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 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.

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 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 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.

^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.

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