[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]]

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Part II





Department of Transportation





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National Highway Traffic Safety Administration



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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),<SUP>3</SUP> 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.

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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.<SUP>4</SUP> 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.<SUP>5</SUP> 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.<SUP>6</SUP>
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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)). <SUP>7</SUP> 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. <SUP>8</SUP> 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. <SUP>9</SUP> 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, 
<SUP>10</SUP> different folding patterns and aspiration designs, dual 
stage inflators, <SUP>11</SUP> 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.<SUP>12</SUP>
---------------------------------------------------------------------------

    \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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.<SUP>13</SUP> 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.<SUP>14</SUP> 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 <SUP>15</SUP> 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--
    <bullet> 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?
    <bullet> Would the administrative details involved in establishing 
and implementing limitations on eligibility overly complicate the 
availability of deactivation?
    <bullet> 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?
    <bullet> Should there be a requirement that deactivation be 
performed in a manner that facilitates reactivation?
    <bullet> 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?
    <bullet> 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?'' 
<SUP>16</SUP> 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.<SUP>17</SUP> 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 <SUP>18</SUP> 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.<SUP>19</SUP> 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

<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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

<bullet> 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.
<bullet> 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.
<bullet> 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

<bullet> 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.<SUP>20</SUP> 
(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.
---------------------------------------------------------------------------

    <bullet> Scoliosis
    If capable of being positioned properly, persons with scoliosis 
should keep air bag connected in their vehicles. <SUP>21</SUP> 
(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.
<bullet> 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.
<bullet> 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.)
<bullet> 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.)
<bullet> 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.<SUP>22</SUP> 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.
---------------------------------------------------------------------------

    \22\ As explained below, full deactivation will continue to be 
available in limited circumstances through the agency's exercise of 
its prosecutorial discretion.
---------------------------------------------------------------------------

    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.<SUP>23</SUP> 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.<SUP>24</SUP>
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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.<SUP>25</SUP> 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.
---------------------------------------------------------------------------

    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. 
<SUP>26</SUP> 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.
---------------------------------------------------------------------------

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:
    <bullet> 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.

    <bullet> 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.
    <bullet> 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.<SUP>27</SUP> 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 
---------------------------------------------------------------------------
avoided completely by placing them in the back seat.

    <bullet> 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.<SUP>28</SUP> 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.) <SUP>29</SUP> 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.
---------------------------------------------------------------------------

    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.<SUP>30</SUP> 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.<SUP>31</SUP>
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    NHTSA recognizes that a new survey by IIHS cures some of the 
shortcomings of its January 1997 survey.<SUP>32</SUP> 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.
---------------------------------------------------------------------------

    \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. * * *'' 
<SUP>33</SUP>

    \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.* * * <SUP>34</SUP>

    \34\ Ibid.
---------------------------------------------------------------------------

    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.<SUP>35</SUP>
---------------------------------------------------------------------------

    \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,<SUP>36</SUP> 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,<SUP>37</SUP> the fourth was proposed by 
the agency in January, and the fifth was suggested in a comment by the 
Competitive Enterprise Institute (CEI).
---------------------------------------------------------------------------

    \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--
    <bullet> 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?
    <bullet> 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.<SUP>38</SUP>
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.<SUP>39</SUP>
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.<SUP>40</SUP> NHTSA expects that most 
vehicle manufacturers will promptly make on-off switches available for 
most vehicle makes and models.<SUP>41</SUP> 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.
---------------------------------------------------------------------------

    \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--
    <bullet> explains how air bags work,
    <bullet> explains how air bags save many lives and prevent many 
injuries,
    <bullet> describes the groups of people who have been killed by air 
bags,
    <bullet> identifies the single factor that is common to all air bag 
deaths,
    <bullet> makes clear why certain groups of people are at risk,
    <bullet> 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
    <bullet> 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.<SUP>42</SUP> 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.
---------------------------------------------------------------------------

    \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.<SUP>43</SUP> 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.
---------------------------------------------------------------------------

    \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.'' <SUP>44</SUP>
---------------------------------------------------------------------------

    \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 <SUP>45</SUP> will authorize deactivation based upon the 
following justifications:
---------------------------------------------------------------------------

    \45\ The reference to owners is intended to include lessees as 
well.
---------------------------------------------------------------------------

    <bullet> 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).
    <bullet> 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.
    <bullet> 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
    <bullet> 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).
    <bullet> Drivers who are extremely short-statured (i.e., 4 feet, 6 
inches or less) (driver air bag only).<SUP>46</SUP>
---------------------------------------------------------------------------

    \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:
    <bullet> Name and address of the vehicle owner.
    <bullet> 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.
    <bullet> A description of the facts creating the need for 
deactivation.
    <bullet> 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.<SUP>47</SUP> 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.) <SUP>48</SUP>
---------------------------------------------------------------------------

    \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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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:
    <bullet> It will not deploy in a crash; and
    <bullet> 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.<SUP>50</SUP> 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).<SUP>51</SUP>
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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.
---------------------------------------------------------------------------

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,<SUP>52</SUP> 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.
---------------------------------------------------------------------------

    \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,

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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