[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Rules and Regulations]
[Pages 45755-45760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22832]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[NHTSA-98-4342]
RIN 2127-AH25


Air Bag On-Off Switches

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule: response to petitions for reconsideration.

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SUMMARY: This document responds to the petitions for reconsideration 
and letters seeking non-rulemaking action that NHTSA received in 
response to its final rule exempting motor vehicle dealers and repair 
businesses from the statutory prohibition against making Federally-
required safety equipment inoperative so that they could install air 
bag on-off switches for vehicles owned or operated by individuals 
within discrete risk groups. This document denies the petitions for 
reconsideration. NHTSA will, however, change its current policy with 
regard to one of the three issues raised in the letters seeking agency 
action not requiring a rulemaking procedure.

FOR FURTHER INFORMATION CONTACT: For information about air bag on-off 
switches and related rulemaking, 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. Background
II. Letter from National Association of Independent Insurers
III. Letter from National Association of Pediatric Nurse Associates 
and Practitioners, Inc.
IV. Petition from Mitsubishi Motors R&D of America
V. Petition from American Car Rental Association
VI. Petitions from Members of the General Public

I. Background

    On November 18, 1997, the National Highway Traffic Safety 
Administration, Department of Transportation, issued a final rule which 
allows for the installation of air bag on-off switches under limited 
conditions. (62 FR 62406) Effective January 19, 1998, the rule exempts 
motor vehicle dealers and repair businesses from the statutory 
prohibition against making federally-required safety equipment 
inoperative so that they may install, subject to certain conditions, 
retrofit manual on-off switches for the air bags of vehicle owners 
whose request is authorized by NHTSA. To obtain such authorization, 
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 specified by the agency. The agency 
began processing and granting requests December 18, 1997.
    NHTSA received 20 petitions for reconsideration of the final rule. 
Sixteen of these petitions are from members of the general public, and 
the other four are from organizations. The content of two of the 
organizational petitions, those from the National Motorists Association 
and the National Motorists Association, New Jersey Chapter, is very 
similar to that of the petitions from the general public. Accordingly, 
they are discussed together with the general public petitions. All 
other organizational petitions are addressed separately. NHTSA also 
received two letters that were characterized as petitions for 
reconsideration but which did not seek any rulemaking action from the 
agency. Each of the letters are addressed separately.

II. Letter From National Association of Independent Insurers

    In the preamble to the Final Rule, NHTSA stated that it would 
continue to

[[Page 45756]]

authorize deactivation of air bags under very limited circumstances 
when an on-off switch was not available for a given vehicle make and 
model. NHTSA stated that it would publish the vehicle identification 
numbers (VIN) of vehicles whose air bags have been deactivated pursuant 
to an agency letter permitting such action. The agency indicated that 
it would take this action out of concern about the impermanence of 
labels alerting the occupants of a vehicle that one or both of its air 
bags had been deactivated. The agency did not, however, state where 
this list would be kept or how often it would be updated.
    The National Association of Independent Insurers (NAII) submitted a 
document that was described as a petition for reconsideration and that 
asked NHTSA to clarify the manner of VIN publication, to publish the 
VINs of vehicles with on-off switches, and to make available to 
insurers the names of the owners of vehicles with on-off switches or 
deactivated air bags.1 Since the actions requested by NAII 
are not rulemaking actions, the agency is treating the document as a 
letter instead of a petition for reconsideration. NHTSA is taking some 
of the actions requested by NAII, but declines to take the remaining 
actions.
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    \1\ NAII maintained that they need the names of switch 
applicants because VINs are often incorrectly transcribed.
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    The agency agrees that it is desirable to advise the public where 
it can find out whether a particular vehicle has deactivated air bags 
as well as how often such information will be updated. The list of VINs 
for vehicles known by the agency to have had one or both of their air 
bags deactivated will be located at the NHTSA web site (http://
www.nhtsa.dot.gov) and will be updated weekly. NHTSA cautions that this 
list will be incomplete. The vast majority of agency letters sent to 
date granting permission for deactivation were sent prior to issuance 
of the final rule. Prior to that time, the agency did not require 
persons requesting permission for deactivation to provide the VIN of 
their vehicle. NHTSA has sent new letters asking the recipients of 
those pre-final rule deactivation permission letters to provide the VIN 
of any vehicle that has had one or both of its air bags deactivated 
pursuant to the permission letter and to indicate which air bag was 
deactivated. The percentage of these letters for which the agency 
receives responses will depend upon the good will of each individual 
owner receiving the request, since NHTSA cannot legally compel a 
response.
    NHTSA has decided against making the VINs for vehicles with on-off 
switches available to the public as general information. NHTSA does not 
believe that any interest is served by making such a list available. 
The regulatory text requires that on-off switch telltales be clearly 
visible to the front seat occupants. Accordingly, a quick vehicle 
inspection should alert any interested party to the presence of an on-
off switch. While insurers may not regularly inspect the vehicles that 
they insure, as NAII asserted, insurers can require applicants or 
policyholders to state whether they have an on-off switch before the 
policy is issued or renewed. At that time, the insurer can decide 
whether to provide a discount for the air bag. NHTSA notes that for 
those individuals who are at heightened risk from a deploying air bag, 
the safety benefits contemplated by insurers in providing an air bag 
discount may not apply.
    NHTSA will not provide insurers or any other members of the public 
with information identifying the owner of any vehicles listed on its 
web site. NHTSA believes that revealing such information would be a 
violation of the Privacy Act (5 U.S.C. section 552a). Accordingly, 
NAII's request that they be allowed to verify the ownership of vehicles 
is declined.

III. Letter From National Association of Pediatric Nurse Associates 
and Practitioners, Inc.

    Under the final rule, NHTSA continues to grant requests for air bag 
deactivation for vehicles where the vehicle manufacturer has not 
produced an on-off switch. The criteria for deactivation, however, are 
stricter than the criteria for installation of an on-off switch since 
deactivation is a permanent measure that cannot be easily reversed. For 
example, the deactivation criteria are stricter than their on-off 
switch counterpart in requiring that medical conditions be documented 
by a physician and that the physician state that the risk of deployment 
outweighs the risk of potentially impacting the steering wheel or 
dashboard.
    The National Association of Pediatric Nurse Associates and 
Practitioners asks NHTSA to allow pediatric nurse practitioners to 
recommend air bag deactivation if such deactivation is in the best 
interests of their patient. Since the criteria governing deactivation 
were not part of the regulation adopted in the final rule, NHTSA has 
treated the Association's ``petition'' as a simple request for a policy 
change.
    NHTSA recognizes that pediatric nurse practitioners serve an 
important role in the medical community, particularly in medically 
under-served areas, where they may provide the majority of medical care 
for their patients. NHTSA also believes that nurse practitioners are 
qualified to determine whether a child's medical condition warrants 
riding in the front seat. Accordingly, NHTSA believes the Association's 
request is reasonable and has decided to accept medical documentation 
from pediatric nurse practitioners.

IV. Petition From Mitsubishi Motors R&D of America

    Mitsubishi Motors filed a petition for reconsideration seeking to 
have NHTSA's approval of a request for an on-off switch or deactivation 
conditioned on a guarantee by the owner that he or she will have the 
switch removed or the air bag reconnected prior to selling the vehicle. 
Mitsubishi contends that this is the only way to ensure that only those 
individuals within one of the specified risk groups loses the potential 
benefits of the air bag.
    NHTSA is denying Mitsubishi's request because even if the agency 
amended the final rule to condition its approval of owner requests for 
an on-off switch upon the owner's promising to remove the switch, the 
agency could not enforce such a promise.
    NHTSA can place limitations on the circumstances in which dealers 
and repair businesses are exempted from the make inoperable 
prohibition. Indeed, in the final rule, the agency specified that it 
would not approve switch requests unless the requestor provided certain 
information and made certain statements. For example, it specified that 
the requesters must certify that they had read the agency's information 
brochure and that they or a user of their vehicle is a member of one of 
the identified risk groups.
    However, the agency cannot condition its approval of requests upon 
the subsequent restoration of the air bags to their original condition 
prior to resale. The most it could do would be to condition its 
approval upon the receipt of a promise to make such restoration. Since 
such a promise could not realistically be enforced against the vehicle 
owner and would not serve as a limitation on the exempted dealers or 
repair businesses, the only covered entities under the applicable 
statute, there would be no assurance that requiring such a promise 
would ultimately lead to the restoration of the air bags to their 
original condition.

[[Page 45757]]

    NHTSA believes the final rule, as drafted, provides adequate notice 
of the presence of an on-off switch. The required telltale must be 
illuminated and visible to the driver when the driver-side air bag is 
turned off and to all front seat occupants when the passenger-side air 
bag is turned off. NHTSA does not believe there will be a significant 
amount of misuse in the secondary market, although it acknowledges that 
nothing in the final rule would preclude an individual who is not at 
risk from a deploying air bag from purchasing a used vehicle that has a 
switch and then turning the air bag off.

V. Petition From the American Car Rental Association

    In the final rule permitting vehicle owners to apply to the agency 
for permission to have an on-off switch installed by a dealer or repair 
business, NHTSA did not differentiate between owners of individual 
vehicles and owners of vehicle fleets.
    The American Car Rental Association (ACRA) has asked NHTSA to 
modify its final rule to prohibit short-term car rental companies from 
having on-off switches installed in the vehicles in their rental 
fleets. ACRA states that it cannot ensure that individuals who are not 
at risk from a deploying air bag will not misuse an on-off switch. 
NHTSA is denying ACRA's petition because it believes that a rental 
fleet owner should be able, if it so wishes, to obtain permission to 
have on-off switches installed in at least some of its vehicles. It 
would be reasonable for a fleet owner to make such a request if it 
believes that a sufficient percentage of its rental population falls 
within the specified risk groups.
    The agency emphasizes that under the final rule, no vehicle owner, 
whether a company or an individual, is required to have an on-off 
switch installed. Each decision by a vehicle owner to request 
permission to have a switch installed should only be made after a 
careful consideration of the risks involved in having an air bag 
unavailable in the event of a crash. If rental car companies believe 
that it would not be appropriate to have vehicles with on-off switches 
available for their customers who are at risk from an air bag, then 
they can decide not to request permission for their installation. 
Alternatively, if they decide that they want to provide at-risk 
individuals with a vehicle with an on-off switch, then they may decide 
that it is worthwhile to request a switch for some portion of their 
fleet.2 In either case, NHTSA believes this is a decision 
that can only be reached by the rental companies. NHTSA continues to 
believe that traditional contract remedies and business relationships 
will allow for adequate policing of on-off switch use. This is why 
NHTSA did not exclude leased vehicles or fleet vehicles from the on-off 
switch rule.
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    \2\ NHTSA encourages rental companies to provide information to 
renters of such vehicles with on-off switches so they understand the 
circumstances under which it would be appropriate to use the switch. 
Rental companies could choose to provide renters with a copy of the 
NHTSA publication Air Bags and On-Off Switches, Information for an 
Informed Decision.
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VI. Petitions From Members of the General Public

    NHTSA received 16 petitions from members of the general public as 
well as a petition from the National Motorists Association and the New 
Jersey chapter of the National Motorists Association. All of these 
petitions raised the same issues and will accordingly be responded to 
together. While 28 separate issues were raised in these petitions, many 
of the issues can be grouped together and have been so grouped here.

Membership in a Risk Group

    The petitioners claim that the Government ignored the safety of 
individuals at risk from air bags, notably children and short-statured 
females, by creating discrete risk groups that would be eligible for 
on-off switches rather than allowing deactivation on demand. NHTSA 
disagrees.
    NHTSA believes its final rule appropriately responded to the risk 
that passenger-side air bags can pose to children. The final rule 
allows anyone who needs to carry children in the front seat to apply 
for and receive an on-off switch. Thus, petitioners' contention that 
the final rule places children at risk is incorrect. Even individuals 
who only occasionally must drive with children in the front seat can 
obtain permission for a switch.
    Petitioners imply that it is only the air bag which makes the front 
seat dangerous for children. NHTSA notes that it is preferable to have 
children sit in the back seat whenever possible since crash data 
demonstrate that is the safest location, regardless of whether the 
vehicle is equipped with an air bag. While a significant number of 
people still choose to allow their children to sit in the front seat, 
most do so by choice, not necessity.3
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    \3\ Cf., Jack Edwards, Kaye Sullivan, ``Where Are All the 
Children Seated and When Are They Restrained?'', SAE Technical Paper 
971550 (1997).
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    Likewise, the agency disagrees with petitioners' contention that 
switches or deactivation on demand should be allowed because children 
are often improperly restrained. Allowing deactivation on demand would 
be inappropriate because it would allow people who are not at risk to 
obtain and use switches to turn off their air bags, thus decreasing 
their safety. The approach adopted by the agency makes it necessary for 
vehicle owners to focus on and evaluate the factors that create risk 
and encourages them to take steps to reduce that risk. The final rule 
helps to prevent air bag fatalities involving children since the rule 
allows an on-off switch for anyone who must carry children in the front 
seat. However, allowing widespread deactivation, apart from not adding 
any additional safety benefit, could send the conflicting message that 
children do not need to be restrained as long as they are not in front 
of an air bag. Further, as noted above, encouraging front seat use 
would reduce child safety since, even in the absence of an air bag, the 
front seat is significantly less safe than the back seat.
    Petitioners' contention that air bags will cause unreported deaths 
because short-statured individuals will be unable to control their 
vehicles after moving their seats back to obtain ten inches is also 
apparently based on a misreading of the final rule. NHTSA stated that 
most individuals can achieve the desired ten-inch distance by slightly 
modifying their driving posture, and still maintain a safe, comfortable 
driving position. For those individuals who cannot comfortably drive 
ten inches or more from their air bag, NHTSA recommends they consider 
having an on-off switch installed.
    Contrary to petitioners' contention, NHTSA believes that vehicle 
owners will carefully read the agency's information brochure and then 
carefully assess whether they or any user of their vehicle is really at 
risk from the vehicle's air bags. The agency expects that the owners 
who request permission for an on-off switch will be people who can 
legitimately certify membership in a risk group. Anyone who must 
transport children in the front seat is eligible for an on-off switch. 
Likewise, people who suffer from a medical condition which they believe 
places them at risk from a deploying air bag, or people who are unable 
to get 10 inches or more from the air bag cover, regardless of their 
height, are eligible for an on-off switch.
    NHTSA fully considered allowing persons to deactivate their air 
bags without having to show or claim actual risk. The agency decided 
that public safety interests dictate that individuals who do not fall 
within one of the specified risk groups should not be

[[Page 45758]]

allowed to have an on-off switch installed. Particularly given the 
evidence of misperception of risk by a significant number of vehicle 
owners, NHTSA does not believe that an individual's belief that he or 
she has the right to choose whether to have an air bag outweighs 
society's interest in avoiding death and serious injury and the 
enormous public expense associated with unnecessary injury.

Risk of Injury and Death

    Petitioners claim that NHTSA's regulatory evaluation indicates that 
30 percent of individuals impacted by air bags will receive an injury 
so that the other 70 percent of that population will avoid injury. 
Petitioners aver that this level of injury is excessive. The agency 
believes that the significance of this level of injury cannot be 
properly assessed in a vacuum. The alternative of what would happen to 
a vehicle occupant in the absence of an air bag must be considered. In 
moderate to severe crashes, even belted occupants, especially drivers, 
will strike their head, neck and chest against the interior of their 
vehicle in the absence of an air bag. Consequently, the injuries 
prevented by air bags are typically substantially more serious than the 
injuries that air bags cause. Further, petitioners do not take into 
consideration the significant reduction in fatalities which are not 
represented in the table cited by petitioners.
    Contrary to petitioners' assertion, the Government is not mandating 
that the American public accept a 4 percent risk of death by requiring 
air bags on all new vehicles. The risk of death cannot be based on a 
comparison of lives saved versus lives lost. The evaluation of risk 
must be based on a comparison of total deployments (over 2.1 million) 
versus lives lost. This risk is less than 0.005 percent. Moreover, for 
those persons for whom the risk is relatively high, the rule allows the 
installation of an on-off switch.
    The comparison of lives saved to lives lost is instructive. The 
most recent data (June 1, 1998) indicate that while 105 persons have 
been killed by air bags, 3,148 persons have been saved. Therefore, a 
person is 31 times more likely to be saved by an air bag than killed by 
an air bag. Further, the ratio could be even higher in the future since 
the 31:1 ratio is based on there being no change in occupant behavior 
or improvements in air bag design due to NHTSA's Final Rule allowing 
depowered air bags (62 FR 12960). The vast majority of the 105 air bag 
deaths could have been prevented through simple behavior modification, 
namely wearing a safety belt and moving the children to the back seat. 
NHTSA does recognize that not all risk can be eliminated through 
behavioral changes since there may occasionally be factors beyond the 
driver's control. In those instances, NHTSA allows the installation of 
an on-off switch.
    NHTSA's estimates of air bag effectiveness were based on two 
separate analyses. The first was developed by comparing fatality rates 
of drivers with air bags to passengers without air bags in the same 
vehicle. These rates were compared to those of older vehicles of the 
same make and model without driver or passenger air bags. This approach 
is called ``double pair comparison analysis'' and is widely used in 
effectiveness evaluations. The second analysis, which also used double 
pair comparison methodology, involved comparing fatality rates of 
frontal and non-frontal impacts of air bag vehicles to non-air bag 
vehicles. Both methods produced similar results. Neither of the methods 
took the occupant's safety belt use into consideration (i.e., the 
estimates were based on the experience of all occupants, regardless of 
whether they used safety belts). Thus, possible errors in the reporting 
of safety belt use would have had no effect on these estimates. 
Regarding the suggestion by petitioners that air bags might provide a 
net negative benefit for major population groups, these groups are the 
ones that are specifically allowed to install on-off switches. Persons 
outside these groups are statistically safer with air bags than without 
them.

Costs Associated With the Final Rule

    Petitioners state that NHTSA has grossly underestimated the cost of 
on-off switches in evaluating the actual cost of installation, in 
evaluating the time value of the consumer, and in determining the 
overall cost based on the number of people who will have a switch 
installed. Cost was not the deciding factor in issuing the final rule. 
Safety was the paramount concern in the decision-making process.
    NHTSA notes that it lacks the authority to control the amount that 
dealers and repair businesses charge to install an on-off switch. 
However, since installation is a purely voluntary expense, each 
individual can decide whether he or she believes the risk of deployment 
justifies the accompanying expense. Finally, regardless of the amount 
charged to consumers, NHTSA continues to believe that a simple on-off 
switch could be installed for $38 to $63 based on the amount of work 
required to install the device and the hardware necessary to create a 
device.
    Petitioners contend that the hourly rate of $9.20, the figure that 
NHTSA used to place a value on the time members of the public who read 
the brochure and complete the form, should be higher since owners of 
air bag-equipped vehicles are wealthier than the average American. 
NHTSA's figure was based on guidance developed by the Department of 
Transportation for valuing travel time when evaluating regulatory 
alternatives. The figure is based on a combination of personal or 
leisure time and time spent at work and represents the wage scale of a 
wide variety of employees. NHTSA notes that most people would not need 
to take off work to read the information brochure and fill out the 
form. Accordingly, the figure of $9.20 may be slightly higher than the 
true value of the time that an individual would spend for those 
purposes. Nevertheless, NHTSA believes an hourly rate of $9.20 is 
reasonable.
    As to the overall cost of the final rule, NHTSA believes that the 
overall costs are irrelevant to an individual's decision to request 
permission for and purchase a switch. Individuals either will or will 
not install an on-off switch, regardless of the final rule's cost to 
the entire population.
    NHTSA's estimate of 80,000 installations per year represented its 
best estimate as of the time the rule was issued. Current demand for 
on-off switch authorizations has averaged 189 requests per day. If 
demand were to remain constant throughout the year, actual demand would 
be approximately 69,000 installation requests per year. However, NHTSA 
does not believe that demand will continue at current rates. The 
issuance of the final rule is still a fairly recent event, having 
become effective on January 19, 1998. Significant media coverage 
accompanied both the issuance of the final rule and its implementation. 
Further, it was natural that there be an initial surge in requests 
since the majority of individuals who are concerned with deploying air 
bags were likely to request a switch as soon as the option became 
available. As time passes and the issuance and media coverage become 
more distant events, NHTSA believes that demand will also fall. The 
agency anticipates that future requests will tend to be limited to 
individuals either buying a new vehicle or having an additional child 
who cannot be accommodated in the back seat.

Misuse

    Petitioner claims that NHTSA's statement in its final rule that it 
has not seen, and does not expect, a significant

[[Page 45759]]

amount of misuse is a tacit acknowledgment by the agency that it has no 
reasonable basis for requiring membership in a risk group.
    Petitioner mischaracterizes the issue. The agency's position on 
misuse is that past experience indicates some relaxation of its 
previous limitations on on-off switches is justified, not that switch 
misuse is not a potential problem under any circumstances.
    As an initial matter, any deactivation, or switching off, of an air 
bag by or for an individual who does not fall within the specified risk 
groups constitutes misuse. That individual is safer with an air bag 
than without one. Accordingly, allowing all members of the general 
public to have on-off switches installed, regardless of risk, can only 
increase the potential for misuse.
    Additionally, NHTSA allowed broader criteria for retrofit switches 
than for switches installed prior to first sale in certain vehicles 
based in part on its experience with those switches. Prior to the 
publication of the final rule at issue here, on-off switches were 
limited to the passenger side of vehicles with no back seat or a back 
seat that could not accommodate a child restraint (OEM rule) (49 CFR 
571.208 S4.5.4). Under that rule, potential misuse is limited to adult 
passengers since no switch is available for the driver side air bag and 
all children under age 12 fall within a risk group prescribed by the 
retrofit final rule.
    NHTSA is unaware of any circumstances in which an adult passenger 
has been killed or seriously injured in one of these vehicles because 
the air bag had been switched off, although it does know of an infant 
fatality where the passenger-side air bag had been left on. This 
apparent lack of significant misuse in a limited portion of the overall 
air bag-equipped fleet persuaded NHTSA that some relaxation of the 
existing requirements, when accompanied by a process designed to inform 
vehicle owners of actual risk, was justified.
    The agency notes that under the OEM rule, all switch-eligible 
vehicles have either no back seat or only a small seating area. 
Accordingly, children in most of these vehicles have no choice but to 
sit in the front seat. As NHTSA has repeatedly cautioned, the back seat 
is safest for all passengers and particularly for small children. NHTSA 
remains concerned that allowing switches for individuals who do not 
meet one of the specified criteria only increases the possibility that 
children who could more safely ride in the back seat will be placed in 
greater danger simply because the passenger-side air bag has been 
turned off.

The Agency's Evaluation of Comments

    Petitioners contend that NHTSA failed to take into account the 
comments from some 600 members of the general public as well as the 
National Transportation Safety Board and the Insurance Institute for 
Highway Safety (IIHS). This is incorrect. NHTSA considered all comments 
in making its decision. However, the agency's decision was based upon 
safety considerations instead of what appeared from the comments to be 
the most popular decision.
    Further, the final rule may be more popular than suggested by the 
petitioners. Many of the private citizens who submitted comments on the 
rulemaking may fall within a specified risk group since the primary 
complaint was short stature. If these individuals are unable to get at 
least ten inches from the center of their steering wheel while sitting 
comfortably, they are eligible for an on-off switch. As to the 
commenters' attitude toward on-off switches, the degree of their 
support is uncertain since most commenters did not address on-off 
switches. Of those who did discuss on-off switches, the majority 
supported on-off switches as at least an option to deactivation.

Physician's Report

    Petitioners claim that the medical panel did not consider two 
investigations concerning ``air bag exhaust fire'', a newspaper report 
of an air bag-related fire, and two anecdotal reports of near-
asphyxiation from air bags when it reported that a driver's 
supplemental oxygen did not justify air bag disconnection. NHTSA's 
Office of Defects Investigation investigated the two reports of ``air 
bag exhaust fire'' and concluded that there was no indication the air 
bags in question caused the burns complained of in the consumer 
complaints to NHTSA. One of the investigations did note that air bag 
exhaust does reach temperatures high enough to ignite some fabrics, but 
that the temperatures did not remain at those levels for a sufficient 
period of time to create a fire hazard (PE97-014). In neither 
investigation did the vehicle owner claim that sparks or flames were 
emitted from the air bag. In any event, if an individual's treating 
physician believes that supplemental oxygen is a concern, regardless of 
the analysis reached by the medical panel, the patient is able to 
obtain an on-off switch under the final rule's criteria.
    Petitioners' claim regarding potential diminution in quality of 
life from air bag injuries does not justify allowing deactivation on 
demand. Particular concern was raised about potential hearing and 
vision loss. Injury patterns culled from the National Analysis Sampling 
System (NASS), as well as all available medical literature, including 
the University of Michigan report cited by petitioners, were reviewed 
by the medical panel. None of the available data or literature revealed 
significant injury to the eyes or hearing loss as a result of air bag 
deployments.
    The medical panel considered all known literature on hearing and 
vision loss related to air bag deployments. It stated that potential 
loss of hearing could not be isolated to air bag deployment and that 
the air bag was no more likely to cause a serious eye injury than 
impacting the dashboard or steering wheel. Even if these types of 
injuries were occurring on a regular basis, like arm injuries, the 
level of injury is incremental and significantly less than the types of 
injuries which air bags are preventing. The vast majority of injuries 
caused by air bags are both minor and temporary.4
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    \4\ NASS analysis did reveal a substantial increase in arm 
injuries as a result of air bag deployment.
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    Petitioners' claimed that air bags should be voluntary because 
individuals are allowed to withhold consent for all other forms of 
medical treatment. This comment raises issues not only beyond the scope 
of this rulemaking, but beyond the agency's authority given the 
statutory mandate for air bags. Nevertheless, the agency notes that air 
bags are a preventative measure similar to many medical therapies which 
significantly impact public health. Thus, children are required to be 
vaccinated before they can enter school, municipalities are required to 
provide a safe source of drinking water, and the American food supply 
is subjected to stringent controls to protect the public health.

Deactivation

    In the preamble to the final rule, NHTSA stated that it would 
continue to grant requests for permanent deactivation when no vehicle 
manufacturer switch is available and when the applicant meets certain 
criteria. These criteria are more limited than those for which a switch 
is authorized. The agency notes that the final rule allows the 
installation of non-vehicle manufacturer switches and that such 
switches are available. Petitioner claims that NHTSA's policy places 
individuals at undue risk, alleging vehicle manufacturers may decide 
not to manufacture switches for all vehicle

[[Page 45760]]

makes and models, and that deactivation is cheaper than switches.
    NHTSA's decision to impose more stringent criteria on air bag 
deactivation is reasonable, given the permanent nature of deactivation. 
Deactivation renders an air bag unavailable to help anyone in a crash. 
In contrast, the on-off switch allows a driver to turn the air bag on 
or off, depending on the risk faced by the individual seated in front 
of the air bag. This flexibility is important in the case of a vehicle 
whose users include a mix of people at risk and people not at risk. For 
example, one member of a couple may have a medical condition which 
prevents him or her from achieving a 10-inch distance from the air bag, 
while the other can achieve that distance. Likewise, a family may only 
have to transport children in the front seat on rare instances, such as 
when they have to transport a neighbor's child and they have 
insufficient room in the back seat for all of the children. The 
presence of an on-off switch would make that air bag available to every 
individual who is not at risk while the air bag could be turned off for 
those at risk. In contrast, deactivation renders an air bag unavailable 
to everyone, regardless of risk.
    While deactivation may be cheaper than an on-off switch, cost was 
not the agency's main consideration. Safety was the overriding factor. 
Further, since the cost of both deactivation and on-off switches is 
ultimately market-based, NHTSA cannot assess the differences in cost 
with any specificity. NHTSA believes that its estimation of on-off 
switch cost should not be an overwhelming deterrent to anyone who needs 
a switch. Cost concerns aside, one is significantly more likely to find 
a company willing to install an on-off switch than deactivate an air 
bag. Liability concerns on the part of dealers and repair businesses 
have rendered permanent deactivation more difficult to get performed 
than installation of a switch. As for petitioner's claim that 
deactivation more certainly turns off an air bag than an on-off switch 
does, manufacturers, dealers and repair businesses have every incentive 
to produce and install a safe switch since the final rule does not 
waive civil liability for defective switches or negligent installation.
    Further, the agency notes that there are potential risks associated 
with deactivation. Labels can be removed, either purposely or 
inadvertently. An occupant expecting air bag protection may 
unexpectedly find that he or she has none in a crash. Many deactivated 
air bags will likely not be reactivated prior to resale since there is 
no incentive to reactivate, and since NHTSA does not have the authority 
to require reactivation. Consequently, any decision to reactivate, as 
well as to inform a potential secondary purchaser of the air bag's 
inoperable status, will depend entirely on the good will of the 
vehicle's owner.

Depowered and Advanced Air Bag Systems

    Petitioners argued that deactivation or on-off switches should 
remain available to owners of vehicles with depowered air bags and 
advanced air bags. Under the final rule, on-off switches will be 
available for vehicles with depowered air bags. As the agency stated in 
the final rule:

    As to depowered air bags, NHTSA anticipates that they 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 
cutoff switches are not appropriate in vehicles with depowered air 
bags. For the present, the exemption will apply to vehicles with 
depowered air bags.

    As to advanced air bags, NHTSA did not decide in the final rule 
whether retrofit on-off switches would be permitted for vehicles with 
those air bags. The agency did say that it continued to believe, based 
on safety considerations, that it should prohibit dealers and repair 
businesses from retrofitting advanced air bag vehicles with cutoff 
switches. However, since advanced air bags were not expected for 
several years, there was no immediate need to make a decision. The 
agency said that it would address this issue in its proposal on 
advanced air bags.

Process for Receiving Authorization To Have an On-Off Switch Installed

    Petitioners argued that the actual number of eligible individuals 
who will be able to have an on-off switch installed is too low because 
of the authorization process established by the agency. The agency 
disagrees. NHTSA defined the eligible risk groups to avoid the need for 
ad hoc decision making and to expedite the authorization process. The 
amount of time necessary to read the information brochure and fill out 
the request form (approximately 30 minutes) is nominal when compared to 
the significant safety benefit at issue. Likewise, the amount of time 
required to process a request, currently one or two days, is 
reasonable, given the benefit that air bags provide to the vast 
majority of the general public. Further, NHTSA's streamlined process 
minimizes the amount of time that an at-risk individual must wait 
before receiving authorization to have an on-off switch installed.

Request for Reconsideration

    Based on the foregoing, NHTSA is denying petitioners' request that 
on-off switches be available on request and without certification of 
membership in a risk group. As noted above, the risk of serious injury 
or death is small and the benefit of air bags is large. NHTSA will 
continue to require vehicle owners to submit the completed on-off 
switch request forms to the agency for processing. Petitioners' request 
that the agency allow deactivation on request is likewise denied.

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.50.

    Issued: August 20, 1998.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 98-22832 Filed 8-26-98; 8:45 am]
BILLING CODE 4910-59-P