# Air Bag On-Off Switches > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A97-30485 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** November 21, 1997 - **Citation:** 62 FR 62406 ## Text 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \3\ The ABSC represents all automobile manufacturers (domestic and importers), air bag suppliers, many motor vehicle insurance companies and the National Safety Council. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \22\ As explained below, full deactivation will continue to be available in limited circumstances through the agency's exercise of its prosecutorial discretion. --------------------------------------------------------------------------- Under the exemption, vehicle owners can obtain a retrofit on-off switch from a dealer or repair business after filling out and submitting a request form to the agency and obtaining the agency's approval. The agency will begin processing and granting requests on December 18, 1997. To promote the making of informed decisions about requesting and using on-off switches, consumers must certify on the form that they have read an agency information brochure providing guidance about the risks created by current air bags and describing the groups of people for whom it may be appropriate to obtain and use on-off switches to turn off air bags. The requirement for this certification is intended to help encourage persons considering on-off switches to focus on the factors that create risk from air bags and to reflect on whether they or their passengers are really at risk. Owners must also certify that they or another user of their vehicle is a member of one of the particular risk groups identified by the agency. Since the risk groups for drivers are different from those for passengers, a separate certification must be made for each air bag to be equipped with an on- off switch. The agency strongly urges caution in obtaining and using on-off switches to turn off air bags. While on-off switches may be needed by a limited number of people in particular circumstances, they are not needed for the vast majority of people since they are not in a risk group. In fact, if people not at risk were to turn off their air bags, they would be less safe, not safer. Even those people in a risk group can take steps that will eliminate or significantly reduce any risk they might currently have without going to the extreme of turning off their air bag and losing its protective value. The easiest way of eliminating the risk for children is to place them in the back seat and buckle them up.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 --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \25\ Vehicle manufacturers that install on-off switches in new vehicles lacking a rear seat capable of accommodating a rear-facing infant seat must, among other things, include in the owner's manual a statement of the safety consequences of using the on-off switch to turn off the passenger air bag for persons other than infants in such seats. See S4.5.4 and S4.5.4.4 of Standard No. 208. To comply with that requirement, manufacturers must state that the air bag will not inflate in a crash and that the occupant therefore will not have the extra protection of the air bag. To conform S4.5.4.4 to this final rule, NHTSA has amended that provision in this final rule so that the provision requires the listing the same risk groups listed in the information brochure and requires a statement of the vehicle specific safety consequences of using the on-off switch for persons not listed in those groups. --------------------------------------------------------------------------- As noted above, the agency is setting January 19, 1998 as the date on which dealers and repair business may begin to install switches. This date was selected to allow time for the design and production of on-off switches and the proper training of installation personnel. Until then, NHTSA will continue its current practice of using its prosecutorial discretion to grant requests for deactivation on a case- by-case basis in a limited set of circumstances, e.g., unusual medical conditions. Beginning on January 19, vehicle manufacturers and aftermarket parts manufacturer may make on-off switches available to vehicle owners who have an agency authorization letter. NHTSA expects that vehicle manufacturers will make on-off switches available for the majority of vehicle makes and models. The agency will continue to consider deactivation requests after January 19 only for vehicles for which retrofit on-off switches are not available from the vehicle manufacturer. If aftermarket parts manufacturers make on-off switches available for any of those vehicles after January 19, motor vehicle dealers and repair businesses may install such switches for owners who have an agency authorization letter. B. The Challenge and Overall Rationale 1. Risk Versus Perception of Risk While air bags have proven to be highly effective in reducing fatalities in frontal crashes, and have saved about 2,287 drivers and 332 passengers (as of November 1, 1997), they are also known to have killed 35 drivers, 49 children, and 3 adult passengers (as of November 1, 1997). As discussed above, all of these fatalities occurred because of extreme proximity to the air bag, and almost all could have been prevented by behavioral changes, such as not placing infants in rear- facing infant restraints in the front seat, placing all children in the back seat, moving front seats farther back, and ensuring that all occupants are properly restrained. As a whole, media reports about air bag fatalities have contributed to the heightening of the public's concerns about air ba [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-30485. Public record. Not legal advice.