rule also denies a petition for reconsideration of the
agency's January 1997 decision in a separate rulemaking not to extend
the option for installing original equipment manufacturer on-off
switches for passenger air bags to all new vehicles equipped with air
bags. As a result of that decision, the option continues to apply only
to those new vehicles lacking a rear seat capable of accommodating a
rear-facing infant restraint.
DATES: Effective Date: Part 595 is effective December 18, 1997. The
agency will begin processing air bag on-off switch requests on that
same date. If a form is submitted before December 18, it will be given
the same priority as a form submitted after that date. Accordingly,
there will be no advantage to submitting forms early. Motor vehicle
dealers and repair businesses may begin installing switches on January
19, 1998.
The amendments to Part 571 are effective January 19, 1998.
Compliance with those requirements is optional before that date.
Petitions: Petitions for reconsideration must be received by
January 5, 1998.
ADDRESSES: Petitions for reconsideration should refer to the docket
number of this rule and be submitted to: Administrator, National
Highway Traffic Safety Administration, 400 Seventh Street, SW,
Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For information about air bags and
related rulemaking: For additional information, call the NHTSA Hotline
at 1-800-424-9393; in the D.C. area, call 202-366-0123. In addition,
visit the NHTSA Web site at http://www.nhtsa.dot.gov/airbags/. Among
the available materials are descriptions of the procedures for
requesting authorization to obtain an on-off switch and a list of
questions and answers about air bags and on-off switches. There are
also crash videos showing what happens in a crash to a belted, short-
statured dummy whose driver air bag is turned off.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary of this Final Rule.
A. Final Rule.
B. Comparison of NPRM and Final Rule.
II. Overview of Problem and the Agency's Remedial Actions.
A. Introduction.
B. Background.
1. Air Bags: Safety Issues. a. Lives Saved and Lost. b. Causes
of Air Bag Fatalities.
2. Air Bag Requirements.
C. Comprehensive Agency Plan to Address Air Bag Fatalities.
1. Interim Rulemaking Solutions.
a. Existing and Future Vehicles-in-Use.
b. New Vehicles.
2. Longer-Term Rulemaking Solution.
3. Educational Efforts; Child Restraint and Seat Belt Use Laws.
III. Deactivation Proposal (January 1997).
IV. Summary of Public Comments on Proposal.
V. NHTSA's Use of its Prosecutorial Discretion to Provide Case-by-
Case Authorizations of Air Bag Deactivation.
[[Page 62407]]
VI. Focus Group Testing of Information Brochure and other
Educational Materials (June 1997).
VII. Physicians Conference on Medical Conditions that Warrant
Turning Off an Air Bag (July 1997).
VIII. Agency Decision to Issue Exemption Authorizing Installation of
Retrofit On-Off Switches.
A. Summary.
B. The Challenge and Overall Rationale.
1. Risk versus Perception of Risk.
2. Which Groups Are Really at Risk?
3. Agency Actions to Minimize Risks.
C. Changes in Circumstances since the NPRM Make Retrofit On-Off
Switches Preferable to Deactivation.
D. Specifying that Retrofit On-Off Switches Are the Only Means
Authorized Under the Exemption for Turning off Air Bags Is
Reasonable and Consistent with Safety.
E. Case-by-Case Agency Authorizations of Retrofit On-Off Switch
Installation, Based on Vehicle Owner Certification of Risk Group
Membership and on Informed Consumer Decisionmaking, Is Reasonable
and Consistent with Safety.
F. Continued Use of Prosecutorial Discretion for Case-by-Case
Authorization of Air Bag Deactivation until Retrofit On-Off Switches
Become Available.
G. Other Issues.
1. Request Form.
2. Dealer and Repair Business Liability.
3. Information Brochure.
4. Dealer and Repair Business Responsibilities regarding the
Request Form and Information Brochure.
5. Insert for Vehicle Owner's Manual.
6. Recordkeeping.
7. Labels.
8. Lessees.
9. Definition of Repair Business.
10. Effective Date.
11. Sunset Date or Event.
12. On-Off Switches for New Vehicles.
13. Conforming Terminology Changes to Occupant Crash Protection
Standard.
IX. Implementation of Agency Decision.
A. Limited Continued Use of Prosecutorial Discretion to
Authorize Deactivation: Procedures and Requirements.
B. Providing Retrofit On-Off Switches under the Exemption:
Procedures and Requirements.
C. Steps to Promote Informed Decisionmaking by Consumers about
Retrofit On-Off Switches.
1. Information Brochure.
2. Insert for Vehicle Owner's Manual.
3. Physicians' Guidance regarding Medical Conditions Warranting
Turning Off an Air Bag.
4. Campaign to Increase Use of Child Restraints and Seat Belts.
X. Net Safety Effects and Costs of On-Off Switches.
A. Effect of Turning off Air Bags on the Performance of Some
Seat Belts.
B. Net Safety Effects and Costs.
XI. Rulemaking Analyses and Notices.
Regulatory Text
I. Executive Summary of This Final Rule
A. Final Rule
This final rule seeks to preserve the benefits of air bags, while
providing a means for reducing the risks that some current air bag
designs pose to discrete groups of people due to their extreme
proximity to air bags. This final rule exempts motor vehicle dealers
and repair businesses from the statutory prohibition against making
federally-required safety equipment inoperative so that, beginning
January 19, 1998, they may install, subject to certain conditions,
retrofit manual on-off switches for the air bags of vehicle owners
whose request is approved by NHTSA. To obtain approval, vehicle owners
must submit a request form to NHTSA on which they have certified that
they have read an agency information brochure about air bag benefits
and risks and that they or a user of their vehicle is a member of one
of the risk groups identified by the agency. The agency will begin
processing and granting requests on December 18, 1997.
Air bags have saved the lives of about 2,620 drivers and
passengers, primarily in moderate and high speed crashes, as of
November 1, 1997. However, air bags have also caused fatal injuries,
primarily in relatively low speed crashes, to a small but growing
number of children, and on rare occasion to adults. These deaths were
not random. They occurred when people were too close to their air bag
when it began to inflate. The vast majority of these fatalities could
have been avoided by preventive steps such as using seat belts, moving
the front seats back as much as possible, and putting children in the
back seat. Nevertheless, a relatively small number of people may still
be at risk, even after taking these steps, because they will be more
likely than the general population to be too close to their air bags.
Although advanced air bags are the ultimate answer and manufacturers
are beginning to install air bags with some advanced attributes, an
interim solution is needed for those identifiable groups of persons for
whom current air bags in existing vehicles may pose a risk of serious
or fatal injury.\1\
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\1\ An advanced air bag senses or responds to differences in
crash severity, occupant size or the distance of the occupant from
the air bag at the time of a crash. The advanced air bag adjusts its
performance by suppressing deployment in circumstances in which
fatalities might otherwise be caused by the air bag, but not by the
force of the crash or by reducing the force of deployment in those
circumstances.
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Under the exemption, vehicle owners \2\ may request a retrofit on-
off switch, based on informed decisionmaking and their certification of
their membership or the membership of another user of their vehicle in
one of the risk groups identified by the agency. After reading the
agency information brochure, owners can fill out and sign an agency
request form and submit it to NHTSA. The information brochure, which
provides guidance about which groups of people may be at risk from air
bags and about appropriate use of on-off switches, is intended to
inform consumers about which people are at risk from air bags and to
promote informed decisionmaking by consumers about whether to request
an on-off switch for those persons. To increase the likelihood that the
decisions are, in fact, informed, owners requesting a retrofit on-off
switch must certify on the request form that they have read the
information brochure. To limit the availability of on-off switches to
persons at risk of serious air bag injury, the owners must also certify
that they or a user of their vehicle is a member of one or more of the
risk groups described on the information brochure and listed on the
request form. The particular risk group in which membership is claimed
must be identified. Since the risk groups for driver air bags are
different from those for passenger air bags, a separate certification
must be made for each air bag to be equipped with an on-off switch.
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\2\ This final rule applies to leased as well as owned vehicles.
See part VIII.G.8 of this preamble. For the sake of simplicity,
however, most references in this preamble are to owners only. Those
references should be deemed to include lessees as well as owners.
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To reinforce the importance of taking great care in accurately
certifying risk group membership, the agency is requiring owners to
submit their requests to the agency. The agency expects that owners
will accurately and honestly make the necessary certifications and
statements on their request forms, but reserves the right to
investigate. The prior approval procedure will also enable the agency
to monitor, from the very beginning, the volume of requests and
patterns in switch requests and risk group certifications. The
computerization of the process of preparing authorization letters will
minimize the time needed by the agency to process and respond to the
requests. The precise amount of time will depend in large measure on
the volume of requests.
The agency strongly urges caution in obtaining and using on-off
switches. As noted above, on-off switches are not
[[Page 62408]]
needed for the vast majority of people since they are not at risk. Most
people can take steps that will eliminate or significantly reduce their
risk without turning off their air bag and losing its protective value.
If they take those steps, they will be safer than if they did not take
those steps and simply turned off their air bag. The most important
steps are using seat belts and other restraints and moving back from
the air bag. More important, people who are not at risk will be less
safe if they turn off their air bag.
This exemption is subject to certain conditions to promote the safe
and careful use of on-off switches. For example, the on-off switches
installed pursuant to this exemption must meet certain performance
criteria, such as being operable by a key and being accompanied by a
telltale to alert vehicle occupants whether the air bag is ``on'' or
``off.'' In addition, to provide a reminder about the proper use of on-
off switches, vehicle dealers and repair businesses must give vehicle
owners an owner's manual insert describing the operation of the on-off
switch, listing the risk groups, stating that the on-off switch should
be used to turn off an air bag for risk group members only, and stating
the vehicle specific safety consequences of using the on-off switch for
a person who is not in any risk group. Those consequences will include
the effect of any energy managing features, e.g., load limiters, on
seat belt performance.
In response to comments indicating that the definition of
``advanced air bag'' was too vague and that dealers could not
reasonably ascertain whether a vehicle was equipped with such air bags,
the agency has deferred adoption of that aspect of its proposal which
would have prohibited installation of on-off switches for advanced air
bags. NHTSA expects to adopt such a prohibition after it develops a
more complete definition of ``advanced air bags'' that applies to
driver as well as passenger air bags. This deferral should have no
practical significance. Although the vehicle manufacturers are
beginning to introduce air bags with advanced attributes, the agency
does not expect the installation of significant numbers of advanced air
bags before it is ready to establish a better definition.
The agency has selected January 19, 1998, as the beginning date for
the installation of retrofit on-off switches under this rule. This date
allows time for completion of the design, production and distribution
of on-off switches and the training of installation personnel. It also
allows time for the public education campaign of the agency and other
interested parties (e.g., the Air Bag Safety Campaign
(ABSC),3 American Automobile Association (AAA), Centers for
Disease Control and Prevention (CDC), Insurance Institute for Highway
Safety (IIHS), motor vehicle dealers, and state motor vehicle
departments) to effectively reach a substantial percentage of the
public before the installation of on-off switches begins. Until on-off
switches become available from the vehicle manufacturer for a given
vehicle make and model, NHTSA will continue to exercise its
prosecutorial discretion to grant requests for deactivating the air
bags in that make and model. In view of the relative inflexibility and
permanence of deactivation, the discretion will be exercised on a case-
by-case basis in the same limited set of circumstances in which the
requests are currently granted, e.g., in cases in which unusual medical
conditions suggest that deactivation is appropriate, and in cases in
which infants must be carried in the front seat of vehicles lacking a
rear seat capable of accommodating a rear-facing infant seat.
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\3\ The ABSC represents all automobile manufacturers (domestic
and importers), air bag suppliers, many motor vehicle insurance
companies and the National Safety Council.
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B. Comparison of NPRM and Final Rule
The final rule being issued today follows, in several important
respects, the agency's January 1997 proposal. Most important, the rule
makes a means of turning off air bags available to vehicle owners. It
simplifies the current process of obtaining a means of turning off air
bags. Instead of having to compose an original request letter and type
or write the letter out in longhand, as they must to obtain
authorization from the agency for deactivation, vehicle owners will be
able to fill out an agency request form. To promote informed
decisionmaking, this rule requires owners to certify on the request
form that they have read an air bag information brochure prepared by
NHTSA so that owners can separate fact from fiction about who is really
at risk and therefore may need an on-off switch.
However, the final rule differs from the proposal in several other
important respects. First, the sole means authorized for turning off
air bags is a retrofit on-off switch. Deactivation (i.e., modifying the
air bag so that it will not deploy for anyone under any circumstance)
is not allowed under the exemption. Although the agency recognized in
January 1997 that retrofit on-off switches offered some advantages, the
agency proposed deactivation because the apparent unavailability of
retrofit on-off switches in the near term made them impracticable. When
the deactivation proposal was issued, there were indications from the
vehicle manufacturers that they would not be able to provide retrofit
on-off switches for existing vehicles in a timely manner. Subsequent to
the January 1997 proposal, a number of major vehicle manufacturers
began reassessing the practicability of on-off switches and making
statements to the agency and the media that they were able to provide
retrofit on-off switches for existing vehicles, and for future
vehicles. The change to on-off switches in this final rule will enhance
safety because the on-off switches are a more focused, flexible means
of turning off air bags. They enable consumers to leave air bags on for
people who are not at risk and thus will benefit from their protection,
and turn them off for people at risk.
Second, vehicle owners must certify that they are a member of one
of several specified risk groups or that their vehicle will be driven
or occupied by a person who is a member of such a group. The agency
proposed to allow any person to choose to have his or her air bags
deactivated, without having to demonstrate or state a particular safety
need. Under the proposal, applicants would simply have had to fill out
an agency form on which they indicated that they had received and read
an information brochure explaining the safety consequences of having an
air bag deactivated. For the final rule, the agency has devised a new
form on which owners desiring an on-off switch for either a driver or
passenger air bag not only must certify that they have read the
brochure, but also that they or one of the users of their vehicle fall
into an identifiable risk group for that air bag. Use of the revised
form will help provide reasonable assurance that the exemption is
implemented in a manner consistent with safety.
Third, the agency is requiring owners to submit their filled-out
forms to the agency for approval. Together with the requirement for
certification of risk group membership, the necessity for obtaining
agency approval will help limit the installation and use of on-off
switches to people who are at risk from air bags and give the agency
information about the volume of requests and patterns in switch
requests and risk group certifications.
[[Page 62409]]
II. Overview of Problem and the Agency's Remedial Actions
A. Introduction
While air bags are providing significant overall safety benefits,
NHTSA is concerned that current air bags have adverse effects on
certain groups of people in limited situations. Of particular concern,
NHTSA has identified 87 primarily low speed crashes in which the
deployment of an air bag resulted in fatal injuries to an occupant, as
of November 1, 1997.4 NHTSA believes that none of these
occupants would have died if they had not been seated in front of an
air bag.
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\4\ The vast majority of the deaths appear to have occurred in
crashed in which the vehicle was traveling at less than 15 miles per
hour when the air bag deployed. Almost all occurred at vehicle
speeds under 20 miles per hour. NHTSA notes that Federal safety
standards do not specify a vehicle crash speed at which air bags
must deploy.
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The primary factor linking these deaths is the proximity to air
bags at the time of their deployment. All of these deaths occurred
under circumstances in which the occupant's upper body was very near
the air bag when it deployed.
There were two other factors common to many of the deaths. First,
apart from 12 infants fatally injured while riding in rear-facing
infant seats, most of the fatally injured people were not using any
type of child seat or seat belt. This allowed the people to move
forward more readily than properly restrained occupants in a frontal
crash. Further, the air bags involved in those deaths were, like almost
all current air bags, so-called ``one-size-fits-all'' air bags that
have a single inflation level.5 These air bags deploy with
the same force in very low speed crashes as they do in higher speed
crashes.
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\5\ The Federal safety standards do not require a ``one-size-
fits-all'' approach to designing air bags. They permit a wide
variety of technologies that would enable air bags to deploy with
less force in lower speed crashes or when occupants are out-of-
position or suppress deployment altogether in appropriate
circumstances.
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The most direct behavioral solution to the problem of child
fatalities from air bags is for children to be properly belted and
placed in the back seat whenever possible, while the most direct
behavioral solution for the adult fatalities is to use seat belts and
move the driver seat back as far as practicable. Implementing these
solutions necessitates increasing the percentage of children who are
seated in the back and properly restrained in child safety seats. It
also necessitates improving the current 68 percent rate of seat belt
usage by a combination of methods, including the enactment of State
primary seat belt use laws.6
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\6\ In States with ``secondary'' seat belt use laws, a motorist
may be ticketed for failure to wear a seat belt only if there is a
separate basis for stopping the motorist, such as the violation of a
separate traffic law. This hampers enforcement of the law. In States
with primary laws, a citation can be issued solely because of
failure to wear seat belts.
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The most direct technical solution to the problem of fatalities
from air bags is to require that motor vehicle manufacturers install
advanced air bags that protect occupants from the adverse effects that
can occur from being too close to a deploying air bag.
All of these solutions are being pursued by the agency. However,
until advanced air bags can be developed and incorporated into
production vehicles, behavioral changes based on improved information
and communication about potential hazards and simple, manually operated
technology are the best means of addressing fatalities from air bags,
especially those involving children.
To partially implement these solutions, and preserve the benefits
of air bags, while reducing the risk of injury to certain people, NHTSA
issued two other final rules in the past year. One rule requires new
passenger cars and light trucks whose passenger air bags are not
advanced to bear new, enhanced warning labels. (61 FR 60206; November
27, 1996) The other final rule provides vehicle manufacturers with the
temporary option of ensuring compliance by conducting a sled test using
an unbelted dummy instead of conducting a vehicle-to-barrier crash test
using an unbelted dummy. (62 FR 12960; March 19, 1997) The purpose of
the option is primarily to enable vehicle manufacturers to expedite
their efforts to lessen the force of air bags as they deploy.
On the behavioral side, the agency has initiated a national
campaign to increase usage of seat belts through the enactment of
primary seat belt use laws, more public education, and more effective
enforcement of existing belt use and child safety seat use laws.
In conjunction with the National Aeronautical and Space
Administration, as well as Transport Canada, and in cooperation with
domestic and foreign vehicle manufacturers, restraint system suppliers
and others through the Motor Vehicle Safety Research Advisory Committee
(MVSRAC), NHTSA is undertaking data analysis and research to address
remaining questions concerning the development and introduction of
advanced air bags. As noted above, the Federal motor vehicle safety
standards have permitted, but not required, the introduction of
advanced air bags. NHTSA recognizes that, if it were to require
advanced air bags, it would have to take into consideration the
differing leadtimes for the various kinds of advanced bags under
development, and the fact that the longest leadtimes will be those for
the most advanced bags. The agency also recognizes the engineering
challenge and potential costs associated with incorporating some of the
advanced air bag design features into the entire passenger car and
light truck fleet. A proposal to require the installation of advanced
air bags is expected this winter.
B. Background
1. Air Bags: Safety Issues
a. Lives Saved and Lost. Air bags have proven to be highly
effective in reducing fatalities from frontal crashes, the most
prevalent fatality and injury-causing type of crash. Frontal crashes
cause 64 percent of all driver and right-front passenger fatalities.
NHTSA estimates that, between 1986 and November 1, 1997, air bags
have saved about 2,620 drivers and passengers (2,287 drivers (87
percent) and 332 passengers (23 percent)). 7 Of the 2,620,
1,800 (69 percent) were unbelted and 700 (31 percent) were belted.
These agency estimates are based on comparisons of the frequency of
front seat occupant deaths in vehicles without air bags and in vehicles
with air bags. Approximately half of those lives were saved in the last
two years. These savings occurred primarily in moderate and high speed
crashes. Pursuant to the mandate in the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA) for the installation of
air bags in all passenger cars and light trucks, the number of air bags
in vehicles on the road will increase each year. As a result, the
annual number of lives saved by air bags will continue to increase each
year. Based on current levels of effectiveness, air bags will save more
than 3,000 lives each year in passenger cars and light trucks when all
light vehicles on the road are equipped with dual air bags. This
estimate is based on current seat
[[Page 62410]]
belt use rates (about 68 percent, according to State-reported surveys).
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\7\ Studies published in the November 5, 1997 issue of the
Journal of the American Medical Association by IIHS and by the
Center for Risk Analysis at the Harvard School of Pulbic Health
confirm the overall value of passenger air bags, whle urging action
be taken quickly to address the loss of children's lives due to
those air bags. IIHS found that passenger air bags were associated
with a substantial reduction in crash deaths. The Center evaluated
the cost-effectiveness of passenger air bags and concluded that they
produce savings at costs comparable to many well-accepted medical
and public health practices.
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While air bags are saving large numbers of people in moderate and
high speed crashes, they sometimes cause fatalities, especially to
children, in lower speed crashes. As of November 1, 1997, NHTSA's
Special Crash Investigation program had confirmed a total of 87 crashes
in this country in which the deployment of an air bag resulted in fatal
injuries. Forty-nine of those fatalities involved children. Three adult
passengers have also been fatally injured. Thirty-five drivers are
known to have been fatally injured.
In addition to the 87 confirmed air bag related deaths, there were
18 deaths under investigation, as of November 1, 1997, 1 involving a
1996 crash and 17 involving 1997 crashes. The single 1996 death still
under investigation involved a driver. The 17 deaths in 1997 involved 1
infant, 11 children ranging in age from 1 to 11 years, and 5 drivers.
Although the agency cannot predict how many of the deaths under
investigation that will ultimately be categorized as confirmed air bag
related deaths, the agency notes that roughly 80 percent of the deaths
investigated to date have ultimately been confirmed.
The trends in the annual numbers of child and adult deaths differ
significantly. The annual number of confirmed fatally-injured children
increased significantly in 1993 through 1996 (1 in 1993, 5 in 1994, 8
in 1995 and 22 in 1996), while the number of confirmed fatally-injured
drivers did not increase appreciably in the same period (4 in 1993, 7
in 1994, 4 in 1995, and 6 in 1996). As of November 1, 12 children and 6
drivers had been confirmed as having been fatally injured by air bags
this year. However, as noted above, additional deaths are under
investigation. The total number of confirmed deaths for this year will
not be known until some time next year.
The number of vehicles with either driver air bags or both driver
and passenger air bags increased steadily over the last four years.
Since the fall of 1996, the number of vehicles with both driver and
passenger air bags has been increasing at the rate of 1 million
vehicles per month. The ratio of driver deaths to vehicles with driver
air bags decreased significantly between 1993 and 1996. The ratio of
child deaths to vehicles with passenger air bags also decreased, but
not nearly so much.
b. Causes of Air Bag Fatalities. The one fact that is common to all
who died is not their height, weight, sex, or age. Instead, it is the
fact that they were too close to the air bag when it started to deploy.
For some, this occurred because they were sitting too close to the air
bag. More often this occurred because they were not restrained by seat
belts or child safety seats and were thrown forward during pre-crash
braking.
Air bags are designed to save lives and prevent injuries by
cushioning occupants as they move forward in a front-end crash. They
keep the occupants' head, neck, and chest from hitting the steering
wheel or dashboard. To accomplish this, an air bag must move into place
quickly. The force of a deploying air bag is greatest in the first 2-3
inches after the air bag bursts through its cover and begins to
inflate. Those 2-3 inches are the ``risk zone.'' The force decreases as
the air bag inflates further.
Occupants who are very close to or in contact with the cover of a
stored air bag when the air bag begins to inflate can be hit with
enough force to suffer serious injury or death. In contrast, occupants
who are properly restrained and who sit 10 inches away from the air bag
cover will contact the air bag only after it has completely or almost
completely inflated. The air bag then will cushion and protect them
from hitting hard surfaces in the vehicle and thus provide a
significant safety benefit, particularly in moderate to serious
crashes.
The confirmed fatalities involving children have a number of fairly
consistent characteristics. First, all 12 infants were in rear-facing
infant seats. Second, the vast majority of the older children were not
using any type of restraint. 8 Third, almost all of the
small number of older children who were using some type of restraint
were improperly restrained or were leaning so far forward that benefits
of being restrained were largely negated. For example, some were too
small to be using just a vehicle lap and shoulder belt. Fourth, as
noted above, the crashes occurred at relatively low speeds. If the
passenger air bag had not deployed in those crashes, the children would
probably not have been killed or seriously injured. Fifth, the infants
and older children were very close to the dashboard when the air bag
deployed. Properly installed rear-facing infant seats are always very
close to the dashboard. For essentially all of the older children, the
non-use or improper use of occupant restraints or the failure to use
the restraints most appropriate to the child's weight and age, in
conjunction with pre-impact braking, resulted in the forward movement
of the children. 9 As a result, they were very close to the
air bag when it deployed. Because of their proximity, the children
sustained fatal head or neck injuries from the deploying passenger air
bag.
---------------------------------------------------------------------------
\8\ 29 (or 78%) of the 37 forward-facing children who were
fatally injured by air bags were not using any type of belt or other
restraint. This included 4 children who were sitting on the laps of
other occupants. The remaining 8 children included some who were
riding with their shoulder belts behind them and some who were
wearing lap and shoulder belts but who also should have been in
booster seats because of their small size and weight. Booster seat
use could have improved shoulder belt fit and performance. These
various factors and pre-crash braking allowed the children to get
too close to the air bag when it began to inflate.
\9\ For information on the restraint most appropriate for a
particular child, see the table at the end of the information
brochure in Appendix A in the regulatory text.
---------------------------------------------------------------------------
As in the case of the children fatally injured by air bags, the key
factor regarding the confirmed adult deaths has been their proximity to
the air bag when it deployed. The most common reason for their
proximity was failure to use seat belts. Only 11 of the 35 drivers were
known to be properly restrained by lap and shoulder belts at the time
of the crash. Moreover, of those eleven, two appeared to be out of
position (blacked out, due to medical conditions, and slumped over the
steering wheel) at the time of the crash. As in the case of children,
the deaths of drivers have occurred primarily in low speed crashes.
The other cause of air bag fatalities is the design of current air
bags. Air bag fatalities are not a problem inherent in the concept of
air bags or in the agency's occupant restraint standard, Standard No.
208 (49 CFR 571.208). That standard has long permitted, but not
required, a variety of design features that would reduce or eliminate
the fatalities that have been occurring, e.g., higher deployment
thresholds that will prevent deployment in low speed crashes,
10 different folding patterns and aspiration designs, dual
stage inflators, 11 new air bag designs like the Autoliv
``Gentle Bag'' that deploys first radially and then toward the
occupant, and advanced air bags that either adjust deployment force or
suppress deployment altogether in appropriate circumstances. While some
of these features are new or are still under development, others have
been around for more than a decade. The agency identified a number of
these features in conjunction with its 1984 decision concerning
automatic occupant
[[Page 62411]]
protection and noted that vehicle manufacturers could choose among
those features to address the problems reported by those manufacturers
concerning out-of-position occupants.
---------------------------------------------------------------------------
\10\ Mercedes Benz offers passenger air bags whose deployment
threshold is 12 mph if the passenger is unbelted and 18 mph if the
passenger is belted.
\11\ The air bags installed in approximately 10,000 GM cars in
the 1970's were equipped with dual stage inflators. Today, Autoliv,
a Swedish manufacturer of air bags, has a ``gas generator that
inflates in two steps, giving the bag time to unfold and the vent
holes to be freed before the second inflation starts. Should the bag
then encounter an occupant, any excessive--gas indeed bag pressure--
will exit through the vent holes.''
---------------------------------------------------------------------------
Although Standard No. 208 permits vehicle manufacturers to install
air bags incorporating those advanced features, very few current air
bags do so. Instead, vehicle manufacturers have thus far used designs
that inflate with the same force under all circumstances. Although the
vehicle manufacturers are now working to incorporate advanced features
in their air bags, the introduction of air bags with those features is
only just beginning. Introduction of significant numbers of advanced
air bags may not begin for another several model years.
With the help of a recent amendment to Standard No. 208, vehicle
manufacturers have been able to expedite the introduction of depowered
air bags. While these new air bags will reduce, but not eliminate, the
likelihood of air bag-caused deaths, they still deploy with the same
force in all crashes, regardless of severity, and regardless of
occupant weight or location. Many manufacturers have introduced
substantial numbers of these less powerful air bags in the current
model year (1998).
2. Air Bag Requirements
Today's air bag requirements evolved over a 25-year period. NHTSA
issued its first public notice concerning air bags in the late 1960's.
However, it was not until the fall of 1996 that manufacturers were
first required to install air bags in any motor vehicles.12
---------------------------------------------------------------------------
\12\ Air bag firsts--In view of the confusion evident in some
public comments on this rulemaking and even now in some media
accounts about when air bags were first required, and by whom, the
agency has set forth a brief chronology below:
1972 First year in which vehicle manufacturers had the
option of installing air bags in passenger cars as a mean of
complying with Standard No. 208. Vehicle manufacturers also had the
option of complying by means of installing manual lap and shoulder
belts. GM installed driver and passenger air bags in approximately
10,000 passenger cars in the mid-1970's.
1986 First year in which vehicle manufacturers were
required to install some type of automatic protection (either
automatic belts or air bags) in passenger cars. This requirement was
issued by Secretary Dole in 1984. At the time of issuance, the
agency expressly noted the concerns expressed by vehicle
manufacturers about out-of-position occupants. In response, NHTSA
identified a variety of technological remedies whose use was
permissible under the Standard. Between 1986 and 1996, vehicle
manufacturers chose to comply with the automatic protection
requirements by installing over 35 million driver air bags and over
18 million passenger air bags in passenger cars. Another 12 million
driver air bags and almost 3 million passenger air bags were
installed in light trucks in that same time period.
1996 First year in which vehicle manufacturers were
required to install air bags in passenger cars. this requirement was
mandated by the 1991 Intermodal Surface Transportation Efficiency
Act.
---------------------------------------------------------------------------
When the requirements for automatic protection (i.e., protection by
means that require no action by the occupant) were adopted in 1984 for
passenger cars, they were expressed in broad performance terms that
provided vehicle manufacturers with choices of a variety of methods of
providing automatic protection, including automatic belts and air bags.
Further, the requirements allowed broad flexibility in selecting the
performance characteristics of air bags.
Later, those requirements were extended to light trucks.
Ultimately, strong market demand led manufacturers to begin to install
air bags in all of their passenger cars and light trucks.
In 1991, Congress included a provision in ISTEA directing NHTSA to
amend Standard No. 208 to require that all passenger cars and light
trucks provide automatic protection by means of air bags. ISTEA
required at least 95 percent of each manufacturer's passenger cars
manufactured on or after September 1, 1996, and before September 1,
1997, to be equipped with an air bag and a manual lap/shoulder belt at
both the driver and right front passenger seating positions. Every
passenger car manufactured on or after September 1, 1997, must be so
equipped. The same basic requirements are phased-in for light trucks
one year later.13 The final rule implementing this provision
of ISTEA was published in the Federal Register (58 FR 46551) on
September 2, 1993.
---------------------------------------------------------------------------
\13\ At least 80 percent of each manufacturer's light trucks
manufactured on or after September 1, 1997 and before September 1,
1998 must be equipped with an air bag and a manual lap/shoulder
belt. Every light truck manufactured on or after September 1, 1998
must be so equipped.
---------------------------------------------------------------------------
Standard No. 208's automatic protection requirements, whether for
air bags or (until the provisions of ISTEA fully take effect) for
automatic belts, are performance requirements. The standard does not
specify the design of an air bag. Instead, vehicles must meet specified
injury criteria, including criteria for the head and chest, measured on
test dummies. Until recently, these criteria had to be met for air bag-
equipped vehicles in barrier crashes at speeds up to 30 mph, both with
the dummies belted and with them unbelted.
However, on March 19, 1997, the agency published a final rule
amending Standard No. 208 to temporarily provide the option of testing
air bag performance with an unbelted dummy in a sled test incorporating
a 125 millisecond standardized crash pulse instead of in a vehicle-to-
barrier crash test. This amendment was made primarily to expedite
manufacturer efforts to reduce the force of air bags as they deploy.
Standard No. 208's current automatic protection requirements, like
those established 13 years ago in 1984, apply to the performance of the
vehicle as a whole, and not to the air bag as a separate item of motor
vehicle equipment. The broad vehicle performance requirements permit
vehicle manufacturers to ``tune'' the performance of the air bag to the
specific attributes of each of their vehicles.
The Standard's requirements also permit manufacturers to design
seat belts and air bags to work together. Before air bags, seat belts
had to do all the work of restraining an occupant and reducing the
likelihood that the occupant will strike the interior of the vehicle in
a frontal crash. Another consequence of not having air bags was that
vehicle manufacturers had to use relatively rigid and unyielding seat
belts that can concentrate a lot of force along a narrow portion of the
belted occupant's body in a serious crash. This concentration of force
created a risk of bone fractures and injury to underlying organs. The
presence of an air bag increases the vehicle manufacturer's ability to
protect belted occupants. Through using energy managing devices, such
as load limiters, a manufacturer can design seat belts to give or
release additional belt webbing before the belts can concentrate too
much force on the belted occupant's body. When these new belts give,
the deployed air bag is there to prevent the belted occupant from
striking the vehicle interior.
Further, Standard No. 208 permits, but does not require, vehicle
manufacturers to design their air bags to minimize the risk of serious
injury to unbelted, out-of-position occupants, including children and
small drivers. The standard gives the manufacturers significant freedom
to select specific attributes to protect all occupants, including
attributes such as the crash speeds at which the air bags deploy, the
force with which they deploy, air bag tethering and venting to reduce
inflation force when a deploying air bag encounters an occupant close
to steering wheel or dashboard, the use of sensors to detect the
presence of rear-facing child restraints or the presence of small
children and prevent air bag inflation, the use of sensors to detect
occupant position and prevent air bag inflation if appropriate, and the
use of dual stage
[[Page 62412]]
versus single stage inflators. Dual stage inflators enable air bags to
deploy with lower force in low speed crashes, the type of crashes in
which children and drivers have been fatally-injured, and with more
force in higher speed crashes.
C. Comprehensive Agency Plan to Address Air Bag Fatalities
In late November 1996, NHTSA announced that it would be
implementing a comprehensive plan of rulemaking and other actions
(e.g., consumer education and encouragement of State seat belt use laws
providing for primary enforcement of their requirements) addressing the
adverse effects of air bags.14 While there is a general
consensus that the best approach to preserving the benefits of air bags
while preventing air bag fatalities will ultimately be the introduction
of advanced air bags, those air bags will not be widely available in
the next several years. Accordingly, the agency has focused on
rulemaking and other actions that will help reduce the adverse effects
of air bags in existing vehicles as well as in vehicles produced during
the next several model years. The actions which have been taken, or are
being taken, include the following:
---------------------------------------------------------------------------
\14\ For a discussion of the actions taken by NHTSA before
November 1996 to address the adverse effects of air bags, see pp.
40787-88 of the agency's NPRM published August 6, 1996 (61 FR
40784).
---------------------------------------------------------------------------
1. Interim Rulemaking Solutions
a. Existing and Future Vehicles-in-Use. This final rule exempts,
under certain conditions, motor vehicle dealers and repair businesses
from the ``make inoperative'' prohibition in 49 U.S.C. 30122 by
allowing them, beginning January 19, 1998, to install retrofit manual
on-off switches for air bags in vehicles owned by people whose request
for a switch is approved by NHTSA. The purpose of the exemption is to
preserve the benefits of air bags while reducing the risk that some
people have of being seriously or fatally injured by current air bags.
The exemption also allows consumers to have new vehicles retrofitted
with on-off switches after the purchase of those vehicles. It does not,
however, allow consumers to purchase new vehicles already equipped with
on-off switches.
b. New Vehicles. On March 19, 1997, NHTSA published in the Federal
Register (62 FR 12960) a final rule temporarily amending Standard No.
208 to facilitate efforts of vehicle manufacturers to depower their air
bags quickly so that they inflate less aggressively. This change,
coupled with the broad flexibility already provided by the standard's
existing performance requirements, provided the vehicle manufacturers
maximum flexibility to quickly reduce the adverse effects of current
air bags.
On November 27, 1996, the agency published in the Federal Register
(61 FR 60206) a final rule amending Standards No. 208 and No. 213 to
require improved labeling on new vehicles and child restraints to
better ensure that drivers and other occupants are aware of the dangers
posed by passenger air bags to children, particularly to children in
rear-facing infant restraints in vehicles with operational passenger
air bags. The improved labels were required on new vehicles beginning
February 25, 1997, and were required on child restraints beginning May
27, 1997.
On January 6, 1997, the agency published in the Federal Register
(62 FR 798) a final rule extending until September 1, 2000, an existing
provision in Standard No. 208 permitting vehicle manufacturers to offer
manual on-off switches for the passenger air bag for new vehicles
without rear seats or with rear seats that are too small to accommodate
rear-facing infant restraints.
2. Longer-Term Rulemaking Solution
The longer term solution is advanced air bags. The agency has
established a working group under the Crashworthiness Subcommittee of
MVSRAC to work cooperatively with the vehicle manufacturers, restraint
system suppliers and other organizations regarding advanced air bags.
Activities include sharing data and information from research,
development and testing of advanced air bags and providing test
procedures that could be used in evaluating the advanced air bag
technologies. While some of these technologies are complex, others are
relatively simple and inexpensive. NHTSA plans to issue an NPRM to
require a phasing-in of advanced air bags and to establish performance
requirements for those air bags. While Standard No. 208 has provided
vehicle manufacturers with the flexibility necessary to introduce
advanced air bags, the Standard has not required them to take advantage
of that flexibility. Among other things, the agency anticipates
proposing tests using a 5th percentile female dummy 15 and
advanced child dummies and specify appropriate injury criteria for
those dummies, including neck injury criteria, as part of its
rulemaking regarding advanced air bags.
---------------------------------------------------------------------------
\15\ A 5th percentile female dummy has a standing height of 5
feet and a weight of 110 pounds.
---------------------------------------------------------------------------
3. Educational Efforts; Child Restraint and Seat Belt Use Laws
In addition to taking these actions, and conducting extensive
public education efforts, the Department of Transportation announced
this past spring a national strategy to increase seat belt and child
seat use. Higher use rates would decrease air bag fatalities and the
chance of adverse safety tradeoffs occurring as a result of turning off
air bags. The plan to increase seat belt and child seat use has four
elements: stronger public-private partnerships; stronger State seat
belt and child seat use laws (e.g., laws providing for primary
enforcement of seat belt use requirements); active, high-visibility
enforcement of these laws; and effective public education. Substantial
benefits could be obtained from achieving higher seat belt use rates.
For example, if observed belt use increased from 68 percent to 90
percent, an estimated additional 5,536 lives would be saved annually
over the estimated 9,529 lives currently being saved by seat belts. In
addition, an estimated 132,670 injuries would be prevented annually.
The economic savings from these incremental reductions in both
fatalities and injuries would be $8.8 billion annually.
III. Deactivation Proposal (January 1997)
On January 6, 1997, NHTSA published an NPRM (62 FR 831) to exempt
motor vehicle dealers and repair businesses conditionally from the
statutory ``make inoperative'' prohibition of 49 U.S.C. Sec. 30122, so
that they could deactivate either or both the driver and passenger air
bags at the request of a vehicle owner. As noted above, this proposal
was issued to help reduce the fatalities and injuries that current air
bags are causing to persons who may be facing special risks from air
bags.
The agency stated that, while it expected that advanced air bags
will offer means for significantly reducing or eliminating the risk of
adverse side effects from air bags, advanced air bags will not be
widely available in the next several years. The agency said it believes
that, in the interim, steps need to be taken to minimize the
possibility that air bags will cause harm in existing vehicles and in
new vehicles produced prior to the availability of advanced air bags.
Just as depowering will provide a technological solution that will
prevent a significant number of the air bag fatalities that might
otherwise have
[[Page 62413]]
occurred in new vehicles, so deactivation would provide a technological
solution for persons facing special risks in existing vehicles.
Although the agency recognized that retrofit on-off switches offered
certain advantages, the agency proposed deactivation instead of
installation of retrofit on-off switches based on information from the
vehicle manufacturers indicating that they could not provide retrofit
on-off switches for existing vehicles in a timely manner.
Noting that a depowered passenger air bag may not completely
eliminate the risk to an infant in a rear-facing infant seat or to an
unrestrained child who is near the dashboard as a result of pre-crash
braking, the agency stated that deactivation of depowered passenger air
bags would be permitted. However, since on-off switches and advanced
air bags could be used to essentially eliminate the risks to children,
deactivation of a passenger air bag would not be permitted under the
proposal if that air bag were equipped with such an on-off switch or if
the air bag were an advanced air bag.
NHTSA proposed to limit authorization to deactivate driver air bags
to existing vehicles and vehicles lacking advanced driver air bags. The
agency indicated that it might further restrict authorization to
deactivate driver air bags by excluding vehicles with depowered driver
air bags.
NHTSA noted that there were safety tradeoffs associated with air
bag deactivation. The agency strongly recommended that air bag
deactivation be undertaken only in instances in which the vehicle owner
reasonably believes that the air bag poses a significant risk, based on
the individual's particular circumstances. The agency indicated that
there would be limited need for passenger air bag deactivation and even
less need for driver air bag deactivation.
The mechanics of the proposed exemption from the make inoperative
prohibition were based in large measure upon recommendations from BMW
and Volvo in 1996 that the agency develop procedures similar to those
being used in Europe for temporarily deactivating air bags. According
to BMW,
(I)n Europe, a BMW dealer is allowed to temporarily deactivate
the passenger air bag for individuals who may have a special need or
normally transport children after advising them of the benefits of
air bags and approval forms are signed.
Given the administrative complexity and time that would be
associated with reviewing individual applications, the agency proposed
to allow any person to choose to deactivate, without having to
demonstrate a particular safety need. However, applicants would have
had to submit a written authorization to the dealer or repair business
performing the deactivation and indicate that they had received and
read an information brochure explaining the consequences of having an
air bag deactivated.
NHTSA requested commenters to provide views regarding a number of
specific issues, including--
Should deactivation of air bags be allowed at the owner's
option in all cases or should deactivation be limited to situations in
which death or serious injury might reasonably be expected to occur?
Would the administrative details involved in establishing
and implementing limitations on eligibility overly complicate the
availability of deactivation?
If it becomes permissible to deactivate air bags, with the
result that an air bag could be turned off permanently, should the
agency permit lesser measures as well, such as an on-off switch?
Should there be a requirement that deactivation be
performed in a manner that facilitates reactivation?
In the rulemaking regarding OEM on-off switches, the
agency estimated that there would be more benefits than losses if the
misuse rate were less than 7 percent. Since a seat with a deactivated
air bag may sometimes be occupied by a person who would benefit from
the air bag, is there a percentage of such occupancy that would result
in the losses from deactivation outweighing the benefits?
Should a vehicle lessee be allowed to seek deactivation?
IV. Summary of Public Comments on Proposal
There were approximately 700 comments on the NPRM. About 600 of
those were from members of the general public. The rest were from
companies or trade associations representing vehicle manufacturers,
dealers and repair businesses, fleet managers and owners, equipment
manufacturers, consumer safety groups, insurance companies, physicians
and health-related groups, former NHTSA administrators, and
miscellaneous other organized groups. Because so many commenters took
the same or similar positions on the issues, the commenters are not
identified in this preamble unless there is some special significance
to their identity. Instead, they are referred to simply as ``general
public'' commenters and ``company and group'' commenters (even if some
of the ``company and group'' comments are from individual companies).
The general public commenters supported, and the company and group
commenters did not oppose, the agency's exempting dealers and repair
businesses from the make inoperative prohibition so that air bags could
be turned off. However, the commenters were divided on many of the
details of how this should be accomplished and on the breadth of the
exemption.
Almost all commenters supported deactivation as a means for turning
off air bags. Most of the companies and groups also supported
permitting retrofit on-off switches at least as an alternative to
deactivation. GM, a dealer's group, a service group, and a number of
safety groups went further, stating that on-off switches should be the
only permitted way of turning off an air bag. About one in six of the
general public commenters also stated that on-off switches should be
installed in lieu of, or as a preferred means of, turning off air bags.
IIHS, which supported deactivation, stated that it reluctantly
supported on-off switches as well. Its reluctance arose in large part
from the amount of apparent interest in on-off switches. Based on a
January 1997 public opinion survey that it commissioned showing a
strong public preference for on-off switches over deactivation, IIHS
suggested that more people would choose to have on-off switches
installed than would choose to have deactivations performed. A few
commenters opposed on-off switches. BMW stated that on-off switches
should not be allowed because their development will divert resources
from development of advanced air bags, conflict with the decision not
to require them on new vehicles, and introduce complexity for service
and repair, compared with the ``simple reprogramming'' necessary for
temporary deactivation of its air bags. Both BMW and IIHS expressed
concern that allowing on-off switches would encourage placing children
in front where the risk of serious injury is greater, with or without
air bags. Most company and group commenters thought that on-off switch
misuse would be a significant problem.
The issues which drew the most comments were ``who should be
allowed to have their air bags deactivated, and under what procedure?''
16 The general public
[[Page 62414]]
commenters almost universally favored allowing air bag deactivation for
anyone who wants it, i.e., regardless of whether a person is actually
in a risk group. Both the National Transportation Safety Board (NTSB)
and IIHS also supported deactivation for any vehicle owners who want
it, i.e., without requiring membership in a risk group. In addition,
one equipment manufacturer, and three groups supported deactivation for
owners who want it and based their support on personal liberty
arguments. However, most of the other company and group commenters were
opposed to deactivation for everyone who wants it.
---------------------------------------------------------------------------
\16 \In expressing their views on these issues, even those
commenters who discussed on-off switches as a means that should be
available under the exemption for turning off air bags generally
discussed the eligibility and procedural issues in terms of
deactivation alone. NHTSA understands that the commenters generally
intended those views regarding eligibility and procedure to apply
equally to deactivation and on-off switches.
---------------------------------------------------------------------------
The main argument given by the general public commenters for broad
availability of deactivation was that there should be personal choice
as to whether to turn one's air bag on or off. These commenters
emphasized the danger that they believe air bags pose and many
mentioned media reports that they had seen. They frequently noted that
there were circumstances that they believed would tend to put them or
their family members at risk. Generally, these circumstances included
short stature, pregnancy, being elderly, needing to transport children,
and certain medical conditions. Many stated that they wore their seat
belts, and that they believed that the air bags were of marginal
benefit.
IIHS said that it supported broad availability because of the
apparent extent of public interest in turning off air bags for at least
some vehicle occupants. The organization suggested that trying to limit
the availability of deactivation would create an adverse public
reaction. In support of this suggestion, IIHS cited its January 1997
survey indicating that 30 percent of their respondents would like an
on-off switch for the driver air bag, and 67 percent would like one for
the passenger air bag. Thirteen percent said they would like a
permanent deactivation of the driver air bag, and 19 percent wanted
permanent deactivation for the passenger air bag.
The main argument of the company and group commenters against
relying on informed decisionmaking in allowing deactivation was that
there would be widespread deactivation by frightened and misinformed
consumers who were not actually at risk. Many company and group
commenters expressed concern that the issues relating to air bag risks
might be too complex for the general public to comprehend so that it
would be difficult for the public to make informed decisions. Some
commented that allowing deactivation for everyone would even encourage
deactivations by implying that air bags were so dangerous that they
generally should be disconnected. The great majority of company and
group commenters favored a continuation of NHTSA's current practice of
authorizing deactivations only in limited circumstances and solely on a
case-by-case basis. In August 1997, a broad coalition of vehicle
manufacturers, dealers, insurers, public interest groups, medical
societies and others met first with the Office of Management and Budget
(OMB) and later with NHTSA to urge that eligibility under the exemption
be limited to persons in risk groups identified by the agency and that
the agency approve each request for an on-off switch before a switch
can be installed. The coalition re-iterated its concerns in a mid-
October meeting with OMB.
Several individual vehicle manufacturers, and the industry
associations representing all domestic and foreign vehicle
manufacturers, said that NHTSA does not have the statutory authority to
allow deactivation based on informed decisionmaking. General Motors
(GM) argued that the proposal did not meet the three tests which it
believes are implicit in the statute: (1) an exemption must be for a
single individual, not classes of people; (2) an exemption for a
specific individual must be based on the agency's judgment, not the
individual's judgment; and (3) an exemption must be consistent with
vehicle safety. These commenters noted that the agency emphasized in
the NPRM that only in limited instances would deactivation be, on
balance, in the best interests of a driver or passenger. They argued
that the predicted widespread deactivations provided to anyone who
wanted one would result in more people being killed and injured in
situations in which the air bag might have saved them, thus resulting
in a reduction of motor vehicle safety. Finally, Ford argued that the
agency's desire for administrative simplicity does not overcome the
necessity for complying with the statute.
The company and group commenters advanced a number of safety
arguments against allowing deactivation based on informed
decisionmaking. Some of them suggested that depowering air bags would
obviate the need for a broad availability of deactivation. Several
stated that occupant restraint systems are integrated. Seat belts
designed to work with air bags may not work so well as conventional
seat belts if the air bags are deactivated. In particular, it was
stated that, depending on how it was performed, deactivating the air
bag could also deactivate seat belt pretensioners that use the same
crash sensors as the air bag. GM suggested that it is the safety
conscious people who already buckle themselves and their children who
will tend to deactivate their air bags in reaction to media reports of
air bag deaths and injuries. Because people who wear belts are seldom
harmed by air bags, GM concluded that, ironically, many or most who
disconnect will be at increased risk. A majority of the company and
group commenters stated that vehicles with deactivated air bags would
be sold to other parties who might not know of the deactivation, or in
the case of vehicles with retrofit on-off switches, might misuse the
on-off switch.
The company and group commenters almost universally stated that
deactivation was, given its permanency, appropriate only in rare
circumstances. Most of these commenters did not identify those
circumstances, but stated that NHTSA should determine the proper
categories of persons who would be better off without the air bag,
based on its expertise and data. To the extent that the circumstances
were noted, they are discussed briefly below.
There was universal agreement that certain young children riding in
the front need to be protected from the risk of serious injury from air
bags. Nearly all commenters said that owners and lessees who have
vehicles lacking a rear seat capable of accommodating a rear-facing
infant restraint and who need to transport infants in such restraints
should be able to have the passenger air bag deactivated. Some
commenters suggested that air bags should be turned off for young
children with medical conditions that need frequent monitoring by the
driver. In contrast, the American Academy of Pediatrics stated that
situations in which a child needs immediate attention are very rare,
and that it was more dangerous to attend to them while driving. Another
circumstance suggested by some commenters is the presence of too many
children in a vehicle to place all of them in the back seat.
Other categories mentioned by some of the commenters include people
of short stature, the elderly, and people with certain medical
conditions or disabilities. These categories were also mentioned
extensively in the general public comments. However, the company and
group commenters tended
[[Page 62415]]
to minimize the risk to these categories of people. They generally did
not include the elderly as a category, and some of them suggested that
exemptions for medical reasons should be accompanied by a doctor's
note. One safety group suggested NHTSA employ a licensed medical
professional or panel to examine requests. One medical group suggested
that NHTSA and a panel of medical professionals define qualifying
medical conditions. While some commenters agreed that short people were
in danger, they emphasized the difficulty of determining how short was
too short.
More recent submissions and statements from the company and group
commenters argue that the issue is not occupant height, but sitting
distance from the air bag module. IIHS submitted a survey indicating
that only 5 percent of female drivers (approximately 2.5 percent of all
drivers) are accustomed to sitting within 10 inches of their air bag
module. Of those 5 percent of female drivers, 66 percent normally sit
9-10 inches from their air bag, and an additional 17 percent normally
sit 8-9 inches away. The remainder, accounting for less than 1 percent
of female drivers, normally sit within 8 inches of their air bag.
IIHS also found that a high percentage of short-statured female
drivers could adjust their driving position to achieve a 10-inch
distance. This finding was based on 13 women, from 4 feet, 8 inches
tall to 5 feet, 2 inches tall, who were asked to try to achieve that
distance in a dozen vehicles of varying sizes. Ten of the women
achieved 10 inches in all of the vehicles; the remaining 3 did so in
all but a few of the vehicles. All drivers were able to achieve at
least 9 inches in all vehicles.
Other reasons given for not allowing deactivation based on informed
decisionmaking were assertions that NHTSA's current system of case-by-
case determinations was believed to work well and only needed
unspecified streamlining; that the few deactivation requests NHTSA
received until recently proved that actual need was low; and that the
authorization form would be ineffective, especially with respect to
subsequent purchasers of vehicles with deactivated air bags, as a means
of alleviating the liability concerns of the manufacturer, dealer, and
repair business groups. In an August 1, 1997 letter, a broad coalition
of company and group commenters argued that since the agency was
reportedly answering all deactivation requests within 72 hours and had
no backlog of unanswered requests, the agency should be able under the
final rule to continue its current practice of reviewing and approving
each deactivation request.
In addition to objecting generally to the proposal for deactivation
based on informed decisionmaking, many of the company and group
commenters expressed concerns about particular aspects of the proposed
process for implementing the exemption from the make inoperative
prohibition. The dealer and repair business groups, and generally also
the vehicle manufacturers and safety groups, were opposed to the
dealers having any role in the process of distributing information
brochures or making any kind of decision in the process. They indicated
that it would be difficult to reject the request of an owner who wanted
deactivation or advice on whether to deactivate, yet the dealers did
not have the expertise to advise owners on deactivation. Dealer and
vehicle manufacturer groups also stated that the existing definition of
``advanced air bags'' was too vague and that a dealer could not be
expected to determine whether a vehicle was equipped with one, and
therefore ineligible for deactivation.
Some of the company and group commenters stated that NHTSA should
require guidance from the vehicle manufacturers on how to perform
deactivations. A dealers' group commented that if NHTSA did not require
the vehicle manufacturers to provide procedures, dealers/repairers
might perform improper repairs, and that deactivations should be done
only by factory trained and certified deactivation technicians at a
franchised dealership. Two manufacturers suggested that NHTSA require
manufacturers to provide such procedures, and one suggested requiring
deactivation kits. Ford commented that NHTSA should require
deactivation to be done in accordance with ``manufacturer
recommendations.''
A large majority of company and group commenters also stated that
any recordkeeping under the exemption from the make inoperative
prohibition should be done by NHTSA. Vehicle manufacturers uniformly
stated that NHTSA should keep the records because the agency could
provide a centralized information clearinghouse on air bag
deactivations. Vehicle manufacturers also commented that since they
have no role in authorizing or performing deactivations, or in
enforcement, they should not have recordkeeping responsibilities.
Multinational Business Services (MBS) stated that the agency should be
the recordkeeper so that it could analyze trends among the requests for
deactivation and make any appropriate policy adjustments. The insurance
and safety groups suggested that NHTSA notify insurers of any
deactivations, because permanent deactivation would eliminate the basis
for the air-bag discount many insurance companies offer. GM suggested
that recordkeeping would be totally unnecessary if on-off switches were
installed.
Many of the company and group commenters opposed an immediate
effective date. Jaguar suggested at least 60 days would be needed for
label printing, software development, preparations of procedures for
disconnect/reconnect, and training. Other manufacturers, who urged that
retrofit on-off switches be allowed as an alternative to permanent
deactivation, stated that additional time would be needed for
development of on-off switches. Ford said that it would need 5-6 months
to have a large supply of retrofit on-off switch kits in dealer
inventory. In an August 29, 1997 meeting with NHTSA representatives, a
broad coalition of company and group commenters urged that adequate
leadtime be provided to give the government as well as many of the
company and group commenters sufficient opportunity to communicate
their safety messages about air bag safety and risks to the public.
Opinion about sunsetting (i.e., terminating) the exemption was
divided. GM opposed sunsetting the exemption when ``smart air bag,''
i.e., advanced air bags, are introduced. The company said that until
the term can be adequately defined, NHTSA should remove the term from
the rule, along with any sunsetting associated with it. Advocates for
Highway and Auto Safety commented that sunsetting the exemption was
appropriate.
Some company and group commenters discussed the costs associated
with deactivation. Some manufacturers merely stated that additional
parts and extensive labor would be required for both deactivation and
reactivation. Only Ford gave specific cost estimates. Ford estimates
for parts and labor (but not including profit) ranged from $16 for a
simple shorting bar removal, to $124 for an on-off switch. The NTSB
commented that some manufacturers had indicated to it that the cost of
on-off switches would be $300-400 per on-off switch. Some insurance
groups indicated that insurers might eliminate the air bag discount,
even with on-off switches, because they would be unable to identify
deactivated vehicles. This would penalize those who do not disconnect.
IIHS submitted a July 1997 report in which that organization
concluded the
[[Page 62416]]
results of 40 mph offset frontal crash tests demonstrate that turning
off an air bag increases the risk that a belted driver will be
seriously injured in a crash. Crash tests using dummies representing an
average size male driver indicated that without an air bag, the safety
belts alone would not have prevented a belted driver from suffering
``life-threatening'' head and neck injuries. Similarly, another July
1997 IIHS report concerning 35 mph barrier crash tests with 5th
percentile female dummies indicated that short-statured women can
obtain significant protection from an air bag even when the driver's
seat is moved all the way forward. The tests indicated that without air
bags to spread the crash forces over the entire head, the crash forces
would instead be concentrated on a narrow portion of the middle or
lower portions of the face where the bones are more fragile. IIHS noted
that a study of 15 restrained drivers fatally injured in frontal
crashes with head injuries of AIS 4 or greater, found that steering
wheels were the sources of head injuries for 9 of these drivers, and
that 13 drivers suffered their head injuries from loading to the facial
bones.
Some company and group commenters noted that the adverse effect of
turning off air bags would be greater for some vehicles equipped with
seat belts specially designed to work with air bags. If the crash
forces become too great, these new seat belts ``give'' or yield to
avoid concentrating too much force on the chest. Some of these belt
systems yield by allowing more belt webbing to spool out when a
predetermined force level is reached. The inflated air bag prevents the
occupant from moving too far forward after the seat belts give. Without
the air bag, the new belts allow the occupant to move farther forward
in moderate and high speed crashes.
Commenters addressed the conditions that should apply to
deactivations. A wide variety of companies and groups commented that,
whatever the method of deactivation, it should be done in a manner that
facilitates reactivation. All commenters who addressed the question
stated that the air bag readiness indicator should have to remain
functional for the remaining air bag, even if one air bag were
deactivated. The companies and groups also generally commented that if
both air bags have on-off switches, the air bags should be individually
controllable.
Nearly all company and group commenters emphasized the importance
of the information brochure in promoting an informed decision by
individual members of the public about deactivation. Many said
improvements were needed in the information brochure. The most common
assessment was that the brochure was too long and technical. Others
commented that NHTSA should focus-group test the effectiveness of the
brochure prior to distributing it. Several suggested that the
information be provided in a video.
Many company and group commenters argued that the agency
significantly underestimated the number of people who would seek
deactivation under the proposal. Many commenters argued that the agency
should consider public opinion surveys in making a new estimate. One
commenter urged the agency to base its estimates on the IIHS' January
1997 survey. The most recent survey, an August 1997 survey from IIHS,
indicated that 12 percent of vehicle owners were interested in
obtaining an on-off switch for the driver's air bag and 16 percent for
the passenger's air bag. Based on early 1997 surveys, that commenter
contended that the proposal would have significant net adverse effects
on safety. In an August 1, 1997 letter, the vehicle manufacturers
argued that the net effects must be assessed in order to ensure that
the exemption meets the statutory criterion of consistency with safety.
V. NHTSA's Use of Prosecutorial Discretion to Provide Case-by-Case
Authorization of Air Bag Deactivation
From October 1, 1996, through October 30, 1997, NHTSA received
11,838 written requests for air bag deactivation. The volume of these
requests peaked in the spring, possibly in response to the extensive
publicity surrounding the NTSB hearings in mid-March, then fell
steadily until the last month. In April-May, the agency received
approximately 400 letters per week. In August, the weekly volume fell
to slightly less than 300 letters. By mid-September, the volume
bottomed out at slightly above 100. During October, the volume
rebounded, averaging slightly less than 200 letters per week. That
increase followed the media's reporting of the agency's submission of a
draft final rule to the Office of Management and Budget on October 2.
Since October 29, 1996, the NHTSA Hotline has received over 27,000
calls seeking information about air bags. Approximately 13,500 of them
were from people interested in deactivating their air bags.
More than 60 percent of the written requests, approximately 7,100
out of 11,838, concerned short adults. The vast majority of the
remaining 4,738 requests concerned adults (many of whom were short)
with certain medical conditions. The rest concerned children. Of those
remaining requests, approximately 4,200 were granted, and 500 denied,
by the agency. Approximately 85 percent of the grants were for adult
medical conditions. The remaining approximately 15 percent involved
children, including both children with medical conditions and children
riding in vehicles lacking a rear seat capable of accommodating a rear-
facing infant seat.
In its grant letters to persons with medical conditions, the agency
told owners that if their physicians concluded that the risks
associated with their medical condition and the deployment of their
driver air bag exceeded the risks to their safety from the air bag's
not deploying, NHTSA would not regard deactivation of the air bag as
grounds for an enforcement proceeding.17 Similarly, NHTSA
told vehicle owners whose vehicle lacked a back seat in which to carry
an infant or who needed to monitor closely a child with a special
medical condition 18 that the agency would not regard the
deactivation of the passenger air bag by a dealer or repair business as
grounds for an enforcement proceeding against the dealer or repair
business. The agency urged that the air bag be reactivated when the
circumstances necessitating its deactivation ceased to exist.
---------------------------------------------------------------------------
\17\ In the absence of any other source of expertise, such as
the July 1997 National Conference on Medical Indications for Air Bag
Disconnection, described below, the agency has relied in the past
almost solely upon statements from the physicians of persons
requesting disconnection of air bags. While many of the requests
were granted based upon a physician's statement, some were granted
notwithstanding the absence of a physician's statement. In those
cases, the grant was based upon either the unique characteristics of
the medical condition involved or the existence of physician's
statements attached to earlier deactivation requests of other
individuals with the same medical condition. As discussed below in
part IX.A, the agency has changed its practices with respect to
physicians' statements in response to the National Conference.
\18\ The majority of medical conditions were related to apnea,
although exemptions have also been granted for children in
wheelchairs, and children with a tendency to spit up and choke.
---------------------------------------------------------------------------
Based on the current procedures for handling these requests, it is
estimated that an average of about one hour is spent on each letter.
This estimate covers time spent categorizing letters, making a decision
whether to grant or deny, typing a response, keeping track of the
letters in a data base, reviewing the response, having the response
signed, mailing it, etc. Based on a weighted average of salaries of
those involved, plus 15 percent overhead, and the costs of paper and
postage, it is estimated that the cost to the agency of
[[Page 62417]]
responding to these requests is about $30 per request.
VI. Focus Group Testing of Public Education Materials (June 1997)
To aid the agency in assessing the effectiveness of the materials
it was developing to increase the public's understanding of air bags
risks, and ways of reducing or eliminating those risks, NHTSA conducted
nine focus groups in three cities to test consumer reaction to those
materials. As noted above in the summary of public comments, a number
of commenters urged that the agency take the time to enlist the help of
focus groups.
Two focus groups were conducted in each of the following cities:
Chicago, Illinois, on June 16, 1997, and Greenbelt, Maryland, and
Sarasota, Florida, on June 18. Three more focus groups were conducted
in Greenbelt on June 24 to look at educational materials concerning air
bags. Since public concern about air bag safety has tended to be
concentrated in three categories of vehicle owners, i.e., parents of
young children, short-statured adults, and older adults, the focus
group participants were evenly drawn from those categories. There were
three parent focus groups, three short-statured adult focus groups, and
three older adult focus groups. Each group had about 10 participants.
The knowledge and views of the various groups were fairly similar.
While they had heard about some aspects of the air bag safety story,
they did not know significant parts of it. They said that while they
had heard or seen media reports about risks that air bags can pose for
children, they had received little information about the reasons for
those risks, the life-saving benefits of air bags and the methods of
reducing risk for people of different ages. Early in each focus group
session, and before examining any agency materials, some participants
made remarks critical of the media for using what they called scare
tactics and for focusing almost exclusively on the negative, eye-
catching aspects of the air bag story. They said that media attention
to air bag dangers for young children had created an atmosphere of fear
and mistrust of air bags. They stated that many of their perceptions
had been shaped by those media reports. They had many detailed
questions about air bags, including air bag designs, deployment speed
and force, severity and types of crashes in which they deployed, life-
saving benefits, risk factors, types of injuries, and correct seating
adjustments. They emphasized that public information and education
would reduce misconceptions about air bags and the associated fear.
Among the very important safety messages that had not yet reached
many of the focus group participants was that the recommendation for
children to sit in the back seat applies to all children aged 12 and
under, not just infants. In an attempt to get this message to vehicle
owners last fall, the agency issued a final rule requiring labels in
new vehicles expressly warning purchasers about air bag dangers for
children aged 12 and under and recommending that children sit in the
rear.19 Further, the vehicle manufacturers' distributed
copies of these labels to virtually all owners of existing vehicles
with passenger air bags. Many participants were also unaware that
proximity to the driver air bag at the time of deployment is the
primary source of the risk to drivers of serious air bag-related
injuries. They were pleased to be provided with a specific
recommendation (10 inches) about the distance that drivers should sit
from their air bags. Many participants said that they would attempt to
change their driving position.
---------------------------------------------------------------------------
\19\ As noted more fully in footnote 23 below, it is safer for
children sit in the rear seat in all passenger vehicles, even if the
vehicle does not have a passenger air bag. NHTSA recommends that all
children aged 12 and under sit in the rear, regardless of whether
there is a passenger air bag in the front seat.
---------------------------------------------------------------------------
To determine how much air bag information the public really wants,
the three June 24 focus groups were asked to compare a short brochure
(essentially a 3-fold accordion brochure) and a long brochure (i.e., an
earlier draft of the information brochure in Appendix A of the rule)
concerning air bags and on-off switches. Each of the three groups
unanimously endorsed the long brochure. These groups, consisting of an
older adult group, a short-statured adult group and a parents group,
stated that they wanted a lot of detailed, balanced information
concerning air bags and air bag safety so that they could make up their
own minds about seriousness and sources of the risks, and about their
ability to avoid those risks. For example, they wanted to know why the
upper limit on the group of children who should sit in back was stated
in terms of age, instead of height or weight.
The educational value of the additional detailed information in the
draft long brochure was demonstrated in a number of instances. For
example, about 30-40 percent of the participants expressed surprise at
learning that air bags differ in design and performance from vehicle
model to vehicle model. They asked for more detailed information on how
and why the air bags differed. An equal number were surprised to learn
that air bags were vented and deflated in seconds after a crash. Before
learning that, they thought that an air bag would remain inflated and
could smother them or prevent their exiting from their vehicle after a
crash. They expressed relief when they were informed that if they had
to transport too many children to place them all in the rear seat, they
could virtually eliminate any risk by placing a child (preferably the
eldest) in the front seat, ensuring that the child properly used the
seat belts and remained sitting upright against the back of the vehicle
seat, and moving the seat all the way back.
VII. Physicians' Conference on Medical Conditions That Warrant Turning
Off an Air Bag (July 1997)
At the request of NHTSA, the Ronald Reagan Institute of Emergency
Medicine at George Washington University conducted a National
Conference on Medical Indications for Air Bag Disconnection on July 16-
18, 1997. The purpose of the conference was to make recommendations on
specific medical indications, i.e., conditions, that might warrant
disconnecting an air bag. The conference consisted of a panel of
representatives of 17 medical specialty societies or organizations.
NHTSA selected the societies and organizations, in consultation with
the University, based on the types of medical indications that vehicle
owners were citing in their letters to NHTSA as possible justification
for air bag disconnection. Each society and organization, in turn,
selected a representative to attend the conference. Among the specialty
areas and types of physicians represented were cardiology,
ophthalmology, otolaryngology (ear, nose and throat), obstetrics and
gynecology, physical and rehabilitative medicine, general surgeons,
plastic and reconstructive surgery, orthopaedic surgery, neurological
surgery, pediatrics, geriatrics, and emergency physicians. The American
Medical Association was also represented.
The agency arranged for this conference for several reasons. First,
informal agency conversations with emergency room physicians and
surgeons familiar with the trauma caused by motor vehicle crashes had
suggested to the agency that very few medical conditions warrant
turning off an air bag. Second, several commenters on the January NPRM
urged that the medical profession be enlisted to help identify those
conditions. The American Academy of Pediatrics said that such
[[Page 62418]]
professional guidance was needed to educate dealers, repair businesses
and some parts of the medical community itself about the circumstances
under which it is appropriate to turn off an air bag. Advocates for
Highway and Auto Safety urged that a panel of medical experts be
convened to examine each vehicle owner request to turn off an air bag
based on medical reasons.
While the agency does not believe that it is necessary or desirable
for a panel of medical experts to review each such request, the agency
did agree that general authoritative advice is needed to answer the
concerns of some vehicle owners about air bags and help guide their
actions. Since individuals with particular medical conditions can be
expected to consult their physician prior to deciding whether to have
an on-off switch installed, the medical profession also needs some
guidance on when deactivation would be indicated.
In preparation for the conference, the representatives reviewed the
available medical and engineering literature about air bag technology
and injury risk and prevention. At the conference, the 17
representatives were divided into subpanels. Based on their literature
review and clinical experience, the subpanels addressed each medical
indication with respect to seven factors: known data, unknown data,
recommendation, level of confidence in the recommendation, rationale
for the recommendation, specific concerns about the recommendation, and
stakeholders. The entire panel then discussed the work of the subpanels
and adopted final recommendations.
General Panel Conclusions
Air bags are effective lifesavers whose benefits exceed the risks
for most of the medical conditions considered by the panel. A medical
condition does not warrant turning off an air bag unless the condition
makes it impossible for a person to maintain an adequate distance from
the air bag. NHTSA believes that 10 inches is an adequate distance.
Specific Recommendations
Excerpts from the panel's specific recommendations follow,
beginning with the recommendations regarding the medical indications
most commonly cited by persons who have written to NHTSA requesting
deactivation based on a medical indication. Unless specifically
indicated, the recommendations relate to drivers.
Medical Indications Not Warranting Disconnection of Air Bags
Medical Indications Most Commonly Cited by Vehicle Owners
Osteogenesis Imperfecta
The panel recommends air bag not be disconnected for persons with
osteogenesis imperfecta.
While there is little population-based data in the crash experience
of this group, it is anticipated that the injury risk to these persons
is higher without an air bag and proper restraint than with an air bag.
Osteoporosis/Arthritis
For persons with osteoporosis, arthritis, and other skeletal
conditions, air bags should not be disconnected unless the person
cannot sit back a safe distance from the air bag.
Persons with specific conditions, such as ankylosing spondylitis,
may have a relatively stiff spine and thus may be unable to place
themselves an acceptable distance from the steering wheel while
driving. Other than in this specific circumstance, persons with
osteoporosis and types of arthritis are generally benefitted by the
presence of an air bag.
Pacemakers
There is no evidence to support disconnecting airbags for occupants
who have pacemakers, implantable defibrillators, or similar devices.
Pacemakers and similar hardware are specifically designed to
withstand impact. The forces associated with air bag deployment are
typically distributed throughout the chest and are not directed at one
specific area. The impact suffered without an air bag may in fact be
more severe and more localized than that with an air bag. Clinical
experience does not demonstrate any significant concern about the
effects of air bag deployment on this type of hardware when properly
installed. As forces to the chest in areas directly contacted by
seatbelts may exceed forces from air bags, it is important the belts be
placed properly and not directly over these devices.
Median Sternotomy
We recommend that persons who have undergone median sternotomy not
disconnect air bags.
Uneven pressure on the chest can harm a patient with a recent
median sternotomy because the external wound may be opened. An air bag
does not cause this uneven force; seatbelts or striking an object like
a dashboard can cause this uneven force.
Chronic Obstructive Pulmonary Disease/Emphysema/Asthma
We recommend not to disconnect air bags for patients with these
chronic lung diseases.
There is no risk of oxygen deprivation during air bag deployment
because of the quick deflation of the device. There is some equivocal
evidence to suggest that the chemical irritants produced may
precipitate bronchospasm in persons with asthma. However, there is no
evidence to suggest that this phenomenon is occurring with any greater
frequency in the presence of air bags. There is no reason to suspect
that persons with any type of chronic lung disease will be adversely
affected by an air bag deployment sufficiently enough to justify
disconnection of the device.
Short Stature
We are not able to determine an absolute cut-off height and weight
for disconnection of air bags.
Short stature is a common area of concern for the public in regard
to air bag deployment. As proximity to the air bag is the major issue,
the passenger-side air bag should not be disconnected for a passenger
of short stature. Beyond just short stature, weight, arm length, and
leg length also play important roles in driver positioning. We know
that a disproportionate number of the deaths attributed to air bag
deployment have occurred in persons of short stature. However, of the
150,000 estimated air bag deployments involving persons of short
stature, only 14 are known to have been fatal.
Some of the Less Commonly Cited Medical Indications
Eyeglasses
There is no reason to recommend disconnection of air bags for
persons wearing eyeglasses.
There are a number of anecdotal cases of eye injuries after air bag
deployment, both with and without eyeglasses. Eyeglasses may, in fact,
be protective during air bag deployment. There is no obvious increased
risk of injuries in the presence of eyeglasses; moreover, impact with
the steering column or dashboard may be more dangerous to someone
wearing eyeglasses than impact with an air bag. Persons who need
eyeglasses should wear them to drive and should not have air bags
disconnected solely because of the eyeglasses.
Hyperacusis or Tinnitus
We recommend not to disconnect air bags for persons with
hyperacusis or tinnitus.
[[Page 62419]]
(T)he phenomenon of hearing loss has not been noted to occur due to
air bags. The specific conditions of hyperacusis and tinnitus are not
associated with hearing loss and persons with these conditions would
have no greater likelihood of hearing loss from air bag deployment than
any other persons. Some persons with tinnitus report that noise
triggers attacks of tinnitus; however, it is difficult to separate the
noise of an air bag from the noise of a crash in many situations.
Advanced Age
Advanced age by itself does not suggest the need for air bag
disconnection.
It is known that older persons are at greater risk of injury in all
types of crashes. The data suggests that air bags may be less effective
in the older population although the cause of this finding is unclear.
There is no evidence to suggest that advanced age by itself, in the
absence of other potential risk factors examined here, warrants air bag
disconnection.
With respect to passenger seat occupants in general, the conference
participants said:
Under most circumstances, with the notable exception of infants in
rear-facing infant seats, the person in the passenger position can be
made safe from inadvertent injury by the use of proper restraint and
placement of the seat in the most rear position. Certain vehicles with
bench seats may complicate this issue and may need to be considered
carefully on a case-by-case basis.
Medical Indications Warranting Disconnection of Air Bag
Osteoporosis/arthritis
For persons with osteoporosis, arthritis, and other skeletal
conditions, air bags should not be disconnected unless the person
cannot sit back a safe distance from the air bag.20
(Emphasis added.)
---------------------------------------------------------------------------
\20\ NHTSA believes that the safe distance for drivers with
osteoporosis/arthritis is the same as that for persons without any
medical indications, i.e., 10 inches between the center of the
driver air bag cover and the center of the driver's breastbone.
---------------------------------------------------------------------------
Scoliosis
If capable of being positioned properly, persons with scoliosis
should keep air bag connected in their vehicles. 21
(Emphasis added.)
---------------------------------------------------------------------------
\21\ NHTSA defines properly positioned to mean positioned so
that there is at least 10 inches between the center of the air bag
cover and the center of the driver's breastbone.
---------------------------------------------------------------------------
This specific condition might make it impossible for a person to
sit upright and away from the air bag. This very small portion of the
population of persons with scoliosis might be candidates for
disconnection. It must be remembered that a person sitting far forward
in either the driver or passenger seat is also at increased risk of
injury from other structures (steering column, dashboard) in front of
them.
This specific condition might make it impossible for a person to
sit upright and away from the air bag. This very small portion of the
population of persons with scoliosis might be candidates for
disconnection. It must be remembered that a person sitting far forward
in either the driver or passenger seat is also at increased risk of
injury from other structures (steering column, dashboard) in front of
them.
Wheelchairs
For persons in wheelchairs the decision to allow disconnection of
the air bag should be handled on a case-by-case basis. Disconnection
may be needed if installation of special equipment requires removal of
the air bag. If wheelchair installation or steering column
configuration does not necessitate air bag removal, we recommend not to
disconnect air bags.
Achondroplasia
In persons with achondroplasia we recommend allowing disconnection
of driver-side air bag only if the person is unable to sit back from
the air bag.
Persons with significantly congenitally shortened limbs may be
required to sit very close to the steering wheel in order to operate a
vehicle. In this situation, pedal-extenders will offer limited
assistance as the arms are also affected. However, there is no reason
to disconnect the passenger-side air bag for an occupant with
achondroplasia. (Emphasis added.)
Down syndrome and atlantoaxial instability
Disconnection of the passenger air bag is warranted if a person
with this specific condition cannot reliably sit properly aligned in
the front seat, such as in those with developmental delay.
Children and adults with severe developmental delay, including some
with Down syndrome, may be incapable of consistently maintaining a
position away from a passenger-side air bag. If these individuals
cannot ride in a back seat, air bag disconnection may be warranted.
While there is no known data on this specific situation in relation
to air bags, atlantoaxial instability is present in 20% of persons with
Down syndrome. This instability creates the clear risk of atlantoaxial
subluxation. Persons with this condition should clearly sit properly
restrained in the back seat of a vehicle. In situations in which they
must sit in the front seat, air bag disconnection may be warranted
because of the risk of cervical injury, particularly if these
individuals have developmental delay which prevents them from
consistently maintaining proper positioning. (Emphasis added.)
Monitoring of Infants and Children
The panel recognizes that there are a few specific medical
conditions in which infants and young children must be in the front
seat for monitoring by the adult driving. In such situations, the
passenger side air bag may need to be disconnected.
Parents are frequently concerned that they will be unable to
properly monitor their infants if the infants are in the back seat
without an adult. The American Academy of Pediatrics has clearly
recommended that infants without underlying medical conditions can
safely ride alone in the back seat properly restrained in a rear-facing
restraint. The data shows that in the absence of an air bag, the injury
risk in the back seat is 30% less than the risk in the front seat. The
panel recognizes that certain vehicles do not have back seats. In these
vehicles the option of on-off switches is already available.
Monitoring of certain infants may require placement of the car seat
in the front passenger seat when the only adult in the vehicle is the
driver. These situations may warrant air bag disconnection or an on-off
option. Parents should clearly recognize that distraction while driving
significantly increases the risk of a crash. Ideally, if a child needs
attendance in a vehicle, someone other than the driver should be
available. It is anticipated that the American Academy of Pediatrics
will make recommendations regarding which specific conditions warrant
close monitoring while driving.
VIII. Agency Decision To Issue Exemption Authorizing Installation of
Retrofit On-Off Switches
A. Summary
This final rule exempts, under certain conditions, motor vehicle
dealers and repair businesses from the ``make inoperative'' prohibition
in 49 U.S.C. 30122 by allowing them, beginning January 19, 1998, to
install retrofit manual on-off switches for air bags in vehicles owned
by people whose request for a switch is approved by NHTSA. The purpose
of the exemption is to preserve the benefits of air bags while reducing
the risk that some
[[Page 62420]]
people have of being seriously or fatally injured by current air bags.
Although the agency still believes that it is appropriate to
exclude vehicles with advanced air bags from the exemption, it has not
done so in this final rule. It is not necessary to do so yet since
widespread introduction of advanced air bags is not expected during the
next several years. This will give the agency time to develop an
improved definition of ``advanced air bag'' and to address how dealers
and repair businesses will be able to ascertain whether a particular
vehicle has advanced air bags.
The agency has decided not only to authorize retrofit on-off
switches, but to specify that they will be the only means authorized
under the exemption for turning off an air bag.22 The agency
has made that choice because on-off switches are a more flexible and
focused solution than deactivation to the risks which air bags may pose
to certain people and thus are significantly more consistent with
safety than deactivation. With retrofit on-off switches, air bags can
be left on for the vast majority of the persons who will benefit from
air bag protection and turned off for the relatively few persons at
risk. By contrast, deactivation is essentially permanent and makes no
distinction between vehicle users who are at risk from air bags and
those who are not at risk from air bags and who will benefit
substantially from them.
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\22\ As explained below, full deactivation will continue to be
available in limited circumstances through the agency's exercise of
its prosecutorial discretion.
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Under the exemption, vehicle owners can obtain a retrofit on-off
switch from a dealer or repair business after filling out and
submitting a request form to the agency and obtaining the agency's
approval. The agency will begin processing and granting requests on
December 18, 1997.
To promote the making of informed decisions about requesting and
using on-off switches, consumers must certify on the form that they
have read an agency information brochure providing guidance about the
risks created by current air bags and describing the groups of people
for whom it may be appropriate to obtain and use on-off switches to
turn off air bags. The requirement for this certification is intended
to help encourage persons considering on-off switches to focus on the
factors that create risk from air bags and to reflect on whether they
or their passengers are really at risk. Owners must also certify that
they or another user of their vehicle is a member of one of the
particular risk groups identified by the agency. Since the risk groups
for drivers are different from those for passengers, a separate
certification must be made for each air bag to be equipped with an on-
off switch.
The agency strongly urges caution in obtaining and using on-off
switches to turn off air bags. While on-off switches may be needed by a
limited number of people in particular circumstances, they are not
needed for the vast majority of people since they are not in a risk
group. In fact, if people not at risk were to turn off their air bags,
they would be less safe, not safer. Even those people in a risk group
can take steps that will eliminate or significantly reduce any risk
they might currently have without going to the extreme of turning off
their air bag and losing its protective value. The easiest way of
eliminating the risk for children is to place them in the back seat and
buckle them up.23 Those drivers who are at risk can
eliminate that risk by using their seat belts and by moving the
driver's seat rearward and/or tilting the back of the driver's seat so
that there is 10 inches or almost 10 inches between the center of their
breastbone and the center of the driver air bag. The primary risk of
injury occurs 2-3 inches from the air bag cover because that is where
the force of a deploying air bag is greatest.24
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\23\ Contrary to some media reports, the back seat has always
been much safer than the front seat. Sitting in the back seat
significantly reduces the likelihood of fatal injury for children,
even in vehicles without air bags. Further, sitting in the back seat
helps restrained children just as much as it helps unrestrained
children. To quantify the benefits of sitting in the back seat,
NHTSA analyzed data from vehicle crashes in 1988-1994. Very few of
the vehicles in those crashes had passenger air bags. The agency
concluded that placing children in back reduced the risk of death in
a crash by 27 percent. This conclusion applies to restrained as well
as unrestrained children. The size of this reduction can be
appreciated from considering the following example. The number of
children killed each year while riding in the front seat of a
vehicle is over 500. If those 500 children had instead been sitting
in the back seat, 135 of those children would still be alive because
the back seat is a much safer seating environment for reasons having
nothing to do with air bags. A new study of IIHS reaches a similar
conclusion about the benefits of sitting in the back seat. After
examining data from essentially the same time period regarding more
than 26,000 children riding in vehicles that were involved in fatal
crashes and lacked passenger air bags, IIHS concluded that sitting
in the back seat reduced the death rates by more than 27 percent,
whether the children were restrained or not. The safest position of
all was the center rear seat.
\24\ NHTSA is recommending 10 inches as the minimum distance
that drivers should keep between their breastbone and their air bags
for several reasons. First, the agency believes that drivers who sit
10 inches away and buckle up will not be at risk of serious air bag
injury. Drivers who can maintain that distance will be much safer if
they keep their air bags on.
The 10-inch distance is a general guideline that includes a
clear safety margin. IIHS recommended the same distance in its
comments. The 10-inch distance ensures that vehicle occupants start
far enough back so that, between the time that pre-crash braking
begins and time that the air bag begins to inflate, the occupants
will not have time to move forward and contact their air bag until
it has completed or nearly completed its inflation. The 10-inch
distance was calculated by allowing 2-3 inches for the size of the
risk zone around the air bag cover, 5 inches for the distance that
occupants may move forward while the air bags are fully inflating,
and 2-3 more inches to give a margin of safety. The 5-inch rule of
thumb commonly used in air bag described in the paper, ``How Airbags
Work (Design, Deploying Criteria, Costs, Perspective)'' presented by
David Breed at the October 19-20, 1992 Canadian Association of Road
Safety Professional International Conference on Airbags and Seat
Belts.
Second, the agency is focusing attention on the 10-inch distance
because it wants drivers to strive to get back 10 inches. NHTSA
believes that almost everyone can achieve at least 10 inches and get
the extra margin of safety that comes from sitting that far back.
See the July 1997 survey submitted by IIHS.
However, some drivers who cannot get back a full 10 inches will
still be safer, on balance, if they are protected by their air bag.
The nearer that these drivers can come to achieving the 10-inch
distance, the lower their risk of being injured by the air bag and
the higher their chance of being saved by the air bag. Since air bag
performance differs among vehicle models, drivers may wish to
consult their vehicle manufacturer for additional advice.
NHTSA considered an alternative suggestion by Ford in late
August 1997 meeting with the agency that the 10-inch distance be
measured from the air bag to the chin instead of the breastbone. The
agency has decided to use the breastbone as the measuring point
because of the greater safety margin provided.
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This exemption will be subject to certain conditions to promote the
safe use of on-off switches. Each on-off switch must meet certain
performance criteria similar to those applicable to the manual on-off
switches that vehicle manufacturers may currently install for passenger
air bags in new vehicles that do not have a rear seat capable of
accommodating a rear-facing infant seat. One is that the on-off switch
be operable by a key. Another is that there be a telltale light to
indicate to vehicle occupants whether an air bag equipped with an on-
off switch is on or off. As a reminder about the proper use of on-off
switches, the agency is requiring that vehicle dealers and repair
businesses give owners an owner's manual insert describing the
operation of the on-off switch, listing the risk groups, stating that
the on-off switch should be used to turn off an air bag for risk group
members only, and stating the vehicle specific safety consequences of
using the on-off switch for a person who is not in any risk
group.25 Those consequences
[[Page 62421]]
would include the effect of any energy managing features, e.g., load
limiters, on seat belt performance. NHTSA anticipates that the inserts
would be obtained primarily from the vehicle manufacturers, although in
some cases the inserts might be obtained from independent switch
manufacturers.
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\25\ Vehicle manufacturers that install on-off switches in new
vehicles lacking a rear seat capable of accommodating a rear-facing
infant seat must, among other things, include in the owner's manual
a statement of the safety consequences of using the on-off switch to
turn off the passenger air bag for persons other than infants in
such seats. See S4.5.4 and S4.5.4.4 of Standard No. 208. To comply
with that requirement, manufacturers must state that the air bag
will not inflate in a crash and that the occupant therefore will not
have the extra protection of the air bag. To conform S4.5.4.4 to
this final rule, NHTSA has amended that provision in this final rule
so that the provision requires the listing the same risk groups
listed in the information brochure and requires a statement of the
vehicle specific safety consequences of using the on-off switch for
persons not listed in those groups.
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As noted above, the agency is setting January 19, 1998 as the date
on which dealers and repair business may begin to install switches.
This date was selected to allow time for the design and production of
on-off switches and the proper training of installation personnel.
Until then, NHTSA will continue its current practice of using its
prosecutorial discretion to grant requests for deactivation on a case-
by-case basis in a limited set of circumstances, e.g., unusual medical
conditions. Beginning on January 19, vehicle manufacturers and
aftermarket parts manufacturer may make on-off switches available to
vehicle owners who have an agency authorization letter. NHTSA expects
that vehicle manufacturers will make on-off switches available for the
majority of vehicle makes and models. The agency will continue to
consider deactivation requests after January 19 only for vehicles for
which retrofit on-off switches are not available from the vehicle
manufacturer. If aftermarket parts manufacturers make on-off switches
available for any of those vehicles after January 19, motor vehicle
dealers and repair businesses may install such switches for owners who
have an agency authorization letter.
B. The Challenge and Overall Rationale
1. Risk Versus Perception of Risk
While air bags have proven to be highly effective in reducing
fatalities in frontal crashes, and have saved about 2,287 drivers and
332 passengers (as of November 1, 1997), they are also known to have
killed 35 drivers, 49 children, and 3 adult passengers (as of November
1, 1997). As discussed above, all of these fatalities occurred because
of extreme proximity to the air bag, and almost all could have been
prevented by behavioral changes, such as not placing infants in rear-
facing infant restraints in the front seat, placing all children in the
back seat, moving front seats farther back, and ensuring that all
occupants are properly restrained.
As a whole, media reports about air bag fatalities have contributed
to the heightening of the public's concerns about air bags, and of
their desire to deactivate their air bags. Those reports deserve credit
for helping spread the word about the real risks associated with air
bags for some people. Increased public knowledge about the risks has
helped induce changes in behavior to reduce or even eliminate those
risks, e.g., by putting children in the back seat of vehicles.
However, some behavioral effects of those accounts may not be
positive. Some media accounts which initially served the public by
drawing attention to an initially unknown or underappreciated risk may
ultimately have had the unintended consequence of causing people to
generalize and exaggerate those risks. Unfortunately, many members of
the public have focused their attention on the possibility of being
killed by an air bag, to the exclusion of other factors that may be
more determinative of their overall safety. These factors include the
very small magnitude of risk from the air bag, the ability of teenagers
and adults to preserve the benefits of air bags and nearly eliminate
any risk by behavioral actions such as wearing safety belts and moving
front seats back, and the much greater risk, almost always faced by the
same occupants in the absence of an air bag, of hitting their heads,
necks or chests on the steering wheel or dashboard in a moderate or
serious crash.
By focusing on only one of an interrelated set of risks which
consumers face while traveling by motor vehicle, and thus magnifying
that one risk out of proportion to those other risks, some media
accounts may also have had the effect of obscuring those other risks.
Those accounts may cause some people to so focus on that one risk to
the exclusion of the other risks that they induce those people to take
actions that increase, instead of decrease, their overall risk of
injury in a motor vehicle. The potential exists for a significant
number of people doing just that. As noted elsewhere in this notice,
several public opinion surveys indicate that the extent of the public
interest in turning off air bags exceeds the number of persons actually
at risk from them. For many of the teenagers and adults among these
people, concern about air bags apparently tends to overshadow a much
greater risk faced by these same occupants, i.e., the risk that, in the
absence of an air bag, they will strike their head, neck or chest on
the steering wheel or dashboard in a moderate to severe crash. This
risk exists even for properly belted occupants.
2. Which Groups Are Really at Risk?
As noted above, air bag-related deaths are not random. They tend to
involve particular groups of people who share common behavioral or
other characteristics. The relatively few people who share those
characteristics will be safer overall if they turn off their air bags.
Conversely, people who do not share those characteristics would be less
safe overall if they did so.
The primary source of risk is contact with or close proximity to
the air bag module at the initial instant of deployment. The deploying
force is the greatest in the first 2-3 inches of deployment.
On the passenger side, it is primarily children who get too close
to the air bag. Infants get too close by being placed in a rear-facing
infant restraint. That positions the child's head so that it is very
close to the dashboard where the air bag is stored. Older children,
i.e., children age 1-12, get too close typically because they are
allowed to ride completely unrestrained. During pre-crash braking,
these unrestrained children slide forward and are up against or very
near the dashboard when the air bag begins to deploy. A few children
have gotten too close because although they were placed in lap and
shoulder belts, they either removed their shoulder belt or leaned far
forward.
On the driver side, the fatally-injured drivers are believed to be
people who sat close to their steering wheels primarily out of habit,
although some may have done it out of necessity. Some may have been
drivers who were physically unable to maintain a 10-inch distance
between their air bag cover and their breastbone because of the limits
of their reach (arm and leg length) or because of fatigue or other
physical factors. However, they were generally tall enough that all or
almost all of them should have been able to get back 10 inches. While
they may have been able to maintain that distance, perhaps they did not
do so because they had grown accustomed to sitting close to their
steering wheel as matter of a preference. A few of the drivers were
slumped over their steering wheel at the time of deployment due to
medical conditions.
A second source of potential risk is a very limited number of
medical conditions. Apart from the medical conditions which caused
several drivers to lose consciousness and slump over their steering
wheels, none of the air bag
[[Page 62422]]
fatalities confirmed to date has been attributed to the existence of a
pre-existing medical condition that made the fatally-injured person
more susceptible than the average person to injury from an air bag.
26 To provide vehicle owners and their physicians with
guidance concerning which medical conditions warrant turning off an air
bag, NHTSA arranged for the convening of representatives of the medical
community in July 1997. The results of their deliberations are
discussed above. Briefly, it appears that, in a very small number of
cases in which a medical condition prevents a person from getting back
10 inches, a medical condition might, in combination with an air bag,
present enough of a risk to warrant turning off either a driver or
passenger air bag.
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\26\ Two of the fatally-injured drivers were diabetics. While
diabetes did not by itself make those persons more prone to injury,
it did cause them to black out and slump over their steering wheel
prior to the fatal crash.
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3. Agency Actions to Minimize Risks
In the longer term, the problems associated with air bags will be
addressed and largely eliminated by changes in technology, initially by
depowering and making various incremental improvements to air bags, and
ultimately by installing advanced air bags. Standard No. 208 has
provided all the flexibility necessary to enable vehicle manufacturers
to develop and introduce those air bags, but thus far has not required
their introduction. However, the challenge now facing NHTSA and the
public is how to preserve the life-saving benefits of current air bags,
while addressing the needs of the relatively small number of persons
facing risks from these air bags as well as the fears being experienced
by a much larger number of persons.
In meeting this challenge, NHTSA believes that it is essential to
consider safety benefits in both the shorter term and longer term. The
agency recognizes that, given the small number of fatalities associated
with air bags as compared to the number of lives saved, the short-run
safety benefits of air bags would be best preserved by minimizing the
situations in which air bags are turned off, i.e., limiting the
situations to the relatively rare ones where a person is actually
better off with his or her air bag turned off.
However, the agency believes that great care must be taken with
respect to how this is accomplished, to avoid a potentially much
greater loss of safety benefits in the longer run. As the agency
discussed in the depowering final rule, the continued availability of
any safety device as standard equipment, whether provided voluntarily
by manufacturers or pursuant to a regulation, is ultimately dependent
on public acceptability. The agency believes that air bags which
fatally injure occupants, particularly children in low speed crashes,
place the concept of air bags at risk despite their overall net safety
benefits. Thus, the agency believes it must take great care in how it
responds to requests for turning off air bags, lest its actions have
the unintended effect of reducing the public acceptability of air bags
and their potential as a life-saving device.
Mindful of these considerations, the agency is taking the following
actions:
1. In light of changed circumstances which make retrofit on-off
switches a much more readily available option, NHTSA is specifying that
they will be the only means authorized under the exemption for turning
off an air bag. This will ensure that any air bag which is turned off
for an occupant at risk can be readily turned on again for occupants
who are not at risk. (In very limited cases, deactivation will continue
to be available through the agency's exercise of its prosecutorial
discretion.)
2. NHTSA has taken a balanced approach in establishing the process
for determining which vehicle owners may have a dealer or repair
business install an on-off switch. The agency is not going to insist
that facts establishing the need for turning off an air bag be
documented by the vehicle owner. Instead, the agency is requiring
owners who wish to obtain on-off switches to certify, by marking a box
on a request form developed by the agency, that they have read an
agency information brochure providing guidance about the risks created
by current air bags and discussing the circumstances in which it may be
appropriate to use on-off switches. Owners must also certify that they
or a user of their vehicle belongs to one of the risk groups identified
by the agency. NHTSA is also requiring that vehicle owners submit their
completed request forms to the agency for approval. This requirement
will help reinforce the need for care and accuracy by owners in
certifying risk group membership. The requirement will also enable the
agency to monitor, from the very beginning, the patterns in switch
requests and risk group certifications.
The agency has identified four risk groups. Based on the agency's
assessment of risk, persons in the first two groups have a high enough
risk that they would definitely be better off if an on-off switch is
used to turn off their air bag:
Infants in rear-facing infant seats.
A rear-facing infant seat must never be placed in the front seat
unless the air bag is turned off. If a vehicle owner must transport an
infant in the front seat, the owner is eligible for an on-off switch
for the passenger air bag. The owner should get an on-off switch and
turn off the air bag when the infant rides in front.
Note: NHTSA emphasizes that air bag-related risks for infants
can be completely avoided by placing them in the back seat. The back
seat has always been a much safer place for children than the front
seat, even before there were any passenger air bags.
Drivers or passengers with unusual medical or physical
conditions.
These are people who have been advised by a physician that an air
bag poses a special risk to them because of their condition. However,
they should not turn off their air bag unless their physician also has
advised them that this risk is greater than what may happen if they do
turn off their air bag. Without an air bag, and even if belted, such
persons could hit their head, neck or chest on the steering wheel in a
crash. Medical conditions will not pose special risks unless the
conditions make it impossible to sit 10 inches from the air bag. Only a
few conditions have that effect. See the above discussion of the
national conference of physicians.
Persons in the two other groups of people may be better off using
an air bag on-off switch.
Children ages 1 to 12.
Children in this age group can be transported safely in the front
seat if they are properly belted, they do not lean forward, and their
seat is moved all the way back. Almost all fatally injured children in
this age range were completely unrestrained. But children, even when
properly restrained, sometimes sit or lean far forward. The simple act
of leaning forward to see out of the window or to change the radio
station can place even a belted child in danger. They may also slip out
of their shoulder belts, putting themselves at risk. If a vehicle owner
must transport a child in the front seat, the owner is eligible for an
on-off switch for the passenger air bag.27 Since air bag
performance differs from vehicle model to vehicle model, the vehicle
owner may
[[Page 62423]]
wish to consult the vehicle manufacturer for additional advice.
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\27\ In its August 1997 survey concerning public interest in
turning off air bags, IIHS asked the 137 respondents who owned dual
air bag vehicles and said they carried children in the front seat
why they carried children in that location. Approximately 20 percent
of the respondents gave answers indicating that they carried
children in the front seat out of necessity, e.g., ``no room in back
seat,'' ``big family,'' ``car pool,'' and ``no rear seats in
vehicle.'' Over half of the remaining 80 percent of the respondents
said either ``child wants to ride in front seat,'' or ``driver wants
child in front seat.''
Note: The air bag related risks for these children can be
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avoided completely by placing them in the back seat.
Drivers who cannot get back 10 inches.
Ideally, drivers should sit with at least 10 inches between the
center of their breastbone and the cover of their air bag. Since the
risk zone at the time of deployment is the first 2-3 inches from the
air bag cover, sitting back 10 inches provides a clear margin of
safety. By using their seat belts and sitting at that distance, drivers
will eliminate the risk of serious air bag injury, and thus any need
for an on-off switch.
Very few drivers are unable to achieve and maintain the 10-inch
distance. The vast majority of drivers already sit that far or farther
from their air bag.28 The vast majority of those drivers who
do not now sit that far back can change their position and achieve that
distance. (See the information brochure for advice about changing
position.) 29 Drivers unable to get back 10 inches, even
after following that advice, should consult their dealer or vehicle
manufacturer for additional advice or for information regarding vehicle
modifications to help them to move back.
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\28\ Drivers who think that they are currently sitting closer
than 10 inches should get a ruler and measure the distance. Research
shows that many drivers underestimate the distance between them and
their air bags. When they actually measure the distance, they often
find that it is 10 or more inches.
\29\ Drivers may underestimate their ability to change their
driving position to achieve the 10-inch distance. A recent IIHS
survey indicates that only 5 percent of female drivers
(approximately 2.5 percent of all drivers) normally now sit less
than 10 inches away from their air bag module. Another recent IIHS
survey shows that most short-statured female drivers (10 out of 13
women ranging in height from 4 feet 8 inches to 5 feet 2 inches)
could adjust their driving position to achieve that 10 inch distance
in all 12 test vehicles used by IIHS. The remaining three drivers
could achieve 10 inches in almost all of the vehicles.
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Drivers who cannot get back 10 inches, despite all efforts, may
wish to consider an on-off switch. However, the nearer they can come to
getting back that distance, the less likely the air bag will injure
them and the less need there will be to get an on-off switch. If
drivers can get back almost 10 inches, the air bag is unlikely to
seriously injure them in a crash and they probably do not need an on-
off switch. These drivers, plus those who cannot get back almost 10
inches, may wish to consult the vehicle manufacturer for additional
advice since air bag performance differs among the various vehicle
models.
3. Finally, the agency plans, in conjunction with other
organizations, a public education information campaign to put air bag
risks and benefits into proper perspective, to encourage those persons
at special risk from current air bags to take steps to reduce those
risks without losing the protection of their air bags, and to promote
the enactment and effective enforcement of State laws concerning the
use of seat belts and child restraints.
C. Changes in Circumstances Since the NPRM Make Retrofit On-Off
Switches Preferable to Deactivation
In the January 1997 deactivation proposal, the agency compared the
merits of deactivation to those of on-off switches in a companion
notice, i.e., a January 1997 final rule extending the duration of the
option allowing on-off switches for passenger air bags in certain new
vehicles. NHTSA concluded in the preamble to the on-off switch final
rule that it was better from a safety standpoint to selectively
deactivate the air bags after the vehicles had been produced, in
response to specific consumer requests, than to authorize installation
of on-off switches as standard equipment in those vehicles when they
were produced. NHTSA placed great weight in that discussion on the long
leadtime that vehicle manufacturers had previously said would be needed
to integrate standard equipment on-off switches into new vehicles and
on concerns expressed by the vehicle manufacturers that the integration
efforts would disrupt the development of advanced air bags. In response
to an August 1996 NPRM, the vehicle manufacturers had indicated that
development and installation of standard equipment on-off switches for
makes and models not already equipped with them would take at least one
year. As a practical matter, given the time estimates from the vehicle
manufacturers regarding on-off switch availability, deactivation was
the only readily available means for turning off air bags in existing
vehicles. Accordingly, in issuing the NPRM, the agency proposed to
allow deactivation. Nevertheless, it expressly requested comment
regarding on-off switches. A wide variety of commenters responded to
that request.
The facts underlying the agency's comparison of the relative merits
of deactivation and on-off switches changed dramatically after issuance
of the deactivation NPRM. Not long after the issuance of the January
1997 NPRM, a number of major vehicle manufacturers began announcing
that retrofit on-off switches could be made available at reasonable
cost and in anywhere from 2 to 6 months.
These announcements fundamentally changed the agency's assessment
of the relative merits of on-off switches and deactivation. As a result
of the new information from the vehicle manufacturers, on-off switches
were elevated from a theoretically available alternative to an
alternative that is actually available within a relatively short time.
The new information also indicated that retrofit on-off switches could
be made available without disrupting the development of advanced air
bags.
D. Specifying That Retrofit On-Off Switches Are the Only Means
Authorized Under the Exemption for Turning Off Air Bags Is Reasonable
and Consistent With Safety
The ready availability of on-off switches and their safety
advantage over deactivation make authorizing deactivation both
unnecessary and undesirable. The primary source of that safety
advantage is the flexibility of on-off switches.30 With an
on-off switch, an air bag's operational status can be changed at the
flip of a switch. The flexibility of on-off switches gives them
considerably greater potential than deactivation for promoting overall
safety. On-off switches allow air bags to be turned off and on as
needed, according to whether an air bag creates risks for particular
occupants.
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\30\ An additional safety advantage of on-off switches will be
that they, together with the ``Air Bag Off'' telltale, will provide
a permanent means of ensuring that people will not ride in a vehicle
without knowing that an air bag has been turned off.
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In addition to making it possible to accommodate the different
risks faced by different people, on-off switches can likewise
accommodate the changing needs, knowledge and attitudes of people. For
example, a child will be at increasingly less risk as he or she grows
older. In addition, a person whose attention is focused now on the
perceived risk of an air bag fatality if he or she does not turn the
air bag off may later recognize that there is a much greater risk of
serious injury or death if he or she does not leave the air bag on.
Finally, subsequent owners of existing vehicles may have no need to
turn off their air bags. The ability of on-off switches to allow
vehicle owners to respond to these changes will have important
implications for the percentage of occasions on which air bags are able
to deploy when needed.
NHTSA recognizes that the opinion survey conducted by IIHS in
January indicates that there is apparently significant public interest
in on-off switches. The agency is aware also of
[[Page 62424]]
IIHS' suggestion that its January 1997 survey indicates that if the
agency specifies on-off switches as the means for turning off air bags,
more people may get on-off switches than would have had their air bags
deactivated.
However, there are several reasons for believing that the January
1997 survey substantially overstates the number of people who will
obtain on-off switches under this final rule. First, and foremost, the
agency's decisions to require agency approval of each request and to
limit eligibility for on-off switches to those vehicle owners who can
certify membership in a particular risk group will significantly and
appropriately limit the availability of on-off switches to persons with
a real safety need for them. Further, the agency does not believe that
a respondent's expressed interest in on-off switches in that January
1997 telephone public opinion survey will necessarily translate into a
decision in January 1998 or thereafter to go to a dealer or repair
business and pay to obtain an on-off switch. In addition, a consumer's
decision to acquire and even to use the on-off switch does not mean
that the consumer will continue to use the switch. The survey methods
and results reflect not only the underlying safety problem, but also
the atmosphere in which the survey was taken. That atmosphere was
colored heavily by those media accounts that focused on an important,
but limited, portion of the full story about air bags. Some of that
same narrow focus can be seen in the survey.31
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\31\ There are other reasons for discounting the results of this
early 1997 IIHS survey as a basis for predicting how many people
will obtain on-off switches. In asking the respondents whether they
wanted on-off switches, the surveyors did not ask whether the
respondents were aware of a number of key factors that might heavily
influence the extent of their desire for an on-off switch. Further,
the surveyors did not take the alternative approach of informing the
respondents of these factors and then asking them whether learning
any or all of this information influenced their desire for an on-off
switch. Based on the factors that affect how the public perceives
risk (see footnote 35), three undiscussed factors in particular seem
key: (1) most people would be making significant safety tradeoffs if
they turned off their air bags; (2) most people could control and
virtually eliminate the risk of serious air bag injuries by changing
their driving and riding habits instead of physically changing their
vehicle; and (3) the cost of an on-off switch is not insubstantial.
A survey by the Harvard School of Public Health's Center for Risk
Analysis in late February and early March had similar shortcomings.
The absence of these factors from these surveys in part simply
reflects the fact that there was less of a consensus in early 1997
about the air bag-related risks and the most appropriate measures
for reducing them. Nevertheless, their absence is a concern since
the survey results themselves may not only measure (or at least
attempt to measure) existing public attitudes regarding air bags and
on-off switches, but also potentially affect future public attitudes
regarding those matters.
NHTSA expects that when media reports and the agency's
information brochure make the public more aware of the safety
tradeoffs and available means of controlling and reducing risk, the
level of public interest in obtaining on-off switches will fall.
Interest is expected to fall further in response to the public
education campaign to be conducted the agency and other
organizations about air bags.
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NHTSA recognizes that a new survey by IIHS cures some of the
shortcomings of its January 1997 survey.32 The new survey,
conducted in August 1997, informed respondents about the cost of
deactivation and on-off switches, the benefits of air bags and the
steps that can be taken to minimize or even eliminate air bag risks for
the vast majority of people. While the new survey suggests that many
people are interested in on-off switches, it also shows that providing
people with even minimal facts regarding these matters substantially
reduced the extent of that interest. Before the respondents were
provided with such information, 27 percent of the respondents indicated
that they wanted on-off switches for driver air bags and 26 percent
wanted them for passenger air bags. After receiving the information,
these percentages fell to 12 percent and 16 percent, respectively. As
noted below, the agency believes that a sustained, comprehensive public
education campaign would reduce the level of interest in obtaining on-
off switches even further.
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\32\ The difference between the new IIHS survey and the January
IIHS survey regarding the level of general interest in on-off
switches for passenger air bags appears to demonstrate the influence
which media accounts of recent air bag fatalities can have on survey
results. The January survey, which was taken when media accounts of
a particular child fatality were relatively fresh in the public
mind, indicated that 67 percent of the respondents were generally
interested in an on-off switch for passenger air bags. The August
survey was not closely preceded by similar accounts. Its figure for
general interest in passenger air bag on-off switches was 26
percent.
---------------------------------------------------------------------------
Since the percentage of respondents to both IIHS surveys who
expressed general interest in turning off their air bags far exceeds
the percentage of the population at any significant risk, it is evident
that the risks of air bag fatalities are significantly overestimated by
many people. It is equally apparent that the misperception of risk
regarding air bag-related fatalities is leading some consumers to
insufficiently appreciate the risks of turning off an air bag. The
agency expects that the requirement that owners certify that they have
read the information brochure as well as the public education campaign
will lead to a more balanced view of the risks associated with current
air bag designs, and that the requirement for agency approval and for
owner certification of risk group membership will appropriately limit
the requesting of on-off switches.
The misperception of the risks in everyday life, whether related to
air bags or other problems, arises from a variety of factors. An
article published in Smithsonian, the magazine of the Smithsonian
Institution, addressed some of the factors that make assessing and
comparing risks difficult for scientists and engineers, and even harder
for the average person without access to all available information and
analytical methods:
In a landmark test in 1980, a group of psychologists asked a
representative sampling of the populace to rank 30 activities and
technologies by risk; then they compared the results with rankings
assigned by a panel of risk-assessment experts. In places, the two
groups agreed, such as on the risk of motor vehicles, placed number
one by the experts and number two by the public. But on others,
there were large discrepancies: the public rated nuclear power as
their number one risk, whereas the experts ranked it as a lowly
number 20. Experts ranked x-rays as number 7, while the man-in-the-
street saw them as a number 22. What, the risk-communication
scientists next asked, was influencing the public's perception of
risk?
For starters, they found that the public responds differently to
voluntary and involuntary risks. You and I are willing to tolerate
far greater risks when it is our own doing, such as smoking
cigarettes or climbing mountains. But if the risk is something we
can't control, such as pesticides on food or radiation from a
nuclear power plant, we protest, even if the threat is minimal.
Second, we tend to overestimate the probability of splashy and
dreadful deaths and underestimate common but far more deadly risks.
. . .
Yet another factor about how we rank risks revolves around
whether or not the risk is perceived as ``natural. * * *''
33
\33\ John F. Ross, Risk: Where Do Real Dangers Lie? Smithsonian,
November 1995, at 42. See also Marcia Angell, Overdosing on Health
Risks, New York Times, May 4, 1997, Magazine Section, which, in
part, notes that the media are not the only players that affect
public risk perception; Michael Ryan, What Is Really Risky? Parade
Magazine, June 15, 1997, which discusses a recent Harvard study
concerning differences between the risk perceptions of scientists
and the general public; and Matthew Wald, Freewheeling Freedom;
Appalled by Risk Except in the Car, New York Times, June 14, 1997,
section 4, Week in Review. For a related account of the difficulty
in obtaining comparative information on risks and tradeoffs, see
David Shaw's three-part series, Living Scared. Why Do the Media Make
Life Seem So Risky? in the Los Angeles Times, September 11-13, 1994.
---------------------------------------------------------------------------
As the author also noted, our problem in making everyday decisions
about the risks we face is more difficult than simply assessing a
single risk correctly.
We're also realizing that the trade-offs are not always so
clear. Reducing risk in one area
[[Page 62425]]
may very well increase the risk in another.* * * 34
\34\ Ibid.
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The actions being announced by NHTSA in this final rule will have
the effect, directly or indirectly, of giving the public a sense of
control over the risks associated with current air bags, and restoring
objectivity to the public's perception of those risks. As a result,
whatever the extent of the public's initial inclination to acquire and
use on-off switches, these actions will thereby reduce that
inclination. The air bag deaths are not random. Further, the risk of
death is highly influenced by behavior. Through informing the public
about how the vast majority of people can eliminate or substantially
minimize any risk through behavioral changes and how the rest can
eliminate the risk through the use of an on-off switch, the agency will
give the public a significantly increased sense of control over the
risk of air bag fatalities. Through these same means, the agency will
inform the public about the steps that they can take to reduce, and
thus control, this risk without turning off air bags.
Together, these actions will put air bag risks into proper
perspective, enable those truly at risk to reduce or eliminate their
risk, and calm the fears of others. As the public comes to appreciate
more fully just how limited and controllable the risks are, interest in
obtaining and using on-off switches to turn off air bags is expected to
decline. Likewise, any inappropriate use of on-off switches will be
reduced to a minimum. As noted above, the August 1997 IIHS survey
demonstrates that giving the public even the barest facts reduces the
level of interest in on-off switches. NHTSA believes that a sustained
public education campaign which includes comprehensive reading
materials, explanatory graphics and video clips will reduce the level
of interest even further.
NHTSA notes also that some company and group commenters argued that
on-off switches would be misused. They were particularly concerned that
air bags would be turned off for people who are not at risk of serious
air bag injuries and who would benefit from air bag protection. The
agency recognizes that misuse is a possibility. However, the agency
does not have any information indicating that there is a misuse problem
associated with the 1.3 million vehicles equipped with an original
equipment manufacturer (OEM) on-off switch for the passenger air bag.
Further, the agency believes that any problem of misuse will be small,
particularly given the requirements for agency approval and for vehicle
owners to certify the reading of the information brochure and risk
group membership. The public education campaign will also help minimize
that problem. Because of these factors, the people who submit request
forms for on-off switches will be aware of the dangers of misusing on-
off switches by leaving them off when the vehicle is being used by
people who are not at risk of being seriously injured by an air
bag.35
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\35\ The requirement for a telltale light that indicates if the
air bab is not operational will also eliminate the possibility that
occupants will unknowingly ride without the protection of an air
bag.
---------------------------------------------------------------------------
Further, any small possibility of misuse will be more than offset
by the fact that the use of an on-off switch instead of deactivation to
turn off air bags will make it much more likely that air bags will be
on for those people who will benefit from them. Compared to retrofit
on-off switches, deactivation is an inflexible, overly broad, and
essentially permanent method of turning off air bags. With
deactivation, the consequence is universal, i.e., ``off for one, off
for all.'' Deactivation does turn off an air bag for those who are at
risk and need the air bag to be off, and thereby can prevent air bag
fatalities. However, it accomplishes this only at the price of
sacrificing protection for those who could benefit from that
protection. The net effect of widespread deactivation would likely be
even greater loss of life. Further, another likely consequence of
deactivation is permanency, i.e., ``once off, forever off.'' In most
instances, a consumer is unable, on his or her own, to change the
operational status of a deactivated air bag to suit the needs of
occupants on a particular trip. Likewise, a consumer cannot go to a
dealer or repair business each time that the operational status of an
air bag needs to be adjusted to meet the needs of the occupants on a
particular trip. Given the time and expense involved, relatively few of
the vehicle owners who have their bags deactivated are expected to make
a return trip to the dealer or repair business to have them reactivated
when needs or attitudes change, or when the vehicle is sold.
E. Case-by-Case Agency Authorizations of Retrofit On-Off Switch
Installation, Based on Vehicle Owner Certification of Risk Group
Membership and on Informed Consumer Decisionmaking, Is Reasonable and
Consistent with Safety
As noted above, this rulemaking is being conducted under section
30122(c)(1) of Title 49, U.S.C., which provides that the Secretary of
Transportation may prescribe regulations ``to exempt a person from * *
* [the make inoperative prohibition] * * * if the Secretary decides the
exemption is consistent with motor vehicle safety and section 30101 of
this title.'' Section 30101 sets forth the purpose and policy of
Chapter 301, ``Motor Vehicle Safety,'' of Title 49. The section states
that, among other things, ``(t)he purpose of this chapter is to reduce
traffic accidents and deaths and injuries resulting from traffic
accidents.'' This final rule will promote safety by reducing the
fatalities caused by current air bags, particularly in existing
vehicles, and promoting the long run acceptability of the concept of
air bags.
This final rule will achieve these safety goals by authorizing
persons at risk to obtain retrofit on-off switches, based on a
combination of informed decisionmaking, owner certification of risk
group membership, and agency approval of each request. To promote
informed decisionmaking, the agency will, in conjunction with other
organizations (ABSC, AAA, NSC, and IIHS), conduct a public education
campaign explaining that most people are not at risk and that even
among people at risk, not all people need obtain and use on-off
switches to turn off their air bags. The agency will discuss who is at
risk from air bags, who is not at risk, and why. It will advise
consumers of a series of easy steps that will reduce this risk to a
point that obtaining an on-off switch is unnecessary for all but a
relatively small number of people. Only if those steps are insufficient
should motorists consider seeking an on-off switch. These messages will
be reinforced and echoed in an agency information brochure. Further,
the request form provides a place where each vehicle owner desiring an
on-off switch must certify that he or she has read the information
brochure.
To obtain a switch that turns a driver air bag on and off, vehicle
owners must also certify on the request form that the owner or a driver
of their vehicle is a member of a particular driver risk group.
Similarly, to obtain an on-off switch for a passenger air bag, vehicle
owners must certify on the request form that they or a passenger of
their vehicle is a member of a particular passenger risk group. If an
owner wants on-off switches for both air bags, the owner must make
separate certifications on the same request form, one for the driver
air bag and another for the passenger air bag.
[[Page 62426]]
NHTSA believes that requiring owners to certify that they have read
the information brochure and that they or a user of their vehicle is a
member of a risk group and requiring that each request be approved by
the agency is justified by the current climate of heightened, and
exaggerated, concern about air bag fatalities. These requirements will
help limit the availability of on-off switches to persons with a
genuine safety need for them. Having to make the certifications will
help induce consumers to read the information brochure, separate fact
from fiction, and avoid trading one safety risk for another, larger
safety risk. The necessity of obtaining agency approval will induce an
even greater level of care and caution in requesting an on-off switch.
As the public education campaign moves forward, media coverage expands
to cover the safety benefits, risks and tradeoffs associated with air
bags more broadly, public and private efforts result in increased seat
belt use rates, and air bags with advanced attributes start to appear
in new vehicles, the public will increasingly appreciate the low risk
of air bag fatalities and the steps they can take, short of turning
their air bags off, to reduce that risk. The requirement for vehicle
owners to certify that they have read the information brochure and fill
out the request form will also help ensure that any decision to seek
and use on-off switches is a thoughtful, responsible one.
Allowing vehicle owners to obtain on-off switches, based on risk
group certification and on informed decisionmaking, and subject to
agency approval, will enhance safety because it will speed the
reduction of serious and fatal injuries related to air bag deployment.
It will also enhance the public acceptance of air bags. Public
acceptance of motor vehicle safety technology is not only a relevant
consideration in assessing the practicability of a Federal motor
vehicle safety standard,36 but also it is vital to the long
run success of any vehicle safety program and to the effectiveness of
all types of safety equipment.
---------------------------------------------------------------------------
\36\ Pacific Legal Foundation v. Department of Transportation,
593 F.2d 1338, 1345 (D.C. Cir. 1979).
---------------------------------------------------------------------------
Making retrofit on-off switches available will promote public
acceptance of air bags by providing those people at risk with a means
of eliminating their risk. NHTSA anticipates members of the public
will, with their concerns thus allayed, be increasingly receptive to
the public education campaign concerning air bag safety and seat belt
use. The agency anticipates that the public will also increasingly come
to appreciate the limited nature of the risk, the factors that create
that risk, the limited number of people affected by those factors, and
the ways in which those people can reduce and even eliminate the risks
without sacrificing the benefits of air bag protection. The public will
come to appreciate also that turning off air bags will make the vast
majority of people less safe, not more safe. As a result, the demand
for retrofit on-off switches, and the inclination to use them to turn
off air bags, will decrease.
Making retrofit on-off switches available will also have other
salutary effects that are consistent with motor vehicle safety and
section 30101. As noted elsewhere, the agency is mindful of the surveys
by IIHS and others showing that the percentage of respondents
interested in deactivation or on-off switches exceeds the percentage of
the general population that is at risk. Availability of on-off switches
will minimize the likelihood that consumers, potentially including
consumers not actually at risk, will obtain unauthorized deactivations
with the negative consequences discussed above. It will also lessen the
possibility of owners attempting to deactivate their air bags on their
own. While owners are not prohibited by Federal law from removing or
disabling safety features and equipment installed pursuant to NHTSA's
safety standards, attempts by inexperienced people to deactivate air
bags or install on-off switches could result in serious injuries to
those people. Further, whether performed by commercial entities or the
owners themselves, these illicit deactivations would not only be
inflexible and essentially permanent, but they could also be invisible
to current users and future owners, since they might not be accompanied
by any labeling or recordkeeping.
NHTSA recognizes that the final rule will not allow installation of
on-off switches for people who are concerned about their air bags, but
who are not at risk and thus cannot certify that they are, or a user of
their vehicle is, in a risk group. It would not be consistent with
safety for the agency to authorize these people to obtain on-off
switches and to turn off their air bags, since their doing so would
make them significantly less safe. However, action is needed to address
the concerns of these people. The agency is seeking to alleviate their
concerns by providing the public with information about who really is
at risk, and why. The information brochure and public education
campaign are the key elements of that effort.
Before deciding to limit the availability of on-off switches to
members of risk groups and to allow installation of on-off switches
only after prior approval by the agency of each request for switches,
the agency considered a spectrum of possible approaches, listed below
in decreasing degree of administrative complexity: (1) full
documentation by the vehicle owner of the facts establishing membership
in a particular risk group specified by the agency and case-by-case
agency review of the owner's request and documentation before the
agency authorizes installation of an on-off switch, (2) case-by-case
agency approval of the owner's request (unaccompanied by documentation
of the underlying facts) to confirm that he or she has properly
certified membership in a particular risk group specified by the agency
before it authorizes installation of an on-off switch, (3) presentation
by owner to a dealer or repair business of his or her certification of
having read the information brochure and of membership in a particular
risk group specified by the agency, plus post-installation submission
by the dealers and repair businesses of the certification to agency,
(4) presentation by owner to a dealer or repair business of his or her
certification of having read the agency information brochure and
retention of the certification document by dealer or repair business of
certification, and (5) presentation by owner to dealer or repair
business of his or her simple request. The second approach was
suggested in a comment by GM,37 the fourth was proposed by
the agency in January, and the fifth was suggested in a comment by the
Competitive Enterprise Institute (CEI).
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\37\ GM suggested that the agency select and describe the most
frequent circumstances warranting an on-off switch and develop a ``
* * * form letter that owners could complete (i.e., checking the
appropriate one of the circumstances specified on the form), sign
and submit to NHTSA.'' As to ``* * * requests that do not fit under
one of the defined circumstances * * *,'' owners could still submit
them``* * * to NHTSA in non-form letters that detail the reasons for
the request.'' GM apparently contemplated that the agency would
quickly examine the form letters and concentrate on the non-form
requests. GM described the agency's review function as follows:
``The agency could process requests made with the form letter in an
expedited manner, and focus attention principally on the non-form
requests.'' (Emphasis added.)
---------------------------------------------------------------------------
In developing the fourth approach, i.e., its January 1997 proposal,
the agency indicated that it had considered the relative merits of two
alternatives: continuing case-by-case agency approval of individual
requests from persons seeking authorization to turn off
[[Page 62427]]
their air bags based on a demonstrated safety need, or providing an
information brochure informing vehicle owners about the factors that
create risk and who is at risk, requiring owners to certify that they
had read the brochure, and then letting them make their own decision.
Given the complexity and time-consuming nature of the process then
being used by the agency for processing deactivation requests, the
agency proposed the latter alternative, which would have allowed any
person to choose to deactivate, without having to demonstrate or claim
a particular safety need, and without having to obtain the agency's
approval. However, under the proposal, applicants would have had to
submit a written authorization to the dealer or repair business
performing the deactivation and certify that they had read an agency
information brochure explaining the consequences of having an air bag
deactivated.
Nevertheless, NHTSA requested views regarding the feasibility and
advisability of limiting eligibility for deactivation to persons in
specified risk groups. Specifically, the agency asked--
Should deactivation of air bags be allowed at the owner's
option in all cases or should deactivation be limited to situations in
which death or serious injury might reasonably be expected to occur?
Would the administrative details involved in establishing
and implementing limitations on eligibility overly complicate the
availability of deactivation?
The agency has decided that it is necessary to go beyond the fourth
and even the third approaches and adopt provisions that give greater
assurance that on-off switches are installed only when it is consistent
with the interests of safety to do so. The complexities associated with
such additional provisions are outweighed by other factors. Prior
approval of requests for switches will encourage greater attention to
the importance of on-off switches being requested and used only for
people whose safety would be enhanced by turning off their air bag. As
was noted by many of the group and company commenters, consistency with
safety is the basic requirement of the statutory provision permitting
the agency to issue exemptions from the make inoperative prohibition.
Safety is also NHTSA's primary focus and responsibility under Chapter
301. Prior approval will also enable the agency to monitor directly,
from the very beginning, the implementation of the regulation and the
effectiveness of its regulation and the associated educational
materials in promoting informed decisionmaking about air bag on-off
switches.38
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\38\ The agency's decision to require that vehicle owners be
initially authorized by the agency to obtain a on-off switch moots
the arguments by some commenters, most notably GM and the
Association of International Automobile Manufacturers, that the
agency can exempt individuals on a case-by-case basis, but lacks
authority to exempt classes of people. To reach this conclusion,
those commenters attributed unwarranted significance to the use of
the singular ``person'' in the statutory exemption provision. Since
the exemption authority runs to dealers and repair businesses, not
to consumers, these commenters apparently contemplated that the
agency issue a separate exemption to each dealer or repair business
and perhaps even issue a separate exemption for each owner who
desires a retrofit cutoff switch.
There is no reason to believe that Congress intended to limit
exemptions to ones granted to specific individuals. In the agency's
view, the exemption provision can reasonably be read to permit an
exemption based on classes of people. The singular includes the
plural, absent contrary statutory language or purpose. Section 30122
neither contains any language nor has any purpose that would
preclude reading ``person'' in the plural. NHTSA notes that similar
use of the singular in 15 U.S.C. 1402(e), the statutory predecessor
to 49 U.S.C. 30118(a) regarding the making of a defect and
noncompliance determination concerning a motor vehicle or
replacement equipment, has repeatedly been judicially interpreted to
permit NHTSA to make determinations regarding classes of vehicles or
equipment. Section 30118(a) was enacted in the same public law, Pub.
L. No. 93-492, that contained the make inoperative prohibition.
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The final rule supplements the provision regarding informed
decisionmaking by requiring that vehicle owners desiring on-off
switches certify that the owner or a user of their vehicle is a member
of a particular safety risk group. The necessity of certifying
membership in a particular risk group will induce greater care on the
part of vehicle owners who are considering authorizing the installation
of an on-off switch. NHTSA notes, as it did in its proposal, that
people not in a risk group would be less safe, not more safe, if they
turned off their air bags. The further necessity for obtaining agency
approval for an owner's request will induce vehicle owners to exercise
even greater caution and to consider even more carefully whether they
are at risk and, if so, whether they should request a switch.
A secondary reason for the decision to require agency approval of
owner requests for on-off switches is the belief that the task of
reviewing the owner request forms is more properly performed by NHTSA
instead of the dealers and repair businesses. This belief became
decisive with the addition of the provision for risk group
certification. Determining eligibility for exemptions from statutory
requirements and prohibitions is traditionally and most suitably a
governmental function.
NHTSA recognizes that the decision to require prior agency approval
of each request will add increased cost and administrative complexity
to the process of obtaining on-off switches and is accordingly taking
steps to streamline the approval process. The form has been designed to
allow for a speedy review. To minimize any disruption of normal agency
activities, the agency will contract out for the performance of the
review process. The agency will ensure that word and data processing
technologies are used to establish efficient processes for reviewing
the on-off switch request forms and recording data from
them.39
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\39\ NHTSA notes that some proponents of prior agency approval
of on-off switch requests credted the introduction of streamlined
practices and increased use of information technologies with being
the key factors leading to substantial decreases this year in the
agency's average processing time of air bag deactivation requests.
Those parties further suggested that use of the same information
technologies will enable the agency to process on-off switch
requests with equal speed. While the introduction of those practices
and technologies increased the efficiency of the agency's processing
of the deactivation requests, by far the most important factor was
the steady and substantive decline in the number of deactivation
requests. The volume fell from a high of 400 requests per week in
April and May to 100 requests per week in September.
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NHTSA also rejected the first approach which was more
administratively complex and cumbersome than the final rule in that it
would have required each vehicle owner to document the facts underlying
his or her claim of risk group membership. NHTSA believes that a
requirement for documenting risk group membership would be unduly
burdensome and impracticable for vehicle owners. For example,
documenting the necessity for carrying children in the front seat would
be time consuming and difficult, if not impossible. Would a vehicle
owner whose family has too many young children to place all of them in
the back seat have to submit the birth certificates of each child?
Would a parent who car pools children to soccer games have to submit
affidavits from the parents of the other children? And would a driver
unable to maintain the proper distance from his or her steering wheel
have to submit photographs showing the driver holding a ruler? Finally,
the delays under such an approach might create unsafe conditions,
either by inducing people to seek illegal deactivations or by simply
extending the time that people must drive their vehicles without means
for eliminating the risks for people in risk groups.
NHTSA also rejected the fifth approach, suggested by CEI, which
[[Page 62428]]
would let people obtain an on-off switch without even requiring that
they first read the agency information brochure so that they could make
a fully informed decision. CEI also suggested that air bags should be
optional instead of required equipment. This suggestion is premised
primarily on the shortcomings of current air bag designs. Making air
bags optional is inconsistent with safety. It is also inconsistent with
the ISTEA, which mandates air bags. Further, the rationale underlying
CEI's suggestion is akin to the rationale unsuccessfully used by this
agency in the early 1980's to rescind the automatic restraint
requirements adopted in the mid 1970's. The agency rescinded those
requirements because the vehicle manufacturers chose to comply with
them by means (detachable automatic seat belts) that were potentially
ineffective and might not have produced significant safety benefits,
instead of by more effective means (either nondetachable automatic seat
belts or air bags) that were available to the vehicle manufacturers.
The U. S. Supreme Court unanimously concluded that the appropriate
regulatory response of the agency under the Vehicle Safety Act to
ineffective or undesirable design choices under the automatic restraint
requirements should not be simply to rescind those requirements, but
first to consider the alternative of amending the requirements to
preclude those choices. Motor Vehicle Mfrs. Assn. v. State Farm Mut.
Auto. Ins. Co., 403 U.S. 29 (1983). Similarly, the judgment that
current air bag designs do not provide an optimal level of safety is
not a sufficient reason to undercut or negate the Congressional mandate
for air bags. Instead, the appropriate short term response is to allow
the installation of on-off switches so that air bags can be readily
turned off for people who are actually at risk from current air bags,
as well as to require new labeling and expedite the depowering of air
bags. Ultimately, the solution is to ensure that the manufacturers
introduce advanced air bag designs.
F. Continued Use of Prosecutorial Discretion for Case-by-Case
Authorizations of Air Bag Deactivation Until Retrofit On-Off Switches
Become Available
Between now and January 19, 1998, the date on which on-off switch
installation may begin, NHTSA will continue its current practice of
using its prosecutorial discretion to grant requests for deactivating
the air bags in all vehicle makes and models. This will be done on a
case-by-case basis in a limited set of circumstances, e.g., those in
which certain medical conditions suggest that deactivation is
appropriate. The agency will continue to limit the circumstances
because of the inflexible and relatively permanent nature of
deactivation.
After January 19, NHTSA will cease granting deactivation requests
for those vehicle makes and models for which the vehicle manufacturer
makes on-off switches available.40 NHTSA expects that most
vehicle manufacturers will promptly make on-off switches available for
most vehicle makes and models.41 Vehicle owners can consult
with dealers about the availability of such switches. As on-off
switches become available from a vehicle manufacturer for a specific
make and model, NHTSA will cease granting deactivation requests for
that make and model. Owners of the make and model can then fill out
request forms and send them to NHTSA for approval. If on-off switches
are available both from the vehicle manufacturer and from an
independent aftermarket manufacturer, a vehicle owner who obtains an
authorization letter from the agency for a switch can choose to have
the on-off switch installed by either a dealer or a repair business.
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\40\ However, if on-off switches become available for a vehicle
make and model from an independent aftermarket manufacturer, but not
the vehicle manufacturer, the agency will continue to authorize
deactivation for that make and model. While the agency believes that
on-off switches are superior to deactivation from a safety
standpoint, it will continue to authorize deactivation in this
limited circumstance in view of the agency's greater difficulty in
tracking the availability of on-off switches from aftermarket
manufacturers and the lace of a mechanism for testing the
performance of an on-off switch as installed in a particular
vehicle.
\41\ The agency is aware that the incidence of air bag
facilities is not the same for all manufacturers and that some
manufacturers have indicated that they may not make on-off switches
available. NHTSA notes that its exemption authority under section
30122 does not permit it to require manufacturers to make these on-
off switches available.
---------------------------------------------------------------------------
Owners of vehicle makes and models for which the vehicle
manufacturer has not made available an on-off switch may have several
options after January 19, 1998. They can write to NHTSA for
authorization to deactivate their air bags. The agency will continue to
grant such requests indefinitely under the same criteria that the
agency is currently using in making such grants. Owners can also
consult with a repair business to determine if an aftermarket parts
manufacturer has made an on-off switch available for the owner's
particular make/model. If such an on-off switch is available, these
consumers could fill out a request form, send it to the agency, and ask
it for authorization to have an on-off switch installed.
Since the agency will continue to authorize deactivation at least
until January 19, and since some vehicle owners may have been delaying
submitting a request for deactivation in anticipation of the issuance
of this rule with an immediate effective date, NHTSA is providing below
an updated explanation of its procedure and criteria for reviewing and
granting deactivation requests. This will help vehicle owners
understand the limited circumstances in which NHTSA will be authorizing
deactivations. Those circumstances have been modified to reflect the
issuance of the physicians' report on medical conditions. The
explanation will also inform the public about the nature of the
information that NHTSA needs from vehicle owners to make appropriate
decisions about the deactivation requests.
G. Other Issues
1. Request Form
NHTSA is requiring owners who want an on-off switch to submit a
filled out request form and obtain agency approval before they can have
an on-off switch installed. Most commenters who addressed the issue
supported the use of a request form. As revised in this final rule, the
form serves three major purposes.
First, the request form provides the agency, and the dealer or
repair business, with a measure of assurance that the person requesting
the on-off switch is the person with authority to authorize the
installation of a switch. The dealer or repair business may, in
addition, require further proof of ownership or authority. However, the
necessity of submitting a signed request form on which the signer of
the form must claim, subject to 18 U.S.C. 1001, ownership of the
vehicle to be modified should help forestall installation requests by
persons other than the owner of a vehicle.
Second, as noted above, the form reinforces the value of the
information brochure by requiring the owner to certify that the owner
has read the brochure and that the owner or a user of the vehicle is a
member of a risk group listed on the brochure. In response to the
concern expressed by several commenters that, partly because of the
complexity of the subject matter involved, owners would not read the
proposed information brochure, NHTSA has changed the brochure to make
it more customer-friendly.
Third, the request form is intended to make the owner understand
that he or she is responsible for the consequences of the decision to
install, and later to
[[Page 62429]]
use, the on-off switch. To that end, the form includes statements that
the owner is aware of the safety risks and consequences of turning off
an air bag.
The agency will begin processing of request forms on December 18,
1997. If a form is submitted before that date, it will be given the
same priority as a form submitted after that date. Accordingly, there
will be no advantage to submitting forms early.
2. Dealer and Repair Business Liability
To address the anticipated concerns of motor vehicle dealers,
repair businesses and others regarding liability issues associated with
turning off air bags, the agency proposed making the decision of
vehicle owners to obtain on-off switches dependent upon informed
decisionmaking, acknowledgment of the adverse safety consequences of
turning air bags and execution of a limited standardized waiver in the
proposed authorization form. The waiver would have stated that the
owner's act of authorizing a deactivation would waive any claim or
cause of action that the owner might have against the dealer or repair
business by virtue of the fact that the air bag had been deactivated. A
number of commenters questioned the efficacy of any such waiver,
asserting that it would not apply to other possible vehicle occupants,
such as family members or friends of the owner or to future owners and
their family members and friends. Several vehicle manufacturers
expressed concern that the waiver did not extend to actions and claims
involving vehicle manufacturers. One commenter stated that only
legislation could provide effective relief from liability risks.
NHTSA believes that the liability risks have been essentially
eliminated and that those risks should not interfere with the
implementation of this exemption. First, under this final rule, dealers
and repair businesses will play no role in determining whether vehicle
owners qualify for the installation of on-off switches. Those parties
will have no involvement in the process until the vehicle owners
contact them with agency authorization letters in hand.
Second, in recognition of the dealers' and repair businesses'
concerns, NHTSA has switched from an authorization form to a request
form and included a statement alerting vehicle owners that dealers and
repair businesses may condition their agreement to install an on-off
switch upon the owner's signing of a liability waiver. Owners desiring
an on-off switch must acknowledge that possibility by marking the box
next to that statement. This will facilitate the efforts of dealers and
repair businesses to obtain waivers from owners.
Upon reviewing its proposal and the public comments, the agency
decided not to include a standardized waiver in the request form. NHTSA
agrees that the proposed waiver would not have covered all possible
litigants. Further, the agency is concerned about state-to-state
variations in the law regarding the precise language that is sufficient
to waive a claim even by the vehicle owner. Those variations could
undermine the value of any standardized waiver. Moreover, NHTSA is
concerned that adoption of a standardized waiver might give some
dealers and repair businesses false assurances of protection from
liability in all states and in all cases. Finally, NHTSA believes that,
to the extent dealers want vehicle owners to sign a waiver before they
will install an on-off switch, this is an issue between them and
vehicle owners. By taking this position regarding waivers, the agency
believes that dealers and repair businesses will be in a better
position to craft individualized waivers that reflect the law of the
State in which they operate.
The agency's decision not to include a waiver moots the requests of
some commenters to expand the proposed waiver to cover claims against
vehicle manufacturers, distributors and employers who operate fleets.
This final rule places no limitation on efforts by those parties to
seek waivers from vehicle owners. Vehicle manufacturers can work
together with their dealers to develop a waiver that covers both.
Further, no implication should be drawn from this decision that the
general concept of seeking of such waivers is in any way inappropriate.
To the contrary, it reflects NHTSA's belief that any waiver is more
appropriately a decision between the vehicle owner and the dealer or
repair business. Dealers and repair businesses may condition their
installation of on-off switches upon the making of waivers by vehicle
owners. Employers that provide fleet vehicles to their employees may
write their own waivers and condition any installation of on-off
switches on the employees' signing those waivers.
Third, NHTSA believes that the various provisions included in the
final rule regarding informed decisionmaking and risk group membership
have the additional effect of significantly reducing the liability
concerns of the dealers and repair businesses.
Fourth, the agency's decision to restrict the means of turning off
air bags under the exemption adopted in this final rule to on-off
switches substantially increases the likelihood that air bags will be
turned on and protect those persons not in a risk group. One concern
with allowing deactivation as proposed in the NPRM was that a
deactivated air bag would not deploy in situations in which deployment
would save lives. This concern was particularly great with respect to
the friends and family of vehicle owners and the subsequent purchasers
of vehicles with deactivated air bags. The presence of on-off switches
in the clearly marked ``off'' position and/or the illumination of their
indicator lights will be readily obvious to all front seat occupants,
largely eliminating the concern about uninformed vehicle occupants and
owners. In addition, the provisions requiring that owners read a
government information brochure warning about the dangers of turning
off air bags and that the owners expressly acknowledge those dangers
should have the effect of reducing liability concerns.
There are additional reasons why the agency's decision to specify
on-off switches will reduce any potential liability of manufacturers,
dealers, and repair businesses. Under the deactivation proposal in the
NPRM, it would have been the dealer or repair business itself that
turned off the air bag. Subsequent purchasers might not know that an
air bag has been turned off. In contrast, with on-off switches, no air
bag will be turned off except by the hand of the owner or another user
of the owner's vehicle. The last critical action or inaction that
determines whether a vehicle's air bags will deploy in a crash is that
of an occupant of that vehicle who has chosen whether the air bags are
on or off. This is just as much true if the vehicle is owned by a
subsequent purchaser as if it is still owned by the person who
authorized the installation of the on-off switch.
The agency has not added a statement, requested by the National
Association of Independent Insurers, that the obtaining or using of on-
off switches may affect insurance premiums, or that it is the owner's
responsibility to report the installation of an on-off switch to the
insurance carrier. NHTSA wishes to maintain a strict safety orientation
to the request form, and keep the paperwork to a minimum. Further,
these are matters between insurers and their customers. An insurer can
require its customers to notify it of on-off switch installation or
attach whatever conditions it deems appropriate to continuing coverage
of vehicles with on-off switches.
[[Page 62430]]
3. Information Brochure
In response to the commenters and the focus groups, the agency has
revised the information brochure to make it much more informative. The
focus groups requested not only detailed information about who was at
risk and why, but also basic background information about how air bags
work. That information is needed to address persistent misconceptions
about some aspects of how air bags operate. The revised brochure--
explains how air bags work,
explains how air bags save many lives and prevent many
injuries,
describes the groups of people who have been killed by air
bags,
identifies the single factor that is common to all air bag
deaths,
makes clear why certain groups of people are at risk,
gives practical advice to consumers on how to reduce their
individual risk and that of the users of their vehicle without
modifying their vehicles, and
as printed by the agency, includes simple graphics showing
the steps that drivers at risk can take to reduce those risks.
NHTSA agrees with IIHS and other commenters that the proposed
information brochure was too technical, and has completely rewritten it
to make it more consumer-friendly.42 The data tables on
historical fatalities and injuries in the proposed information brochure
have been replaced by a practical, succinct, question and answer
format. This makes it much more likely that the brochure will be read,
and understood, in its entirety.
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\42\ NHTSA notes, however, the focus groups expressed a clear
desire for extensive and detailed information about air bag safety
and on-off switches to increase their understanding and aid their
decisionmaking. Accordingly, the agency has not shortened the
information brochure as urged by some commenters. It has, however,
attempted to provide that information in a simple, readily
understandable form. As printed by the agency, the information
brochure will be supplemented with various graphics.
---------------------------------------------------------------------------
The agency recognizes that no single information brochure will
fully meet everyone's needs and that some consumers will prefer more
information. However, the agency disagrees that not being able to
tailor the information brochure to individual needs means that the
brochure will not contribute to informed decisionmaking by consumers.
The brochure contains basic information, geared to the average person.
Persons wishing more information can visit NHTSA's Internet Web site or
call the agency's toll-free Hotline.
NHTSA will distribute the information brochure widely. In addition,
on its Internet Web site, the agency is providing the public with an
opportunity to view video clips of crash tests showing the difference
in the amount of protection that test dummies receive when using both
seat belts and air bags and when using seat belts alone. The clips show
that when the air bag is turned off and does not deploy in a moderate
to severe crash, the head of a dummy representing a short female driver
strikes the steering wheel hard enough to cause fatal injuries. The
opportunity to view these video clips is prominently noted on the
information brochure. The agency believes that this multi-media
approach will effectively inform consumers about the importance of air
bag protection and about the limited circumstances in which turning off
an air bag should be considered. However, although the video is a
useful educational tool, the agency is not conditioning eligibility for
an on-off switch upon viewing a video presentation of the information
in the brochure, as suggested by one commenter.
The agency disagrees with Chrysler's argument that basing advice to
drivers on distance from the steering wheel is not meaningful. While
Chrysler is correct that differences in air bag systems and steering
wheel inclinations will affect the appropriate distances, NHTSA
believes that giving general advice is useful and effective, and that
no other measure is better (height being only a rough proxy for
distance). Moreover, the vehicle manufacturers have not provided
information to the agency on which it could base distance
recommendations that are individually tailored to each vehicle make and
model. By focusing on the ability of the vast majority of drivers,
particularly short ones, to move a sufficient distance away from the
steering wheel, this general guidance will help drivers identify ways
they can reduce and even eliminate their risk. NHTSA anticipates that
the vehicle manufacturers will supplement this general guidance as
appropriate to fit the circumstances and air bag performance of their
individual makes and models of vehicles.
4. Dealer and Repair Business Responsibilities Regarding the Request
Form and Information Brochure
Many dealer and repair business commenters objected to the agency's
proposal to require them to receive authorization forms from vehicle
owners and to check the forms. Under this final rule, dealers and
repair businesses will not have these responsibilities. They will be
performed instead by the agency.
Many dealer and repair business commenters also objected to the
agency's proposal to require them to distribute the request form and
the information brochure. NHTSA is not requiring that they do so. The
information brochures and request forms will be available to anyone who
visits NHTSA's Internet Web site or uses U.S. Government Printing
Office (GPO) Access.43 The public can also call the agency's
Hotline and arrange to have copies faxed or mailed to them. NHTSA will
also send copies to dealers and repair businesses and to State
Departments of Motor Vehicles. In addition, other organizations, such
as the American Automobile Association, will assist in distributing
these documents.
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\43\ GPO Access is a service of the U.S. Government Printing
Office and is available directly as a subscription, or free through
participating Federal Depository Libraries.
---------------------------------------------------------------------------
5. Insert for Vehicle Owner's Manual
NHTSA has decided not to adopt its proposal that dealers and repair
businesses be required to provide vehicle owners with a copy of the
information brochure as an insert for the vehicle owner's manual. A
requirement that the dealer or repair business provide the entire
brochure seems unnecessary given that the owner must certify that he or
she has read the brochure prior to signing the request form.
However, as a reminder about the proper use of on-off switches, the
agency is requiring that vehicle owners be given an owner's manual
insert describing the operation of the on-off switch, listing the risk
groups, stating that the on-off switch should be used to turn off an
air bag for risk group members only, and stating the vehicle specific
safety consequences of using the on-off switch for a person who is not
in any risk group. Those consequences will include the effect of any
energy managing features, e.g., load limiters, on seat belt
performance. (See the discussion of safety belts with energy managing
features in part II.B.2 above.)
6. Recordkeeping
In the deactivation proposal, the agency proposed to require that
dealers and repair businesses send filled-out authorization forms to
the appropriate vehicle manufacturer and that vehicle manufacturers be
required to retain those forms for five years. The primary purpose of
these proposals was to ensure that subsequent owners had a way of
learning whether their air bags had been deactivated. The agency
realized that the deactivated status of an
[[Page 62431]]
air bag is not readily apparent from a visual examination of a vehicle
interior and that the labels proposed by the agency could fall off,
deteriorate over time or be removed.
NHTSA has concluded that recordkeeping by the vehicle manufacturers
is not necessary to accomplish the primary goal of ensuring that the
public is aware of the operational status of air bags that have been
turned off by means of on-off switches. On-off switches and their
warning lights are relatively conspicuous and more permanent than
labels. Thus, keeping records for the benefit of other vehicle
occupants and subsequent owners is unnecessary, and indeed, not so
effective as these visible cues.
Instead, NHTSA is requiring that, when a dealer or repair business
receives an agency authorization letter from a vehicle owner and
installs a switch, the dealer or repair business must fill in the form
provided in the letter for reporting information about the dealer or
repair business and about the installation. See Appendix C. The form
must then be returned to NHTSA. This requirement will facilitate agency
efforts to ensure that the exemption from the make inoperative
prohibition is being implemented in accordance with the conditions set
forth in this final rule. It will also aid the agency in monitoring the
volume of requests and the geographic and other patterns of switch
requests and installations. To ensure that the forms are returned to
the agency in a timely fashion, NHTSA is requiring that each form be
mailed within seven days of the installation of an on-off switch by the
dealer or repair business.
With respect to its continued exercise of prosecutorial discretion
to authorize deactivation, NHTSA will keep records regarding the
vehicles for which it has allowed deactivations and for which it is
able to obtain sufficient information. NHTSA will be sending labels to
all owners for whom it has authorized deactivation, and will enclose a
request for information on whether a deactivation was performed,
whether it was a driver or passenger air bag deactivation (or both),
and the vehicle identification number (VIN). This will enable NHTSA to
keep records on vehicles for which the agency has approved air bag
deactivation. The VINs of those vehicles, but no other identifying
information, will be made available on NHTSA's Internet Web site, or by
phone to aid subsequent purchasers in identifying vehicles with
deactivated air bags.
7. Labels
The agency proposed labeling for the same reason it proposed
recordkeeping, i.e., the difficulty of determining by visual inspection
whether an air bag has been deactivated. Since the agency has decided
to specify retrofit on-off switches instead of deactivation as the
means for turning off air bags, a labeling requirement is unnecessary.
To be eligible for the exemption, the dealer or motor vehicle repair
business must install a retrofit on-off switch meeting certain
requirements, including a requirement for a telltale light that
illuminates to indicate when the air bag is off and a requirement that
the device be operable only by means of a key. The ``on'' or ``off''
position of the on-off switch and/or illumination or non-illumination
of the telltale light will be readily apparent to other occupants and
future owners and inform them of the on or off status of the air bags.
NHTSA intends to distribute warning labels to people who receive
deactivation letters before retrofit on-off switches become available
and for vehicles for which on-off switches do not become available. The
agency will also distribute those labels to persons who have already
received such a letter from the agency. The agency expects that those
labels will be available in the near future.
8. Lessees
A leasing association and a fleet managers association commented
that the proposal did not address how to handle special issues
concerning deactivations of air bags in leased vehicles. These
associations emphasized the contractual distinctions between commercial
(corporate fleets) and consumer (individual) lease arrangements, the
difficulty that a repair business would have in determining whether the
person presenting the leased vehicle for modification has authority to
have the air bag deactivated, and the many different use scenarios and
occupants of fleet vehicles. One association stated that the corporate
employer in charge of the operation of fleet vehicles, whether as an
owner or lessee, should be the sole party with authority to request
deactivation. It also stated that a fleet maintenance facility should
be considered a ``repair facility.'' 44
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\44\ NHTSA assumes that, in many cases, fleet maintenance
facilities are owned by the same business that owns the fleet
itself. Since vehicle owners are not subject to the make inoperative
prohibition, and thus can modify their vehicles as they wish,
subject to state and local law, the common ownership of the
facilities and the fleet means that the fleet owners can have their
maintenance facilities install on-off switches or even deactivate
their air bags without NHTSA authorization. If the facilities are
not operated by the owners of the fleet, then they are considered to
be repair businesses, for purposes of 49 U.S.C. 30122(a).
---------------------------------------------------------------------------
NHTSA appreciates the complexity of the issue, and that it may be
difficult for a dealer or repair business to determine whether the
person presenting a leased vehicle has authority to request an on-off
switch. This is, in part, why the agency did not make a specific
proposal, but instead raised the issue of lessees and asked how issues
relating to them should be addressed.
Under this final rule, the exemption from the make inoperative
prohibition applies to leased vehicles as well as owned vehicles. The
request form has been changed accordingly.
9. Definition of Repair Business
The agency has become aware that some businesses are holding
themselves out as being willing and able to deactivate a vehicle's air
bags. This is permissible so long as the owner of the vehicle has a
letter from NHTSA authorizing the deactivation of the air bags.
However, some businesses have suggested that they will deactivate air
bags even for people who do not have such a letter from NHTSA, on the
theory that they are ``air bag technicians'' (or perhaps mere
``agents'' of the owners) and not motor vehicle repair businesses.
The relevant part of 49 U.S.C. 30122(b) states that a
``manufacturer, distributor, dealer, or motor vehicle repair business
may not knowingly make inoperative any part of a device or element of
design installed on or in a motor vehicle or motor vehicle equipment in
compliance with an applicable motor vehicle safety standard. * * *''
Air bags are items of safety equipment installed in compliance with
applicable motor vehicle safety standard No. 208, and deactivating
them, by definition, makes them inoperative.
The term motor vehicle repair business is defined in 49 U.S.C.
30122(a) as ``a person holding itself out to the public to repair for
compensation a motor vehicle or motor vehicle equipment.'' Especially
in light of the broadly inclusive list of commercial entities in the
statutory provision, NHTSA interprets this term as including the
activities of mechanics, technicians, or any other individuals or
commercial entities that knowingly make modifications to or perform
work on safety equipment for a fee, if those modifications cause the
vehicle no longer to comply with applicable Federal motor vehicle
safety standards.
[[Page 62432]]
The agency believes that Congress was drawing a distinction in the make
inoperative prohibition between commercial entities that might work on
a vehicle and a vehicle owner, or an owner's friend or relative who
might work on a vehicle without compensation.
The legislative history of the Motor Vehicle and Schoolbus Safety
Amendments of 1974, which added the ``make inoperative'' prohibition,
supports this broad interpretation. The Conference Report states that
it ``is intended to ensure that safety equipment continues to benefit
motorists for the life of the vehicle. The protection of subsequent . .
. purchasers of a vehicle is thereby assured.'' H.R. Rep. No. 93-1452,
93rd Cong., 2d Sess. 39 (1974). It would subvert the purposes of
Congress in enacting this prohibition to read the statutory term
``repair'' literally and allow a business to perform, for compensation,
the very acts which the prohibition was intended to prohibit.
Deactivating an air bag makes its benefits unavailable to subsequent
purchasers.
NHTSA is aware that there is a court decision that addressed the
definition of ``repair business.'' A United States District Court
concluded that businesses installing window tint film were not repair
businesses because ``the plain meaning of the term ``repair business''
will prevail. * * * The plain meaning of the word 'repair' is to
restore to sound condition something that has been damaged or broken .
. . they are not in the business of restoring or replacing motor
vehicle equipment.'' United States v. Blue Skies Projects, Inc., 785 F.
Supp. 957, 961 (M.D. Fla. 1991).
NHTSA believes this case was not correctly decided. The court did
not recognize and give sufficient effect to Congress's intent,
expressed in legislative history, that federally-required safety
equipment should continue to ensure safe performance of vehicles over
their lifetime. Further, it is evident from the inclusion of repair
businesses among the listed entities subject to the prohibition that
some repair businesses sometimes do things other than restoring
components and systems to sound condition. This implies a broader
definition of ``repair'' than the one offered by the court.
Accordingly, NHTSA interprets the term ``motor vehicle repair
business'' to include mechanics, technicians, or any other individuals
or commercial entities that, for compensation, add, remove, replace or
make modifications to motor vehicles and motor vehicle equipment,
including safety equipment such as air bags, regardless of whether the
vehicle or component was previously ``broken'' or needed to be
``repaired.'' The description that a business applies to itself is not
controlling; it is the business' commercial relationship with the
public and the nature of the operations it performs on motor vehicles
that is determinative. Any business currently deactivating air bags for
customers who have not received authorization from NHTSA is violating
the law and subject to enforcement action by the agency.
10. Effective Date
NHTSA proposed an immediate effective date in the January 1997
NPRM. As noted in the summary of comments, the vehicle manufacturers
indicated that an immediate effective date would not be sufficient even
for deactivation, for which minimal parts, if any, are needed. NHTSA
recognizes that special parts are needed for on-off switches, and that
their production requires additional time. The industry has indicated
that the time necessary to produce retrofit on-off switches in large
enough quantity to meet all of the anticipated demand is 4 to 6 months.
This period was calculated from March 1997, not from the actual
date of a final rule. In anticipation of retrofit on-off switches being
allowed as an alternative, vehicle manufacturers began developing them
in March. At an NTSB hearing regarding air bag safety on March 17-19,
1997, two manufacturers stated that the time needed to develop switches
was dependent on the volume needed. Smaller volumes would take less
time. Although NHTSA has no information indicating that anyone other
than vehicle manufacturers plans to produce on-off switches, it notes
that independent aftermarket producers would not be precluded from
doing so. Their implementation time might be different from that
estimated by the vehicle manufacturers.
NHTSA has decided to make the exemption effective on December 18,
1997 and to set January 19, 1998, as the date on which switch
installation may begin. NHTSA finds good cause for making the exemption
effective less than 30 days after the publication of the final rule.
Making the exemption effective on December 18 is necessary to enable
the agency to begin processing requests at an early enough date that
owners can have their agency authorization letters in hand by January
19. In this way, persons at risk can begin obtaining switches on that
date or as soon thereafter as switches become available for the make
and model of their vehicle.
A delayed date for the beginning of switch installation will
promote the orderly implementation of the exemption. Based on the calls
to NHTSA from consumers regarding deactivation, it appears likely that
most owners who obtain agency authorization for switches will go to
dealerships to obtain their switches. The date of January 19, 1998,
will allow the manufacturers time to complete design of on-off
switches, start production, and begin delivery to their dealers before
consumers start expecting their requests to be filled. It will also
allow them to develop procedures for installing on-off switches, and
conduct necessary training for dealer service technicians. The date
will also give the agency and many of the company and group commenters
the time required to educate the public about air bag benefits and
risks before the on-off switches become available.
Although the selection of January 19 provides less time than the
manufacturers suggested in early 1997 would be needed to satisfy all
anticipated requests for on-off switches, NHTSA believes that this date
provides sufficient time for the manufacturers to begin to make
retrofit on-off switches available for installation. The agency
reiterates that the 4 to 6 month estimate by the vehicle manufacturers
was made with reference to March of this year, not the date of the
issuance of this rule. Further, a number of vehicle manufacturers are
already producing on-off switches in anticipation of this final rule.
In addition, on-off switches from aftermarket manufacturers might be
available to satisfy any unmet orders for on-off switches.
11. Sunset Date or Event
The NPRM proposed that deactivation of advanced air bags would not
be permitted under the exemption. NHTSA also stated that it would
consider not allowing deactivation of driver air bags that had been
depowered. GM and other manufacturers stated that NHTSA had not
adequately defined ``smart'' (i.e., advanced) air bags, and that it was
therefore inappropriate to sunset the availability of deactivation once
advanced air bags were introduced. A safety group stated that a sunset
was appropriate because on-off switches would not be necessary after
advanced air bags were available.
Although NHTSA continues to believe, based on safety
considerations, that it should prohibit dealers and repair businesses
from retrofitting advanced air bag vehicles with on-off switches, there
is no immediate need to do so. Widespread installation of
[[Page 62433]]
advanced air bags is not expected to begin for another several years.
Further, NHTSA notes that the existing definition of ``advanced'' air
bag does not include driver air bags and needs updating. NHTSA will
address these issues in the proposal on advanced air bag rulemaking
scheduled to be issued this winter and will include a proposed sunset
date for retrofit on-off switches.
As to permitting on-off switches for depowered air bags, NHTSA
anticipates that those air bags will pose less of a risk of serious air
bag injuries than current air bags. However, the agency will wait and
accumulate data on depowered air bags before making a final decision on
this issue. The agency may revisit this issue in a future rulemaking if
data indicate that on-off switches are not appropriate in vehicles with
depowered air bags. For the present, the exemption will apply to
vehicles with depowered air bags.
12. On-Off Switches for New Vehicles
Many public commenters on the January 1997 deactivation proposal
favored extending the existing option for installing on-off switches in
certain new vehicles to all new vehicles. However, the company and
group commenters were overwhelmingly opposed to the idea. NHTSA
considered this idea and then rejected it in its January 6, 1997 final
rule regarding on-off switches for passenger air bags in new vehicles
with no rear seat or an inadequate rear seat for rear-facing infant
seats (62 FR 798). The major reasons for this decision were (1)
assertions of the vehicle manufacturers (at that time) that OEM on-off
switches for new vehicles could not be developed quickly, (2) the
possibility that extending the option to all new vehicles might result
in on-off switches' being installed as standard equipment instead of
being installed upon special request by those at risk, (3) the
possibility that universal installation of on-off switches in new
vehicles might do more harm than good (4) the lower cost of
deactivation, and the fact that the cost would be borne primarily by
those who actually at risk and therefore in need of deactivation, and
(5) the possibility that the effort to develop on-off switches and
integrate them into the design of new vehicles might necessitate a
diversion of manufacturer engineering resources from development of
advanced air bags.
While the extension of the option for OEM on-off switches for new
vehicles to all air bag vehicles is outside the scope of this
rulemaking, that same issue was raised in a pending petition from the
National Motorists Association for reconsideration of the January final
rule. NHTSA remains concerned that extending the option to all new
vehicles might result in on-off switches' being installed as standard
equipment in all new vehicles, thus resulting in many more vehicles
being equipped with on-off switches than will occur under this final
rule. The agency has concluded that such widespread installation of on-
off switches without regard to whether individual consumers are
actually at risk would not be in the best interests of safety. The
agency also remains concerned that integrating on-off switches into new
vehicles, which would entail redesigning dashboards, will require more
resources than retrofitting on-off switches and thus could divert
resources from the development of advanced air bags. For these reasons,
NHTSA denies this petition for reconsideration.
13. Conforming Changes to Occupant Crash Protection Standard
This final rule amends Standard No. 208 so that the Standard refers
to ``on-off switches'' instead of ``cutoff switches.'' It also amends
the Standard to revise the owner's manual insert for passenger air bag
on-off switches installed in new vehicles. Instead of stating that use
of the switch should be limited to instances in which the right front
passenger seating position is occupied by an infant in a rear-facing
infant seat, the insert will say that use should be limited to persons
in one of the passenger risk groups identified in the request for in
Appendix B of Part 595.
IX. Implementation of Agency Decision
A. Limited Continued Use of Prosecutorial Discretion to Authorize
Deactivation: Procedures and Requirements
Between now and January 19, 1998, the date on which switch
installation may begin, NHTSA will continue its current practice of
granting requests for deactivating the air bags in all vehicle makes
and models. This will be done on a case-by-case basis. The agency will
grant those requests only if they are based on the justifications that
are currently being accepted under existing agency practice, as
modified to reflect changed circumstances such as the issuance of the
report on medical conditions warranting turning off an air bag.
Continuing to limit deactivation to requests based on these
justifications is appropriate, given the inflexibility and relative
permanency of deactivation.
NHTSA will grant deactivation requests after January 19, 1998, only
for those vehicle makes and models for which the vehicle manufacturer
does not make on-off switches available. NHTSA expects that vehicle
manufacturers will make on-off switches available for most vehicle
makes and models. For those specific makes and models for which on-off
switches are available on January 19, the agency will cease granting
deactivation requests as of that date. Likewise, as on-off switches
become available from the vehicle manufacturer for a specific make and
model after that date, NHTSA will cease granting deactivation requests
for that make and model. Owners of that make and model can fill out an
on-off switch request form and send it to the agency for approval. If
an on-off switch is also manufactured by an aftermarket manufacturer, a
consumer may wish to request that a dealer or repair business install
it. For vehicle makes and models for which the vehicle manufacturer
does not make available an on-off switch, the agency will continue to
grant deactivation requests, even if an aftermarket parts manufacturer
makes an on-off switch available for those vehicles.
As noted above, this section describes the procedures and practices
that the agency will follow in response to changed circumstances such
as the issuance of a report by the National Conference on Medical
Indications for Air Bag Disconnection. Those procedures and practices
differ from the ones previously followed regarding requests based on
medical conditions since that report does not recommend deactivation
for many of the medical conditions for which deactivation requests have
been granted in the past. In addition, this section describes the legal
effect of an agency letter authorizing deactivation and describes the
conditions which motor vehicle dealers and repair businesses must meet
in deactivating an air bag pursuant to such a letter.
Summary
If the owner of an air bag-equipped vehicle wishes to obtain the
agency's authorization to have an air bag deactivated, based on one of
the justifications described below, the consumer may write to NHTSA
stating the consumer's justification and requesting authorization for
deactivation. If the agency determines that the justification meets the
criteria for granting requests, it sends the consumer a letter
authorizing a dealer or repair business to deactivate the consumer's
air bag. The consumer presents the letter to a dealer or repair
business. Since the letter authorizes, but cannot require, the dealer
or repair
[[Page 62434]]
business to perform a deactivation, the dealer or repair business then
decides whether to deactivate the air bag(s), as authorized in NHTSA's
letter. If the dealer or repair business decides to do so, it must meet
certain conditions in deactivating the air bag.
Vehicle Owners
Air Bag Deactivation: Who is Eligible, and how is Authorization
Obtained?
1. NHTSA 45 will authorize deactivation based upon the
following justifications:
---------------------------------------------------------------------------
\45\ The reference to owners is intended to include lessees as
well.
---------------------------------------------------------------------------
A rear-facing infant restraint must be placed in front
seat of a vehicle because there is no back seat in the vehicle or the
back seat is too small for the child restraint (passenger air bag
only).
A child age 12 or under must ride in the front seat
because the child has a medical condition that requires frequent
monitoring in the front seat.
The owner, or a driver or passenger of the owner's
vehicle, has a medical condition that, in combination with an air bag,
poses a special risk to the person with the condition, and
That risk outweighs the increased risk that the person's
head, neck or chest will violently strike the steering wheel or
dashboard during a crash if the air bag is turned off (driver and/or
passenger air bag, as appropriate).
Drivers who are extremely short-statured (i.e., 4 feet, 6
inches or less) (driver air bag only).46
---------------------------------------------------------------------------
\46\ As noted above in IV, Summary of Comments on Proposal, IIHS
conducted a study in which it found the almost all women in a group
of women ranging in height from 4 feet 8 inches to 5 feet to 2
inches were able to get about 10 inches from their driver air bag in
all test vehicles and all of the women could achieve that distance
in almost all of those vehicles.
---------------------------------------------------------------------------
2. An owner who wants deactivation for any of the above reasons
should describe the reason in a letter and send it to: National Highway
Traffic Safety Administration, Attention: Air Bag Deactivation
Requests, 400 7th St. S.W., Washington, D.C. 20590. Deactivation is not
available for other reasons. The request can also be faxed to (202)
366-3443.
The request must contain the following:
Name and address of the vehicle owner.
The justification for the request. (See the list of
accepted justifications above.) The letter should be as specific as
possible about the justification and state whether the request applies
to the driver or passenger air bag, or both.
A description of the facts creating the need for
deactivation.
Each request based on a medical condition must be
accompanied by a statement from a physician, if the condition is not
one for which the National Conference recommended
deactivation.47 The physician's statement must not only
identify the particular condition of the patient, but also state the
physician's judgment--
---------------------------------------------------------------------------
\47\ The physicians at the National Conference did not recommend
turning off air bags for pacemakers, supplemental oxygen,
eyeglasses, median sternotomy, angina, chronic obstructive pulmonary
disease, emphysema, asthma, breast reconstruction, mastectomy,
scoliosis (if the person is capable of being positioned properly),
previously back or neck surgery, previous facial reconstructive
surgery or facial injury, hyperacusis, tinnitus, advanced age,
osteogenesis imperfecta, osteoporosis and arthritis (if the person
can sit back at a safe distance from the air bag), previous
opthalmologic surgery, Down syndrome and atlantoaxial instability
(if the person can reliably sit properly aligned in the front seat),
or pregnancy. However, the physicians did recommend turning off an
air bag if a safe sitting distance or position cannot be maintained
by a driver because of scoliosis or achondroplasia or by a passenger
because of scoliosis or Down syndrome and atlantoaxial instability.
The physicians also noted that a passenger air bag might have to be
turned off if an infant or child has a medical condition and must
ride in front so that he or she can be monitored. This report is
summarized more fully earlier in this notice. To obtain a complete
copy of the detailed recommendations by the panel, call the NHTSA
Hotline (1-800-424-9393) or download if from the NHTSA Web site.
---------------------------------------------------------------------------
a. That the condition causes air bags to pose a special risk to the
person, and
b. That the condition makes the potential harm to the person from
contacting an air bag in a crash greater than the potential harm from
turning off the air bag and allowing the person's head, neck or chest
to hit the steering wheel, dashboard or windshield. (Hitting the
vehicle interior is likely in a moderate to severe crash, even if the
person is using seat belts.) 48
---------------------------------------------------------------------------
\48\ Physicians considering whether a person's medical condition
makes it desirable for that person to turn off his or her air bag
should consider the report of the National Conference and the
following three points and guidance.
Most medical conditions present no greater risk of air
bag injury for a person with one of those conditions than the risk
faced by the general public.
The risks of air bag injury are generally less and
almost never greater than the risks of injury from striking the
steering wheel or dashboard.
The types of injury sustained by persons who strike the
steering wheel or dashboard are far more serious (except in
extremely rare circumstances that occur only a few times a year)
than the types of injury sustained as a result of contacting
deploying air bags. Injuries from striking the steering wheel or
dashboard typically include brain trauma and severe facial injuries.
The facial injuries can be very disfiguring and may require
multiple, complicated surgical procedures.
As noted above in the description of the report of the National
Conference, very few medical conditions will cause an air bag to
create a special risk. The few conditions that do create such a risk
do so by making it necessary for persons with one of those
conditions to sit less than 10 inches from an air bag. This is true
for both low speed crashes and higher speed crashes. This guidance
is based on the following facts:
1. The force of a deploying air bag decreases as the air bag
moves away from the steering wheel or dashboard, and
2. An air bag spreads out the forces that a person experiences
during a crash, reduces the crash forces that seat belts transmit to
particular areas of the body, and decreases the risk that the
person's head, neck or chest (even those of a belted person) will
strike the steering wheel or dashboard.
---------------------------------------------------------------------------
If the request concerns a child that must ride in the front seat to
enable the driver to monitor the child's medical condition, the
supporting physician's statement must identify the condition and state
that frequent monitoring by the driver is necessary. NHTSA notes that
the American Academy of Pediatrics has stated that medical conditions
requiring such monitoring are very rare. According to the final report
of the National Conference on Medical Indications for Air Bag
Disconnection: ``It is anticipated that the American Academy of
Pediatrics will make recommendations regarding which specific
conditions warrant close monitoring while driving'' (passenger air bag
only).
3. The agency will respond in writing, enclosing a copy of the
information brochure in Appendix A of Part 595, labels to be attached
to the vehicle interior for alerting vehicle users about the
deactivated air bags, and a form to be filled out and mailed back to
the agency regarding the deactivation. NHTSA will answer the
deactivation requests as quickly as possible. It screens the incoming
requests for requests involving rear-facing child restraints (because
of the higher risk associated with those requests) and processes those
requests first. Depending on the volume of requests being received by
the agency, the processing usually occurs within several days. All
other requests are handled in the order in which they are received.
These requests currently take a couple days longer to answer.
The central reason for convening the National Conference on Medical
Indications for Air Bag Disconnection was that the belief that the
public and many physicians might benefit from guidance by physicians
having expertise relating to automotive crash-induced trauma. The
agency will attempt to ensure that due consideration is given the
National Conference's report. If the agency receives a deactivation
request accompanied by a physician's statement based on one of the
medical conditions for which the National Conference did not recommend
deactivation, the agency will defer to the requestor's physician and
send a letter to the requestor granting his or her request. However,
the agency will also enclose the report
[[Page 62435]]
and urge that the requestor discuss it with his or her physician before
having any modifications made to the requestor's air bags. NHTSA will
also send a copy of the letter and report directly to the physician to
ensure that he or she is made aware of the report's contents.
4. If a request has been granted, the recipient should call his or
her dealer or a repair business and ask if it will disconnect the air
bag. If the dealer or repair business says that it will, the recipient
should ask further whether it is necessary to bring proof of owner
status to the dealer or repair business.
5. Some dealers and repair businesses have a policy of not
disconnecting air bags. NHTSA has no authority to require them to do
so--that is the dealer's or business' decision. The owner may have to
shop around to find a qualified automotive mechanic or technician who
will disconnect the air bag.
6. If there is a motor vehicle insurance premium discount based on
the presence of air bags in a vehicle, the premiums may increase
slightly if the air bag(s) is(are) disconnected.
7. Seat belts should always be worn, whether a person's air bag is
operational or deactivated. If a person's air bag is deactivated, seat
belts are the only available means of restraint to reduce the
likelihood that the person will hit the vehicle interior in a crash.
Thus, it will be more important than ever to be properly restrained at
all times.
8. NHTSA strongly urges owners to have their air bag reactivated if
the condition that caused the deactivation ceases to exist, or if they
sell the vehicle. If they do not reactivate the air bag upon sale, they
should inform the new owner that the air bag has been deactivated.
9. If the agency denies a request, it will give the reason for the
denial. The reason may be that there was not enough explanatory or
supporting information submitted for NHTSA to approve the request. In
that event, the request may be resubmitted with the necessary
information. If a request was denied because the owner does not provide
an accepted justification, the owner must wait for retrofit on-off
switches to become available for his or her make/model of vehicle in
order to turn off the air bag(s). If the owner or a user of his or her
vehicle is a member of a risk group, the owner may request an on-off
switch once one becomes available.
Motor Vehicle Dealers and Repair Businesses
Steps Which Must Be Taken if an Air Bag is Deactivated Pursuant to an
Agency Authorization Letter
1. If a person requests deactivation of an air bag, the dealer or
repair business should determine that the person is the owner of the
vehicle and that the person possesses a letter from the agency
authorizing that person to have that air bag deactivated. Owner status
can normally be checked by looking at the vehicle title or
registration. (NOTE: A dealer or repair business is prohibited by
statute from deactivating a vehicle's air bag unless the owner has an
authorization letter from the agency.)
2. The agency letter will indicate which air bag(s) may be
deactivated. If the letter authorizes deactivation of the driver air
bag, the passenger air bag may not be deactivated, and vice versa.
3. NHTSA recommends that the dealer or repair business consult with
the vehicle's manufacturer regarding a deactivation procedure if there
are any doubts about how to deactivate an air bag.
4. An air bag must be deactivated in a manner such that:
It will not deploy in a crash; and
Reactivation is facilitated, if possible. This means, for
example, leaving the air bag module in the vehicle.
5. These steps may be supplemented in any manner, such as by
keeping a copy of the agency grant letter. Some dealers and repair
businesses are requiring owners to permit them to apply warning labels
to the vehicle or sign waivers of liability.
B. Providing Retrofit On-Off Switches Under the Exemption: Procedures
and Requirements
Consumers can request the installation of an on-off switch by
completely filling out the request form in Appendix B of Part 595 and
sending it to NHTSA for approval. The agency will begin processing
request forms on December 18. If a form is submitted before that date,
it will be given the same priority as a form submitted after that date.
Accordingly, there will be no advantage to submitting forms early.
When the agency approves a request, it will send an authorization
letter to the vehicle owner. Motor vehicle dealers and repair business
may begin installing switches on January 19, 1998. If a dealer or
repair business installs an on-off switch, it must comply with the
conditions set forth in Part 595. Those conditions include obtaining
the owner's authorization letter which includes a form to be filled in
by the dealer or repair business and mailed back to NHTSA.
Vehicle Owners
Air Bag On-Off Switches: Who is Eligible, and How is Authorization
Requested?
1. Ask a dealer or vehicle repair business if a retrofit on-off
switch is available. As noted above, NHTSA will grant deactivation
requests after January 19, 1998 for only those vehicle makes and models
for which the vehicle manufacturer does not make on-off switches
available. As on-off switches become available from the vehicle
manufacturer for a specific make and model, NHTSA will cease granting
deactivation requests for that make and model. If an owner of such a
make and model writes to NHTSA requesting authorization to have an air
bag deactivated, NHTSA will deny the request and notify the person that
a retrofit on-off switch is available. Eligible owners of the make and
model may fill out a request form and send it to the agency for
approval. If the agency approves the request and sends an authorization
letter to the owner, the owner may then give the letter to a dealer or
repair business, and ask it to install the vehicle manufacturer's on-
off switch. If an on-off switch is also manufactured by an aftermarket
manufacturer, a consumer may wish to request that a dealer or repair
business install it.
For vehicle makes and models for which the vehicle manufacturer
does not make available an on-off switch, the agency will continue to
consider deactivation requests, even if an aftermarket parts
manufacturer makes an on-off switch available for those vehicles. If an
aftermarket parts manufacturer does make an on-off switch, the eligible
owner of such a vehicle has the choice of requesting the agency to
authorize deactivation or submitting an on-off switch request form to
the agency for approval. If the agency approves the request for a
switch, the owner can then give the agency authorization letter to a
dealer or repair business, and ask it to install the aftermarket on-off
switch.
2. Determine if the vehicle owner or a user of the owner's vehicle
meets the criteria in one of the risk groups and if obtaining a
retrofit on-off switch is appropriate. The information brochure in
Appendix A of Part 595 will help the owner make this decision. The
owner will have to certify on the request form that he or she has read
the information brochure and that he or she or a user of
[[Page 62436]]
the owner's vehicle is a member of one of the risk groups listed on the
form. Separate certifications, one for a risk group related to the
driver air bag and another for a risk group related to the passenger
air bag, must be made on the form if the owner wants an on-off switch
or switches for both the driver and passenger air bags.
3. Completely fill out the request form in Appendix B of Part 595.
The agency cannot approve a request for an on-off switch unless the
form is completely filled out and signed and dated by the owner.
4. Send the completed form to NHTSA.
5. Upon reviewing the owner's form and approving it, NHTSA will
send an authorization letter to the owner.
6. Call your dealer or repair business and ask about the
installation of a switch and the associated costs.
7. Give your authorization letter to a dealer or repair businesses
willing to install the switch and request the installation of an on-off
switch.
8. Use the retrofit on-off switch appropriately. The on-off switch
should only be used if the person occupying the seating position is a
member of one of the risk groups listed in the information brochure in
Appendix A of Part 595. At all other times, the air bag should be on.
Motor Vehicle Dealers and Repair Businesses
Steps Which Must Be Taken if an Air Bag On-Off Switch is Installed
Pursuant to the Exemption From the Make Inoperative Prohibition
1. Make sure the vehicle owner presents an authorization letter
from NHTSA. The dealer or repair business may also require the owner to
fill out a form devised by the dealer or repair business. That form may
include a waiver of liability.
2. Install a retrofit on-off switch for each air bag covered by the
agency's authorization.
3. Ensure that each on-off switch meets all of the following
performance requirements--
a. Be activated solely by a key.
b. Cause the air bag to remain turned off until manually turned
back on using a key and the on-off switch.
c. Be accompanied by a telltale light in the vehicle interior. The
telltale must indicate when an air bag has been turned off and be
visible to an occupant of the driver's seat, in the case of a light for
the driver air bag, and to all front seat occupants, in the case of a
light for the passenger air bag.
d. Not affect the ability of the required air bag readiness
indicator to monitor an air bag that is not turned off. The indicator
must show whether the air bag is functioning properly.
e. If a single on-off switch is installed to control both the
driver's and passenger's air bag, the on-off switch must be capable of
turning off one air bag without turning off the other. For a single on-
off switch controlling both air bags, the telltale light must indicate
which air bag is off.
4. Provide the owner with an insert for the vehicle owner's manual
describing the operation of the on-off switch, listing the risk groups
on the request form, stating that the on-off switch should only be used
to turn off an air bag for a member of one of those risk groups, and
stating the vehicle specific consequences for using it for persons who
are not members of any of those risk groups. Those consequences must
include the effect of any energy managing features, e.g., load
limiters, on seat belt performance. NHTSA anticipates that the inserts
can be obtained primarily from the vehicle manufacturers, although in
some cases, they might be available from independent on-off switch
manufacturers.
5. Fill in information about your dealership or repair business and
about the installation on the form included in the authorization letter
and return the form by mail to NHTSA within seven days of your
installation of an on-off switch pursuant to that letter.
C. Steps to Promote Informed Decisionmaking by Consumers About Retrofit
On-Off Switches
1. Information Brochure
To limit the obtaining and use of retrofit on-off switches to
persons who may be at risk from serious air bag injury, the agency is
issuing guidance to aid consumers in determining if they or a user of
their vehicle is in a risk group and in making informed decisions about
requesting and using retrofit on-off switches. This guidance is
contained in the information brochure in Appendix A of Part 595. In
response to public comments about the information brochure in the
deactivation NPRM, the brochure has been rewritten in a question and
answer format to be more user friendly. The brochure will be
distributed widely and made available on the Internet. The electronic
version of the information brochure on NHTSA's Web site will
supplemented by video clips showing what happens to a belted dummy in a
crash test when the driver air bag is turned off.
The information brochure explains which consumers may be at any
risk from air bags, and which are not. The brochure identifies the
factors that create risk and tells consumers how to reduce that risk.
For those who may be at risk, it stresses how infrequently people,
particularly drivers and adult passengers, are fatally injured by air
bags.
The information brochure also emphasizes that on-off switches
should not be used to turn off air bags for the people not at risk.
They represent the vast majority of vehicle occupants. Their use of on-
off switches to turn off air bags will not make them safer in low speed
crashes, but will make them less safe in moderate and high speed
crashes.
2. Insert for Vehicle Owner's Manual
To remind vehicle owners and users about the proper use of on-off
switches, the agency is requiring that dealer or repair businesses
which install switches give vehicle owners an owner's manual insert
describing the operation of the on-off switch, listing the risk groups,
stating that the on-off switch should be used to turn off an air bag
for risk group members only, and stating the vehicle specific safety
consequences of using the on-off switch for a person who is not in any
risk group. Those consequences would include the effect of any energy
managing features, e.g., load limiters, on seat belt performance.
3. Physicians' Guidance Regarding Medical Conditions Warranting Turning
Off an Air Bag
As noted above, a national conference of physicians, convened by
George Washington University at the request of NHTSA, has examined the
medical conditions that have been cited by vehicle owners as the basis
for requesting deactivation of air bags. The conference participants
recently issued a report containing their assessment of each of those
conditions as a justification for deactivation. The agency expects that
publicizing the report will reduce some of the confusion and
misapprehension about which medical conditions really justify air bag
deactivation. NHTSA has briefly summarized the report in the
information brochure and is placing it on the agency's Web site.
4. Campaign to Increase Use of Child Restraints and Seat Belts
NHTSA is also undertaking a campaign in conjunction with safety
groups, vehicle manufacturers and state and local authorities to
promote increased use of all types of occupants restraints. NHTSA is
urging motorists to use child restraints and seat belts and
[[Page 62437]]
place children in the back seat, whenever possible, as well as
spreading the word about the benefits of air bags for most people.
Proper use of the restraint(s) most appropriate to the weight and age
of each child fatally injured to date by air bags would have saved all
or almost all of them. While increasing numbers of parents are placing
their children in the back seat or ensuring that they are properly
secured in the front seat, much consumer education work remains to be
done.
Disturbingly, most of the fatally-injured children were allowed to
ride in the front without any type of restraint whatsoever. And, as of
July 15, 1997, five out of the last seven fatally injured children aged
1 to 12 were simply ``held in place'' on the lap of a front seat
passenger. There were no similar fatalities before December 1996. It is
not known whether the sudden appearance of fatalities under these
particular circumstances is mere chance or a response to the publicity
given child air bag fatalities last fall. It is known that the combined
effects of the risk of an air bag to an unrestrained child, and the
weight that an adult places on a child during a frontal crash can make
the decision to attempt to hold a child in place a fatal one. Children
should ride fully restrained, and in the back seat whenever possible.
In addition, NHTSA is seeking to increase the rate of seat belt use
from the current 68 percent to 90 percent by 2005 by promoting the
enactment of primary seat belt use laws and high-visibility enforcement
of use laws. Such an increase could save an estimated additional 5,000
lives each year. Since most persons fatally injured by air bags have
been unbelted, this increase would also provide an additional way of
preventing air bag fatalities. This provides an additional reason why
on-off switches should only be used when a person in one of the
identified risk groups is in the seat.
X. Net Safety Effects and Costs of On-Off Switches
A. Effect of Turning Off Air Bags on the Performance of Some Seat Belts
A number of industry commenters stated that deactivating air bags
could result in substandard performance of the seat belts. Senator John
McCain also sent NHTSA a letter requesting that the agency investigate
this possibility.
A good general introduction to this issue appeared in an article on
March 31 in the Kansas City Star:
The seat belts on some newer cars were designed to work with
their air bags, automakers say. Alone, they will not protect a
person in a serious crash as well as an older-style belt.
The newer belts allow a person to travel forward a few more
inches than older belts, and when used in conjunction with air bags
have some advantages, experts say. If the air bag is removed,
however, the person faces a greater risk of head or chest injuries
from hitting the steering wheel or dashboard.
In minor or moderately severe crashes, the redesign of the belt
won't make a difference, auto and safety officials say. But in
severe crashes, a person is more likely to travel forward far enough
to hit the dashboard or steering wheel, sustaining head and chest
injuries, they say.
When used with an air bag as designed, the newer belt has some
definite advantages over the traditional one
Because it is looser, it is less likely to break a rib or
collarbone in a severe crash. * * * That is particularly of concern
for elderly people.
In older cars without air bags, the work of restraining an
occupant falls solely on the belt * * *
The newer belt can * * * give way a little bit so that the air
bag takes up some of the force of the crash and spreads it out over
a broader section of your body * * * The result: fewer belt
injuries.
Seat belts are required to meet minimum performance requirements in
Standard No. 209, ``Seat belt assemblies,'' and seat belt anchorages in
vehicles are required to meet minimum performance requirements in
Standard No. 210, ``Seat belt anchorages.'' However, dynamically tested
belts (automatic belts or manual belts with air bags) do not have to
meet the requirement of Standard No. 209 that places a maximum of 30
percent on the amount of permitted webbing elongation. In addition, the
anchorages for dynamically tested belts do not have to meet the
anchorage location requirements of Standard No. 210. These requirements
are not necessary for belts which are dynamically-tested, because the
dynamic test ensures that the system works to protect the occupant from
the type of injuries these requirements are designed to prevent. The
elongation requirements also do not apply to belts that are equipped
with ``load limiters'' and that are installed at a seating position
with an air bag. A load limiter is a component of a seat belt system
used to limit the levels of forces transferred to an occupant
restrained by the belt during a crash. In very severe crashes, the
forces in the seat belt system may rise above levels considered safe.
If a belt system has a load limiter, parts in the system deform so that
the belt forces transferred to the occupant do not rise above a
predetermined maximum level. There are different designs of load
limiters, ranging from simple folds stitched into the seat belt webbing
that are designed to tear under a certain load, to more complex
mechanical systems, some of which play out a small amount of additional
webbing at incremental increases in load levels. The exclusion from the
elongation requirements does not unnecessarily prevent manufacturers
from using a design for these devices that operates by affecting the
length of the webbing.
The exclusion from the elongation requirement is not likely to
significantly affect the safety of the belt system. Although
manufacturers may have designed belt systems in some air bag equipped
vehicles with more ``give'' than those in non-air bag equipped
vehicles, a 1991 NHTSA study showed that webbing in vehicles with air
bags far exceeded Standard No. 209's requirements despite the exclusion
from the elongation requirement. The study showed that maximum
elongation, when tested according to the requirements of Standard No.
209, was 15 percent or less, or about half the permitted amount of
elongation. NHTSA updated this study and again found that the maximum
elongation was 15 percent or less.
Some manufacturers have, appropriately, been using the flexibility
in Standard No. 209 to optimize their belt systems to work with air
bags. Additional webbing elongation and load limiters would not
normally be a problem in an air bag equipped vehicle, because the air
bag would limit occupant excursion. This additional ``give'' in the
seat belts is normally beneficial because it prevents the belt from
causing injuries. However, some load limiters, those releasing a
relatively large amount of additional webbing, could result in
additional deaths and injuries if the air bags are turned off.
Unfortunately, if the air bag cannot function because it has been
turned off, the ``give'' in these seat belts would increase the chance
that occupants would hit their heads and upper bodies more easily on
the steering wheel, the A-pillar, the windshield, or other hard parts
of the vehicle interior, and suffer serious injury. In some cases, the
only way to solve this problem might be by replacing the entire belt
assembly.
Another type of safety device that could be affected by turning off
the air bags is a seat belt pretensioner. These devices retract the
seat belt webbing to remove slack almost instantly in a crash, thus
enhancing the effectiveness of the seat belts by reducing the distance
that the occupant might otherwise travel forward. Pretensioners are not
powerful enough to pull the occupant back into
[[Page 62438]]
the vehicle seat; they merely remove slack. Some seat belt
pretensioners are triggered by the same sensor that actuates the air
bag, and may be wired into the same circuit as the air bag. Therefore,
unless on-off switches are designed correctly, turning off the air bag
may also disable the seat belt pretensioners. Pretensioners are not
required by NHTSA standards, but are an improvement added at the
manufacturer's option. NHTSA is not aware of any belt systems with
pretensioners that allow more slack to be introduced than is allowed by
systems without pretensioners. However, the system is likely to be more
effective if the pretensioner is not disconnected as a result of the
installation and use of an on-off switch. To NHTSA's knowledge, all air
bags in vehicles with pretensioners can be turned off without disabling
the pretensioners.
The exclusion of air bag equipped vehicles from the requirements in
Standard No. 210 may have also been used by manufacturers to optimize
their seat belt anchorage locations for seat belts used in conjunction
with air bags. The agency cannot quantify or even estimate the extent
to which vehicle manufacturers have availed themselves of this
opportunity. NHTSA's anchorage location requirements are intended to
reduce the likelihood that occupants would ``submarine,'' i.e., slide
forward under the lap belt. Submarining would cause the seat belt loads
to be transferred to an occupant up on the soft tissue of the abdomen
instead of down on the pelvic bones, thereby increasing the likelihood
of abdominal injury. The static test in Standard No. 210 is intended as
a substitute for a dynamic test where the interaction between the
occupant and the lap belt can be observed. Since manual belts used with
air bags do not have to meet Standard No. 210's anchorage location
requirements, manufacturers may have located the anchorage locations to
optimize the interaction between the belt and the air bag in
controlling the forward motion of the occupant. With the air bag turned
off, the system as a whole will not operate as designed, and the chance
of abdominal injuries could be increased.
A minority of vehicles have load limiters or seat belt
pretensioners. Using information provided by manufacturers on the
design of 1997 model year vehicles and sales numbers of 1996 vehicles,
NHTSA estimates that vehicles with pretensioners will comprise only 5
percent of 1997 vehicle sales. Using the same information, NHTSA
estimates that vehicles with load limiters comprise about 22 percent of
1997 model year sales. Very few models have both load limiters and
pretensioners. Since the number of vehicles with these features has
been increasing in recent years, the actual percentage of models with
these features in the entire on-road vehicle fleet is lower than the
percentage in 1997 model vehicles. Nonetheless, NHTSA expects vehicle
manufacturers, dealers and repair businesses will take appropriate
steps to inform consumers whether their vehicle is equipped with one of
these devices and to advise them whether any modifications to the
vehicle belt system should be made. The agency's information brochure
advises vehicle owners to ask the manufacturer of their vehicle about
this issue.
NHTSA agrees with the industry commenters that turning off the air
bag could result in a seat belt system with less than optimal
performance. Modern vehicle restraint systems are highly complex and
integrated, with the seat belt and air bag components often designed to
work together. The seat belt systems may not be designed to work alone.
Taking out one component of the integrated system could result in
reductions in performance. Because many of the features identified by
NHTSA are designed to operate only when high loads are placed on the
belt system, the presence of these features will be of no consequence
in low severity crashes in which the air bag has been turned off,
especially when a small/light weight person is using the belt. However,
those features will be consequential in a more severe crash. In such a
crash, the belts will not provide their full benefits for a vehicle
occupant if that person's air bag is turned off.
B. Net Safety Effects and Costs
People not in any of the four risk groups specified in this final
rule will be worse off if they turn off their air bag. These people
include the vast majority of teenagers and adults, including older
drivers. By turning off their air bags, they will increase their chance
of death or serious injury in moderate to serious crashes. Even belted
occupants and the vast majority of short occupants will increase their
risk of serious or fatal head, neck or chest injury if they turn off
their air bags.
The net safety effects of retrofit on-off switch use will depend in
part upon what proportion of the switch users are people at risk. Among
persons in risk groups, the net safety effect of use of the on-off
switch will depend on the whether that group is, on balance, benefited
or harmed by air bags. For a group, like infants, which has had members
fatally injured, but not saved, by air bags, use of the on-off switch
to turn off passenger air bags will produce a net positive safety
effect for the group. However, for other groups, use of the on-off
switch to turn off driver air bags could have a net negative safety
effect for the group.
Survey data provided by commenters suggest that many more people
want on-off switches than could possibly benefit from them. As
suggested above, the agency believes that this is because people tend
to hear more about, and be more reactive to, the small number of
fatalities from air bags than the large number of lives saved by air
bags. The January 1997 survey provided by IIHS suggested that 30
percent of respondents were generally interested in on-off switches for
the driver air bag, and 67 percent in on-off switches for the passenger
air bag. Several commenters suggested that widespread availability of
on-off switches would raise the possibility of what they termed
``misuse,'' i.e., use of on-off switches by persons who are not at risk
and who are clearly better off with their air bag left on. If this were
to occur, it could result in a negative effect on safety. However, to
the extent that the reported interest in on-off switches simply
reflected a desire to make it possible to turn off an air bag should a
person at risk ever be carried, then the likelihood of use by persons
not at risk would be smaller.
As previously noted, the more recent IIHS survey, conducted in
August, indicates that the general interest in on-off switches for
passenger air bags has declined considerably since January. According
to the new survey, 26 percent of respondents expressed a general
interest in passenger air bag switches. General interest in driver air
bag on-off switches was essentially unchanged, with 27 percent of
respondents expressing an interest in those switches. The new survey
also showed that interest in on-off switches declined after the
respondents were informed about matters such as air bag benefits, steps
for reducing risk and the cost of switches. The figure for passenger
air bags dropped from 26 percent to 16 percent and the figure for
driver air bags dropped from 27 percent to 12 percent.
To minimize the possibility of adverse safety consequences, persons
who wish to apply for retrofit on-off switches must certify that they
have read a NHTSA information brochure that explains the benefits and
risks related to air bags to ensure that they make informed decisions
both with respect to obtaining, and then using, an on-off switch. The
brochure identifies which groups may be at risk, and which are not.
More
[[Page 62439]]
important, persons interested in on-off switches must certify that they
or a user of the seating position in question meets the criteria for
one of the relevant risk groups. Limiting eligibility for on-off
switches to vehicle owners who are able to certify risk group
membership should minimize the possibility that persons not in a risk
group will have an opportunity to use a on-off switch to turn off their
air bag and reduce the possibility that the switch will be used
improperly. Finally, owners must submit their request to the agency for
approval.
Given the large numbers of lives currently being saved by air bags
and the very small chance of a fatality due to an air bag, and
notwithstanding the limitation on eligibility for a on-off switch,
NHTSA recognizes the possibility that authorizing the installation of
retrofit on-off switches could result in a net loss of life. The agency
has analyzed these adverse effects in its Final Regulatory Evaluation
(see summary below). NHTSA notes that to the extent such a loss occurs,
it would be the unfortunate result of several readily avoidable events:
the incorrect certification of risk group membership, the use of on-off
switches by persons who are not members of risk groups, and the failure
to use seat belts and/or child restraints properly and to take other
readily available precautionary measures.
NHTSA is issuing this final rule, notwithstanding its potential to
reduce the number of lives saved by air bags, because the agency
believes that it must consider both the short-run and long-run
implications of this rulemaking on safety. Ultimately, the continued
availability and use of any safety device, whether provided voluntarily
by manufacturers or pursuant to a regulation, is dependent on public
acceptability. The agency believes that air bags which fatally injure
occupants, particularly children in low speed crashes, weaken the
acceptability of air bags, despite their overall net safety benefits.
Accordingly, to help ensure that air bags remain acceptable to the
public and ultimately achieve their full potential in the future (as
advanced air bags are developed and introduced), the agency believes it
is reasonable and appropriate to give persons in risk groups the
opportunity to obtain and use an on-off switch, upon the making of the
requisite certifications on the agency request form and obtaining
agency approval for each request.
The potential savings and savings foregone are described in the
executive summary of the Final Regulatory Evaluation (FRE). The
following discussion is based on that summary.\49\
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\49\ The agency notes that IIHS and BMW raised the possibility
in their comments that use of on-off switches could lead to
increased occupancy of the front seat, especially by children, and
thus to increased injuries and fatalities. The extent to which this
phenomenon might occur, if at all, is speculative and therefore not
quantifiable.
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The Final Regulatory Evaluation analyzes the potential impact of
allowing motor vehicle dealers and repair businesses to install air bag
on-off switches in vehicles. This option is being considered in
response to concerns that current air bags may injure or kill some
occupants in low speed crashes.
Data indicate that only a small portion of vehicle occupants are
actually at risk of fatal harm from air bags, and that these occupants
tend to fall into well-defined groups. Because both the actual risk and
the public's perception of this risk are quite different for drivers
and passengers, this analysis addresses each occupant position
separately.
On-off switches will not be necessary after advanced air bags
become available. Vehicle manufacturers are expected to install some
kind of advanced air bags throughout their fleet by the year 2002. An
analysis was therefore performed of the impacts that might occur during
the 1998-2001 period, when an average of 45 percent of the on-road
vehicle fleet will have driver air bags, and 32 percent will have
passenger air bags. Safety impacts will continue to occur over the
remaining life of these pre-2002 model year fleets, but at a declining
rate as more vehicles are retired from the fleet without being replaced
by on-off-switch-equipped vehicles. For the purposes of isolating and
analyzing the impacts of this rulemaking, it is assumed that there is
no change in air bag design, i.e., the potential impact of depowering
or other design changes are not included. It is also assumed that there
is no change in driver/passenger behavior, belt use, child restraint
use, or the percent of children sitting in the front seat. Since the
agency has significant education and labeling efforts underway, and the
manufacturers are constantly improving air bags, the population which
could be positively affected by retrofit on-off switches is actually
smaller than that assumed for the purpose of this analysis. The results
of this analysis are as follows:
Drivers
If on-off switches are installed and used by all drivers actually
at risk, the switches could prevent 45 fatalities during the 1998-2001
period, an average of 11 each year. For every one percent of those not
in a risk group who always use on-off switches to turn off the driver
air bag, the number of drivers saved by air bags would be reduced by 42
for that period, an average of 11 drivers each year. Nonfatal injuries
impact a broad range of occupants for which particular risk groups
cannot be properly identified.50 For each one percent of
drivers always use on-off switches to turn off the driver air bag, a
net increase of 490 moderate to critical injuries would occur during
1998-2001 (123 annually).51
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\50\ Some nonfatal injuries are unrelated to the factors
(sitting distance from air bag and medical conditions) which define
the driver risk groups. For example, since all drivers must hold the
steering wheel, they are all subject to arm injuries without regard
to those factors.
\51\ This potential increase applies to all drivers, not just
those in a risk group.
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Passengers
Passenger impacts vary dramatically by age group. If on-off
switches are always used for all child passengers (ages 0-12), they
could prevent 177 deaths over the 1998-2001 period, an average of 44
deaths annually. The vast majority of these benefits would come from
infants and from children 1-12 years old who ride completely unbelted,
remove their shoulder belt, lean forward or otherwise place themselves
at risk. The net impact of on-off switches on nonfatal injuries is
uncertain, but the agency believes that on-off switches would provide a
net benefit to children.
The agency cannot identify the teenage and adult at-risk group,
with the exception of a minimal number of medical cases. The agency
advises all those passengers above 12 years of age to leave air bags
on. For every one percent of teenage and adult passengers who always
utilize on-off switches to turn off their air bag, 9 additional
fatalities and 93 additional moderate to critical injuries would occur,
an average of 2 more fatalities and 23 more injuries annually.
Costs
NHTSA estimates that an on-off switch for one seating position
would cost between $38 and $63 and that the cost for an on-off switch
to control both the driver and right front passenger air bags would
cost between $51 and $76 (1996 dollars) to install on aftermarket
vehicles. These costs would be voluntary and incurred at the initiative
of the vehicle owner. Ford was the only commenter on costs. Ford
estimated the cost of installing an aftermarket on-off switch that
controls both the driver and
[[Page 62440]]
right front passenger air bag to be $95 to $124.
NHTSA notes that one commenter, MBS, submitted an analysis
suggesting that a final rule would result in a large annual number of
additional deaths by the year 2000. After reviewing MBS' analysis, the
agency concludes that it rests on a number of incorrect assumptions
about key matters and consequently cannot reliably assess the impacts
of this final rule. First, MBS' analysis assumes the final rule would
authorize deactivation, which is permanent and eliminates air bag
protection for all vehicle users, instead of on-off switches. As noted
above, on-off switches make it possible to leave air bags on except
when a person at risk is riding in the vehicle. Second, MBS' analysis
assumes that anyone may have their air bag turned off, based on
informed decisionmaking alone. In fact, the final rule is based on
informed decisionmaking, certification of risk group membership, and
agency approval of each request. As a result, the final rule will
reduce inappropriate requests for on-off switches, i.e., those requests
based on reasons other than safety risk. Third, MBS' analysis relies on
highly speculative assumptions about the percentage of respondents to
telephone surveys (the January IIHS survey and a later survey by Ford)
who will actually go to their dealers or repair business and purchase
an on-off switch. Given the shortcomings of those early surveys, which
are detailed above, they do not provide a reliable basis for estimating
the level of interest in on-off switches. Although the more recent
(August) survey by IIHS avoided those shortcomings and demonstrated the
potential for education to reduce interest in on-off switches, that
survey too does not provide a basis for reliably estimating the number
of people who will obtain on-off switches under this final rule. Even
though the new survey introduced key information about cost and safety,
it did so only to the very limited extent that it was reasonable and
practicable to do so in the context of a brief survey. Only the barest
of facts were given to the respondents. Further, since IIHS was
conducting an opinion survey, not a public education campaign, its
efforts to educate respondents about who is at risk from air bags was
very cursory. The public education campaign planned by the agency and
other interested parties will provide the public with a much fuller
description of the facts and present those facts in the context of
persuasive explanatory discussions and graphics. Third, instead of
using data representing the passenger vehicle fleet in 2000, MBS
incorrectly used NHTSA data representing a later fleet fully equipped
with driver and passenger air bags. By contrast, only 47 percent of the
vehicles in the 2000 fleet will have driver air bags and 35 percent
will have passenger air bags. The effect of this error was to magnify
greatly MBS's estimate of the effects of a final rule.
XI. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures. This rulemaking document was reviewed by the
Office of Management and Budget (OMB) under E.O. 12866, ``Regulatory
Planning and Review.'' This rule is not economically significant under
E.O. 12866. However, the action has been determined to be
``significant'' under the Department of Transportation's regulatory
policies and procedures because of the degree of public interest in
this subject. This rule is not a major rule under Chapter 8 of Title 5,
U.S. Code.
Further, the agency does not believe that the annual net economic
impacts of the actions taken under this rule will exceed $100 million
per year. This final rule does not require a motor vehicle
manufacturer, dealer or repair business to take any action or bear any
costs except in instances in which a dealer or repair business agrees
to install an on-off switch for an air bag. For consumers, the
purchasing and installation of on-off switches is permissive, not
prescriptive. Accordingly, universal use of on-off switches by risk
group members is unlikely. As noted below, the agency estimates that
the percentage of vehicle owners who will ultimately choose to seek and
use on-off switches is relatively low. Further, while NHTSA has
specified four risk groups and made them eligible for on-off switches,
the agency is affirmatively recommending only that two of the four
specified risk groups obtain on-off switches. As a result, the agency
does not believe this rule will yield benefits whose value exceeds $100
million in any one year.
When an eligible consumer obtains the agency's authorization for
the installation of a retrofit on-off switch and a dealer or repair
business agrees to install the switch, there will be costs associated
with that action. The agency estimates that installation of an on-off
switch would typically require less than one hour of shop time, at the
average national labor rate of up to $50 per hour. NHTSA estimates the
cost of providing an on-off switch for the passenger air bag is $38 to
$63 and the cost of providing an on-off switch for both driver and
passenger air bag is $51 to $76. Ford estimated the cost of installing
an aftermarket on-off switch that controls both the driver and
passenger air bag to be $95 to $124.
At this time, any estimate of the number of vehicle owners who will
actually fill out request forms, obtain agency authorization and pay
for retrofit on-off switches is necessarily subject to substantial
uncertainty. The agency's experience with requests for deactivation
suggests a figure that is much lower than the estimates offered by some
commenters based on public opinion surveys. The agency believes that
actual experience provides a sounder basis for making an estimate.
Based on the volume of deactivation requests,52 the greater
public interest in on-off switches than in deactivation, the burst of
publicity likely to surround the issuance of the final rule, and the
time needed for the public education campaign to take full effect,
NHTSA estimates that at least 100,000 request forms will be submitted
to the agency in the first year after the issuance of this final rule,
and that the annual average for the three-year period including that
year and the next two years will be at least 80,000.
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\52\ The agency is using the volume of requests from the peak
period during 1997, i.e., April and May. The volume averaged about
400 letters per week during that period. By contrast, the volume in
late August-early September was slightly less than 300 per week. In
mid-September, the average was even lower, just over 100. However,
in October, the weekly average increased to nearly 200.
---------------------------------------------------------------------------
Because of the public interest in air bags, the publicity that will
surround the issuance of this final rule, and the continuing public
education campaign, NHTSA expects that many more people will read the
information brochure than will fill out request forms and seek
authorization for on-off switches. The agency has no directly relevant
experience upon which to base an estimate. However, NHTSA estimates
that the number of persons who read the brochure will be at least
1,000,000 over the three year period following the issuance of this
final rule. Thus, the annual average will be at least 330,000 people.
In view of the preceding analysis, there are no mandatory costs
associated with this rule. A final regulatory evaluation for this
notice has been placed in the docket.
[[Page 62441]]
Regulatory Flexibility Act
NHTSA has considered the effects of this rulemaking action under
the Regulatory Flexibility Act. Most dealerships and repair businesses
are considered small entities, and a substantial number of these
businesses may perform on-off switch installations pursuant to this
rule, and would presumably profit from these installations. However,
the economic impact on any given business will not be significant. For
every 100,000 vehicle owners who voluntarily decide to seek
authorization to have an on-off switch installed and who obtain that
authorization, the average new vehicle dealer will install about 4.4
on-off switches before the introduction of advanced air bags solves the
problem. NHTSA estimates the cost of providing a single on-off switch
that operates both driver and passenger air bag is $51 to $76. Ford
estimated that cost as $95 to $124. Based on a range from $51 to $124,
the average dealer will receive, for each 100,000 on-off switches
installed nationwide, additional revenues of between $224 and $545,
before subtracting the cost of materials, labor, and overhead. This
does not represent a significant amount of money for these businesses.
To the extent that consumers take their vehicles to the much larger
number of used car dealers and smaller repair businesses for on-off
switch installations, the economic impact would be diluted on a per-
business basis. A small number of businesses may specialize in on-off
installation, and this rule would have a large impact on them. However,
NHTSA has noted a reluctance, on the part of the people receiving
letters of authorization to deactivate their air bags, to take their
vehicles to businesses other than dealerships. Assuming that this lack
of ``demand'' for the independent businesses extends to on-off switch
installation, and given the general liability concerns even on the part
of the dealerships, the agency does not believe that a substantial
number of businesses will specialize in on-off switch installation.
Because the economic impact, per average business, is so small, I
hereby certify that it will not have a significant economic impact on a
substantial number of small entities. NHTSA notes again that the
requirements will not impose any mandatory economic impact on any
entities, small or otherwise.
The Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the costs, benefits and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. This rule does not meet the definition of a
Federal mandate, because it is completely permissive. In addition,
annual expenditures will not exceed the $100 million threshold.
Executive Order 12612 (Federalism)
The agency has analyzed this rulemaking in accordance with the
principles and criteria set forth in Executive Order 12612. NHTSA has
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Civil Justice Reform
This final rule has no retroactive effect. NHTSA is not aware of
any State law that would be preempted by this final rule. This final
rule does not repeal any existing Federal law or regulation. It
modifies existing law only to the extent that it replaces an agency
procedure under which vehicle owners had to obtain authorization to
have their air bags deactivated with a new procedure under which owners
may seek authorization to have on-off switches installed. This new
procedure involves reading an information brochure about air bag safety
and submitting to NHTSA a signed and dated request form on which the
owner certifies that he or she has read the brochure and that he or
she, or a user of his or her vehicle, is a member of a risk group
defined by the agency. If the agency approves the request, it sends an
authorization letter to the vehicle owner. This final rule does not
require submission of a petition for reconsideration or the initiation
of other administrative proceedings before a party may file suit in
court.
Paperwork Reduction Act
Several of the conditions placed by this final rule on the
exemption from the make inoperative prohibition are considered to be
information collection requirements as that term is defined by the
Office of Management and Budget (OMB) in 5 CFR part 1320. Specifically,
this rule conditions the exemption for motor vehicle dealers and repair
businesses upon vehicle owners filling out and submitting a request
form to the agency, obtaining an authorization letter from the agency
and then presenting the letter to a dealer or repair business. The
exemption is also conditioned upon the dealer or repair business
filling in information about itself and the installation in the form
provided for that purpose in the authorization letter and then
returning the form to NHTSA. The information collection requirements
for part 593 have been approved by OMB, pursuant to the requirements of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
List of Subjects
49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
49 CFR Part 595
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA amends chapter V of title
49 of the Code of Federal Regulations as follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for Part 571 of Title 49 continues to
read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.208 is amended by revising S4.5.2, 4.5.4 and 4.5.4.4
to read as follows:
Sec. 571.208 Standard No. 208, Occupant crash protection.
* * * * *
S4.5.2 Readiness indicator. An occupant protection system that
deploys in the event of a crash shall have a monitoring system with a
readiness indicator. The indicator shall monitor its own readiness and
shall be clearly visible from the driver's designated seating position.
If the vehicle is equipped with a single readiness indicator for both a
driver and passenger air bag, and if the vehicle is equipped with an
on-off switch permitted by S4.5.4 of this standard, the readiness
indicator shall monitor the readiness of the driver air bag when the
passenger air bag has been deactivated by means of the on-off switch,
and shall not illuminate solely because the passenger air bag has been
deactivated by the manual on-off switch. A list of the elements of the
system being monitored by the indicator shall be included with the
information furnished in accordance with S4.5.1 but need not be
included on the label.
* * * * *
S4.5.4 Passenger Air Bag Manual On-Off Switch. Passenger cars,
trucks,
[[Page 62442]]
buses, and multipurpose passenger vehicles manufactured before
September 1, 2000 may be equipped with a device that deactivates the
air bag installed at the right front passenger position in the vehicle,
if all the conditions in S4.5.4.1 through 4.5.4.4 are satisfied.
* * * * *
S4.5.4.4 The vehicle owner's manual shall provide, in a readily
understandable format:
(a) Complete instructions on the operation of the on-off switch;
(b) A statement that the on-off switch should only be used when a
member of a passenger risk group identified in the request form in
Appendix B to part 595 of this chapter is occupying the right front
passenger seating position; and,
(c) A warning about the safety consequences of using the on-off
switch at other times.
3. Part 595 is added to read as follows:
PART 595--RETROFIT ON-OFF SWITCHES FOR AIR BAGS
Sec.
595.1 Scope.
595.2 Purpose.
595.3 Applicability.
595.4 Definitions.
595.5 Requirements.
Appendix A to Part 595--Information Brochure.
Appendix B to Part 595--Request Form.
Appendix C to Part 595--Installation Of Air Bag On-off Switches.
Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166;
delegation of authority at 49 CFR 1.50.
Sec. 595.1 Scope.
This part establishes conditions under which retrofit on-off
switches may be installed.
Sec. 595.2 Purpose.
The purpose of this part is to provide an exemption from the ``make
inoperative'' provision of 49 U.S.C. 30122 and authorize motor vehicle
dealers and motor vehicle repair businesses to install retrofit on-off
switches for air bags.
Sec. 595.3 Applicability.
This part applies to dealers and motor vehicle repair businesses.
Sec. 595.4 Definitions.
The term dealer, defined in 49 U.S.C. 30102(a), is used in
accordance with its statutory meaning.
The term motor vehicle repair business is defined in 49 U.S.C.
30122(a) as ``a person holding itself out to the public to repair for
compensation a motor vehicle or motor vehicle equipment.'' This term
includes businesses that receive compensation for servicing vehicles
without malfunctioning or broken parts or systems by adding or removing
features or components to or from those vehicles or otherwise
customizing those vehicles.
Sec. 595.5 Requirements.
(a) Beginning January 19, 1998, a dealer or motor vehicle repair
business may modify a motor vehicle by installing an on-off switch that
allows an occupant of the vehicle to turn off an air bag in that
vehicle, subject to the conditions in paragraphs (b)(1) through (5) of
this section:
(b)(1) The dealer or motor vehicle repair business receives from
the owner or lessee of the motor vehicle a letter from the National
Highway Traffic Safety Administration that authorizes the installation
of an on-off switch in that vehicle for that air bag and includes a
form to be filled in by the dealer or motor vehicle repair business
with information identifying itself and describing the installation it
makes.
(2) The dealer or motor vehicle repair business installs the on-off
switch in accordance with the instructions of the manufacturer of the
switch.
(3) The on-off switch meets all of the conditions specified in
paragraph (a)(4)(i) and (ii) of this section.
(i) The on-off switch is operable solely by a key. The on-off
switch shall be separate from the ignition switch for the vehicle, so
that the driver must take some action other than inserting the ignition
key or turning the ignition key in the ignition switch to turn off the
air bag. Once turned off, the air bag shall remain off until it is
turned back on by means of the device. If a single on-off switch is
installed for both air bags, the on-off switch shall allow each air bag
to be turned off without turning off the other air bag. The readiness
indicator required by S4.5.2 of Sec. 571.208 of this chapter shall
continue to monitor the readiness of the air bags even when one or both
air bags has been turned off.
(ii) A telltale light in the interior of the vehicle shall be
illuminated whenever the driver or passenger air bag is turned off by
means of the on-off switch. The telltale for a driver air bag shall be
clearly visible to an occupant of the driver's seating position. The
telltale for a passenger air bag shall be clearly visible to occupants
of all front seating positions. The telltale for an air bag:
(A) Shall be yellow;
(B) Shall have the identifying words ``DRIVER AIR BAG OFF'' or
``PASSENGER AIR BAG OFF,'' as appropriate, on the telltale or within 25
millimeters of the telltale;
(C) Shall remain illuminated for the entire time that the air bag
is ``off;''
(D) Shall not be illuminated at any time when the air bag is
``on;'' and,
(E) Shall not be combined with the readiness indicator required by
S4.5.2 of Sec. 571.208 of this chapter.
(4) The dealer or motor vehicle repair business provides the owner
or lessee with an insert for the vehicle owner's manual that--
(i) Describes the operation of the on-off switch,
(ii) Lists the risk groups on the request form set forth in
Appendix B of this Part,
(iii) States that an on-off switch should only be used to turn off
an air bag for a member of one of those risk groups, and
(iv) States the safety consequences for using the on-off switch to
turn off an air bag for persons who are not members of any of those
risk groups. The description of those consequences includes
information, specific to the make, model and model year of the owner's
or lessee's vehicle, about any seat belt energy managing features,
e.g., load limiters, that will affect seat belt performance when the
air bag is turned off.
(5) In the form included in the agency authorization letter
specified in paragraph (b)(1) of this section, the dealer or motor
vehicle repair business fills in information describing itself and the
on-off switch installation(s) it makes in the motor vehicle. The dealer
or motor vehicle repair business then sends the form to the address
below within 7 working days after the completion of the described
installations: National Highway Traffic Safety Administration,
Attention: Air Bag Switch Request Forms, 400 Seventh Street, S.W.,
Washington, D.C. 20590-1000.
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BILLING CODE 4910-59-C
Issued on: November 17, 1997.
[Signature page for Docket No. NHTSA-97-3111 (final rule)]
Ricardo Martinez,
Administrator.
[FR Doc. 97-30485 Filed 11-18-97; 10:00 ;am]
BILLING CODE 4910-59-P