[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Rules and Regulations]
[Pages 45755-45760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22832]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 595
[NHTSA-98-4342]
RIN 2127-AH25
Air Bag On-Off Switches
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule: response to petitions for reconsideration.
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SUMMARY: This document responds to the petitions for reconsideration
and letters seeking non-rulemaking action that NHTSA received in
response to its final rule exempting motor vehicle dealers and repair
businesses from the statutory prohibition against making Federally-
required safety equipment inoperative so that they could install air
bag on-off switches for vehicles owned or operated by individuals
within discrete risk groups. This document denies the petitions for
reconsideration. NHTSA will, however, change its current policy with
regard to one of the three issues raised in the letters seeking agency
action not requiring a rulemaking procedure.
FOR FURTHER INFORMATION CONTACT: For information about air bag on-off
switches and related rulemaking, call the NHTSA Hotline at 1-800-424-
9393; in the D.C. area, call 202-366-0123. In addition, visit the NHTSA
Web site at http://www.nhtsa.dot.gov/airbags/. Among the available
materials are descriptions of the procedures for requesting
authorization to obtain an on-off switch and a list of questions and
answers about air bags and on-off switches. There are also crash videos
showing what happens in a crash to a belted, short-statured dummy whose
driver air bag is turned off.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Letter from National Association of Independent Insurers
III. Letter from National Association of Pediatric Nurse Associates
and Practitioners, Inc.
IV. Petition from Mitsubishi Motors R&D of America
V. Petition from American Car Rental Association
VI. Petitions from Members of the General Public
I. Background
On November 18, 1997, the National Highway Traffic Safety
Administration, Department of Transportation, issued a final rule which
allows for the installation of air bag on-off switches under limited
conditions. (62 FR 62406) Effective January 19, 1998, the rule exempts
motor vehicle dealers and repair businesses from the statutory
prohibition against making federally-required safety equipment
inoperative so that they may install, subject to certain conditions,
retrofit manual on-off switches for the air bags of vehicle owners
whose request is authorized by NHTSA. To obtain such authorization,
vehicle owners must submit a request form to NHTSA on which they have
certified that they have read an agency information brochure about air
bag benefits and risks and that they or a user of their vehicle is a
member of one of the risk groups specified by the agency. The agency
began processing and granting requests December 18, 1997.
NHTSA received 20 petitions for reconsideration of the final rule.
Sixteen of these petitions are from members of the general public, and
the other four are from organizations. The content of two of the
organizational petitions, those from the National Motorists Association
and the National Motorists Association, New Jersey Chapter, is very
similar to that of the petitions from the general public. Accordingly,
they are discussed together with the general public petitions. All
other organizational petitions are addressed separately. NHTSA also
received two letters that were characterized as petitions for
reconsideration but which did not seek any rulemaking action from the
agency. Each of the letters are addressed separately.
II. Letter From National Association of Independent Insurers
In the preamble to the Final Rule, NHTSA stated that it would
continue to
[[Page 45756]]
authorize deactivation of air bags under very limited circumstances
when an on-off switch was not available for a given vehicle make and
model. NHTSA stated that it would publish the vehicle identification
numbers (VIN) of vehicles whose air bags have been deactivated pursuant
to an agency letter permitting such action. The agency indicated that
it would take this action out of concern about the impermanence of
labels alerting the occupants of a vehicle that one or both of its air
bags had been deactivated. The agency did not, however, state where
this list would be kept or how often it would be updated.
The National Association of Independent Insurers (NAII) submitted a
document that was described as a petition for reconsideration and that
asked NHTSA to clarify the manner of VIN publication, to publish the
VINs of vehicles with on-off switches, and to make available to
insurers the names of the owners of vehicles with on-off switches or
deactivated air bags.1 Since the actions requested by NAII
are not rulemaking actions, the agency is treating the document as a
letter instead of a petition for reconsideration. NHTSA is taking some
of the actions requested by NAII, but declines to take the remaining
actions.
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\1\ NAII maintained that they need the names of switch
applicants because VINs are often incorrectly transcribed.
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The agency agrees that it is desirable to advise the public where
it can find out whether a particular vehicle has deactivated air bags
as well as how often such information will be updated. The list of VINs
for vehicles known by the agency to have had one or both of their air
bags deactivated will be located at the NHTSA web site (http://
www.nhtsa.dot.gov) and will be updated weekly. NHTSA cautions that this
list will be incomplete. The vast majority of agency letters sent to
date granting permission for deactivation were sent prior to issuance
of the final rule. Prior to that time, the agency did not require
persons requesting permission for deactivation to provide the VIN of
their vehicle. NHTSA has sent new letters asking the recipients of
those pre-final rule deactivation permission letters to provide the VIN
of any vehicle that has had one or both of its air bags deactivated
pursuant to the permission letter and to indicate which air bag was
deactivated. The percentage of these letters for which the agency
receives responses will depend upon the good will of each individual
owner receiving the request, since NHTSA cannot legally compel a
response.
NHTSA has decided against making the VINs for vehicles with on-off
switches available to the public as general information. NHTSA does not
believe that any interest is served by making such a list available.
The regulatory text requires that on-off switch telltales be clearly
visible to the front seat occupants. Accordingly, a quick vehicle
inspection should alert any interested party to the presence of an on-
off switch. While insurers may not regularly inspect the vehicles that
they insure, as NAII asserted, insurers can require applicants or
policyholders to state whether they have an on-off switch before the
policy is issued or renewed. At that time, the insurer can decide
whether to provide a discount for the air bag. NHTSA notes that for
those individuals who are at heightened risk from a deploying air bag,
the safety benefits contemplated by insurers in providing an air bag
discount may not apply.
NHTSA will not provide insurers or any other members of the public
with information identifying the owner of any vehicles listed on its
web site. NHTSA believes that revealing such information would be a
violation of the Privacy Act (5 U.S.C. section 552a). Accordingly,
NAII's request that they be allowed to verify the ownership of vehicles
is declined.
III. Letter From National Association of Pediatric Nurse Associates
and Practitioners, Inc.
Under the final rule, NHTSA continues to grant requests for air bag
deactivation for vehicles where the vehicle manufacturer has not
produced an on-off switch. The criteria for deactivation, however, are
stricter than the criteria for installation of an on-off switch since
deactivation is a permanent measure that cannot be easily reversed. For
example, the deactivation criteria are stricter than their on-off
switch counterpart in requiring that medical conditions be documented
by a physician and that the physician state that the risk of deployment
outweighs the risk of potentially impacting the steering wheel or
dashboard.
The National Association of Pediatric Nurse Associates and
Practitioners asks NHTSA to allow pediatric nurse practitioners to
recommend air bag deactivation if such deactivation is in the best
interests of their patient. Since the criteria governing deactivation
were not part of the regulation adopted in the final rule, NHTSA has
treated the Association's ``petition'' as a simple request for a policy
change.
NHTSA recognizes that pediatric nurse practitioners serve an
important role in the medical community, particularly in medically
under-served areas, where they may provide the majority of medical care
for their patients. NHTSA also believes that nurse practitioners are
qualified to determine whether a child's medical condition warrants
riding in the front seat. Accordingly, NHTSA believes the Association's
request is reasonable and has decided to accept medical documentation
from pediatric nurse practitioners.
IV. Petition From Mitsubishi Motors R&D of America
Mitsubishi Motors filed a petition for reconsideration seeking to
have NHTSA's approval of a request for an on-off switch or deactivation
conditioned on a guarantee by the owner that he or she will have the
switch removed or the air bag reconnected prior to selling the vehicle.
Mitsubishi contends that this is the only way to ensure that only those
individuals within one of the specified risk groups loses the potential
benefits of the air bag.
NHTSA is denying Mitsubishi's request because even if the agency
amended the final rule to condition its approval of owner requests for
an on-off switch upon the owner's promising to remove the switch, the
agency could not enforce such a promise.
NHTSA can place limitations on the circumstances in which dealers
and repair businesses are exempted from the make inoperable
prohibition. Indeed, in the final rule, the agency specified that it
would not approve switch requests unless the requestor provided certain
information and made certain statements. For example, it specified that
the requesters must certify that they had read the agency's information
brochure and that they or a user of their vehicle is a member of one of
the identified risk groups.
However, the agency cannot condition its approval of requests upon
the subsequent restoration of the air bags to their original condition
prior to resale. The most it could do would be to condition its
approval upon the receipt of a promise to make such restoration. Since
such a promise could not realistically be enforced against the vehicle
owner and would not serve as a limitation on the exempted dealers or
repair businesses, the only covered entities under the applicable
statute, there would be no assurance that requiring such a promise
would ultimately lead to the restoration of the air bags to their
original condition.
[[Page 45757]]
NHTSA believes the final rule, as drafted, provides adequate notice
of the presence of an on-off switch. The required telltale must be
illuminated and visible to the driver when the driver-side air bag is
turned off and to all front seat occupants when the passenger-side air
bag is turned off. NHTSA does not believe there will be a significant
amount of misuse in the secondary market, although it acknowledges that
nothing in the final rule would preclude an individual who is not at
risk from a deploying air bag from purchasing a used vehicle that has a
switch and then turning the air bag off.
V. Petition From the American Car Rental Association
In the final rule permitting vehicle owners to apply to the agency
for permission to have an on-off switch installed by a dealer or repair
business, NHTSA did not differentiate between owners of individual
vehicles and owners of vehicle fleets.
The American Car Rental Association (ACRA) has asked NHTSA to
modify its final rule to prohibit short-term car rental companies from
having on-off switches installed in the vehicles in their rental
fleets. ACRA states that it cannot ensure that individuals who are not
at risk from a deploying air bag will not misuse an on-off switch.
NHTSA is denying ACRA's petition because it believes that a rental
fleet owner should be able, if it so wishes, to obtain permission to
have on-off switches installed in at least some of its vehicles. It
would be reasonable for a fleet owner to make such a request if it
believes that a sufficient percentage of its rental population falls
within the specified risk groups.
The agency emphasizes that under the final rule, no vehicle owner,
whether a company or an individual, is required to have an on-off
switch installed. Each decision by a vehicle owner to request
permission to have a switch installed should only be made after a
careful consideration of the risks involved in having an air bag
unavailable in the event of a crash. If rental car companies believe
that it would not be appropriate to have vehicles with on-off switches
available for their customers who are at risk from an air bag, then
they can decide not to request permission for their installation.
Alternatively, if they decide that they want to provide at-risk
individuals with a vehicle with an on-off switch, then they may decide
that it is worthwhile to request a switch for some portion of their
fleet.2 In either case, NHTSA believes this is a decision
that can only be reached by the rental companies. NHTSA continues to
believe that traditional contract remedies and business relationships
will allow for adequate policing of on-off switch use. This is why
NHTSA did not exclude leased vehicles or fleet vehicles from the on-off
switch rule.
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\2\ NHTSA encourages rental companies to provide information to
renters of such vehicles with on-off switches so they understand the
circumstances under which it would be appropriate to use the switch.
Rental companies could choose to provide renters with a copy of the
NHTSA publication Air Bags and On-Off Switches, Information for an
Informed Decision.
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VI. Petitions From Members of the General Public
NHTSA received 16 petitions from members of the general public as
well as a petition from the National Motorists Association and the New
Jersey chapter of the National Motorists Association. All of these
petitions raised the same issues and will accordingly be responded to
together. While 28 separate issues were raised in these petitions, many
of the issues can be grouped together and have been so grouped here.
Membership in a Risk Group
The petitioners claim that the Government ignored the safety of
individuals at risk from air bags, notably children and short-statured
females, by creating discrete risk groups that would be eligible for
on-off switches rather than allowing deactivation on demand. NHTSA
disagrees.
NHTSA believes its final rule appropriately responded to the risk
that passenger-side air bags can pose to children. The final rule
allows anyone who needs to carry children in the front seat to apply
for and receive an on-off switch. Thus, petitioners' contention that
the final rule places children at risk is incorrect. Even individuals
who only occasionally must drive with children in the front seat can
obtain permission for a switch.
Petitioners imply that it is only the air bag which makes the front
seat dangerous for children. NHTSA notes that it is preferable to have
children sit in the back seat whenever possible since crash data
demonstrate that is the safest location, regardless of whether the
vehicle is equipped with an air bag. While a significant number of
people still choose to allow their children to sit in the front seat,
most do so by choice, not necessity.3
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\3\ Cf., Jack Edwards, Kaye Sullivan, ``Where Are All the
Children Seated and When Are They Restrained?'', SAE Technical Paper
971550 (1997).
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Likewise, the agency disagrees with petitioners' contention that
switches or deactivation on demand should be allowed because children
are often improperly restrained. Allowing deactivation on demand would
be inappropriate because it would allow people who are not at risk to
obtain and use switches to turn off their air bags, thus decreasing
their safety. The approach adopted by the agency makes it necessary for
vehicle owners to focus on and evaluate the factors that create risk
and encourages them to take steps to reduce that risk. The final rule
helps to prevent air bag fatalities involving children since the rule
allows an on-off switch for anyone who must carry children in the front
seat. However, allowing widespread deactivation, apart from not adding
any additional safety benefit, could send the conflicting message that
children do not need to be restrained as long as they are not in front
of an air bag. Further, as noted above, encouraging front seat use
would reduce child safety since, even in the absence of an air bag, the
front seat is significantly less safe than the back seat.
Petitioners' contention that air bags will cause unreported deaths
because short-statured individuals will be unable to control their
vehicles after moving their seats back to obtain ten inches is also
apparently based on a misreading of the final rule. NHTSA stated that
most individuals can achieve the desired ten-inch distance by slightly
modifying their driving posture, and still maintain a safe, comfortable
driving position. For those individuals who cannot comfortably drive
ten inches or more from their air bag, NHTSA recommends they consider
having an on-off switch installed.
Contrary to petitioners' contention, NHTSA believes that vehicle
owners will carefully read the agency's information brochure and then
carefully assess whether they or any user of their vehicle is really at
risk from the vehicle's air bags. The agency expects that the owners
who request permission for an on-off switch will be people who can
legitimately certify membership in a risk group. Anyone who must
transport children in the front seat is eligible for an on-off switch.
Likewise, people who suffer from a medical condition which they believe
places them at risk from a deploying air bag, or people who are unable
to get 10 inches or more from the air bag cover, regardless of their
height, are eligible for an on-off switch.
NHTSA fully considered allowing persons to deactivate their air
bags without having to show or claim actual risk. The agency decided
that public safety interests dictate that individuals who do not fall
within one of the specified risk groups should not be
[[Page 45758]]
allowed to have an on-off switch installed. Particularly given the
evidence of misperception of risk by a significant number of vehicle
owners, NHTSA does not believe that an individual's belief that he or
she has the right to choose whether to have an air bag outweighs
society's interest in avoiding death and serious injury and the
enormous public expense associated with unnecessary injury.
Risk of Injury and Death
Petitioners claim that NHTSA's regulatory evaluation indicates that
30 percent of individuals impacted by air bags will receive an injury
so that the other 70 percent of that population will avoid injury.
Petitioners aver that this level of injury is excessive. The agency
believes that the significance of this level of injury cannot be
properly assessed in a vacuum. The alternative of what would happen to
a vehicle occupant in the absence of an air bag must be considered. In
moderate to severe crashes, even belted occupants, especially drivers,
will strike their head, neck and chest against the interior of their
vehicle in the absence of an air bag. Consequently, the injuries
prevented by air bags are typically substantially more serious than the
injuries that air bags cause. Further, petitioners do not take into
consideration the significant reduction in fatalities which are not
represented in the table cited by petitioners.
Contrary to petitioners' assertion, the Government is not mandating
that the American public accept a 4 percent risk of death by requiring
air bags on all new vehicles. The risk of death cannot be based on a
comparison of lives saved versus lives lost. The evaluation of risk
must be based on a comparison of total deployments (over 2.1 million)
versus lives lost. This risk is less than 0.005 percent. Moreover, for
those persons for whom the risk is relatively high, the rule allows the
installation of an on-off switch.
The comparison of lives saved to lives lost is instructive. The
most recent data (June 1, 1998) indicate that while 105 persons have
been killed by air bags, 3,148 persons have been saved. Therefore, a
person is 31 times more likely to be saved by an air bag than killed by
an air bag. Further, the ratio could be even higher in the future since
the 31:1 ratio is based on there being no change in occupant behavior
or improvements in air bag design due to NHTSA's Final Rule allowing
depowered air bags (62 FR 12960). The vast majority of the 105 air bag
deaths could have been prevented through simple behavior modification,
namely wearing a safety belt and moving the children to the back seat.
NHTSA does recognize that not all risk can be eliminated through
behavioral changes since there may occasionally be factors beyond the
driver's control. In those instances, NHTSA allows the installation of
an on-off switch.
NHTSA's estimates of air bag effectiveness were based on two
separate analyses. The first was developed by comparing fatality rates
of drivers with air bags to passengers without air bags in the same
vehicle. These rates were compared to those of older vehicles of the
same make and model without driver or passenger air bags. This approach
is called ``double pair comparison analysis'' and is widely used in
effectiveness evaluations. The second analysis, which also used double
pair comparison methodology, involved comparing fatality rates of
frontal and non-frontal impacts of air bag vehicles to non-air bag
vehicles. Both methods produced similar results. Neither of the methods
took the occupant's safety belt use into consideration (i.e., the
estimates were based on the experience of all occupants, regardless of
whether they used safety belts). Thus, possible errors in the reporting
of safety belt use would have had no effect on these estimates.
Regarding the suggestion by petitioners that air bags might provide a
net negative benefit for major population groups, these groups are the
ones that are specifically allowed to install on-off switches. Persons
outside these groups are statistically safer with air bags than without
them.
Costs Associated With the Final Rule
Petitioners state that NHTSA has grossly underestimated the cost of
on-off switches in evaluating the actual cost of installation, in
evaluating the time value of the consumer, and in determining the
overall cost based on the number of people who will have a switch
installed. Cost was not the deciding factor in issuing the final rule.
Safety was the paramount concern in the decision-making process.
NHTSA notes that it lacks the authority to control the amount that
dealers and repair businesses charge to install an on-off switch.
However, since installation is a purely voluntary expense, each
individual can decide whether he or she believes the risk of deployment
justifies the accompanying expense. Finally, regardless of the amount
charged to consumers, NHTSA continues to believe that a simple on-off
switch could be installed for $38 to $63 based on the amount of work
required to install the device and the hardware necessary to create a
device.
Petitioners contend that the hourly rate of $9.20, the figure that
NHTSA used to place a value on the time members of the public who read
the brochure and complete the form, should be higher since owners of
air bag-equipped vehicles are wealthier than the average American.
NHTSA's figure was based on guidance developed by the Department of
Transportation for valuing travel time when evaluating regulatory
alternatives. The figure is based on a combination of personal or
leisure time and time spent at work and represents the wage scale of a
wide variety of employees. NHTSA notes that most people would not need
to take off work to read the information brochure and fill out the
form. Accordingly, the figure of $9.20 may be slightly higher than the
true value of the time that an individual would spend for those
purposes. Nevertheless, NHTSA believes an hourly rate of $9.20 is
reasonable.
As to the overall cost of the final rule, NHTSA believes that the
overall costs are irrelevant to an individual's decision to request
permission for and purchase a switch. Individuals either will or will
not install an on-off switch, regardless of the final rule's cost to
the entire population.
NHTSA's estimate of 80,000 installations per year represented its
best estimate as of the time the rule was issued. Current demand for
on-off switch authorizations has averaged 189 requests per day. If
demand were to remain constant throughout the year, actual demand would
be approximately 69,000 installation requests per year. However, NHTSA
does not believe that demand will continue at current rates. The
issuance of the final rule is still a fairly recent event, having
become effective on January 19, 1998. Significant media coverage
accompanied both the issuance of the final rule and its implementation.
Further, it was natural that there be an initial surge in requests
since the majority of individuals who are concerned with deploying air
bags were likely to request a switch as soon as the option became
available. As time passes and the issuance and media coverage become
more distant events, NHTSA believes that demand will also fall. The
agency anticipates that future requests will tend to be limited to
individuals either buying a new vehicle or having an additional child
who cannot be accommodated in the back seat.
Misuse
Petitioner claims that NHTSA's statement in its final rule that it
has not seen, and does not expect, a significant
[[Page 45759]]
amount of misuse is a tacit acknowledgment by the agency that it has no
reasonable basis for requiring membership in a risk group.
Petitioner mischaracterizes the issue. The agency's position on
misuse is that past experience indicates some relaxation of its
previous limitations on on-off switches is justified, not that switch
misuse is not a potential problem under any circumstances.
As an initial matter, any deactivation, or switching off, of an air
bag by or for an individual who does not fall within the specified risk
groups constitutes misuse. That individual is safer with an air bag
than without one. Accordingly, allowing all members of the general
public to have on-off switches installed, regardless of risk, can only
increase the potential for misuse.
Additionally, NHTSA allowed broader criteria for retrofit switches
than for switches installed prior to first sale in certain vehicles
based in part on its experience with those switches. Prior to the
publication of the final rule at issue here, on-off switches were
limited to the passenger side of vehicles with no back seat or a back
seat that could not accommodate a child restraint (OEM rule) (49 CFR
571.208 S4.5.4). Under that rule, potential misuse is limited to adult
passengers since no switch is available for the driver side air bag and
all children under age 12 fall within a risk group prescribed by the
retrofit final rule.
NHTSA is unaware of any circumstances in which an adult passenger
has been killed or seriously injured in one of these vehicles because
the air bag had been switched off, although it does know of an infant
fatality where the passenger-side air bag had been left on. This
apparent lack of significant misuse in a limited portion of the overall
air bag-equipped fleet persuaded NHTSA that some relaxation of the
existing requirements, when accompanied by a process designed to inform
vehicle owners of actual risk, was justified.
The agency notes that under the OEM rule, all switch-eligible
vehicles have either no back seat or only a small seating area.
Accordingly, children in most of these vehicles have no choice but to
sit in the front seat. As NHTSA has repeatedly cautioned, the back seat
is safest for all passengers and particularly for small children. NHTSA
remains concerned that allowing switches for individuals who do not
meet one of the specified criteria only increases the possibility that
children who could more safely ride in the back seat will be placed in
greater danger simply because the passenger-side air bag has been
turned off.
The Agency's Evaluation of Comments
Petitioners contend that NHTSA failed to take into account the
comments from some 600 members of the general public as well as the
National Transportation Safety Board and the Insurance Institute for
Highway Safety (IIHS). This is incorrect. NHTSA considered all comments
in making its decision. However, the agency's decision was based upon
safety considerations instead of what appeared from the comments to be
the most popular decision.
Further, the final rule may be more popular than suggested by the
petitioners. Many of the private citizens who submitted comments on the
rulemaking may fall within a specified risk group since the primary
complaint was short stature. If these individuals are unable to get at
least ten inches from the center of their steering wheel while sitting
comfortably, they are eligible for an on-off switch. As to the
commenters' attitude toward on-off switches, the degree of their
support is uncertain since most commenters did not address on-off
switches. Of those who did discuss on-off switches, the majority
supported on-off switches as at least an option to deactivation.
Physician's Report
Petitioners claim that the medical panel did not consider two
investigations concerning ``air bag exhaust fire'', a newspaper report
of an air bag-related fire, and two anecdotal reports of near-
asphyxiation from air bags when it reported that a driver's
supplemental oxygen did not justify air bag disconnection. NHTSA's
Office of Defects Investigation investigated the two reports of ``air
bag exhaust fire'' and concluded that there was no indication the air
bags in question caused the burns complained of in the consumer
complaints to NHTSA. One of the investigations did note that air bag
exhaust does reach temperatures high enough to ignite some fabrics, but
that the temperatures did not remain at those levels for a sufficient
period of time to create a fire hazard (PE97-014). In neither
investigation did the vehicle owner claim that sparks or flames were
emitted from the air bag. In any event, if an individual's treating
physician believes that supplemental oxygen is a concern, regardless of
the analysis reached by the medical panel, the patient is able to
obtain an on-off switch under the final rule's criteria.
Petitioners' claim regarding potential diminution in quality of
life from air bag injuries does not justify allowing deactivation on
demand. Particular concern was raised about potential hearing and
vision loss. Injury patterns culled from the National Analysis Sampling
System (NASS), as well as all available medical literature, including
the University of Michigan report cited by petitioners, were reviewed
by the medical panel. None of the available data or literature revealed
significant injury to the eyes or hearing loss as a result of air bag
deployments.
The medical panel considered all known literature on hearing and
vision loss related to air bag deployments. It stated that potential
loss of hearing could not be isolated to air bag deployment and that
the air bag was no more likely to cause a serious eye injury than
impacting the dashboard or steering wheel. Even if these types of
injuries were occurring on a regular basis, like arm injuries, the
level of injury is incremental and significantly less than the types of
injuries which air bags are preventing. The vast majority of injuries
caused by air bags are both minor and temporary.4
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\4\ NASS analysis did reveal a substantial increase in arm
injuries as a result of air bag deployment.
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Petitioners' claimed that air bags should be voluntary because
individuals are allowed to withhold consent for all other forms of
medical treatment. This comment raises issues not only beyond the scope
of this rulemaking, but beyond the agency's authority given the
statutory mandate for air bags. Nevertheless, the agency notes that air
bags are a preventative measure similar to many medical therapies which
significantly impact public health. Thus, children are required to be
vaccinated before they can enter school, municipalities are required to
provide a safe source of drinking water, and the American food supply
is subjected to stringent controls to protect the public health.
Deactivation
In the preamble to the final rule, NHTSA stated that it would
continue to grant requests for permanent deactivation when no vehicle
manufacturer switch is available and when the applicant meets certain
criteria. These criteria are more limited than those for which a switch
is authorized. The agency notes that the final rule allows the
installation of non-vehicle manufacturer switches and that such
switches are available. Petitioner claims that NHTSA's policy places
individuals at undue risk, alleging vehicle manufacturers may decide
not to manufacture switches for all vehicle
[[Page 45760]]
makes and models, and that deactivation is cheaper than switches.
NHTSA's decision to impose more stringent criteria on air bag
deactivation is reasonable, given the permanent nature of deactivation.
Deactivation renders an air bag unavailable to help anyone in a crash.
In contrast, the on-off switch allows a driver to turn the air bag on
or off, depending on the risk faced by the individual seated in front
of the air bag. This flexibility is important in the case of a vehicle
whose users include a mix of people at risk and people not at risk. For
example, one member of a couple may have a medical condition which
prevents him or her from achieving a 10-inch distance from the air bag,
while the other can achieve that distance. Likewise, a family may only
have to transport children in the front seat on rare instances, such as
when they have to transport a neighbor's child and they have
insufficient room in the back seat for all of the children. The
presence of an on-off switch would make that air bag available to every
individual who is not at risk while the air bag could be turned off for
those at risk. In contrast, deactivation renders an air bag unavailable
to everyone, regardless of risk.
While deactivation may be cheaper than an on-off switch, cost was
not the agency's main consideration. Safety was the overriding factor.
Further, since the cost of both deactivation and on-off switches is
ultimately market-based, NHTSA cannot assess the differences in cost
with any specificity. NHTSA believes that its estimation of on-off
switch cost should not be an overwhelming deterrent to anyone who needs
a switch. Cost concerns aside, one is significantly more likely to find
a company willing to install an on-off switch than deactivate an air
bag. Liability concerns on the part of dealers and repair businesses
have rendered permanent deactivation more difficult to get performed
than installation of a switch. As for petitioner's claim that
deactivation more certainly turns off an air bag than an on-off switch
does, manufacturers, dealers and repair businesses have every incentive
to produce and install a safe switch since the final rule does not
waive civil liability for defective switches or negligent installation.
Further, the agency notes that there are potential risks associated
with deactivation. Labels can be removed, either purposely or
inadvertently. An occupant expecting air bag protection may
unexpectedly find that he or she has none in a crash. Many deactivated
air bags will likely not be reactivated prior to resale since there is
no incentive to reactivate, and since NHTSA does not have the authority
to require reactivation. Consequently, any decision to reactivate, as
well as to inform a potential secondary purchaser of the air bag's
inoperable status, will depend entirely on the good will of the
vehicle's owner.
Depowered and Advanced Air Bag Systems
Petitioners argued that deactivation or on-off switches should
remain available to owners of vehicles with depowered air bags and
advanced air bags. Under the final rule, on-off switches will be
available for vehicles with depowered air bags. As the agency stated in
the final rule:
As to depowered air bags, NHTSA anticipates that they will pose
less of a risk of serious air bag injuries than current air bags.
However, the agency will wait and accumulate data on depowered air
bags before making a final decision on this issue. The agency may
revisit this issue in a future rulemaking if data indicate that
cutoff switches are not appropriate in vehicles with depowered air
bags. For the present, the exemption will apply to vehicles with
depowered air bags.
As to advanced air bags, NHTSA did not decide in the final rule
whether retrofit on-off switches would be permitted for vehicles with
those air bags. The agency did say that it continued to believe, based
on safety considerations, that it should prohibit dealers and repair
businesses from retrofitting advanced air bag vehicles with cutoff
switches. However, since advanced air bags were not expected for
several years, there was no immediate need to make a decision. The
agency said that it would address this issue in its proposal on
advanced air bags.
Process for Receiving Authorization To Have an On-Off Switch Installed
Petitioners argued that the actual number of eligible individuals
who will be able to have an on-off switch installed is too low because
of the authorization process established by the agency. The agency
disagrees. NHTSA defined the eligible risk groups to avoid the need for
ad hoc decision making and to expedite the authorization process. The
amount of time necessary to read the information brochure and fill out
the request form (approximately 30 minutes) is nominal when compared to
the significant safety benefit at issue. Likewise, the amount of time
required to process a request, currently one or two days, is
reasonable, given the benefit that air bags provide to the vast
majority of the general public. Further, NHTSA's streamlined process
minimizes the amount of time that an at-risk individual must wait
before receiving authorization to have an on-off switch installed.
Request for Reconsideration
Based on the foregoing, NHTSA is denying petitioners' request that
on-off switches be available on request and without certification of
membership in a risk group. As noted above, the risk of serious injury
or death is small and the benefit of air bags is large. NHTSA will
continue to require vehicle owners to submit the completed on-off
switch request forms to the agency for processing. Petitioners' request
that the agency allow deactivation on request is likewise denied.
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
Issued: August 20, 1998.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 98-22832 Filed 8-26-98; 8:45 am]
BILLING CODE 4910-59-P
