Air Bag On-Off Switches

SUMMARY: This final rule seeks to preserve the benefits of air bags,

while providing a means for reducing the risk of serious or fatal

injury that current air bags pose to identifiable groups of people,

e.g., people who cannot avoid sitting extremely close to air bags,

people with certain medical conditions, and young children. The

benefits are substantial; current air bags had saved about 2,620

drivers and passengers, as of November 1, 1997. However, those air bags

had also caused the death of 87 people in low speed crashes, as of that

same date. Most of those people were unbelted or improperly belted.

Although vehicle manufacturers are beginning to replace current air

bags with new air bags having some advanced attributes, i.e.,

attributes that will automatically avoid the risks created by current

air bags, an interim solution is needed now for those groups of people

at risk from current air bags in existing vehicles.

This final rule exempts motor vehicle dealers and repair businesses

from the statutory prohibition against making federally-required safety

equipment inoperative so that, beginning January 19, 1998, they may

install retrofit manual on-off switches for air bags in vehicles owned

by or used by persons whose requests for switches have been approved by

the agency. While the administrative process necessary to provide prior

approval is more complex than the process proposed by the agency in

January 1997 for enabling vehicle owners to obtain switches, prior

approval is warranted by several considerations. The requirement for

prior approval of requests for switches emphasizes to vehicle owners

the importance of taking the safety consequences of a decision to seek

and use on-off switches very seriously. While some people need and will

be benefited by on-off switches, the vast majority of people will not

be. Further, checking the requests for switches is more appropriately

performed by the agency than by the dealers and repair businesses who

will install the switches. Finally, prior approval will enable the

agency to monitor directly, from the very beginning, the implementation

of the regulation and the effectiveness of its regulation and the

associated educational materials in promoting informed decisionmaking

about on-off switches.

Under the exemption, vehicle owners can request an on-off switch by

filling out an agency request form and submitting the form to the

agency. On the form, owners must certify that they have read an

information brochure discussing air bag safety and risks. The brochure

describes the steps that the vast majority of people can take to

minimize the risk of serious injuries from air bags while preserving

the benefits of air bags, without going to the expense of buying an on-

off switch. The brochure was developed by the agency to enable owners

to determine whether they are, or a user of their vehicle is, in one of

the groups of people at risk of a serious air bag injury and to make a

careful, informed decision about requesting an on-off switch. Owners

must also certify that they or another user of their vehicle is a

member of one or the risk groups. Since the risk groups for drivers are

different from those for passengers, a separate certification must be

made on an agency request form for each air bag to be equipped with an

on-off switch.

If NHTSA approves a request, the agency will send the owner a

letter authorizing the installation of one or more on-off switches in

the owner's vehicle. The owner may give the authorization letter to any

dealer or repair business, which may then install an on-off switch for

the driver or passenger air bag or both, as approved by the agency. The

on-off switch must meet certain criteria, such as being equipped with a

telltale light to alert vehicle occupants when an air bag has been

turned off. The dealer or repair business must then fill in information

about itself and its installation in a form in the letter and return

the form to the agency.

This final rule also denies a petition for reconsideration of the

agency's January 1997 decision in a separate rulemaking not to extend

the option for installing original equipment manufacturer on-off

switches for passenger air bags to all new vehicles equipped with air

bags. As a result of that decision, the option continues to apply only

to those new vehicles lacking a rear seat capable of accommodating a

rear-facing infant restraint.

DATES: Effective Date: Part 595 is effective December 18, 1997. The

agency will begin processing air bag on-off switch requests on that

same date. If a form is submitted before December 18, it will be given

the same priority as a form submitted after that date. Accordingly,

there will be no advantage to submitting forms early. Motor vehicle

dealers and repair businesses may begin installing switches on January

19, 1998.

The amendments to Part 571 are effective January 19, 1998.

Compliance with those requirements is optional before that date.

Petitions: Petitions for reconsideration must be received by

January 5, 1998.

ADDRESSES: Petitions for reconsideration should refer to the docket

number of this rule and be submitted to: Administrator, National

Highway Traffic Safety Administration, 400 Seventh Street, SW,

Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: For information about air bags and

related rulemaking: For additional information, call the NHTSA Hotline

at 1-800-424-9393; in the D.C. area, call 202-366-0123. In addition,

visit the NHTSA Web site at http://www.nhtsa.dot.gov/airbags/. Among

the available materials are descriptions of the procedures for

requesting authorization to obtain an on-off switch and a list of

questions and answers about air bags and on-off switches. There are

also crash videos showing what happens in a crash to a belted, short-

statured dummy whose driver air bag is turned off.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary of this Final Rule.

A. Final Rule.

B. Comparison of NPRM and Final Rule.

II. Overview of Problem and the Agency's Remedial Actions.

A. Introduction.

B. Background.

1. Air Bags: Safety Issues. a. Lives Saved and Lost. b. Causes

of Air Bag Fatalities.

2. Air Bag Requirements.

C. Comprehensive Agency Plan to Address Air Bag Fatalities.

1. Interim Rulemaking Solutions.

a. Existing and Future Vehicles-in-Use.

b. New Vehicles.

2. Longer-Term Rulemaking Solution.

3. Educational Efforts; Child Restraint and Seat Belt Use Laws.

III. Deactivation Proposal (January 1997).

IV. Summary of Public Comments on Proposal.

V. NHTSA's Use of its Prosecutorial Discretion to Provide Case-by-

Case Authorizations of Air Bag Deactivation.

[[Page 62407]]

VI. Focus Group Testing of Information Brochure and other

Educational Materials (June 1997).

VII. Physicians Conference on Medical Conditions that Warrant

Turning Off an Air Bag (July 1997).

VIII. Agency Decision to Issue Exemption Authorizing Installation of

Retrofit On-Off Switches.

A. Summary.

B. The Challenge and Overall Rationale.

1. Risk versus Perception of Risk.

2. Which Groups Are Really at Risk?

3. Agency Actions to Minimize Risks.

C. Changes in Circumstances since the NPRM Make Retrofit On-Off

Switches Preferable to Deactivation.

D. Specifying that Retrofit On-Off Switches Are the Only Means

Authorized Under the Exemption for Turning off Air Bags Is

Reasonable and Consistent with Safety.

E. Case-by-Case Agency Authorizations of Retrofit On-Off Switch

Installation, Based on Vehicle Owner Certification of Risk Group

Membership and on Informed Consumer Decisionmaking, Is Reasonable

and Consistent with Safety.

F. Continued Use of Prosecutorial Discretion for Case-by-Case

Authorization of Air Bag Deactivation until Retrofit On-Off Switches

Become Available.

G. Other Issues.

1. Request Form.

2. Dealer and Repair Business Liability.

3. Information Brochure.

4. Dealer and Repair Business Responsibilities regarding the

Request Form and Information Brochure.

5. Insert for Vehicle Owner's Manual.

6. Recordkeeping.

7. Labels.

8. Lessees.

9. Definition of Repair Business.

10. Effective Date.

11. Sunset Date or Event.

12. On-Off Switches for New Vehicles.

13. Conforming Terminology Changes to Occupant Crash Protection

Standard.

IX. Implementation of Agency Decision.

A. Limited Continued Use of Prosecutorial Discretion to

Authorize Deactivation: Procedures and Requirements.

B. Providing Retrofit On-Off Switches under the Exemption:

Procedures and Requirements.

C. Steps to Promote Informed Decisionmaking by Consumers about

Retrofit On-Off Switches.

1. Information Brochure.

2. Insert for Vehicle Owner's Manual.

3. Physicians' Guidance regarding Medical Conditions Warranting

Turning Off an Air Bag.

4. Campaign to Increase Use of Child Restraints and Seat Belts.

X. Net Safety Effects and Costs of On-Off Switches.

A. Effect of Turning off Air Bags on the Performance of Some

Seat Belts.

B. Net Safety Effects and Costs.

XI. Rulemaking Analyses and Notices.

Regulatory Text

I. Executive Summary of This Final Rule

A. Final Rule

This final rule seeks to preserve the benefits of air bags, while

providing a means for reducing the risks that some current air bag

designs pose to discrete groups of people due to their extreme

proximity to air bags. This final rule exempts motor vehicle dealers

and repair businesses from the statutory prohibition against making

federally-required safety equipment inoperative so that, beginning

January 19, 1998, they may install, subject to certain conditions,

retrofit manual on-off switches for the air bags of vehicle owners

whose request is approved by NHTSA. To obtain approval, vehicle owners

must submit a request form to NHTSA on which they have certified that

they have read an agency information brochure about air bag benefits

and risks and that they or a user of their vehicle is a member of one

of the risk groups identified by the agency. The agency will begin

processing and granting requests on December 18, 1997.

Air bags have saved the lives of about 2,620 drivers and

passengers, primarily in moderate and high speed crashes, as of

November 1, 1997. However, air bags have also caused fatal injuries,

primarily in relatively low speed crashes, to a small but growing

number of children, and on rare occasion to adults. These deaths were

not random. They occurred when people were too close to their air bag

when it began to inflate. The vast majority of these fatalities could

have been avoided by preventive steps such as using seat belts, moving

the front seats back as much as possible, and putting children in the

back seat. Nevertheless, a relatively small number of people may still

be at risk, even after taking these steps, because they will be more

likely than the general population to be too close to their air bags.

Although advanced air bags are the ultimate answer and manufacturers

are beginning to install air bags with some advanced attributes, an

interim solution is needed for those identifiable groups of persons for

whom current air bags in existing vehicles may pose a risk of serious

or fatal injury.\1\

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\1\ An advanced air bag senses or responds to differences in

crash severity, occupant size or the distance of the occupant from

the air bag at the time of a crash. The advanced air bag adjusts its

performance by suppressing deployment in circumstances in which

fatalities might otherwise be caused by the air bag, but not by the

force of the crash or by reducing the force of deployment in those

circumstances.

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Under the exemption, vehicle owners \2\ may request a retrofit on-

off switch, based on informed decisionmaking and their certification of

their membership or the membership of another user of their vehicle in

one of the risk groups identified by the agency. After reading the

agency information brochure, owners can fill out and sign an agency

request form and submit it to NHTSA. The information brochure, which

provides guidance about which groups of people may be at risk from air

bags and about appropriate use of on-off switches, is intended to

inform consumers about which people are at risk from air bags and to

promote informed decisionmaking by consumers about whether to request

an on-off switch for those persons. To increase the likelihood that the

decisions are, in fact, informed, owners requesting a retrofit on-off

switch must certify on the request form that they have read the

information brochure. To limit the availability of on-off switches to

persons at risk of serious air bag injury, the owners must also certify

that they or a user of their vehicle is a member of one or more of the

risk groups described on the information brochure and listed on the

request form. The particular risk group in which membership is claimed

must be identified. Since the risk groups for driver air bags are

different from those for passenger air bags, a separate certification

must be made for each air bag to be equipped with an on-off switch.

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\2\ This final rule applies to leased as well as owned vehicles.

See part VIII.G.8 of this preamble. For the sake of simplicity,

however, most references in this preamble are to owners only. Those

references should be deemed to include lessees as well as owners.

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To reinforce the importance of taking great care in accurately

certifying risk group membership, the agency is requiring owners to

submit their requests to the agency. The agency expects that owners

will accurately and honestly make the necessary certifications and

statements on their request forms, but reserves the right to

investigate. The prior approval procedure will also enable the agency

to monitor, from the very beginning, the volume of requests and

patterns in switch requests and risk group certifications. The

computerization of the process of preparing authorization letters will

minimize the time needed by the agency to process and respond to the

requests. The precise amount of time will depend in large measure on

the volume of requests.

The agency strongly urges caution in obtaining and using on-off

switches. As noted above, on-off switches are not

[[Page 62408]]

needed for the vast majority of people since they are not at risk. Most

people can take steps that will eliminate or significantly reduce their

risk without turning off their air bag and losing its protective value.

If they take those steps, they will be safer than if they did not take

those steps and simply turned off their air bag. The most important

steps are using seat belts and other restraints and moving back from

the air bag. More important, people who are not at risk will be less

safe if they turn off their air bag.

This exemption is subject to certain conditions to promote the safe

and careful use of on-off switches. For example, the on-off switches

installed pursuant to this exemption must meet certain performance

criteria, such as being operable by a key and being accompanied by a

telltale to alert vehicle occupants whether the air bag is ``on'' or

``off.'' In addition, to provide a reminder about the proper use of on-

off switches, vehicle dealers and repair businesses must give vehicle

owners an owner's manual insert describing the operation of the on-off

switch, listing the risk groups, stating that the on-off switch should

be used to turn off an air bag for risk group members only, and stating

the vehicle specific safety consequences of using the on-off switch for

a person who is not in any risk group. Those consequences will include

the effect of any energy managing features, e.g., load limiters, on

seat belt performance.

In response to comments indicating that the definition of

``advanced air bag'' was too vague and that dealers could not

reasonably ascertain whether a vehicle was equipped with such air bags,

the agency has deferred adoption of that aspect of its proposal which

would have prohibited installation of on-off switches for advanced air

bags. NHTSA expects to adopt such a prohibition after it develops a

more complete definition of ``advanced air bags'' that applies to

driver as well as passenger air bags. This deferral should have no

practical significance. Although the vehicle manufacturers are

beginning to introduce air bags with advanced attributes, the agency

does not expect the installation of significant numbers of advanced air

bags before it is ready to establish a better definition.

The agency has selected January 19, 1998, as the beginning date for

the installation of retrofit on-off switches under this rule. This date

allows time for completion of the design, production and distribution

of on-off switches and the training of installation personnel. It also

allows time for the public education campaign of the agency and other

interested parties (e.g., the Air Bag Safety Campaign

(ABSC),3 American Automobile Association (AAA), Centers for

Disease Control and Prevention (CDC), Insurance Institute for Highway

Safety (IIHS), motor vehicle dealers, and state motor vehicle

departments) to effectively reach a substantial percentage of the

public before the installation of on-off switches begins. Until on-off

switches become available from the vehicle manufacturer for a given

vehicle make and model, NHTSA will continue to exercise its

prosecutorial discretion to grant requests for deactivating the air

bags in that make and model. In view of the relative inflexibility and

permanence of deactivation, the discretion will be exercised on a case-

by-case basis in the same limited set of circumstances in which the

requests are currently granted, e.g., in cases in which unusual medical

conditions suggest that deactivation is appropriate, and in cases in

which infants must be carried in the front seat of vehicles lacking a

rear seat capable of accommodating a rear-facing infant seat.

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\3\ The ABSC represents all automobile manufacturers (domestic

and importers), air bag suppliers, many motor vehicle insurance

companies and the National Safety Council.

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B. Comparison of NPRM and Final Rule

The final rule being issued today follows, in several important

respects, the agency's January 1997 proposal. Most important, the rule

makes a means of turning off air bags available to vehicle owners. It

simplifies the current process of obtaining a means of turning off air

bags. Instead of having to compose an original request letter and type

or write the letter out in longhand, as they must to obtain

authorization from the agency for deactivation, vehicle owners will be

able to fill out an agency request form. To promote informed

decisionmaking, this rule requires owners to certify on the request

form that they have read an air bag information brochure prepared by

NHTSA so that owners can separate fact from fiction about who is really

at risk and therefore may need an on-off switch.

However, the final rule differs from the proposal in several other

important respects. First, the sole means authorized for turning off

air bags is a retrofit on-off switch. Deactivation (i.e., modifying the

air bag so that it will not deploy for anyone under any circumstance)

is not allowed under the exemption. Although the agency recognized in

January 1997 that retrofit on-off switches offered some advantages, the

agency proposed deactivation because the apparent unavailability of

retrofit on-off switches in the near term made them impracticable. When

the deactivation proposal was issued, there were indications from the

vehicle manufacturers that they would not be able to provide retrofit

on-off switches for existing vehicles in a timely manner. Subsequent to

the January 1997 proposal, a number of major vehicle manufacturers

began reassessing the practicability of on-off switches and making

statements to the agency and the media that they were able to provide

retrofit on-off switches for existing vehicles, and for future

vehicles. The change to on-off switches in this final rule will enhance

safety because the on-off switches are a more focused, flexible means

of turning off air bags. They enable consumers to leave air bags on for

people who are not at risk and thus will benefit from their protection,

and turn them off for people at risk.

Second, vehicle owners must certify that they are a member of one

of several specified risk groups or that their vehicle will be driven

or occupied by a person who is a member of such a group. The agency

proposed to allow any person to choose to have his or her air bags

deactivated, without having to demonstrate or state a particular safety

need. Under the proposal, applicants would simply have had to fill out

an agency form on which they indicated that they had received and read

an information brochure explaining the safety consequences of having an

air bag deactivated. For the final rule, the agency has devised a new

form on which owners desiring an on-off switch for either a driver or

passenger air bag not only must certify that they have read the

brochure, but also that they or one of the users of their vehicle fall

into an identifiable risk group for that air bag. Use of the revised

form will help provide reasonable assurance that the exemption is

implemented in a manner consistent with safety.

Third, the agency is requiring owners to submit their filled-out

forms to the agency for approval. Together with the requirement for

certification of risk group membership, the necessity for obtaining

agency approval will help limit the installation and use of on-off

switches to people who are at risk from air bags and give the agency

information about the volume of requests and patterns in switch

requests and risk group certifications.

[[Page 62409]]

II. Overview of Problem and the Agency's Remedial Actions

A. Introduction

While air bags are providing significant overall safety benefits,

NHTSA is concerned that current air bags have adverse effects on

certain groups of people in limited situations. Of particular concern,

NHTSA has identified 87 primarily low speed crashes in which the

deployment of an air bag resulted in fatal injuries to an occupant, as

of November 1, 1997.4 NHTSA believes that none of these

occupants would have died if they had not been seated in front of an

air bag.

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\4\ The vast majority of the deaths appear to have occurred in

crashed in which the vehicle was traveling at less than 15 miles per

hour when the air bag deployed. Almost all occurred at vehicle

speeds under 20 miles per hour. NHTSA notes that Federal safety

standards do not specify a vehicle crash speed at which air bags

must deploy.

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The primary factor linking these deaths is the proximity to air

bags at the time of their deployment. All of these deaths occurred

under circumstances in which the occupant's upper body was very near

the air bag when it deployed.

There were two other factors common to many of the deaths. First,

apart from 12 infants fatally injured while riding in rear-facing

infant seats, most of the fatally injured people were not using any

type of child seat or seat belt. This allowed the people to move

forward more readily than properly restrained occupants in a frontal

crash. Further, the air bags involved in those deaths were, like almost

all current air bags, so-called ``one-size-fits-all'' air bags that

have a single inflation level.5 These air bags deploy with

the same force in very low speed crashes as they do in higher speed

crashes.

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\5\ The Federal safety standards do not require a ``one-size-

fits-all'' approach to designing air bags. They permit a wide

variety of technologies that would enable air bags to deploy with

less force in lower speed crashes or when occupants are out-of-

position or suppress deployment altogether in appropriate

circumstances.

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The most direct behavioral solution to the problem of child

fatalities from air bags is for children to be properly belted and

placed in the back seat whenever possible, while the most direct

behavioral solution for the adult fatalities is to use seat belts and

move the driver seat back as far as practicable. Implementing these

solutions necessitates increasing the percentage of children who are

seated in the back and properly restrained in child safety seats. It

also necessitates improving the current 68 percent rate of seat belt

usage by a combination of methods, including the enactment of State

primary seat belt use laws.6

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\6\ In States with ``secondary'' seat belt use laws, a motorist

may be ticketed for failure to wear a seat belt only if there is a

separate basis for stopping the motorist, such as the violation of a

separate traffic law. This hampers enforcement of the law. In States

with primary laws, a citation can be issued solely because of

failure to wear seat belts.

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The most direct technical solution to the problem of fatalities

from air bags is to require that motor vehicle manufacturers install

advanced air bags that protect occupants from the adverse effects that

can occur from being too close to a deploying air bag.

All of these solutions are being pursued by the agency. However,

until advanced air bags can be developed and incorporated into

production vehicles, behavioral changes based on improved information

and communication about potential hazards and simple, manually operated

technology are the best means of addressing fatalities from air bags,

especially those involving children.

To partially implement these solutions, and preserve the benefits

of air bags, while reducing the risk of injury to certain people, NHTSA

issued two other final rules in the past year. One rule requires new

passenger cars and light trucks whose passenger air bags are not

advanced to bear new, enhanced warning labels. (61 FR 60206; November

27, 1996) The other final rule provides vehicle manufacturers with the

temporary option of ensuring compliance by conducting a sled test using

an unbelted dummy instead of conducting a vehicle-to-barrier crash test

using an unbelted dummy. (62 FR 12960; March 19, 1997) The purpose of

the option is primarily to enable vehicle manufacturers to expedite

their efforts to lessen the force of air bags as they deploy.

On the behavioral side, the agency has initiated a national

campaign to increase usage of seat belts through the enactment of

primary seat belt use laws, more public education, and more effective

enforcement of existing belt use and child safety seat use laws.

In conjunction with the National Aeronautical and Space

Administration, as well as Transport Canada, and in cooperation with

domestic and foreign vehicle manufacturers, restraint system suppliers

and others through the Motor Vehicle Safety Research Advisory Committee

(MVSRAC), NHTSA is undertaking data analysis and research to address

remaining questions concerning the development and introduction of

advanced air bags. As noted above, the Federal motor vehicle safety

standards have permitted, but not required, the introduction of

advanced air bags. NHTSA recognizes that, if it were to require

advanced air bags, it would have to take into consideration the

differing leadtimes for the various kinds of advanced bags under

development, and the fact that the longest leadtimes will be those for

the most advanced bags. The agency also recognizes the engineering

challenge and potential costs associated with incorporating some of the

advanced air bag design features into the entire passenger car and

light truck fleet. A proposal to require the installation of advanced

air bags is expected this winter.

B. Background

1. Air Bags: Safety Issues

a. Lives Saved and Lost. Air bags have proven to be highly

effective in reducing fatalities from frontal crashes, the most

prevalent fatality and injury-causing type of crash. Frontal crashes

cause 64 percent of all driver and right-front passenger fatalities.

NHTSA estimates that, between 1986 and November 1, 1997, air bags

have saved about 2,620 drivers and passengers (2,287 drivers (87

percent) and 332 passengers (23 percent)). 7 Of the 2,620,

1,800 (69 percent) were unbelted and 700 (31 percent) were belted.

These agency estimates are based on comparisons of the frequency of

front seat occupant deaths in vehicles without air bags and in vehicles

with air bags. Approximately half of those lives were saved in the last

two years. These savings occurred primarily in moderate and high speed

crashes. Pursuant to the mandate in the Intermodal Surface

Transportation Efficiency Act of 1991 (ISTEA) for the installation of

air bags in all passenger cars and light trucks, the number of air bags

in vehicles on the road will increase each year. As a result, the

annual number of lives saved by air bags will continue to increase each

year. Based on current levels of effectiveness, air bags will save more

than 3,000 lives each year in passenger cars and light trucks when all

light vehicles on the road are equipped with dual air bags. This

estimate is based on current seat

[[Page 62410]]

belt use rates (about 68 percent, according to State-reported surveys).

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\7\ Studies published in the November 5, 1997 issue of the

Journal of the American Medical Association by IIHS and by the

Center for Risk Analysis at the Harvard School of Pulbic Health

confirm the overall value of passenger air bags, whle urging action

be taken quickly to address the loss of children's lives due to

those air bags. IIHS found that passenger air bags were associated

with a substantial reduction in crash deaths. The Center evaluated

the cost-effectiveness of passenger air bags and concluded that they

produce savings at costs comparable to many well-accepted medical

and public health practices.

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While air bags are saving large numbers of people in moderate and

high speed crashes, they sometimes cause fatalities, especially to

children, in lower speed crashes. As of November 1, 1997, NHTSA's

Special Crash Investigation program had confirmed a total of 87 crashes

in this country in which the deployment of an air bag resulted in fatal

injuries. Forty-nine of those fatalities involved children. Three adult

passengers have also been fatally injured. Thirty-five drivers are

known to have been fatally injured.

In addition to the 87 confirmed air bag related deaths, there were

18 deaths under investigation, as of November 1, 1997, 1 involving a

1996 crash and 17 involving 1997 crashes. The single 1996 death still

under investigation involved a driver. The 17 deaths in 1997 involved 1

infant, 11 children ranging in age from 1 to 11 years, and 5 drivers.

Although the agency cannot predict how many of the deaths under

investigation that will ultimately be categorized as confirmed air bag

related deaths, the agency notes that roughly 80 percent of the deaths

investigated to date have ultimately been confirmed.

The trends in the annual numbers of child and adult deaths differ

significantly. The annual number of confirmed fatally-injured children

increased significantly in 1993 through 1996 (1 in 1993, 5 in 1994, 8

in 1995 and 22 in 1996), while the number of confirmed fatally-injured

drivers did not increase appreciably in the same period (4 in 1993, 7

in 1994, 4 in 1995, and 6 in 1996). As of November 1, 12 children and 6

drivers had been confirmed as having been fatally injured by air bags

this year. However, as noted above, additional deaths are under

investigation. The total number of confirmed deaths for this year will

not be known until some time next year.

The number of vehicles with either driver air bags or both driver

and passenger air bags increased steadily over the last four years.

Since the fall of 1996, the number of vehicles with both driver and

passenger air bags has been increasing at the rate of 1 million

vehicles per month. The ratio of driver deaths to vehicles with driver

air bags decreased significantly between 1993 and 1996. The ratio of

child deaths to vehicles with passenger air bags also decreased, but

not nearly so much.

b. Causes of Air Bag Fatalities. The one fact that is common to all

who died is not their height, weight, sex, or age. Instead, it is the

fact that they were too close to the air bag when it started to deploy.

For some, this occurred because they were sitting too close to the air

bag. More often this occurred because they were not restrained by seat

belts or child safety seats and were thrown forward during pre-crash

braking.

Air bags are designed to save lives and prevent injuries by

cushioning occupants as they move forward in a front-end crash. They

keep the occupants' head, neck, and chest from hitting the steering

wheel or dashboard. To accomplish this, an air bag must move into place

quickly. The force of a deploying air bag is greatest in the first 2-3

inches after the air bag bursts through its cover and begins to

inflate. Those 2-3 inches are the ``risk zone.'' The force decreases as

the air bag inflates further.

Occupants who are very close to or in contact with the cover of a

stored air bag when the air bag begins to inflate can be hit with

enough force to suffer serious injury or death. In contrast, occupants

who are properly restrained and who sit 10 inches away from the air bag

cover will contact the air bag only after it has completely or almost

completely inflated. The air bag then will cushion and protect them

from hitting hard surfaces in the vehicle and thus provide a

significant safety benefit, particularly in moderate to serious

crashes.

The confirmed fatalities involving children have a number of fairly

consistent characteristics. First, all 12 infants were in rear-facing

infant seats. Second, the vast majority of the older children were not

using any type of restraint. 8 Third, almost all of the

small number of older children who were using some type of restraint

were improperly restrained or were leaning so far forward that benefits

of being restrained were largely negated. For example, some were too

small to be using just a vehicle lap and shoulder belt. Fourth, as

noted above, the crashes occurred at relatively low speeds. If the

passenger air bag had not deployed in those crashes, the children would

probably not have been killed or seriously injured. Fifth, the infants

and older children were very close to the dashboard when the air bag

deployed. Properly installed rear-facing infant seats are always very

close to the dashboard. For essentially all of the older children, the

non-use or improper use of occupant restraints or the failure to use

the restraints most appropriate to the child's weight and age, in

conjunction with pre-impact braking, resulted in the forward movement

of the children. 9 As a result, they were very close to the

air bag when it deployed. Because of their proximity, the children

sustained fatal head or neck injuries from the deploying passenger air

bag.

---------------------------------------------------------------------------

\8\ 29 (or 78%) of the 37 forward-facing children who were

fatally injured by air bags were not using any type of belt or other

restraint. This included 4 children who were sitting on the laps of

other occupants. The remaining 8 children included some who were

riding with their shoulder belts behind them and some who were

wearing lap and shoulder belts but who also should have been in

booster seats because of their small size and weight. Booster seat

use could have improved shoulder belt fit and performance. These

various factors and pre-crash braking allowed the children to get

too close to the air bag when it began to inflate.

\9\ For information on the restraint most appropriate for a

particular child, see the table at the end of the information

brochure in Appendix A in the regulatory text.

---------------------------------------------------------------------------

As in the case of the children fatally injured by air bags, the key

factor regarding the confirmed adult deaths has been their proximity to

the air bag when it deployed. The most common reason for their

proximity was failure to use seat belts. Only 11 of the 35 drivers were

known to be properly restrained by lap and shoulder belts at the time

of the crash. Moreover, of those eleven, two appeared to be out of

position (blacked out, due to medical conditions, and slumped over the

steering wheel) at the time of the crash. As in the case of children,

the deaths of drivers have occurred primarily in low speed crashes.

The other cause of air bag fatalities is the design of current air

bags. Air bag fatalities are not a problem inherent in the concept of

air bags or in the agency's occupant restraint standard, Standard No.

208 (49 CFR 571.208). That standard has long permitted, but not

required, a variety of design features that would reduce or eliminate

the fatalities that have been occurring, e.g., higher deployment

thresholds that will prevent deployment in low speed crashes,

10 different folding patterns and aspiration designs, dual

stage inflators, 11 new air bag designs like the Autoliv

``Gentle Bag'' that deploys first radially and then toward the

occupant, and advanced air bags that either adjust deployment force or

suppress deployment altogether in appropriate circumstances. While some

of these features are new or are still under development, others have

been around for more than a decade. The agency identified a number of

these features in conjunction with its 1984 decision concerning

automatic occupant

[[Page 62411]]

protection and noted that vehicle manufacturers could choose among

those features to address the problems reported by those manufacturers

concerning out-of-position occupants.

---------------------------------------------------------------------------

\10\ Mercedes Benz offers passenger air bags whose deployment

threshold is 12 mph if the passenger is unbelted and 18 mph if the

passenger is belted.

\11\ The air bags installed in approximately 10,000 GM cars in

the 1970's were equipped with dual stage inflators. Today, Autoliv,

a Swedish manufacturer of air bags, has a ``gas generator that

inflates in two steps, giving the bag time to unfold and the vent

holes to be freed before the second inflation starts. Should the bag

then encounter an occupant, any excessive--gas indeed bag pressure--

will exit through the vent holes.''

---------------------------------------------------------------------------

Although Standard No. 208 permits vehicle manufacturers to install

air bags incorporating those advanced features, very few current air

bags do so. Instead, vehicle manufacturers have thus far used designs

that inflate with the same force under all circumstances. Although the

vehicle manufacturers are now working to incorporate advanced features

in their air bags, the introduction of air bags with those features is

only just beginning. Introduction of significant numbers of advanced

air bags may not begin for another several model years.

With the help of a recent amendment to Standard No. 208, vehicle

manufacturers have been able to expedite the introduction of depowered

air bags. While these new air bags will reduce, but not eliminate, the

likelihood of air bag-caused deaths, they still deploy with the same

force in all crashes, regardless of severity, and regardless of

occupant weight or location. Many manufacturers have introduced

substantial numbers of these less powerful air bags in the current

model year (1998).

2. Air Bag Requirements

Today's air bag requirements evolved over a 25-year period. NHTSA

issued its first public notice concerning air bags in the late 1960's.

However, it was not until the fall of 1996 that manufacturers were

first required to install air bags in any motor vehicles.12

---------------------------------------------------------------------------

\12\ Air bag firsts--In view of the confusion evident in some

public comments on this rulemaking and even now in some media

accounts about when air bags were first required, and by whom, the

agency has set forth a brief chronology below:

1972 First year in which vehicle manufacturers had the

option of installing air bags in passenger cars as a mean of

complying with Standard No. 208. Vehicle manufacturers also had the

option of complying by means of installing manual lap and shoulder

belts. GM installed driver and passenger air bags in approximately

10,000 passenger cars in the mid-1970's.

1986 First year in which vehicle manufacturers were

required to install some type of automatic protection (either

automatic belts or air bags) in passenger cars. This requirement was

issued by Secretary Dole in 1984. At the time of issuance, the

agency expressly noted the concerns expressed by vehicle

manufacturers about out-of-position occupants. In response, NHTSA

identified a variety of technological remedies whose use was

permissible under the Standard. Between 1986 and 1996, vehicle

manufacturers chose to comply with the automatic protection

requirements by installing over 35 million driver air bags and over

18 million passenger air bags in passenger cars. Another 12 million

driver air bags and almost 3 million passenger air bags were

installed in light trucks in that same time period.

1996 First year in which vehicle manufacturers were

required to install air bags in passenger cars. this requirement was

mandated by the 1991 Intermodal Surface Transportation Efficiency

Act.

---------------------------------------------------------------------------

When the requirements for automatic protection (i.e., protection by

means that require no action by the occupant) were adopted in 1984 for

passenger cars, they were expressed in broad performance terms that

provided vehicle manufacturers with choices of a variety of methods of

providing automatic protection, including automatic belts and air bags.

Further, the requirements allowed broad flexibility in selecting the

performance characteristics of air bags.

Later, those requirements were extended to light trucks.

Ultimately, strong market demand led manufacturers to begin to install

air bags in all of their passenger cars and light trucks.

In 1991, Congress included a provision in ISTEA directing NHTSA to

amend Standard No. 208 to require that all passenger cars and light

trucks provide automatic protection by means of air bags. ISTEA

required at least 95 percent of each manufacturer's passenger cars

manufactured on or after September 1, 1996, and before September 1,

1997, to be equipped with an air bag and a manual lap/shoulder belt at

both the driver and right front passenger seating positions. Every

passenger car manufactured on or after September 1, 1997, must be so

equipped. The same basic requirements are phased-in for light trucks

one year later.13 The final rule implementing this provision

of ISTEA was published in the Federal Register (58 FR 46551) on

September 2, 1993.

---------------------------------------------------------------------------

\13\ At least 80 percent of each manufacturer's light trucks

manufactured on or after September 1, 1997 and before September 1,

1998 must be equipped with an air bag and a manual lap/shoulder

belt. Every light truck manufactured on or after September 1, 1998

must be so equipped.

---------------------------------------------------------------------------

Standard No. 208's automatic protection requirements, whether for

air bags or (until the provisions of ISTEA fully take effect) for

automatic belts, are performance requirements. The standard does not

specify the design of an air bag. Instead, vehicles must meet specified

injury criteria, including criteria for the head and chest, measured on

test dummies. Until recently, these criteria had to be met for air bag-

equipped vehicles in barrier crashes at speeds up to 30 mph, both with

the dummies belted and with them unbelted.

However, on March 19, 1997, the agency published a final rule

amending Standard No. 208 to temporarily provide the option of testing

air bag performance with an unbelted dummy in a sled test incorporating

a 125 millisecond standardized crash pulse instead of in a vehicle-to-

barrier crash test. This amendment was made primarily to expedite

manufacturer efforts to reduce the force of air bags as they deploy.

Standard No. 208's current automatic protection requirements, like

those established 13 years ago in 1984, apply to the performance of the

vehicle as a whole, and not to the air bag as a separate item of motor

vehicle equipment. The broad vehicle performance requirements permit

vehicle manufacturers to ``tune'' the performance of the air bag to the

specific attributes of each of their vehicles.

The Standard's requirements also permit manufacturers to design

seat belts and air bags to work together. Before air bags, seat belts

had to do all the work of restraining an occupant and reducing the

likelihood that the occupant will strike the interior of the vehicle in

a frontal crash. Another consequence of not having air bags was that

vehicle manufacturers had to use relatively rigid and unyielding seat

belts that can concentrate a lot of force along a narrow portion of the

belted occupant's body in a serious crash. This concentration of force

created a risk of bone fractures and injury to underlying organs. The

presence of an air bag increases the vehicle manufacturer's ability to

protect belted occupants. Through using energy managing devices, such

as load limiters, a manufacturer can design seat belts to give or

release additional belt webbing before the belts can concentrate too

much force on the belted occupant's body. When these new belts give,

the deployed air bag is there to prevent the belted occupant from

striking the vehicle interior.

Further, Standard No. 208 permits, but does not require, vehicle

manufacturers to design their air bags to minimize the risk of serious

injury to unbelted, out-of-position occupants, including children and

small drivers. The standard gives the manufacturers significant freedom

to select specific attributes to protect all occupants, including

attributes such as the crash speeds at which the air bags deploy, the

force with which they deploy, air bag tethering and venting to reduce

inflation force when a deploying air bag encounters an occupant close

to steering wheel or dashboard, the use of sensors to detect the

presence of rear-facing child restraints or the presence of small

children and prevent air bag inflation, the use of sensors to detect

occupant position and prevent air bag inflation if appropriate, and the

use of dual stage

[[Page 62412]]

versus single stage inflators. Dual stage inflators enable air bags to

deploy with lower force in low speed crashes, the type of crashes in

which children and drivers have been fatally-injured, and with more

force in higher speed crashes.

C. Comprehensive Agency Plan to Address Air Bag Fatalities

In late November 1996, NHTSA announced that it would be

implementing a comprehensive plan of rulemaking and other actions

(e.g., consumer education and encouragement of State seat belt use laws

providing for primary enforcement of their requirements) addressing the

adverse effects of air bags.14 While there is a general

consensus that the best approach to preserving the benefits of air bags

while preventing air bag fatalities will ultimately be the introduction

of advanced air bags, those air bags will not be widely available in

the next several years. Accordingly, the agency has focused on

rulemaking and other actions that will help reduce the adverse effects

of air bags in existing vehicles as well as in vehicles produced during

the next several model years. The actions which have been taken, or are

being taken, include the following:

---------------------------------------------------------------------------

\14\ For a discussion of the actions taken by NHTSA before

November 1996 to address the adverse effects of air bags, see pp.

40787-88 of the agency's NPRM published August 6, 1996 (61 FR

40784).

---------------------------------------------------------------------------

1. Interim Rulemaking Solutions

a. Existing and Future Vehicles-in-Use. This final rule exempts,

under certain conditions, motor vehicle dealers and repair businesses

from the ``make inoperative'' prohibition in 49 U.S.C. 30122 by

allowing them, beginning January 19, 1998, to install retrofit manual

on-off switches for air bags in vehicles owned by people whose request

for a switch is approved by NHTSA. The purpose of the exemption is to

preserve the benefits of air bags while reducing the risk that some

people have of being seriously or fatally injured by current air bags.

The exemption also allows consumers to have new vehicles retrofitted

with on-off switches after the purchase of those vehicles. It does not,

however, allow consumers to purchase new vehicles already equipped with

on-off switches.

b. New Vehicles. On March 19, 1997, NHTSA published in the Federal

Register (62 FR 12960) a final rule temporarily amending Standard No.

208 to facilitate efforts of vehicle manufacturers to depower their air

bags quickly so that they inflate less aggressively. This change,

coupled with the broad flexibility already provided by the standard's

existing performance requirements, provided the vehicle manufacturers

maximum flexibility to quickly reduce the adverse effects of current

air bags.

On November 27, 1996, the agency published in the Federal Register

(61 FR 60206) a final rule amending Standards No. 208 and No. 213 to

require improved labeling on new vehicles and child restraints to

better ensure that drivers and other occupants are aware of the dangers

posed by passenger air bags to children, particularly to children in

rear-facing infant restraints in vehicles with operational passenger

air bags. The improved labels were required on new vehicles beginning

February 25, 1997, and were required on child restraints beginning May

27, 1997.

On January 6, 1997, the agency published in the Federal Register

(62 FR 798) a final rule extending until September 1, 2000, an existing

provision in Standard No. 208 permitting vehicle manufacturers to offer

manual on-off switches for the passenger air bag for new vehicles

without rear seats or with rear seats that are too small to accommodate

rear-facing infant restraints.

2. Longer-Term Rulemaking Solution

The longer term solution is advanced air bags. The agency has

established a working group under the Crashworthiness Subcommittee of

MVSRAC to work cooperatively with the vehicle manufacturers, restraint

system suppliers and other organizations regarding advanced air bags.

Activities include sharing data and information from research,

development and testing of advanced air bags and providing test

procedures that could be used in evaluating the advanced air bag

technologies. While some of these technologies are complex, others are

relatively simple and inexpensive. NHTSA plans to issue an NPRM to

require a phasing-in of advanced air bags and to establish performance

requirements for those air bags. While Standard No. 208 has provided

vehicle manufacturers with the flexibility necessary to introduce

advanced air bags, the Standard has not required them to take advantage

of that flexibility. Among other things, the agency anticipates

proposing tests using a 5th percentile female dummy 15 and

advanced child dummies and specify appropriate injury criteria for

those dummies, including neck injury criteria, as part of its

rulemaking regarding advanced air bags.

---------------------------------------------------------------------------

\15\ A 5th percentile female dummy has a standing height of 5

feet and a weight of 110 pounds.

---------------------------------------------------------------------------

3. Educational Efforts; Child Restraint and Seat Belt Use Laws

In addition to taking these actions, and conducting extensive

public education efforts, the Department of Transportation announced

this past spring a national strategy to increase seat belt and child

seat use. Higher use rates would decrease air bag fatalities and the

chance of adverse safety tradeoffs occurring as a result of turning off

air bags. The plan to increase seat belt and child seat use has four

elements: stronger public-private partnerships; stronger State seat

belt and child seat use laws (e.g., laws providing for primary

enforcement of seat belt use requirements); active, high-visibility

enforcement of these laws; and effective public education. Substantial

benefits could be obtained from achieving higher seat belt use rates.

For example, if observed belt use increased from 68 percent to 90

percent, an estimated additional 5,536 lives would be saved annually

over the estimated 9,529 lives currently being saved by seat belts. In

addition, an estimated 132,670 injuries would be prevented annually.

The economic savings from these incremental reductions in both

fatalities and injuries would be $8.8 billion annually.

III. Deactivation Proposal (January 1997)

On January 6, 1997, NHTSA published an NPRM (62 FR 831) to exempt

motor vehicle dealers and repair businesses conditionally from the

statutory ``make inoperative'' prohibition of 49 U.S.C. Sec. 30122, so

that they could deactivate either or both the driver and passenger air

bags at the request of a vehicle owner. As noted above, this proposal

was issued to help reduce the fatalities and injuries that current air

bags are causing to persons who may be facing special risks from air

bags.

The agency stated that, while it expected that advanced air bags

will offer means for significantly reducing or eliminating the risk of

adverse side effects from air bags, advanced air bags will not be

widely available in the next several years. The agency said it believes

that, in the interim, steps need to be taken to minimize the

possibility that air bags will cause harm in existing vehicles and in

new vehicles produced prior to the availability of advanced air bags.

Just as depowering will provide a technological solution that will

prevent a significant number of the air bag fatalities that might

otherwise have

[[Page 62413]]

occurred in new vehicles, so deactivation would provide a technological

solution for persons facing special risks in existing vehicles.

Although the agency recognized that retrofit on-off switches offered

certain advantages, the agency proposed deactivation instead of

installation of retrofit on-off switches based on information from the

vehicle manufacturers indicating that they could not provide retrofit

on-off switches for existing vehicles in a timely manner.

Noting that a depowered passenger air bag may not completely

eliminate the risk to an infant in a rear-facing infant seat or to an

unrestrained child who is near the dashboard as a result of pre-crash

braking, the agency stated that deactivation of depowered passenger air

bags would be permitted. However, since on-off switches and advanced

air bags could be used to essentially eliminate the risks to children,

deactivation of a passenger air bag would not be permitted under the

proposal if that air bag were equipped with such an on-off switch or if

the air bag were an advanced air bag.

NHTSA proposed to limit authorization to deactivate driver air bags

to existing vehicles and vehicles lacking advanced driver air bags. The

agency indicated that it might further restrict authorization to

deactivate driver air bags by excluding vehicles with depowered driver

air bags.

NHTSA noted that there were safety tradeoffs associated with air

bag deactivation. The agency strongly recommended that air bag

deactivation be undertaken only in instances in which the vehicle owner

reasonably believes that the air bag poses a significant risk, based on

the individual's particular circumstances. The agency indicated that

there would be limited need for passenger air bag deactivation and even

less need for driver air bag deactivation.

The mechanics of the proposed exemption from the make inoperative

prohibition were based in large measure upon recommendations from BMW

and Volvo in 1996 that the agency develop procedures similar to those

being used in Europe for temporarily deactivating air bags. According

to BMW,

(I)n Europe, a BMW dealer is allowed to temporarily deactivate

the passenger air bag for individuals who may have a special need or

normally transport children after advising them of the benefits of

air bags and approval forms are signed.

Given the administrative complexity and time that would be

associated with reviewing individual applications, the agency proposed

to allow any person to choose to deactivate, without having to

demonstrate a particular safety need. However, applicants would have

had to submit a written authorization to the dealer or repair business

performing the deactivation and indicate that they had received and

read an information brochure explaining the consequences of having an

air bag deactivated.

NHTSA requested commenters to provide views regarding a number of

specific issues, including--

Should deactivation of air bags be allowed at the owner's

option in all cases or should deactivation be limited to situations in

which death or serious injury might reasonably be expected to occur?

Would the administrative details involved in establishing

and implementing limitations on eligibility overly complicate the

availability of deactivation?

If it becomes permissible to deactivate air bags, with the

result that an air bag could be turned off permanently, should the

agency permit lesser measures as well, such as an on-off switch?

Should there be a requirement that deactivation be

performed in a manner that facilitates reactivation?

In the rulemaking regarding OEM on-off switches, the

agency estimated that there would be more benefits than losses if the

misuse rate were less than 7 percent. Since a seat with a deactivated

air bag may sometimes be occupied by a person who would benefit from

the air bag, is there a percentage of such occupancy that would result

in the losses from deactivation outweighing the benefits?

Should a vehicle lessee be allowed to seek deactivation?

IV. Summary of Public Comments on Proposal

There were approximately 700 comments on the NPRM. About 600 of

those were from members of the general public. The rest were from

companies or trade associations representing vehicle manufacturers,

dealers and repair businesses, fleet managers and owners, equipment

manufacturers, consumer safety groups, insurance companies, physicians

and health-related groups, former NHTSA administrators, and

miscellaneous other organized groups. Because so many commenters took

the same or similar positions on the issues, the commenters are not

identified in this preamble unless there is some special significance

to their identity. Instead, they are referred to simply as ``general

public'' commenters and ``company and group'' commenters (even if some

of the ``company and group'' comments are from individual companies).

The general public commenters supported, and the company and group

commenters did not oppose, the agency's exempting dealers and repair

businesses from the make inoperative prohibition so that air bags could

be turned off. However, the commenters were divided on many of the

details of how this should be accomplished and on the breadth of the

exemption.

Almost all commenters supported deactivation as a means for turning

off air bags. Most of the companies and groups also supported

permitting retrofit on-off switches at least as an alternative to

deactivation. GM, a dealer's group, a service group, and a number of

safety groups went further, stating that on-off switches should be the

only permitted way of turning off an air bag. About one in six of the

general public commenters also stated that on-off switches should be

installed in lieu of, or as a preferred means of, turning off air bags.

IIHS, which supported deactivation, stated that it reluctantly

supported on-off switches as well. Its reluctance arose in large part

from the amount of apparent interest in on-off switches. Based on a

January 1997 public opinion survey that it commissioned showing a

strong public preference for on-off switches over deactivation, IIHS

suggested that more people would choose to have on-off switches

installed than would choose to have deactivations performed. A few

commenters opposed on-off switches. BMW stated that on-off switches

should not be allowed because their development will divert resources

from development of advanced air bags, conflict with the decision not

to require them on new vehicles, and introduce complexity for service

and repair, compared with the ``simple reprogramming'' necessary for

temporary deactivation of its air bags. Both BMW and IIHS expressed

concern that allowing on-off switches would encourage placing children

in front where the risk of serious injury is greater, with or without

air bags. Most company and group commenters thought that on-off switch

misuse would be a significant problem.

The issues which drew the most comments were ``who should be

allowed to have their air bags deactivated, and under what procedure?''

16 The general public

[[Page 62414]]

commenters almost universally favored allowing air bag deactivation for

anyone who wants it, i.e., regardless of whether a person is actually

in a risk group. Both the National Transportation Safety Board (NTSB)

and IIHS also supported deactivation for any vehicle owners who want

it, i.e., without requiring membership in a risk group. In addition,

one equipment manufacturer, and three groups supported deactivation for

owners who want it and based their support on personal liberty

arguments. However, most of the other company and group commenters were

opposed to deactivation for everyone who wants it.

---------------------------------------------------------------------------

\16 \In expressing their views on these issues, even those

commenters who discussed on-off switches as a means that should be

available under the exemption for turning off air bags generally

discussed the eligibility and procedural issues in terms of

deactivation alone. NHTSA understands that the commenters generally

intended those views regarding eligibility and procedure to apply

equally to deactivation and on-off switches.

---------------------------------------------------------------------------

The main argument given by the general public commenters for broad

availability of deactivation was that there should be personal choice

as to whether to turn one's air bag on or off. These commenters

emphasized the danger that they believe air bags pose and many

mentioned media reports that they had seen. They frequently noted that

there were circumstances that they believed would tend to put them or

their family members at risk. Generally, these circumstances included

short stature, pregnancy, being elderly, needing to transport children,

and certain medical conditions. Many stated that they wore their seat

belts, and that they believed that the air bags were of marginal

benefit.

IIHS said that it supported broad availability because of the

apparent extent of public interest in turning off air bags for at least

some vehicle occupants. The organization suggested that trying to limit

the availability of deactivation would create an adverse public

reaction. In support of this suggestion, IIHS cited its January 1997

survey indicating that 30 percent of their respondents would like an

on-off switch for the driver air bag, and 67 percent would like one for

the passenger air bag. Thirteen percent said they would like a

permanent deactivation of the driver air bag, and 19 percent wanted

permanent deactivation for the passenger air bag.

The main argument of the company and group commenters against

relying on informed decisionmaking in allowing deactivation was that

there would be widespread deactivation by frightened and misinformed

consumers who were not actually at risk. Many company and group

commenters expressed concern that the issues relating to air bag risks

might be too complex for the general public to comprehend so that it

would be difficult for the public to make informed decisions. Some

commented that allowing deactivation for everyone would even encourage

deactivations by implying that air bags were so dangerous that they

generally should be disconnected. The great majority of company and

group commenters favored a continuation of NHTSA's current practice of

authorizing deactivations only in limited circumstances and solely on a

case-by-case basis. In August 1997, a broad coalition of vehicle

manufacturers, dealers, insurers, public interest groups, medical

societies and others met first with the Office of Management and Budget

(OMB) and later with NHTSA to urge that eligibility under the exemption

be limited to persons in risk groups identified by the agency and that

the agency approve each request for an on-off switch before a switch

can be installed. The coalition re-iterated its concerns in a mid-

October meeting with OMB.

Several individual vehicle manufacturers, and the industry

associations representing all domestic and foreign vehicle

manufacturers, said that NHTSA does not have the statutory authority to

allow deactivation based on informed decisionmaking. General Motors

(GM) argued that the proposal did not meet the three tests which it

believes are implicit in the statute: (1) an exemption must be for a

single individual, not classes of people; (2) an exemption for a

specific individual must be based on the agency's judgment, not the

individual's judgment; and (3) an exemption must be consistent with

vehicle safety. These commenters noted that the agency emphasized in

the NPRM that only in limited instances would deactivation be, on

balance, in the best interests of a driver or passenger. They argued

that the predicted widespread deactivations provided to anyone who

wanted one would result in more people being killed and injured in

situations in which the air bag might have saved them, thus resulting

in a reduction of motor vehicle safety. Finally, Ford argued that the

agency's desire for administrative simplicity does not overcome the

necessity for complying with the statute.

The company and group commenters advanced a number of safety

arguments against allowing deactivation based on informed

decisionmaking. Some of them suggested that depowering air bags would

obviate the need for a broad availability of deactivation. Several

stated that occupant restraint systems are integrated. Seat belts

designed to work with air bags may not work so well as conventional

seat belts if the air bags are deactivated. In particular, it was

stated that, depending on how it was performed, deactivating the air

bag could also deactivate seat belt pretensioners that use the same

crash sensors as the air bag. GM suggested that it is the safety

conscious people who already buckle themselves and their children who

will tend to deactivate their air bags in reaction to media reports of

air bag deaths and injuries. Because people who wear belts are seldom

harmed by air bags, GM concluded that, ironically, many or most who

disconnect will be at increased risk. A majority of the company and

group commenters stated that vehicles with deactivated air bags would

be sold to other parties who might not know of the deactivation, or in

the case of vehicles with retrofit on-off switches, might misuse the

on-off switch.

The company and group commenters almost universally stated that

deactivation was, given its permanency, appropriate only in rare

circumstances. Most of these commenters did not identify those

circumstances, but stated that NHTSA should determine the proper

categories of persons who would be better off without the air bag,

based on its expertise and data. To the extent that the circumstances

were noted, they are discussed briefly below.

There was universal agreement that certain young children riding in

the front need to be protected from the risk of serious injury from air

bags. Nearly all commenters said that owners and lessees who have

vehicles lacking a rear seat capable of accommodating a rear-facing

infant restraint and who need to transport infants in such restraints

should be able to have the passenger air bag deactivated. Some

commenters suggested that air bags should be turned off for young

children with medical conditions that need frequent monitoring by the

driver. In contrast, the American Academy of Pediatrics stated that

situations in which a child needs immediate attention are very rare,

and that it was more dangerous to attend to them while driving. Another

circumstance suggested by some commenters is the presence of too many

children in a vehicle to place all of them in the back seat.

Other categories mentioned by some of the commenters include people

of short stature, the elderly, and people with certain medical

conditions or disabilities. These categories were also mentioned

extensively in the general public comments. However, the company and

group commenters tended

[[Page 62415]]

to minimize the risk to these categories of people. They generally did

not include the elderly as a category, and some of them suggested that

exemptions for medical reasons should be accompanied by a doctor's

note. One safety group suggested NHTSA employ a licensed medical

professional or panel to examine requests. One medical group suggested

that NHTSA and a panel of medical professionals define qualifying

medical conditions. While some commenters agreed that short people were

in danger, they emphasized the difficulty of determining how short was

too short.

More recent submissions and statements from the company and group

commenters argue that the issue is not occupant height, but sitting

distance from the air bag module. IIHS submitted a survey indicating

that only 5 percent of female drivers (approximately 2.5 percent of all

drivers) are accustomed to sitting within 10 inches of their air bag

module. Of those 5 percent of female drivers, 66 percent normally sit

9-10 inches from their air bag, and an additional 17 percent normally

sit 8-9 inches away. The remainder, accounting for less than 1 percent

of female drivers, normally sit within 8 inches of their air bag.

IIHS also found that a high percentage of short-statured female

drivers could adjust their driving position to achieve a 10-inch

distance. This finding was based on 13 women, from 4 feet, 8 inches

tall to 5 feet, 2 inches tall, who were asked to try to achieve that

distance in a dozen vehicles of varying sizes. Ten of the women

achieved 10 inches in all of the vehicles; the remaining 3 did so in

all but a few of the vehicles. All drivers were able to achieve at

least 9 inches in all vehicles.

Other reasons given for not allowing deactivation based on informed

decisionmaking were assertions that NHTSA's current system of case-by-

case determinations was believed to work well and only needed

unspecified streamlining; that the few deactivation requests NHTSA

received until recently proved that actual need was low; and that the

authorization form would be ineffective, especially with respect to

subsequent purchasers of vehicles with deactivated air bags, as a means

of alleviating the liability concerns of the manufacturer, dealer, and

repair business groups. In an August 1, 1997 letter, a broad coalition

of company and group commenters argued that since the agency was

reportedly answering all deactivation requests within 72 hours and had

no backlog of unanswered requests, the agency should be able under the

final rule to continue its current practice of reviewing and approving

each deactivation request.

In addition to objecting generally to the proposal for deactivation

based on informed decisionmaking, many of the company and group

commenters expressed concerns about particular aspects of the proposed

process for implementing the exemption from the make inoperative

prohibition. The dealer and repair business groups, and generally also

the vehicle manufacturers and safety groups, were opposed to the

dealers having any role in the process of distributing information

brochures or making any kind of decision in the process. They indicated

that it would be difficult to reject the request of an owner who wanted

deactivation or advice on whether to deactivate, yet the dealers did

not have the expertise to advise owners on deactivation. Dealer and

vehicle manufacturer groups also stated that the existing definition of

``advanced air bags'' was too vague and that a dealer could not be

expected to determine whether a vehicle was equipped with one, and

therefore ineligible for deactivation.

Some of the company and group commenters stated that NHTSA should

require guidance from the vehicle manufacturers on how to perform

deactivations. A dealers' group commented that if NHTSA did not require

the vehicle manufacturers to provide procedures, dealers/repairers

might perform improper repairs, and that deactivations should be done

only by factory trained and certified deactivation technicians at a

franchised dealership. Two manufacturers suggested that NHTSA require

manufacturers to provide such procedures, and one suggested requiring

deactivation kits. Ford commented that NHTSA should require

deactivation to be done in accordance with ``manufacturer

recommendations.''

A large majority of company and group commenters also stated that

any recordkeeping under the exemption from the make inoperative

prohibition should be done by NHTSA. Vehicle manufacturers uniformly

stated that NHTSA should keep the records because the agency could

provide a centralized information clearinghouse on air bag

deactivations. Vehicle manufacturers also commented that since they

have no role in authorizing or performing deactivations, or in

enforcement, they should not have recordkeeping responsibilities.

Multinational Business Services (MBS) stated that the agency should be

the recordkeeper so that it could analyze trends among the requests for

deactivation and make any appropriate policy adjustments. The insurance

and safety groups suggested that NHTSA notify insurers of any

deactivations, because permanent deactivation would eliminate the basis

for the air-bag discount many insurance companies offer. GM suggested

that recordkeeping would be totally unnecessary if on-off switches were

installed.

Many of the company and group commenters opposed an immediate

effective date. Jaguar suggested at least 60 days would be needed for

label printing, software development, preparations of procedures for

disconnect/reconnect, and training. Other manufacturers, who urged that

retrofit on-off switches be allowed as an alternative to permanent

deactivation, stated that additional time would be needed for

development of on-off switches. Ford said that it would need 5-6 months

to have a large supply of retrofit on-off switch kits in dealer

inventory. In an August 29, 1997 meeting with NHTSA representatives, a

broad coalition of company and group commenters urged that adequate

leadtime be provided to give the government as well as many of the

company and group commenters sufficient opportunity to communicate

their safety messages about air bag safety and risks to the public.

Opinion about sunsetting (i.e., terminating) the exemption was

divided. GM opposed sunsetting the exemption when ``smart air bag,''

i.e., advanced air bags, are introduced. The company said that until

the term can be adequately defined, NHTSA should remove the term from

the rule, along with any sunsetting associated with it. Advocates for

Highway and Auto Safety commented that sunsetting the exemption was

appropriate.

Some company and group commenters discussed the costs associated

with deactivation. Some manufacturers merely stated that additional

parts and extensive labor would be required for both deactivation and

reactivation. Only Ford gave specific cost estimates. Ford estimates

for parts and labor (but not including profit) ranged from $16 for a

simple shorting bar removal, to $124 for an on-off switch. The NTSB

commented that some manufacturers had indicated to it that the cost of

on-off switches would be $300-400 per on-off switch. Some insurance

groups indicated that insurers might eliminate the air bag discount,

even with on-off switches, because they would be unable to identify

deactivated vehicles. This would penalize those who do not disconnect.

IIHS submitted a July 1997 report in which that organization

concluded the

[[Page 62416]]

results of 40 mph offset frontal crash tests demonstrate that turning

off an air bag increases the risk that a belted driver will be

seriously injured in a crash. Crash tests using dummies representing an

average size male driver indicated that without an air bag, the safety

belts alone would not have prevented a belted driver from suffering

``life-threatening'' head and neck injuries. Similarly, another July

1997 IIHS report concerning 35 mph barrier crash tests with 5th

percentile female dummies indicated that short-statured women can

obtain significant protection from an air bag even when the driver's

seat is moved all the way forward. The tests indicated that without air

bags to spread the crash forces over the entire head, the crash forces

would instead be concentrated on a narrow portion of the middle or

lower portions of the face where the bones are more fragile. IIHS noted

that a study of 15 restrained drivers fatally injured in frontal

crashes with head injuries of AIS 4 or greater, found that steering

wheels were the sources of head injuries for 9 of these drivers, and

that 13 drivers suffered their head injuries from loading to the facial

bones.

Some company and group commenters noted that the adverse effect of

turning off air bags would be greater for some vehicles equipped with

seat belts specially designed to work with air bags. If the crash

forces become too great, these new seat belts ``give'' or yield to

avoid concentrating too much force on the chest. Some of these belt

systems yield by allowing more belt webbing to spool out when a

predetermined force level is reached. The inflated air bag prevents the

occupant from moving too far forward after the seat belts give. Without

the air bag, the new belts allow the occupant to move farther forward

in moderate and high speed crashes.

Commenters addressed the conditions that should apply to

deactivations. A wide variety of companies and groups commented that,

whatever the method of deactivation, it should be done in a manner that

facilitates reactivation. All commenters who addressed the question

stated that the air bag readiness indicator should have to remain

functional for the remaining air bag, even if one air bag were

deactivated. The companies and groups also generally commented that if

both air bags have on-off switches, the air bags should be individually

controllable.

Nearly all company and group commenters emphasized the importance

of the information brochure in promoting an informed decision by

individual members of the public about deactivation. Many said

improvements were needed in the information brochure. The most common

assessment was that the brochure was too long and technical. Others

commented that NHTSA should focus-group test the effectiveness of the

brochure prior to distributing it. Several suggested that the

information be provided in a video.

Many company and group commenters argued that the agency

significantly underestimated the number of people who would seek

deactivation under the proposal. Many commenters argued that the agency

should consider public opinion surveys in making a new estimate. One

commenter urged the agency to base its estimates on the IIHS' January

1997 survey. The most recent survey, an August 1997 survey from IIHS,

indicated that 12 percent of vehicle owners were interested in

obtaining an on-off switch for the driver's air bag and 16 percent for

the passenger's air bag. Based on early 1997 surveys, that commenter

contended that the proposal would have significant net adverse effects

on safety. In an August 1, 1997 letter, the vehicle manufacturers

argued that the net effects must be assessed in order to ensure that

the exemption meets the statutory criterion of consistency with safety.

V. NHTSA's Use of Prosecutorial Discretion to Provide Case-by-Case

Authorization of Air Bag Deactivation

From October 1, 1996, through October 30, 1997, NHTSA received

11,838 written requests for air bag deactivation. The volume of these

requests peaked in the spring, possibly in response to the extensive

publicity surrounding the NTSB hearings in mid-March, then fell

steadily until the last month. In April-May, the agency received

approximately 400 letters per week. In August, the weekly volume fell

to slightly less than 300 letters. By mid-September, the volume

bottomed out at slightly above 100. During October, the volume

rebounded, averaging slightly less than 200 letters per week. That

increase followed the media's reporting of the agency's submission of a

draft final rule to the Office of Management and Budget on October 2.

Since October 29, 1996, the NHTSA Hotline has received over 27,000

calls seeking information about air bags. Approximately 13,500 of them

were from people interested in deactivating their air bags.

More than 60 percent of the written requests, approximately 7,100

out of 11,838, concerned short adults. The vast majority of the

remaining 4,738 requests concerned adults (many of whom were short)

with certain medical conditions. The rest concerned children. Of those

remaining requests, approximately 4,200 were granted, and 500 denied,

by the agency. Approximately 85 percent of the grants were for adult

medical conditions. The remaining approximately 15 percent involved

children, including both children with medical conditions and children

riding in vehicles lacking a rear seat capable of accommodating a rear-

facing infant seat.

In its grant letters to persons with medical conditions, the agency

told owners that if their physicians concluded that the risks

associated with their medical condition and the deployment of their

driver air bag exceeded the risks to their safety from the air bag's

not deploying, NHTSA would not regard deactivation of the air bag as

grounds for an enforcement proceeding.17 Similarly, NHTSA

told vehicle owners whose vehicle lacked a back seat in which to carry

an infant or who needed to monitor closely a child with a special

medical condition 18 that the agency would not regard the

deactivation of the passenger air bag by a dealer or repair business as

grounds for an enforcement proceeding against the dealer or repair

business. The agency urged that the air bag be reactivated when the

circumstances necessitating its deactivation ceased to exist.

---------------------------------------------------------------------------

\17\ In the absence of any other source of expertise, such as

the July 1997 National Conference on Medical Indications for Air Bag

Disconnection, described below, the agency has relied in the past

almost solely upon statements from the physicians of persons

requesting disconnection of air bags. While many of the requests

were granted based upon a physician's statement, some were granted

notwithstanding the absence of a physician's statement. In those

cases, the grant was based upon either the unique characteristics of

the medical condition involved or the existence of physician's

statements attached to earlier deactivation requests of other

individuals with the same medical condition. As discussed below in

part IX.A, the agency has changed its practices with respect to

physicians' statements in response to the National Conference.

\18\ The majority of medical conditions were related to apnea,

although exemptions have also been granted for children in

wheelchairs, and children with a tendency to spit up and choke.

---------------------------------------------------------------------------

Based on the current procedures for handling these requests, it is

estimated that an average of about one hour is spent on each letter.

This estimate covers time spent categorizing letters, making a decision

whether to grant or deny, typing a response, keeping track of the

letters in a data base, reviewing the response, having the response

signed, mailing it, etc. Based on a weighted average of salaries of

those involved, plus 15 percent overhead, and the costs of paper and

postage, it is estimated that the cost to the agency of

[[Page 62417]]

responding to these requests is about $30 per request.

VI. Focus Group Testing of Public Education Materials (June 1997)

To aid the agency in assessing the effectiveness of the materials

it was developing to increase the public's understanding of air bags

risks, and ways of reducing or eliminating those risks, NHTSA conducted

nine focus groups in three cities to test consumer reaction to those

materials. As noted above in the summary of public comments, a number

of commenters urged that the agency take the time to enlist the help of

focus groups.

Two focus groups were conducted in each of the following cities:

Chicago, Illinois, on June 16, 1997, and Greenbelt, Maryland, and

Sarasota, Florida, on June 18. Three more focus groups were conducted

in Greenbelt on June 24 to look at educational materials concerning air

bags. Since public concern about air bag safety has tended to be

concentrated in three categories of vehicle owners, i.e., parents of

young children, short-statured adults, and older adults, the focus

group participants were evenly drawn from those categories. There were

three parent focus groups, three short-statured adult focus groups, and

three older adult focus groups. Each group had about 10 participants.

The knowledge and views of the various groups were fairly similar.

While they had heard about some aspects of the air bag safety story,

they did not know significant parts of it. They said that while they

had heard or seen media reports about risks that air bags can pose for

children, they had received little information about the reasons for

those risks, the life-saving benefits of air bags and the methods of

reducing risk for people of different ages. Early in each focus group

session, and before examining any agency materials, some participants

made remarks critical of the media for using what they called scare

tactics and for focusing almost exclusively on the negative, eye-

catching aspects of the air bag story. They said that media attention

to air bag dangers for young children had created an atmosphere of fear

and mistrust of air bags. They stated that many of their perceptions

had been shaped by those media reports. They had many detailed

questions about air bags, including air bag designs, deployment speed

and force, severity and types of crashes in which they deployed, life-

saving benefits, risk factors, types of injuries, and correct seating

adjustments. They emphasized that public information and education

would reduce misconceptions about air bags and the associated fear.

Among the very important safety messages that had not yet reached

many of the focus group participants was that the recommendation for

children to sit in the back seat applies to all children aged 12 and

under, not just infants. In an attempt to get this message to vehicle

owners last fall, the agency issued a final rule requiring labels in

new vehicles expressly warning purchasers about air bag dangers for

children aged 12 and under and recommending that children sit in the

rear.19 Further, the vehicle manufacturers' distributed

copies of these labels to virtually all owners of existing vehicles

with passenger air bags. Many participants were also unaware that

proximity to the driver air bag at the time of deployment is the

primary source of the risk to drivers of serious air bag-related

injuries. They were pleased to be provided with a specific

recommendation (10 inches) about the distance that drivers should sit

from their air bags. Many participants said that they would attempt to

change their driving position.

---------------------------------------------------------------------------

\19\ As noted more fully in footnote 23 below, it is safer for

children sit in the rear seat in all passenger vehicles, even if the

vehicle does not have a passenger air bag. NHTSA recommends that all

children aged 12 and under sit in the rear, regardless of whether

there is a passenger air bag in the front seat.

---------------------------------------------------------------------------

To determine how much air bag information the public really wants,

the three June 24 focus groups were asked to compare a short brochure

(essentially a 3-fold accordion brochure) and a long brochure (i.e., an

earlier draft of the information brochure in Appendix A of the rule)

concerning air bags and on-off switches. Each of the three groups

unanimously endorsed the long brochure. These groups, consisting of an

older adult group, a short-statured adult group and a parents group,

stated that they wanted a lot of detailed, balanced information

concerning air bags and air bag safety so that they could make up their

own minds about seriousness and sources of the risks, and about their

ability to avoid those risks. For example, they wanted to know why the

upper limit on the group of children who should sit in back was stated

in terms of age, instead of height or weight.

The educational value of the additional detailed information in the

draft long brochure was demonstrated in a number of instances. For

example, about 30-40 percent of the participants expressed surprise at

learning that air bags differ in design and performance from vehicle

model to vehicle model. They asked for more detailed information on how

and why the air bags differed. An equal number were surprised to learn

that air bags were vented and deflated in seconds after a crash. Before

learning that, they thought that an air bag would remain inflated and

could smother them or prevent their exiting from their vehicle after a

crash. They expressed relief when they were informed that if they had

to transport too many children to place them all in the rear seat, they

could virtually eliminate any risk by placing a child (preferably the

eldest) in the front seat, ensuring that the child properly used the

seat belts and remained sitting upright against the back of the vehicle

seat, and moving the seat all the way back.

VII. Physicians' Conference on Medical Conditions That Warrant Turning

Off an Air Bag (July 1997)

At the request of NHTSA, the Ronald Reagan Institute of Emergency

Medicine at George Washington University conducted a National

Conference on Medical Indications for Air Bag Disconnection on July 16-

18, 1997. The purpose of the conference was to make recommendations on

specific medical indications, i.e., conditions, that might warrant

disconnecting an air bag. The conference consisted of a panel of

representatives of 17 medical specialty societies or organizations.

NHTSA selected the societies and organizations, in consultation with

the University, based on the types of medical indications that vehicle

owners were citing in their letters to NHTSA as possible justification

for air bag disconnection. Each society and organization, in turn,

selected a representative to attend the conference. Among the specialty

areas and types of physicians represented were cardiology,

ophthalmology, otolaryngology (ear, nose and throat), obstetrics and

gynecology, physical and rehabilitative medicine, general surgeons,

plastic and reconstructive surgery, orthopaedic surgery, neurological

surgery, pediatrics, geriatrics, and emergency physicians. The American

Medical Association was also represented.

The agency arranged for this conference for several reasons. First,

informal agency conversations with emergency room physicians and

surgeons familiar with the trauma caused by motor vehicle crashes had

suggested to the agency that very few medical conditions warrant

turning off an air bag. Second, several commenters on the January NPRM

urged that the medical profession be enlisted to help identify those

conditions. The American Academy of Pediatrics said that such

[[Page 62418]]

professional guidance was needed to educate dealers, repair businesses

and some parts of the medical community itself about the circumstances

under which it is appropriate to turn off an air bag. Advocates for

Highway and Auto Safety urged that a panel of medical experts be

convened to examine each vehicle owner request to turn off an air bag

based on medical reasons.

While the agency does not believe that it is necessary or desirable

for a panel of medical experts to review each such request, the agency

did agree that general authoritative advice is needed to answer the

concerns of some vehicle owners about air bags and help guide their

actions. Since individuals with particular medical conditions can be

expected to consult their physician prior to deciding whether to have

an on-off switch installed, the medical profession also needs some

guidance on when deactivation would be indicated.

In preparation for the conference, the representatives reviewed the

available medical and engineering literature about air bag technology

and injury risk and prevention. At the conference, the 17

representatives were divided into subpanels. Based on their literature

review and clinical experience, the subpanels addressed each medical

indication with respect to seven factors: known data, unknown data,

recommendation, level of confidence in the recommendation, rationale

for the recommendation, specific concerns about the recommendation, and

stakeholders. The entire panel then discussed the work of the subpanels

and adopted final recommendations.

General Panel Conclusions

Air bags are effective lifesavers whose benefits exceed the risks

for most of the medical conditions considered by the panel. A medical

condition does not warrant turning off an air bag unless the condition

makes it impossible for a person to maintain an adequate distance from

the air bag. NHTSA believes that 10 inches is an adequate distance.

Specific Recommendations

Excerpts from the panel's specific recommendations follow,

beginning with the recommendations regarding the medical indications

most commonly cited by persons who have written to NHTSA requesting

deactivation based on a medical indication. Unless specifically

indicated, the recommendations relate to drivers.

Medical Indications Not Warranting Disconnection of Air Bags

Medical Indications Most Commonly Cited by Vehicle Owners

Osteogenesis Imperfecta

The panel recommends air bag not be disconnected for persons with

osteogenesis imperfecta.

While there is little population-based data in the crash experience

of this group, it is anticipated that the injury risk to these persons

is higher without an air bag and proper restraint than with an air bag.

Osteoporosis/Arthritis

For persons with osteoporosis, arthritis, and other skeletal

conditions, air bags should not be disconnected unless the person

cannot sit back a safe distance from the air bag.

Persons with specific conditions, such as ankylosing spondylitis,

may have a relatively stiff spine and thus may be unable to place

themselves an acceptable distance from the steering wheel while

driving. Other than in this specific circumstance, persons with

osteoporosis and types of arthritis are generally benefitted by the

presence of an air bag.

Pacemakers

There is no evidence to support disconnecting airbags for occupants

who have pacemakers, implantable defibrillators, or similar devices.

Pacemakers and similar hardware are specifically designed to

withstand impact. The forces associated with air bag deployment are

typically distributed throughout the chest and are not directed at one

specific area. The impact suffered without an air bag may in fact be

more severe and more localized than that with an air bag. Clinical

experience does not demonstrate any significant concern about the

effects of air bag deployment on this type of hardware when properly

installed. As forces to the chest in areas directly contacted by

seatbelts may exceed forces from air bags, it is important the belts be

placed properly and not directly over these devices.

Median Sternotomy

We recommend that persons who have undergone median sternotomy not

disconnect air bags.

Uneven pressure on the chest can harm a patient with a recent

median sternotomy because the external wound may be opened. An air bag

does not cause this uneven force; seatbelts or striking an object like

a dashboard can cause this uneven force.

Chronic Obstructive Pulmonary Disease/Emphysema/Asthma

We recommend not to disconnect air bags for patients with these

chronic lung diseases.

There is no risk of oxygen deprivation during air bag deployment

because of the quick deflation of the device. There is some equivocal

evidence to suggest that the chemical irritants produced may

precipitate bronchospasm in persons with asthma. However, there is no

evidence to suggest that this phenomenon is occurring with any greater

frequency in the presence of air bags. There is no reason to suspect

that persons with any type of chronic lung disease will be adversely

affected by an air bag deployment sufficiently enough to justify

disconnection of the device.

Short Stature

We are not able to determine an absolute cut-off height and weight

for disconnection of air bags.

Short stature is a common area of concern for the public in regard

to air bag deployment. As proximity to the air bag is the major issue,

the passenger-side air bag should not be disconnected for a passenger

of short stature. Beyond just short stature, weight, arm length, and

leg length also play important roles in driver positioning. We know

that a disproportionate number of the deaths attributed to air bag

deployment have occurred in persons of short stature. However, of the

150,000 estimated air bag deployments involving persons of short

stature, only 14 are known to have been fatal.

Some of the Less Commonly Cited Medical Indications

Eyeglasses

There is no reason to recommend disconnection of air bags for

persons wearing eyeglasses.

There are a number of anecdotal cases of eye injuries after air bag

deployment, both with and without eyeglasses. Eyeglasses may, in fact,

be protective during air bag deployment. There is no obvious increased

risk of injuries in the presence of eyeglasses; moreover, impact with

the steering column or dashboard may be more dangerous to someone

wearing eyeglasses than impact with an air bag. Persons who need

eyeglasses should wear them to drive and should not have air bags

disconnected solely because of the eyeglasses.

Hyperacusis or Tinnitus

We recommend not to disconnect air bags for persons with

hyperacusis or tinnitus.

[[Page 62419]]

(T)he phenomenon of hearing loss has not been noted to occur due to

air bags. The specific conditions of hyperacusis and tinnitus are not

associated with hearing loss and persons with these conditions would

have no greater likelihood of hearing loss from air bag deployment than

any other persons. Some persons with tinnitus report that noise

triggers attacks of tinnitus; however, it is difficult to separate the

noise of an air bag from the noise of a crash in many situations.

Advanced Age

Advanced age by itself does not suggest the need for air bag

disconnection.

It is known that older persons are at greater risk of injury in all

types of crashes. The data suggests that air bags may be less effective

in the older population although the cause of this finding is unclear.

There is no evidence to suggest that advanced age by itself, in the

absence of other potential risk factors examined here, warrants air bag

disconnection.

With respect to passenger seat occupants in general, the conference

participants said:

Under most circumstances, with the notable exception of infants in

rear-facing infant seats, the person in the passenger position can be

made safe from inadvertent injury by the use of proper restraint and

placement of the seat in the most rear position. Certain vehicles with

bench seats may complicate this issue and may need to be considered

carefully on a case-by-case basis.

Medical Indications Warranting Disconnection of Air Bag

Osteoporosis/arthritis

For persons with osteoporosis, arthritis, and other skeletal

conditions, air bags should not be disconnected unless the person

cannot sit back a safe distance from the air bag.20

(Emphasis added.)

---------------------------------------------------------------------------

\20\ NHTSA believes that the safe distance for drivers with

osteoporosis/arthritis is the same as that for persons without any

medical indications, i.e., 10 inches between the center of the

driver air bag cover and the center of the driver's breastbone.

---------------------------------------------------------------------------

Scoliosis

If capable of being positioned properly, persons with scoliosis

should keep air bag connected in their vehicles. 21

(Emphasis added.)

---------------------------------------------------------------------------

\21\ NHTSA defines properly positioned to mean positioned so

that there is at least 10 inches between the center of the air bag

cover and the center of the driver's breastbone.

---------------------------------------------------------------------------

This specific condition might make it impossible for a person to

sit upright and away from the air bag. This very small portion of the

population of persons with scoliosis might be candidates for

disconnection. It must be remembered that a person sitting far forward

in either the driver or passenger seat is also at increased risk of

injury from other structures (steering column, dashboard) in front of

them.

This specific condition might make it impossible for a person to

sit upright and away from the air bag. This very small portion of the

population of persons with scoliosis might be candidates for

disconnection. It must be remembered that a person sitting far forward

in either the driver or passenger seat is also at increased risk of

injury from other structures (steering column, dashboard) in front of

them.

Wheelchairs

For persons in wheelchairs the decision to allow disconnection of

the air bag should be handled on a case-by-case basis. Disconnection

may be needed if installation of special equipment requires removal of

the air bag. If wheelchair installation or steering column

configuration does not necessitate air bag removal, we recommend not to

disconnect air bags.

Achondroplasia

In persons with achondroplasia we recommend allowing disconnection

of driver-side air bag only if the person is unable to sit back from

the air bag.

Persons with significantly congenitally shortened limbs may be

required to sit very close to the steering wheel in order to operate a

vehicle. In this situation, pedal-extenders will offer limited

assistance as the arms are also affected. However, there is no reason

to disconnect the passenger-side air bag for an occupant with

achondroplasia. (Emphasis added.)

Down syndrome and atlantoaxial instability

Disconnection of the passenger air bag is warranted if a person

with this specific condition cannot reliably sit properly aligned in

the front seat, such as in those with developmental delay.

Children and adults with severe developmental delay, including some

with Down syndrome, may be incapable of consistently maintaining a

position away from a passenger-side air bag. If these individuals

cannot ride in a back seat, air bag disconnection may be warranted.

While there is no known data on this specific situation in relation

to air bags, atlantoaxial instability is present in 20% of persons with

Down syndrome. This instability creates the clear risk of atlantoaxial

subluxation. Persons with this condition should clearly sit properly

restrained in the back seat of a vehicle. In situations in which they

must sit in the front seat, air bag disconnection may be warranted

because of the risk of cervical injury, particularly if these

individuals have developmental delay which prevents them from

consistently maintaining proper positioning. (Emphasis added.)

Monitoring of Infants and Children

The panel recognizes that there are a few specific medical

conditions in which infants and young children must be in the front

seat for monitoring by the adult driving. In such situations, the

passenger side air bag may need to be disconnected.

Parents are frequently concerned that they will be unable to

properly monitor their infants if the infants are in the back seat

without an adult. The American Academy of Pediatrics has clearly

recommended that infants without underlying medical conditions can

safely ride alone in the back seat properly restrained in a rear-facing

restraint. The data shows that in the absence of an air bag, the injury

risk in the back seat is 30% less than the risk in the front seat. The

panel recognizes that certain vehicles do not have back seats. In these

vehicles the option of on-off switches is already available.

Monitoring of certain infants may require placement of the car seat

in the front passenger seat when the only adult in the vehicle is the

driver. These situations may warrant air bag disconnection or an on-off

option. Parents should clearly recognize that distraction while driving

significantly increases the risk of a crash. Ideally, if a child needs

attendance in a vehicle, someone other than the driver should be

available. It is anticipated that the American Academy of Pediatrics

will make recommendations regarding which specific conditions warrant

close monitoring while driving.

VIII. Agency Decision To Issue Exemption Authorizing Installation of

Retrofit On-Off Switches

A. Summary

This final rule exempts, under certain conditions, motor vehicle

dealers and repair businesses from the ``make inoperative'' prohibition

in 49 U.S.C. 30122 by allowing them, beginning January 19, 1998, to

install retrofit manual on-off switches for air bags in vehicles owned

by people whose request for a switch is approved by NHTSA. The purpose

of the exemption is to preserve the benefits of air bags while reducing

the risk that some

[[Page 62420]]

people have of being seriously or fatally injured by current air bags.

Although the agency still believes that it is appropriate to

exclude vehicles with advanced air bags from the exemption, it has not

done so in this final rule. It is not necessary to do so yet since

widespread introduction of advanced air bags is not expected during the

next several years. This will give the agency time to develop an

improved definition of ``advanced air bag'' and to address how dealers

and repair businesses will be able to ascertain whether a particular

vehicle has advanced air bags.

The agency has decided not only to authorize retrofit on-off

switches, but to specify that they will be the only means authorized

under the exemption for turning off an air bag.22 The agency

has made that choice because on-off switches are a more flexible and

focused solution than deactivation to the risks which air bags may pose

to certain people and thus are significantly more consistent with

safety than deactivation. With retrofit on-off switches, air bags can

be left on for the vast majority of the persons who will benefit from

air bag protection and turned off for the relatively few persons at

risk. By contrast, deactivation is essentially permanent and makes no

distinction between vehicle users who are at risk from air bags and

those who are not at risk from air bags and who will benefit

substantially from them.

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\22\ As explained below, full deactivation will continue to be

available in limited circumstances through the agency's exercise of

its prosecutorial discretion.

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Under the exemption, vehicle owners can obtain a retrofit on-off

switch from a dealer or repair business after filling out and

submitting a request form to the agency and obtaining the agency's

approval. The agency will begin processing and granting requests on

December 18, 1997.

To promote the making of informed decisions about requesting and

using on-off switches, consumers must certify on the form that they

have read an agency information brochure providing guidance about the

risks created by current air bags and describing the groups of people

for whom it may be appropriate to obtain and use on-off switches to

turn off air bags. The requirement for this certification is intended

to help encourage persons considering on-off switches to focus on the

factors that create risk from air bags and to reflect on whether they

or their passengers are really at risk. Owners must also certify that

they or another user of their vehicle is a member of one of the

particular risk groups identified by the agency. Since the risk groups

for drivers are different from those for passengers, a separate

certification must be made for each air bag to be equipped with an on-

off switch.

The agency strongly urges caution in obtaining and using on-off

switches to turn off air bags. While on-off switches may be needed by a

limited number of people in particular circumstances, they are not

needed for the vast majority of people since they are not in a risk

group. In fact, if people not at risk were to turn off their air bags,

they would be less safe, not safer. Even those people in a risk group

can take steps that will eliminate or significantly reduce any risk

they might currently have without going to the extreme of turning off

their air bag and losing its protective value. The easiest way of

eliminating the risk for children is to place them in the back seat and

buckle them up.23 Those drivers who are at risk can

eliminate that risk by using their seat belts and by moving the

driver's seat rearward and/or tilting the back of the driver's seat so

that there is 10 inches or almost 10 inches between the center of their

breastbone and the center of the driver air bag. The primary risk of

injury occurs 2-3 inches from the air bag cover because that is where

the force of a deploying air bag is greatest.24

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\23\ Contrary to some media reports, the back seat has always

been much safer than the front seat. Sitting in the back seat

significantly reduces the likelihood of fatal injury for children,

even in vehicles without air bags. Further, sitting in the back seat

helps restrained children just as much as it helps unrestrained

children. To quantify the benefits of sitting in the back seat,

NHTSA analyzed data from vehicle crashes in 1988-1994. Very few of

the vehicles in those crashes had passenger air bags. The agency

concluded that placing children in back reduced the risk of death in

a crash by 27 percent. This conclusion applies to restrained as well

as unrestrained children. The size of this reduction can be

appreciated from considering the following example. The number of

children killed each year while riding in the front seat of a

vehicle is over 500. If those 500 children had instead been sitting

in the back seat, 135 of those children would still be alive because

the back seat is a much safer seating environment for reasons having

nothing to do with air bags. A new study of IIHS reaches a similar

conclusion about the benefits of sitting in the back seat. After

examining data from essentially the same time period regarding more

than 26,000 children riding in vehicles that were involved in fatal

crashes and lacked passenger air bags, IIHS concluded that sitting

in the back seat reduced the death rates by more than 27 percent,

whether the children were restrained or not. The safest position of

all was the center rear seat.

\24\ NHTSA is recommending 10 inches as the minimum distance

that drivers should keep between their breastbone and their air bags

for several reasons. First, the agency believes that drivers who sit

10 inches away and buckle up will not be at risk of serious air bag

injury. Drivers who can maintain that distance will be much safer if

they keep their air bags on.

The 10-inch distance is a general guideline that includes a

clear safety margin. IIHS recommended the same distance in its

comments. The 10-inch distance ensures that vehicle occupants start

far enough back so that, between the time that pre-crash braking

begins and time that the air bag begins to inflate, the occupants

will not have time to move forward and contact their air bag until

it has completed or nearly completed its inflation. The 10-inch

distance was calculated by allowing 2-3 inches for the size of the

risk zone around the air bag cover, 5 inches for the distance that

occupants may move forward while the air bags are fully inflating,

and 2-3 more inches to give a margin of safety. The 5-inch rule of

thumb commonly used in air bag described in the paper, ``How Airbags

Work (Design, Deploying Criteria, Costs, Perspective)'' presented by

David Breed at the October 19-20, 1992 Canadian Association of Road

Safety Professional International Conference on Airbags and Seat

Belts.

Second, the agency is focusing attention on the 10-inch distance

because it wants drivers to strive to get back 10 inches. NHTSA

believes that almost everyone can achieve at least 10 inches and get

the extra margin of safety that comes from sitting that far back.

See the July 1997 survey submitted by IIHS.

However, some drivers who cannot get back a full 10 inches will

still be safer, on balance, if they are protected by their air bag.

The nearer that these drivers can come to achieving the 10-inch

distance, the lower their risk of being injured by the air bag and

the higher their chance of being saved by the air bag. Since air bag

performance differs among vehicle models, drivers may wish to

consult their vehicle manufacturer for additional advice.

NHTSA considered an alternative suggestion by Ford in late

August 1997 meeting with the agency that the 10-inch distance be

measured from the air bag to the chin instead of the breastbone. The

agency has decided to use the breastbone as the measuring point

because of the greater safety margin provided.

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This exemption will be subject to certain conditions to promote the

safe use of on-off switches. Each on-off switch must meet certain

performance criteria similar to those applicable to the manual on-off

switches that vehicle manufacturers may currently install for passenger

air bags in new vehicles that do not have a rear seat capable of

accommodating a rear-facing infant seat. One is that the on-off switch

be operable by a key. Another is that there be a telltale light to

indicate to vehicle occupants whether an air bag equipped with an on-

off switch is on or off. As a reminder about the proper use of on-off

switches, the agency is requiring that vehicle dealers and repair

businesses give owners an owner's manual insert describing the

operation of the on-off switch, listing the risk groups, stating that

the on-off switch should be used to turn off an air bag for risk group

members only, and stating the vehicle specific safety consequences of

using the on-off switch for a person who is not in any risk

group.25 Those consequences

[[Page 62421]]

would include the effect of any energy managing features, e.g., load

limiters, on seat belt performance. NHTSA anticipates that the inserts

would be obtained primarily from the vehicle manufacturers, although in

some cases the inserts might be obtained from independent switch

manufacturers.

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\25\ Vehicle manufacturers that install on-off switches in new

vehicles lacking a rear seat capable of accommodating a rear-facing

infant seat must, among other things, include in the owner's manual

a statement of the safety consequences of using the on-off switch to

turn off the passenger air bag for persons other than infants in

such seats. See S4.5.4 and S4.5.4.4 of Standard No. 208. To comply

with that requirement, manufacturers must state that the air bag

will not inflate in a crash and that the occupant therefore will not

have the extra protection of the air bag. To conform S4.5.4.4 to

this final rule, NHTSA has amended that provision in this final rule

so that the provision requires the listing the same risk groups

listed in the information brochure and requires a statement of the

vehicle specific safety consequences of using the on-off switch for

persons not listed in those groups.

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As noted above, the agency is setting January 19, 1998 as the date

on which dealers and repair business may begin to install switches.

This date was selected to allow time for the design and production of

on-off switches and the proper training of installation personnel.

Until then, NHTSA will continue its current practice of using its

prosecutorial discretion to grant requests for deactivation on a case-

by-case basis in a limited set of circumstances, e.g., unusual medical

conditions. Beginning on January 19, vehicle manufacturers and

aftermarket parts manufacturer may make on-off switches available to

vehicle owners who have an agency authorization letter. NHTSA expects

that vehicle manufacturers will make on-off switches available for the

majority of vehicle makes and models. The agency will continue to

consider deactivation requests after January 19 only for vehicles for

which retrofit on-off switches are not available from the vehicle

manufacturer. If aftermarket parts manufacturers make on-off switches

available for any of those vehicles after January 19, motor vehicle

dealers and repair businesses may install such switches for owners who

have an agency authorization letter.

B. The Challenge and Overall Rationale

1. Risk Versus Perception of Risk

While air bags have proven to be highly effective in reducing

fatalities in frontal crashes, and have saved about 2,287 drivers and

332 passengers (as of November 1, 1997), they are also known to have

killed 35 drivers, 49 children, and 3 adult passengers (as of November

1, 1997). As discussed above, all of these fatalities occurred because

of extreme proximity to the air bag, and almost all could have been

prevented by behavioral changes, such as not placing infants in rear-

facing infant restraints in the front seat, placing all children in the

back seat, moving front seats farther back, and ensuring that all

occupants are properly restrained.

As a whole, media reports about air bag fatalities have contributed

to the heightening of the public's concerns about air bags, and of

their desire to deactivate their air bags. Those reports deserve credit

for helping spread the word about the real risks associated with air

bags for some people. Increased public knowledge about the risks has

helped induce changes in behavior to reduce or even eliminate those

risks, e.g., by putting children in the back seat of vehicles.

However, some behavioral effects of those accounts may not be

positive. Some media accounts which initially served the public by

drawing attention to an initially unknown or underappreciated risk may

ultimately have had the unintended consequence of causing people to

generalize and exaggerate those risks. Unfortunately, many members of

the public have focused their attention on the possibility of being

killed by an air bag, to the exclusion of other factors that may be

more determinative of their overall safety. These factors include the

very small magnitude of risk from the air bag, the ability of teenagers

and adults to preserve the benefits of air bags and nearly eliminate

any risk by behavioral actions such as wearing safety belts and moving

front seats back, and the much greater risk, almost always faced by the

same occupants in the absence of an air bag, of hitting their heads,

necks or chests on the steering wheel or dashboard in a moderate or

serious crash.

By focusing on only one of an interrelated set of risks which

consumers face while traveling by motor vehicle, and thus magnifying

that one risk out of proportion to those other risks, some media

accounts may also have had the effect of obscuring those other risks.

Those accounts may cause some people to so focus on that one risk to

the exclusion of the other risks that they induce those people to take

actions that increase, instead of decrease, their overall risk of

injury in a motor vehicle. The potential exists for a significant

number of people doing just that. As noted elsewhere in this notice,

several public opinion surveys indicate that the extent of the public

interest in turning off air bags exceeds the number of persons actually

at risk from them. For many of the teenagers and adults among these

people, concern about air bags apparently tends to overshadow a much

greater risk faced by these same occupants, i.e., the risk that, in the

absence of an air bag, they will strike their head, neck or chest on

the steering wheel or dashboard in a moderate to severe crash. This

risk exists even for properly belted occupants.

2. Which Groups Are Really at Risk?

As noted above, air bag-related deaths are not random. They tend to

involve particular groups of people who share common behavioral or

other characteristics. The relatively few people who share those

characteristics will be safer overall if they turn off their air bags.

Conversely, people who do not share those characteristics would be less

safe overall if they did so.

The primary source of risk is contact with or close proximity to

the air bag module at the initial instant of deployment. The deploying

force is the greatest in the first 2-3 inches of deployment.

On the passenger side, it is primarily children who get too close

to the air bag. Infants get too close by being placed in a rear-facing

infant restraint. That positions the child's head so that it is very

close to the dashboard where the air bag is stored. Older children,

i.e., children age 1-12, get too close typically because they are

allowed to ride completely unrestrained. During pre-crash braking,

these unrestrained children slide forward and are up against or very

near the dashboard when the air bag begins to deploy. A few children

have gotten too close because although they were placed in lap and

shoulder belts, they either removed their shoulder belt or leaned far

forward.

On the driver side, the fatally-injured drivers are believed to be

people who sat close to their steering wheels primarily out of habit,

although some may have done it out of necessity. Some may have been

drivers who were physically unable to maintain a 10-inch distance

between their air bag cover and their breastbone because of the limits

of their reach (arm and leg length) or because of fatigue or other

physical factors. However, they were generally tall enough that all or

almost all of them should have been able to get back 10 inches. While

they may have been able to maintain that distance, perhaps they did not

do so because they had grown accustomed to sitting close to their

steering wheel as matter of a preference. A few of the drivers were

slumped over their steering wheel at the time of deployment due to

medical conditions.

A second source of potential risk is a very limited number of

medical conditions. Apart from the medical conditions which caused

several drivers to lose consciousness and slump over their steering

wheels, none of the air bag

[[Page 62422]]

fatalities confirmed to date has been attributed to the existence of a

pre-existing medical condition that made the fatally-injured person

more susceptible than the average person to injury from an air bag.

26 To provide vehicle owners and their physicians with

guidance concerning which medical conditions warrant turning off an air

bag, NHTSA arranged for the convening of representatives of the medical

community in July 1997. The results of their deliberations are

discussed above. Briefly, it appears that, in a very small number of

cases in which a medical condition prevents a person from getting back

10 inches, a medical condition might, in combination with an air bag,

present enough of a risk to warrant turning off either a driver or

passenger air bag.

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\26\ Two of the fatally-injured drivers were diabetics. While

diabetes did not by itself make those persons more prone to injury,

it did cause them to black out and slump over their steering wheel

prior to the fatal crash.

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3. Agency Actions to Minimize Risks

In the longer term, the problems associated with air bags will be

addressed and largely eliminated by changes in technology, initially by

depowering and making various incremental improvements to air bags, and

ultimately by installing advanced air bags. Standard No. 208 has

provided all the flexibility necessary to enable vehicle manufacturers

to develop and introduce those air bags, but thus far has not required

their introduction. However, the challenge now facing NHTSA and the

public is how to preserve the life-saving benefits of current air bags,

while addressing the needs of the relatively small number of persons

facing risks from these air bags as well as the fears being experienced

by a much larger number of persons.

In meeting this challenge, NHTSA believes that it is essential to

consider safety benefits in both the shorter term and longer term. The

agency recognizes that, given the small number of fatalities associated

with air bags as compared to the number of lives saved, the short-run

safety benefits of air bags would be best preserved by minimizing the

situations in which air bags are turned off, i.e., limiting the

situations to the relatively rare ones where a person is actually

better off with his or her air bag turned off.

However, the agency believes that great care must be taken with

respect to how this is accomplished, to avoid a potentially much

greater loss of safety benefits in the longer run. As the agency

discussed in the depowering final rule, the continued availability of

any safety device as standard equipment, whether provided voluntarily

by manufacturers or pursuant to a regulation, is ultimately dependent

on public acceptability. The agency believes that air bags which

fatally injure occupants, particularly children in low speed crashes,

place the concept of air bags at risk despite their overall net safety

benefits. Thus, the agency believes it must take great care in how it

responds to requests for turning off air bags, lest its actions have

the unintended effect of reducing the public acceptability of air bags

and their potential as a life-saving device.

Mindful of these considerations, the agency is taking the following

actions:

1. In light of changed circumstances which make retrofit on-off

switches a much more readily available option, NHTSA is specifying that

they will be the only means authorized under the exemption for turning

off an air bag. This will ensure that any air bag which is turned off

for an occupant at risk can be readily turned on again for occupants

who are not at risk. (In very limited cases, deactivation will continue

to be available through the agency's exercise of its prosecutorial

discretion.)

2. NHTSA has taken a balanced approach in establishing the process

for determining which vehicle owners may have a dealer or repair

business install an on-off switch. The agency is not going to insist

that facts establishing the need for turning off an air bag be

documented by the vehicle owner. Instead, the agency is requiring

owners who wish to obtain on-off switches to certify, by marking a box

on a request form developed by the agency, that they have read an

agency information brochure providing guidance about the risks created

by current air bags and discussing the circumstances in which it may be

appropriate to use on-off switches. Owners must also certify that they

or a user of their vehicle belongs to one of the risk groups identified

by the agency. NHTSA is also requiring that vehicle owners submit their

completed request forms to the agency for approval. This requirement

will help reinforce the need for care and accuracy by owners in

certifying risk group membership. The requirement will also enable the

agency to monitor, from the very beginning, the patterns in switch

requests and risk group certifications.

The agency has identified four risk groups. Based on the agency's

assessment of risk, persons in the first two groups have a high enough

risk that they would definitely be better off if an on-off switch is

used to turn off their air bag:

Infants in rear-facing infant seats.

A rear-facing infant seat must never be placed in the front seat

unless the air bag is turned off. If a vehicle owner must transport an

infant in the front seat, the owner is eligible for an on-off switch

for the passenger air bag. The owner should get an on-off switch and

turn off the air bag when the infant rides in front.

Note: NHTSA emphasizes that air bag-related risks for infants

can be completely avoided by placing them in the back seat. The back

seat has always been a much safer place for children than the front

seat, even before there were any passenger air bags.

Drivers or passengers with unusual medical or physical

conditions.

These are people who have been advised by a physician that an air

bag poses a special risk to them because of their condition. However,

they should not turn off their air bag unless their physician also has

advised them that this risk is greater than what may happen if they do

turn off their air bag. Without an air bag, and even if belted, such

persons could hit their head, neck or chest on the steering wheel in a

crash. Medical conditions will not pose special risks unless the

conditions make it impossible to sit 10 inches from the air bag. Only a

few conditions have that effect. See the above discussion of the

national conference of physicians.

Persons in the two other groups of people may be better off using

an air bag on-off switch.

Children ages 1 to 12.

Children in this age group can be transported safely in the front

seat if they are properly belted, they do not lean forward, and their

seat is moved all the way back. Almost all fatally injured children in

this age range were completely unrestrained. But children, even when

properly restrained, sometimes sit or lean far forward. The simple act

of leaning forward to see out of the window or to change the radio

station can place even a belted child in danger. They may also slip out

of their shoulder belts, putting themselves at risk. If a vehicle owner

must transport a child in the front seat, the owner is eligible for an

on-off switch for the passenger air bag.27 Since air bag

performance differs from vehicle model to vehicle model, the vehicle

owner may

[[Page 62423]]

wish to consult the vehicle manufacturer for additional advice.

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\27\ In its August 1997 survey concerning public interest in

turning off air bags, IIHS asked the 137 respondents who owned dual

air bag vehicles and said they carried children in the front seat

why they carried children in that location. Approximately 20 percent

of the respondents gave answers indicating that they carried

children in the front seat out of necessity, e.g., ``no room in back

seat,'' ``big family,'' ``car pool,'' and ``no rear seats in

vehicle.'' Over half of the remaining 80 percent of the respondents

said either ``child wants to ride in front seat,'' or ``driver wants

child in front seat.''

Note: The air bag related risks for these children can be

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avoided completely by placing them in the back seat.

Drivers who cannot get back 10 inches.

Ideally, drivers should sit with at least 10 inches between the

center of their breastbone and the cover of their air bag. Since the

risk zone at the time of deployment is the first 2-3 inches from the

air bag cover, sitting back 10 inches provides a clear margin of

safety. By using their seat belts and sitting at that distance, drivers

will eliminate the risk of serious air bag injury, and thus any need

for an on-off switch.

Very few drivers are unable to achieve and maintain the 10-inch

distance. The vast majority of drivers already sit that far or farther

from their air bag.28 The vast majority of those drivers who

do not now sit that far back can change their position and achieve that

distance. (See the information brochure for advice about changing

position.) 29 Drivers unable to get back 10 inches, even

after following that advice, should consult their dealer or vehicle

manufacturer for additional advice or for information regarding vehicle

modifications to help them to move back.

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\28\ Drivers who think that they are currently sitting closer

than 10 inches should get a ruler and measure the distance. Research

shows that many drivers underestimate the distance between them and

their air bags. When they actually measure the distance, they often

find that it is 10 or more inches.

\29\ Drivers may underestimate their ability to change their

driving position to achieve the 10-inch distance. A recent IIHS

survey indicates that only 5 percent of female drivers

(approximately 2.5 percent of all drivers) normally now sit less

than 10 inches away from their air bag module. Another recent IIHS

survey shows that most short-statured female drivers (10 out of 13

women ranging in height from 4 feet 8 inches to 5 feet 2 inches)

could adjust their driving position to achieve that 10 inch distance

in all 12 test vehicles used by IIHS. The remaining three drivers

could achieve 10 inches in almost all of the vehicles.

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Drivers who cannot get back 10 inches, despite all efforts, may

wish to consider an on-off switch. However, the nearer they can come to

getting back that distance, the less likely the air bag will injure

them and the less need there will be to get an on-off switch. If

drivers can get back almost 10 inches, the air bag is unlikely to

seriously injure them in a crash and they probably do not need an on-

off switch. These drivers, plus those who cannot get back almost 10

inches, may wish to consult the vehicle manufacturer for additional

advice since air bag performance differs among the various vehicle

models.

3. Finally, the agency plans, in conjunction with other

organizations, a public education information campaign to put air bag

risks and benefits into proper perspective, to encourage those persons

at special risk from current air bags to take steps to reduce those

risks without losing the protection of their air bags, and to promote

the enactment and effective enforcement of State laws concerning the

use of seat belts and child restraints.

C. Changes in Circumstances Since the NPRM Make Retrofit On-Off

Switches Preferable to Deactivation

In the January 1997 deactivation proposal, the agency compared the

merits of deactivation to those of on-off switches in a companion

notice, i.e., a January 1997 final rule extending the duration of the

option allowing on-off switches for passenger air bags in certain new

vehicles. NHTSA concluded in the preamble to the on-off switch final

rule that it was better from a safety standpoint to selectively

deactivate the air bags after the vehicles had been produced, in

response to specific consumer requests, than to authorize installation

of on-off switches as standard equipment in those vehicles when they

were produced. NHTSA placed great weight in that discussion on the long

leadtime that vehicle manufacturers had previously said would be needed

to integrate standard equipment on-off switches into new vehicles and

on concerns expressed by the vehicle manufacturers that the integration

efforts would disrupt the development of advanced air bags. In response

to an August 1996 NPRM, the vehicle manufacturers had indicated that

development and installation of standard equipment on-off switches for

makes and models not already equipped with them would take at least one

year. As a practical matter, given the time estimates from the vehicle

manufacturers regarding on-off switch availability, deactivation was

the only readily available means for turning off air bags in existing

vehicles. Accordingly, in issuing the NPRM, the agency proposed to

allow deactivation. Nevertheless, it expressly requested comment

regarding on-off switches. A wide variety of commenters responded to

that request.

The facts underlying the agency's comparison of the relative merits

of deactivation and on-off switches changed dramatically after issuance

of the deactivation NPRM. Not long after the issuance of the January

1997 NPRM, a number of major vehicle manufacturers began announcing

that retrofit on-off switches could be made available at reasonable

cost and in anywhere from 2 to 6 months.

These announcements fundamentally changed the agency's assessment

of the relative merits of on-off switches and deactivation. As a result

of the new information from the vehicle manufacturers, on-off switches

were elevated from a theoretically available alternative to an

alternative that is actually available within a relatively short time.

The new information also indicated that retrofit on-off switches could

be made available without disrupting the development of advanced air

bags.

D. Specifying That Retrofit On-Off Switches Are the Only Means

Authorized Under the Exemption for Turning Off Air Bags Is Reasonable

and Consistent With Safety

The ready availability of on-off switches and their safety

advantage over deactivation make authorizing deactivation both

unnecessary and undesirable. The primary source of that safety

advantage is the flexibility of on-off switches.30 With an

on-off switch, an air bag's operational status can be changed at the

flip of a switch. The flexibility of on-off switches gives them

considerably greater potential than deactivation for promoting overall

safety. On-off switches allow air bags to be turned off and on as

needed, according to whether an air bag creates risks for particular

occupants.

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\30\ An additional safety advantage of on-off switches will be

that they, together with the ``Air Bag Off'' telltale, will provide

a permanent means of ensuring that people will not ride in a vehicle

without knowing that an air bag has been turned off.

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In addition to making it possible to accommodate the different

risks faced by different people, on-off switches can likewise

accommodate the changing needs, knowledge and attitudes of people. For

example, a child will be at increasingly less risk as he or she grows

older. In addition, a person whose attention is focused now on the

perceived risk of an air bag fatality if he or she does not turn the

air bag off may later recognize that there is a much greater risk of

serious injury or death if he or she does not leave the air bag on.

Finally, subsequent owners of existing vehicles may have no need to

turn off their air bags. The ability of on-off switches to allow

vehicle owners to respond to these changes will have important

implications for the percentage of occasions on which air bags are able

to deploy when needed.

NHTSA recognizes that the opinion survey conducted by IIHS in

January indicates that there is apparently significant public interest

in on-off switches. The agency is aware also of

[[Page 62424]]

IIHS' suggestion that its January 1997 survey indicates that if the

agency specifies on-off switches as the means for turning off air bags,

more people may get on-off switches than would have had their air bags

deactivated.

However, there are several reasons for believing that the January

1997 survey substantially overstates the number of people who will

obtain on-off switches under this final rule. First, and foremost, the

agency's decisions to require agency approval of each request and to

limit eligibility for on-off switches to those vehicle owners who can

certify membership in a particular risk group will significantly and

appropriately limit the availability of on-off switches to persons with

a real safety need for them. Further, the agency does not believe that

a respondent's expressed interest in on-off switches in that January

1997 telephone public opinion survey will necessarily translate into a

decision in January 1998 or thereafter to go to a dealer or repair

business and pay to obtain an on-off switch. In addition, a consumer's

decision to acquire and even to use the on-off switch does not mean

that the consumer will continue to use the switch. The survey methods

and results reflect not only the underlying safety problem, but also

the atmosphere in which the survey was taken. That atmosphere was

colored heavily by those media accounts that focused on an important,

but limited, portion of the full story about air bags. Some of that

same narrow focus can be seen in the survey.31

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\31\ There are other reasons for discounting the results of this

early 1997 IIHS survey as a basis for predicting how many people

will obtain on-off switches. In asking the respondents whether they

wanted on-off switches, the surveyors did not ask whether the

respondents were aware of a number of key factors that might heavily

influence the extent of their desire for an on-off switch. Further,

the surveyors did not take the alternative approach of informing the

respondents of these factors and then asking them whether learning

any or all of this information influenced their desire for an on-off

switch. Based on the factors that affect how the public perceives

risk (see footnote 35), three undiscussed factors in particular seem

key: (1) most people would be making significant safety tradeoffs if

they turned off their air bags; (2) most people could control and

virtually eliminate the risk of serious air bag injuries by changing

their driving and riding habits instead of physically changing their

vehicle; and (3) the cost of an on-off switch is not insubstantial.

A survey by the Harvard School of Public Health's Center for Risk

Analysis in late February and early March had similar shortcomings.

The absence of these factors from these surveys in part simply

reflects the fact that there was less of a consensus in early 1997

about the air bag-related risks and the most appropriate measures

for reducing them. Nevertheless, their absence is a concern since

the survey results themselves may not only measure (or at least

attempt to measure) existing public attitudes regarding air bags and

on-off switches, but also potentially affect future public attitudes

regarding those matters.

NHTSA expects that when media reports and the agency's

information brochure make the public more aware of the safety

tradeoffs and available means of controlling and reducing risk, the

level of public interest in obtaining on-off switches will fall.

Interest is expected to fall further in response to the public

education campaign to be conducted the agency and other

organizations about air bags.

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NHTSA recognizes that a new survey by IIHS cures some of the

shortcomings of its January 1997 survey.32 The new survey,

conducted in August 1997, informed respondents about the cost of

deactivation and on-off switches, the benefits of air bags and the

steps that can be taken to minimize or even eliminate air bag risks for

the vast majority of people. While the new survey suggests that many

people are interested in on-off switches, it also shows that providing

people with even minimal facts regarding these matters substantially

reduced the extent of that interest. Before the respondents were

provided with such information, 27 percent of the respondents indicated

that they wanted on-off switches for driver air bags and 26 percent

wanted them for passenger air bags. After receiving the information,

these percentages fell to 12 percent and 16 percent, respectively. As

noted below, the agency believes that a sustained, comprehensive public

education campaign would reduce the level of interest in obtaining on-

off switches even further.

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\32\ The difference between the new IIHS survey and the January

IIHS survey regarding the level of general interest in on-off

switches for passenger air bags appears to demonstrate the influence

which media accounts of recent air bag fatalities can have on survey

results. The January survey, which was taken when media accounts of

a particular child fatality were relatively fresh in the public

mind, indicated that 67 percent of the respondents were generally

interested in an on-off switch for passenger air bags. The August

survey was not closely preceded by similar accounts. Its figure for

general interest in passenger air bag on-off switches was 26

percent.

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Since the percentage of respondents to both IIHS surveys who

expressed general interest in turning off their air bags far exceeds

the percentage of the population at any significant risk, it is evident

that the risks of air bag fatalities are significantly overestimated by

many people. It is equally apparent that the misperception of risk

regarding air bag-related fatalities is leading some consumers to

insufficiently appreciate the risks of turning off an air bag. The

agency expects that the requirement that owners certify that they have

read the information brochure as well as the public education campaign

will lead to a more balanced view of the risks associated with current

air bag designs, and that the requirement for agency approval and for

owner certification of risk group membership will appropriately limit

the requesting of on-off switches.

The misperception of the risks in everyday life, whether related to

air bags or other problems, arises from a variety of factors. An

article published in Smithsonian, the magazine of the Smithsonian

Institution, addressed some of the factors that make assessing and

comparing risks difficult for scientists and engineers, and even harder

for the average person without access to all available information and

analytical methods:

In a landmark test in 1980, a group of psychologists asked a

representative sampling of the populace to rank 30 activities and

technologies by risk; then they compared the results with rankings

assigned by a panel of risk-assessment experts. In places, the two

groups agreed, such as on the risk of motor vehicles, placed number

one by the experts and number two by the public. But on others,

there were large discrepancies: the public rated nuclear power as

their number one risk, whereas the experts ranked it as a lowly

number 20. Experts ranked x-rays as number 7, while the man-in-the-

street saw them as a number 22. What, the risk-communication

scientists next asked, was influencing the public's perception of

risk?

For starters, they found that the public responds differently to

voluntary and involuntary risks. You and I are willing to tolerate

far greater risks when it is our own doing, such as smoking

cigarettes or climbing mountains. But if the risk is something we

can't control, such as pesticides on food or radiation from a

nuclear power plant, we protest, even if the threat is minimal.

Second, we tend to overestimate the probability of splashy and

dreadful deaths and underestimate common but far more deadly risks.

. . .

Yet another factor about how we rank risks revolves around

whether or not the risk is perceived as ``natural. * * *''

33

\33\ John F. Ross, Risk: Where Do Real Dangers Lie? Smithsonian,

November 1995, at 42. See also Marcia Angell, Overdosing on Health

Risks, New York Times, May 4, 1997, Magazine Section, which, in

part, notes that the media are not the only players that affect

public risk perception; Michael Ryan, What Is Really Risky? Parade

Magazine, June 15, 1997, which discusses a recent Harvard study

concerning differences between the risk perceptions of scientists

and the general public; and Matthew Wald, Freewheeling Freedom;

Appalled by Risk Except in the Car, New York Times, June 14, 1997,

section 4, Week in Review. For a related account of the difficulty

in obtaining comparative information on risks and tradeoffs, see

David Shaw's three-part series, Living Scared. Why Do the Media Make

Life Seem So Risky? in the Los Angeles Times, September 11-13, 1994.

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As the author also noted, our problem in making everyday decisions

about the risks we face is more difficult than simply assessing a

single risk correctly.

We're also realizing that the trade-offs are not always so

clear. Reducing risk in one area

[[Page 62425]]

may very well increase the risk in another.* * * 34

\34\ Ibid.

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The actions being announced by NHTSA in this final rule will have

the effect, directly or indirectly, of giving the public a sense of

control over the risks associated with current air bags, and restoring

objectivity to the public's perception of those risks. As a result,

whatever the extent of the public's initial inclination to acquire and

use on-off switches, these actions will thereby reduce that

inclination. The air bag deaths are not random. Further, the risk of

death is highly influenced by behavior. Through informing the public

about how the vast majority of people can eliminate or substantially

minimize any risk through behavioral changes and how the rest can

eliminate the risk through the use of an on-off switch, the agency will

give the public a significantly increased sense of control over the

risk of air bag fatalities. Through these same means, the agency will

inform the public about the steps that they can take to reduce, and

thus control, this risk without turning off air bags.

Together, these actions will put air bag risks into proper

perspective, enable those truly at risk to reduce or eliminate their

risk, and calm the fears of others. As the public comes to appreciate

more fully just how limited and controllable the risks are, interest in

obtaining and using on-off switches to turn off air bags is expected to

decline. Likewise, any inappropriate use of on-off switches will be

reduced to a minimum. As noted above, the August 1997 IIHS survey

demonstrates that giving the public even the barest facts reduces the

level of interest in on-off switches. NHTSA believes that a sustained

public education campaign which includes comprehensive reading

materials, explanatory graphics and video clips will reduce the level

of interest even further.

NHTSA notes also that some company and group commenters argued that

on-off switches would be misused. They were particularly concerned that

air bags would be turned off for people who are not at risk of serious

air bag injuries and who would benefit from air bag protection. The

agency recognizes that misuse is a possibility. However, the agency

does not have any information indicating that there is a misuse problem

associated with the 1.3 million vehicles equipped with an original

equipment manufacturer (OEM) on-off switch for the passenger air bag.

Further, the agency believes that any problem of misuse will be small,

particularly given the requirements for agency approval and for vehicle

owners to certify the reading of the information brochure and risk

group membership. The public education campaign will also help minimize

that problem. Because of these factors, the people who submit request

forms for on-off switches will be aware of the dangers of misusing on-

off switches by leaving them off when the vehicle is being used by

people who are not at risk of being seriously injured by an air

bag.35

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\35\ The requirement for a telltale light that indicates if the

air bab is not operational will also eliminate the possibility that

occupants will unknowingly ride without the protection of an air

bag.

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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 climat

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