DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 595
[Docket No. 74-14; Notice 107]
RIN 2127 - AG61
Air Bag Deactivation
AGENCY:
National Highway Traffic Safety Administration (NHTSA),
DOT.
ACTION:
Notice of proposed rulemaking.
SUMMARY:
As part of its efforts to address the problem of the adverse
effects of current air bag designs on children and certain adults,
NHTSA is issuing this proposal to make it possible for vehicle owners
to have their air bags deactivated by vehicle dealers and repair
businesses.
Vehicle owners may decide for themselves to have their
air bags deactivated because they drive their vehicles under
circumstances that resemble those in which people have already been
killed by air bags or simply because of their generalized concern
about air bags.
Specifically, the agency is proposing to allow dealers and
repair businesses, upon written authorization of a vehicle owner
or lessee, to deactivate either the passenger-side air bag, the
driver-side air bag, or both.
Dealers and repair businesses are
statutorily prohibited from making Federally required safety
equipment inoperative, but NHTSA may exempt them from the prohibition
2
in appropriate circumstances.
In order to qualify for the exemption,
the dealer or repair business would be required to provide the owner
with a NHTSA information sheet describing the circumstances in which
deactivation may be appropriate, based upon the comparison of the
risks in those circumstances of turning the air bag off versus leaving
it on.
The authorization would contain a statement that the
owner/lessee has received and read that sheet.
The agency is
proposing to require that warning labels be installed as a condition
of deactivation.
Deactivating the passenger-side air bag would not be permitted
if the vehicle were equipped with a manual cutoff switch for the
air bag, or if the air bag were a “smart” air bag, i.e., one capable
of either shutting off in appropriate circumstances or controlling
its deployment so as to protect against injuring a wide range of
occupants.
DATES:
Comments must be received by (insert date 30 days following
publication in the Federal Register).
Comments should refer to the
docket and notice number of this notice and be submitted to: Docket
Section, Room 5109, National Highway Traffic Safety Administration,
400 Seventh Street, SW, Washington, DC 20590 (Docket Room hours are
9:30 a.m.- 4 p.m., Monday through Friday.)
FOR FURTHER INFORMATION CONTACT:
For non-legal issues:
Mr. Clarke Harper, Chief, Light Duty
Vehicle Division, NPS-11, National Highway Traffic Safety
3
Administration, 400 Seventh Street, SW, Washington, DC
Telephone:
(202) 366-2264. Fax:
For legal issues:
20590.
(202) 366-4329.
Ms. Rebecca MacPherson, Office of Chief
Counsel, NCC-20, National Highway Traffic Safety Administration,
400 Seventh Street, SW, Washington, DC
366-2992.
Fax:
20590.
Telephone:
(202)
(202) 366-3820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I
Background
II.
Scope of problem
A.
Deaths and injuries
B.
Public concerns regarding those deaths and injuries
C.
Other health issues
III.
Overview of other agency responses to problem
IV.
Statutory prohibition against deactivating air bags;
statutory authorization for exemption from prohibition
V.
Suggestions by public concerning air bag deactivation
VI.
Granting of exemptions from State safety belt use laws
for medical and psychological reasons
VII.
NHTSA’s use of prosecutorial discretion with respect to
air bag deactivation
VIII.
Proposal to permit deactivation
IX.
Effective date
X.
Regulatory analyses and notices
4
XI.
Comments
I.
Background
While air bags are providing significant overall safety
benefits, NHTSA is very concerned that current designs have adverse
effects in some situations.
This notice proposes one of several
actions that the agency is taking to mitigate these effects.
To address those effects, the agency published in the Federal
Register (61 FR 40784) a notice of proposed rulemaking (NPRM) on
August 6, 1996 to amend Standard No. 208, Occupant Crash Protection,
and Standard No. 213, Child Restraint Systems.
The NPRM proposed
several amendments to reduce the adverse effects of air bags,
especially those on children.
The agency explained that eventually, either through market
forces or government regulation, it expects that "smart"
passenger-side air bags will be installed in passenger cars and light
trucks to mitigate these adverse effects.
NHTSA proposed that
vehicles lacking smart passenger-side air bags would be required
to have new, attention-getting warning labels and be permitted to
have a manual cutoff switch for the passenger-side air bag.
Currently, only vehicles lacking a rear seat large enough to
accommodate a rear-facing infant restraint are permitted to have
such a switch.
The agency also requested comments concerning whether
it should require installation of smart air bags and, if so, on what
date such a requirement should become effective.
NHTSA also
5
requested comments on whether it should, as an alternative, set a
time limit on the provision permitting manual cutoff switches in
order to assure the timely introduction of smart air bags.
Finally,
the agency proposed to require rear-facing child seats to bear new,
enhanced warning labels.
II.
A.
Scope of problem
Deaths and injuries
Based on data available as of November 1, 1996, NHTSA estimates
that driver-side air bags have saved a net of 1,481 lives (1,500
drivers saved - 19 driver deaths caused by air bags), with 826 of
those lives saved in 1995 and 1996 alone.
The dramatic increase
in lives saved in the last two years is due both to the increased
number of air bags in vehicles and improved technology.
For persons
aged 13 and older, passenger-side air bags have saved a net of 164
lives to date.
The number, if any, of passengers aged less than
13 saved by air bags is unknown.
children.
What is known is the loss of 31
Thus, the net figure for passengers of all ages could
be as low as 133.
This disparity between driver and passenger air bags in the
number of lives saved is due in part to the fact that there are
approximately twice as many vehicles with driver air bags as there
are vehicles with passenger air bags.
Passenger-side air bags have
only been widely available since the 1994 model year.
Further, the
driver seat is occupied more frequently than the front passenger
6
position.
As of November 15, 1996, however, 31 children have been killed
as the result of air bag deployment in low speed collisions.
of these children were in rear-facing infant restraints.
of deaths is steadily climbing.
Nine
The number
Ten of the 31 died in calendar year
1995 and another 17 have died so far in calendar year 1996.
Additionally, eight children are known to have been seriously injured
as a result of air bag deployment, five of whom were in rear-facing
infant restraints.
One 98-year-old adult passenger has been killed
by an air bag.
Fewer drivers than passengers have been killed by air bags
despite the fact that there are approximately twice as many vehicles
with driver air bags as there are with both driver and passenger
air bags.
Nineteen drivers have been killed from air bag deployments
in low to moderate speed collisions.
or under and four were 5'4" women.
killed.
Of these, ten were women 5'2"
One 5'5" woman has also been
The four male drivers who were killed were at least 5'9".
One instance of a placental abruption, leading to stillbirth, has
been reported; injuries to the pregnant woman were minor.
19 adults killed by air bags, seven were age 64 or above.
Of the
The agency
notes that older drivers are more at risk than the average adult
under most circumstances, regardless of type of restraint used.
Over half the fatalities (10 out of 19) were in calendar years 1994
and 1995.
Only two drivers are known to have been killed as a result
7
of air bag deployment in 1996.
Most of the driver fatalities occurred
in vehicles manufactured in model years 1990 and 1991.
Only four
drivers have been killed in vehicles manufactured after model year
1992.
The apparent downward trend in driver fatalities contrasts
sharply with the growth in the number of child fatalities.
For a more detailed discussion of the air bag deaths, and for
tables that put those deaths in perspective and facilitate
identifying the patterns associated with the occurrence of those
deaths, see Appendix A of this notice.
B.
Public concerns regarding those deaths and injuries
NHTSA emphasizes that the vast majority of people, both drivers
and passengers, are much safer with an air bag than without.
Nevertheless, the current number of deaths and serious injuries
attributed to air bag deployment in low speed crashes is disturbing.
There are particular concerns about small children,
short-statured women, pregnant women, and elderly individuals.
In
the aggregate, this group constitutes a significant percentage of
the total U.S. population.
C.
Other health concerns
A large number of arm injuries have also been attributed to
air bag deployment, both in low speed and higher speed crashes.
Additionally, numerous individuals have contacted the agency
regarding their concerns that a preexisting medical condition, such
8
as a degenerative bone disease or hearing problem, could be aggravated
by air bag deployment.
The agency has no real-world data on how
air bags aggravate preexisting medical conditions.
III.
Overview of other agency responses to problem
On November 22, 1996, NHTSA issued a final rule amending Standard
No. 208 and Standard No. 213 to require improved labeling to better
ensure that drivers and other occupants are aware of the dangers
posed by air bags to children who occupy the front seat.
Today the
agency is issuing a separate final rule extending, until September
1, 2000, the permission granted to manufacturers to install manual
cutoff switches for the passenger-side air bag for vehicles without
rear seats or with rear seats that are too small to accommodate
rear-facing infant seats.
NHTSA has decided to terminate the rulemaking to permit all
air bag vehicles to be equipped with manual cutoff switches.
This
decision to terminate is based on the agency’s belief that informed
deactivation is a technologically less-intrusive option and that
manufacturing resources should not be diverted away from smart air
bag technology.
Today NHTSA is also issuing an NPRM proposing to amend Standard
No. 208 to permit or facilitate depowering of air bags by 20 to 35
percent across the fleet.
NHTSA expects, in the near future, to
issue a separate supplemental notice of proposed rulemaking (SNPRM)
proposing performance requirements for smart air bags and a phase-in
9
schedule for requiring installation of those devices.
IV.
Statutory prohibition against deactivating air bags; statutory
authorization for exemption from prohibition
Manufacturers, distributors, dealers 1 and motor vehicle repair
businesses 2 are prohibited by 49 U.S.C. §30122 from knowingly making
inoperative any part of a device or element of design installed on
or in a motor vehicle in compliance with an applicable Federal Motor
Vehicle Safety Standard.
The statute, however, allows the agency
to prescribe regulations to exempt a person from the “make
inoperative” provision if such an exemption is consistent with safety
concerns.
V.
Suggestions by public concerning air bag deactivation
In response to the August 1996 NPRM, BMW and Volvo recommended
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.
BMW attached to its comment copies of the approval forms and the
1
Section 30102 defines “dealer” as “a person selling and distributing
new motor vehicles or motor vehicle equipment primarily to purchasers that in
good faith purchase the vehicles or equipment other than for resale.”
2
Section 30122(a) defines “motor vehicle repair business” as “a person
holding itself out to the public to repair for compensation a motor vehicle or
motor vehicle equipment.” NHTSA has interpreted this term to include businesses
that service vehicles with which there is nothing wrong by adding features or
components to or otherwise customizing those vehicles.
10
warning label (“Front passenger airbag deactivated”) that is placed
in the vehicle to indicate that the air bag has been deactivated.
The “formal obligation concerning deactivation of front passenger
airbag” form states that the owner of the vehicle is obliged
(N)ot to modify the airbag system in any way or alter/remove
the warning label,
(T)o ensure that every front passenger in the above vehicle
is aware that the front passenger airbag has been
deactivated,
(T)o have the front passenger airbag reactivated by an
authorized BMW service station and
(I)f selling the vehicle, to inform the new owner of the
current state of the front passenger airbag and to have
over all relevant documentation.
BMW’s comments may be found at Docket 74-14, Notice 100, item 40.
In its comment, Volvo stated that
(i)n Europe, due to consumer requests, most manufacturers
have developed new car retail service procedures for
deactivation and reactivating of passenger side air bags.
This is usually accompanied by clearly visible labels
stating if any measures have been taken to change the air
bag readiness status. Letters are sent to customers, at
regular intervals, to remind them of the system status.
Letters are also sent to new vehicle owners, when the
car is sold, to inform them of this.
Volvo’s comments may be found at Docket 74-14, Notice 100, item 22.
On October 28, 1996, Ms. DeeAnn DePaul of Tacoma, Washington,
filed a petition for rulemaking to provide an exemption under 49
U.S.C. 30122 allowing motor vehicle dealers and repair businesses
to respond to requests by vehicle owners to have their driver-side
air bag deactivated.
VI.
This notice grants that petition.
Granting of exemptions from State safety belt use laws
for medical and psychological reasons
11
State safety belt use laws present a fairly analogous problem
of accommodating people with special problems that may make occupant
restraint use inappropriate.
Virtually all States have provisions
in their safety belt use laws for granting medical exemptions to
persons who obtain a statement from their physician certifying their
patient’s medical condition and stating why safety belt use by their
patient is inappropriate.
Some States also provide for exemptions
based on psychological reasons.
VII.
NHTSA’s use of prosecutorial discretion
with respect to air bag deactivation
In 76 instances to date, the agency has exercised its
prosecutorial discretion with respect to requests to deactivate an
air bag.
Eighteen of the cases involved children.
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 3 that the agency would not regard the temporary
deactivation of the passenger-side air bag by a dealer or repair
business as grounds for an enforcement proceeding.
The agency urged
that the air bag be reactivated when the circumstances necessitating
its deactivation ceased to exist.
Additional requests, based on
medical conditions or the absence of a rear seat, are pending.
3
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.
12
Similarly, in the other two instances, the agency told two owners
that if their physicians concluded that the risks associated with
their medical condition 4 and the deployment of their driver-side
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.
There are a large number
of pending requests from women of small stature and a smaller number
from adults with various medical conditions.
The volume of these requests for deactivation, and the variety
of concerns underlying them, necessitate a rulemaking response, as
opposed to individual, case-by-case resolution.
VIII.
Proposal to permit deactivation
NHTSA has tentatively decided to exempt dealers and motor
vehicle repair businesses conditionally from the “make inoperative”
prohibition so that they can deactivate 5 either or both the driverand passenger-side air bags at the request of a vehicle owner. 6
Passenger-side deactivation
While NHTSA expects that smart passenger-side air bags will,
within several model years, offer a means for significantly reducing
or eliminating the risk of adverse side effects to children from
4
The medical conditions were as follows: case 1-emphysema and chronic
bronchitis; and case 2-short stature and osteomyelitis.
5
6
The term “deactivate” has been used interchangeably with “disconnect.”
As used in this notice, the term includes lessees whose term of lease
is not less than four months. (See 49 U.S.C. §30119(f)(1).)
13
air bags, the agency believes that, in the interim, steps need to
be taken to minimize the possibility that air bags will harm children.
Fortunately, in the vast majority of cases, this can easily be
accomplished by placing children in the back seat.
This is the safest
place for children, regardless of whether a vehicle has a passenger
air bag.
However, some vehicles either do not have rear seats or have
rear seats too small to accommodate rear-facing infant seats.
In
addition, NHTSA believes it is necessary to recognize that in a
variety of circumstances and for a variety of reasons, parents
sometimes need to place children in the front seat of vehicles that
have back seats.
In some cases, such as situations involving infants
with a special medical condition, there may be a need for placing
an infant in the front seat.
The American Academy of Pediatrics
indicated in its comments on the agency’s August 6, 1996 NPRM (61
FR 40784) regarding the adverse effects of air bags that cases
involving medical conditions are relatively few in number.
The
National Association of Pediatric Nurse Associates & Practitioners,
estimated that as many as 20,000 children under the age of 5, as
well as 5,000 infants, require some type of medical technology
assistance, but did not suggest how many of these children have
conditions requiring them to be carried in the front seat.
In still
other cases, parents may need to transport a number of children
greater than the number of rear seats in their vehicles.
Parents
14
may also permit children older than infants to ride in the front
seat because the children strongly desire to do so.
NHTSA believes that, in the situations involving infants in
the front seat, deactivation would provide parents a means of ensuring
that their children would not be harmed by the air bag.
Rear facing
infant seats can never be placed in front of an activated passenger
air bag without creating a risk of serious injury or death.
Deactivation is more problematical with respect to older
children.
Most of the children who were older than infants and were
killed by air bags were not using any type of occupant restraint. 7
Most of the rest were using only a lap belt.
Moreover, the agency
believes that some properly positioned and restrained children will
benefit from an air bag in some types of crashes.
Nevertheless,
the agency recognizes that not all older children are properly
restrained and that particularly children not using any restraint
at all or using only a lap belt are at some risk of being killed
by an air bag.
Further, there has been one instance in which a child
using a lap and shoulder belt was killed, and three reports of serious
injuries to children using lap and shoulder belts.
NHTSA also
realizes that parents may find it is difficult to keep their children
7
For situations in which there is no option other than to place children
in the front seat (not including infants in rear facing infant seats who can never
safely be put in the front seat in front of an activated air bag), NHTSA recommends
the following: (1) The child should be properly restrained. This means, depending
on the size of the child, a forward-facing child seat, a booster seat plus a
lap/shoulder belt, or a lap/shoulder belt alone (for larger children); (2) The
seat should be pushed all the way back, to maximize the distance between the child
and the air bag; (3) The child should be sitting with his/her back against the
seat back, and with any extra slack removed from the safety belt.
15
properly positioned and restrained, e.g., some children may tend
to remove their shoulder belt and/or move forward away from the
vehicle seat back and sit on or near the front edge of the vehicle
seat.
An activated air bag would create an added safety risk in
these situations.
In issuing this proposal, NHTSA does not wish to encourage
parents to place children in the front seat.
Regardless of whether
a vehicle is equipped with a passenger air bag, the rear seat is
the safest place for a child to sit.
However, the agency believes
it is necessary in establishing safety requirements to take into
account how people behave in the real world.
NHTSA anticipates that depowering air bags will be the first
step in reducing the risk of air bag injuries in future vehicles,
but that even a depowered air bag could present a risk to an infant
in a rear-facing infant seat or to an unrestrained child who is thrown
onto the dash as the result of pre-crash braking.
Deactivation would
thus continue to be permitted with depowered air bags.
However, the development of smart air bags will significantly
reduce the risks of deployment from passenger-side air bags by either
preventing them from deploying at all or deploying them safely in
situations in which children would otherwise be at risk.
Accordingly, the agency proposes that deactivation of a
passenger-side air bag would not be permitted if the air bag were
equipped with a cutoff switch or meet the criteria established by
16
the agency for smart air bags.
While some adult passengers may be at risk from air bag
deployment, NHTSA emphasizes that it is aware of only one adult
passenger, a belted 98-year-old woman, who has been killed by an
air bag.
Additionally, since since most vehicles are now equipped
with a bucket seat for the front passenger, a passenger in that seat
would not have to position the seat all the way forward, as some
short-statured drivers must in order to drive, and would thus usually
be able to keep the seat far away from the dashboard.
This should
eliminate any potential risks and the need for deactivating the
passenger-side air bag for reasons relating solely to stature.
This
would not be true in the case of a passenger sitting on a bench seat
in a vehicle being driven by a person of short stature.
Driver-side deactivation
For the reasons stated in the “Scope of problem” section above,
NHTSA sees considerably less need for deactivation of driver-side
air bags and anticipates that most drivers should keep their air
bags fully operable.
The total number of deaths attributed to
driver-side air bags is less than two percent of the total number
of lives saved, i.e., 19 deaths versus 1500 lives saved.
The decline
in adult air bag deaths in the last several years is believed to
reflect the technological improvements that have been made in driver
air bags.
The agency encourages all drivers contemplating
deactivation to also consider the other people who regularly drive
17
the vehicle in question.
All benefits from air bag usage would be
eliminated in exchange for a very small, potential benefit to a driver
who may be at risk from deployment.
Nevertheless, some current driver-side air bags pose risks to
some drivers, particularly if they are so short-statured that they
must sit very near the steering wheel.
For this reason, the agency
is proposing to permit deactivation of the driver side air bag in
any existing vehicle and in any model year 1997 or 1998 vehicle.
The agency would analyze future data concerning trends in driver
air bag deaths and concerning the overall effects of deactivation
on driver safety and determine at a later date whether it is
appropriate to extend the deactivation permission beyond model year
1998 vehicles.
As noted above, data for the last several years
indicates a decline in driver air bag deaths.
Specifics of proposal.
The specifics of the proposal are as
follows:
The proposed exemption from the “make inoperative” prohibition
is a conditional one.
A dealer or repair business would be permitted
to deactivate an air bag only if the dealer or repair business:
•
Provides the vehicle owner with the NHTSA information sheet 8
8
NHTSA requests comments on the information included in Appendix B. NHTSA
believes that the sheet should include a discussion of the relative risks faced
by discrete groups of occupants such as children in rear-facing infant seats,
other children and short-statured female drivers. As to the latter, the sheet
discusses alternate ways to reduce the risk, such as by installing pedal extenders
and moving the seat back. Note: NHTSA anticipates that as additional data
concerning air bag performance are received and analyzed, changes may be made
to the information sheet.
18
attached as Appendix B of this notice concerning the
circumstances in which deactivation may be appropriate, based
upon the comparison of risks in those circumstances of turning
the air bag off versus leaving it on.
•
Obtains from the vehicle owner a signed, written authorization 9
identifying the vehicle by make and model, by model year, by
VIN number, and the seating position(s) of the deactivated air
bag(s).
Such authorization shall include an affirmation by
the vehicle owner that he or she was given and has read a copy
of the NHTSA information sheet prior to signing the
authorization.
•
For each deactivated air bag, places labels on both sides of
the sun visor above the air bag.
The label visible when the sun visor is in a stowed (up)
position shall state:
WARNING
Air Bag has been deactivated
See other side
The label visible when the sun visor is in a down position
shall state:
WARNING: (Insert “The passenger-side air bag,” “The
9
NHTSA is attaching a sample form to this notice as Appendix C. The form
could be used by the dealer or repair business that deactivates the air bag, or
by the manufacturer of the vehicle or other appropriate party. The agency is
requesting comment on the form and will make appropriates changes to the form
in the final rule.
19
driver-side air bag” or “Both air bags”) of this
vehicle has(have) been deactivated.
To reactivate,
contact an authorized dealer or a qualified motor
vehicle repair business.
Both visor labels shall have the word “WARNING” either
in yellow
lettering
on a black
background
or black
lettering
on a yellow
background
.
•
For each deactivated air bag, places a permanent label on the
adjacent door jamb.
The label shall state:
WARNING:
(Insert “The passenger-side air bag,” “The
driver-side air bag” or “Both air bags”) of this
vehicle has(have) been deactivated.
The label shall also contain the name and address of the
dealer or repair business that deactivated the air bag(s).
•
Marks in the vehicle owner’s or service manual (if available)
the following warning:
20
WARNING:
(Insert “The passenger-side air bag,” “The
driver-side air bag” or “Both air bags”) of this vehicle
has(have) been deactivated.
To reactivate, contact an
authorized dealer or a qualified mechanic.
•
Sends a copy of the signed, written authorization form to the
manufacturer of the vehicle.
Each motor vehicle manufacturer shall retain for a period of
not less than five years a copy of each authorization form received
pursuant to this regulation.
NHTSA requests comments about the appropriateness of these
requirements.
Among the specific issues are the following:
--Should the agency model any of its requirements on either
the practices in Europe regarding air bag deactivation and
reactivation or on the practices for granting exemptions to
State safety belt use laws?
--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 be reasonably
expected to occur?
For example, should deactivation of
passenger-side air bags be allowed only in cases in which the
vehicle owner needs to carry young children?
Should
deactivation of driver-side air bags be allowed only in cases
in which the vehicle owner or other driver of the vehicle has
an acute medical condition, is of short stature, or is elderly?
21
Would the administrative details involved in implementing
these limitations overly complicate the availability of
deactivation?
--If it becomes permissible to deactivate air bags, with the
result an air bag could be turned off permanently, should the
agency permit lesser measures as well, such as a cutoff switch
that could be used to turn off air bags temporarily?
In a final
rule issued in today’s Federal Register, the agency has decided
that cutoff switches should not be permitted in new vehicles
other than in those that do not have a rear seat large enough
to carry a rear-facing infant seat.
Would permitting retrofit
cutoff switches conflict with this decision?
Should there be
any limitations on the methods of deactivating air bags?
For
example, should there be a requirement that the deactivation
be performed in a manner that facilitates reactivation?
--The agency solicits comments on the contents of the
authorization form.
Should the authorization form state the
vehicle owner is willing to allow labels to be installed?
--In a vehicle in which only the passenger-side air bag is
deactivated, should labels be placed on the driver sun visor
as well as the passenger sun visor?
Such additional labels
might be helpful to a driver who is unfamiliar with the vehicle
or to a subsequent purchaser of the vehicle.
--While NHTSA has not proposed the size of the message area
or the lettering height, it requests comments on whether it
22
should specify message area or lettering height and, if so,
what sizes would be appropriate.
--Should the vehicle manufacturers be required to follow the
practice, described by Volvo, of sending periodic reminders
to vehicle owners that one or both of their air bags are
deactivated and after title to the affected vehicles changes?
--Should dealers and repair businesses be required to retain
a copy of the vehicle owner’s signed authorization statement?
If so, for what period of time?
Additional considerations.
NHTSA recognizes that there are
potential safety tradeoffs associated with air bag deactivation.
The agency emphasizes that only in limited instances would air bag
deactivation be, on balance, in the best interests of a driver or
passenger.
Given the number of air bag deaths to date, the chance
of a teenager or adult being killed by an air bag is significantly
less than the chance of being involved in a crash in which an air
bag would reduce such a person’s injuries, whether the individual
is belted or unbelted.
Moreover, while a fully restrained,
forward-facing child can be killed by an air bag, the death of only
one fully restrained, forward-facing child has been confirmed as
having been caused by an air bag.
However, as discussed above, the agency is dealing with an
extraordinary situation.
While air bags are providing significant
23
overall benefits, air bags are also causing fatalities to such an
extent that their public acceptability has been put at risk.
Clearly, some solution that addresses that risk must be offered.
As noted above, NHTSA anticipates that the proposed exemption
from the make inoperative prohibition would affect the vehicles
produced in only a limited number of model years.
Driver air bag
deactivation would be permitted only for existing vehicles and the
vehicles produced in model years 1997 and 1998.
Deactivation of
a passenger-side air bag would be permitted in any vehicle whose
passenger-side air bag was neither equipped with a cutoff switch
nor met the criteria for smart air bags set forth in the final rule
on labeling.
Since the number of child deaths due to air bags is
steadily increasing, it would be appropriate to permit deactivation
of passenger air bags until smart passenger-side air bags are
introduced.
This would allow vehicle owners who either face
potential risk from deployment themselves or who regularly transport
other increased-risk individuals to deactivate one or both air bags.
NHTSA strongly recommends that air bag deactivation be
undertaken only in instances in which the vehicle owner believes
that the air bag poses an unreasonable and significant risk given
that individual’s particular circumstances.
However, given the
administrative complexity that would be associated with reviewing
individual applications, the agency is proposing to allow any person
to choose to deactivate, without having to demonstrate any particular
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need.
Since deactivating totally disables the air bag, thereby
eliminating any safety benefit for vehicle occupants not at risk
of serious injury due to air bag deployment, deactivating should
be sought only if no other option is available.
The agency urges
all owners who choose to deactivate their air bag to reactivate the
air bag once the perceived need for deactivation has abated.
IX.
Effective date
In view of the need to provide immediate relief, the agency
tentatively concludes that there is good cause to make the proposed
regulation effective immediately upon publication of a final rule.
X.
A.
Rulemaking analyses and notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's
regulatory policies and procedures.
This rulemaking document was
reviewed by the Office of Management and Budget under E.O. 12866,
"Regulatory Planning and Review."
This action has been determined
to be "significant" under the Department of Transportation's
regulatory policies and procedures, because of the degree of public
interest in this subject.
significant.
This action would not be economically
It would not require a motor vehicle manufacturer,
dealer or repair business to take any action or bear any costs except
25
in instances in which a dealer or repair business agreed to deactivate
an air bag.
In such an instance, there would be costs associated
with such an action per se as well as labeling costs, but it is
uncertain who would bear these costs.
Based on the Final Regulatory
Evaluation for the agency’s final rule requiring new, enhanced
warning labels relating to air bags, such labels would cost between
15 and 25 cents per vehicle.
In addition, motor vehicle
manufacturers would have some minor recordkeeping expenses.
In view
of the analysis in the regulatory evaluation on labels, the agency
regards the costs associated with deactivation to be so minimal that
a full regulatory evaluation for this notice is not warranted.
The
agency requests comments about the anticipated costs associated with
this proposal.
If the agency decides to adopt the proposal as a
final rule, then it would discuss the costs in a Final Regulatory
Evaluation for this rulemaking.
B.
Regulatory Flexibility Act
NHTSA has considered the effects of this proposed rulemaking
action under the Regulatory Flexibility Act.
I hereby certify that
it would not have a significant economic impact on a substantial
number of small entities.
While some dealers and repair businesses
would be considered small entities, the proposed requirements would
not impose any mandatory significant economic impact.
C.
National Environmental Policy Act
NHTSA has analyzed this proposal for the purposes of the National
26
Environmental Policy Act and determined that a final rule adopting
this proposal would not have any significant impact on the quality
of the human environment.
D.
Executive Order 12612 (Federalism)
The agency has analyzed this proposal in accordance with the
principles and criteria set forth in Executive Order 12612.
NHTSA
has determined that this proposal does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
E.
Civil Justice Reform
This proposed rule would not have any retroactive effect.
Under
49 U.S.C. 30103, whenever a Federal motor vehicle safety standard
is in effect, a State may not adopt or maintain a safety standard
applicable to the same aspect of performance which is not identical
to the Federal standard, except to the extent that the state
requirement imposes a higher level of performance and applies only
to vehicles procured for the State's use.
49 U.S.C. 30161 sets forth
a procedure for judicial review of final rules establishing, amending
or revoking Federal motor vehicle safety standards.
That section
does not require submission of a petition for reconsideration or
other of a petition for reconsideration or other administrative
proceedings before parties may file suit in court.
XI.
Comments
NHTSA is providing an abbreviated comment period of 30 days,
given the significant public attention given to the adverse effects
27
of air bags.
Moreover, while it is addressing improved labeling,
extension of time for manual cutoff switches, and depowering of air
bags in separate notices, they are related actions addressing the
same problem.
The anticipated SNPRM on smart bags is also related.
Only the actions on labeling and the extension of time for manual
cutoff switches have reached the final rule stage; the others are
still at the proposal stage.
Commenters are invited to address the
relationships between these actions, e.g., the extent to which one
action affects the need for, the potential benefits of or cost
effectiveness of, another action.
Commenters are also invited to address alternatives not
addressed by these actions.
The agency requests that commenters
favoring other alternatives specifically provide a comparison of
costs, benefits and leadtime.
As indicated above, the agency anticipates publishing in the
near future a separate SNPRM to propose performance requirements
for smart air bags and to propose a phase-in schedule for requiring
these devices.
Since that rulemaking action may not be completed
until after this action on deactivation, NHTSA requests comments
on how to address the definition of smart air bag in the final rule
for deactivation.
Interested persons are invited to submit comments on this
proposal.
submitted.
It is requested but not required that 10 copies be
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All comments must not exceed 15 pages in length (49 CFR 553.21).
Necessary attachments may be appended to these submissions without
regard to the 15-page limit.
This limitation is intended to
encourage commenters to detail their primary arguments in a concise
fashion.
If a commenter wishes to submit certain information under a
claim of confidentiality, three copies of the complete submission,
including the purportedly confidential business information, should
be submitted to the Chief Counsel, NHTSA, at the street address given
above, and seven copies from which the purportedly confidential
information has been deleted should be submitted to the NHTSA Docket
Section.
A request for confidentiality should be accompanied by
a cover letter setting forth the information specified in the agency's
confidential business information regulation.
49 CFR Part 512.
All comments received by NHTSA before the close of business
on the comment closing date indicated above for the proposal will
be considered, and will be available for examination in the docket
at the above address both before and after that date.
To the extent
possible, comments filed after the closing date will also be
considered.
Comments received too late for consideration in regard
to the final rule will be considered as suggestions for further
rulemaking action.
Comments on the proposal will be available for
inspection in the docket.
The NHTSA will continue to file relevant
information as it becomes available in the docket after the closing
29
date, and recommends that interested persons continue to examine
the docket for new material.
Those persons desiring to be notified upon receipt of their
comments in the rules docket should enclose a self-addressed, stamped
postcard in the envelope with their comments.
Upon receiving the
comments, the docket supervisor will return the postcard by mail.
List of Subjects in 49 CFR Part 595
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA proposes to amend
chapter V of Title 49 CFR of the Code of Federal Regulations as
follows:
1.
Part 595 would be added to read as follows:
PART 595-AIR BAG DEACTIVATION
595.1
Scope.
595.2
Purpose.
595.3
Applicability.
595.4
Definitions.
595.5
Requirements.
Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166;
delegation of authority at 49 CFR 1.50.
595.1 Scope.
This part establishes conditions under which air bags may be
deactivated and associated recordkeeping requirements.
595.2 Purpose.
30
The purpose of this part is to provide an exemption from the
“make inoperable” provision of 49 U.S.C. 30122 and permit motor
vehicle dealers and motor vehicle repair businesses to respond to
consumer requests to deactivate driver and passenger air bags.
595.3
Applicability.
This part applies to motor vehicle manufacturers, dealers and
motor vehicle repair businesses.
595.4
Definitions.
Statutory terms.
The term motor vehicle repair business is
defined in 49 U.S.C. 30122(a) as “a person holding itself out to
the public to repair for compensation a motor vehicle or motor vehicle
equipment.”
This term includes businesses that service vehicles
without malfunctioning or broken parts or systems by adding features
or components to or otherwise customizing those vehicles.
The terms
manufacturer and dealer, defined in 49 U.S.C. §30102(a), are used
in accordance with their statutory meaning.
595.5 Requirements
(a)
A dealer or motor vehicle repair business may deactivate
a passenger-side air bag if that air bag
(1) does not have a manual cutoff switch, or
(2) does not meet the criteria in 4.5.5 of §571.208 of this
chapter for a smart air bag.
(b)
A dealer or motor vehicle repair business may deactivate
a driver-side air bag in any vehicle manufactured before September
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1, 1998.
(c)
A dealer or motor vehicle repair business that deactivates
an air bag pursuant to paragraph (a) or (b) of this section shall
meet all of the conditions specified in subsection 5 of this section.
(d)
A dealer or motor vehicle repair business may deactivate
a driver or passenger-side air bag subject to the condition that
the dealer or repair business:
(1)
Shall provide the vehicle owner with a NHTSA information
sheet concerning the circumstances in which deactivation may be
appropriate, based upon the comparison of risks in those
circumstances of turning the air bag off versus leaving it on.
(2) Shall obtain from the vehicle owner a signed, written
authorization identifying the vehicle by make and model, by model
year, by VIN number, and the seating position(s) of the deactivated
air bag(s).
Such authorization shall include an affirmation by the
owner that he or she was given and has read a copy of the NHTSA
information sheet prior to signing the authorization.
(3)
Shall, for each deactivated air bag, place labels on both
sides of the sun visor above that air bag.
(i)
The label visible when the sun visor is in a stowed (up)
position shall state:
WARNING
Air Bag has been deactivated
See other side
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(ii)
The label visible when the sun visor is in a down position
shall state:
WARNING:
(Insert “The passenger-side air bag,” “The
driver-side air bag” or “Both air bags”) of this vehicle
has(have) been deactivated.
To reactivate, contact an
authorized dealer or a qualified motor vehicle repair
business.
(iii)
Both visor labels shall have the word “WARNING” either
in yellow lettering on a black background or black lettering on a
yellow background.
(4)
Shall, for each deactivated air bag, place a permanent
label on the adjacent door jamb.
The label shall state:
WARNING: (Insert “The passenger-side air bag,” “The
driver-side air bag” or “Both air bags”) of this vehicle
has(have) been deactivated.
The label shall also contain the name and address of the dealer or
repair business that deactivated the air bag(s).
(4)
Shall mark in the vehicle owner’s or service manual (if
available) the following warning:
WARNING:
(Insert “The passenger-side air bag,” “The
driver-side air bag” or “Both air bags”) of this vehicle
has(have) been deactivated.
To reactivate, contact an
authorized dealer or a qualified motor vehicle repair
business.
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(5)
Shall send a copy of the signed, written authorization
form to the manufacturer of the vehicle.
(e)
Each motor vehicle manufacturer shall retain, for a period
of not less than five years, a copy of each authorization form received
pursuant to this section.
L. Robert Shelton
Associate Administrator for
Safety Performance Standards
BILLING CODE: 4910-59P
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[Signature page for RIN 2127-AG61 (NPRM)]
