V. NHTSA's Use of Prosecutorial Discretion to
Authorization of Air Bag Deactivation
From October 1, 1996, through October 30, 1997, NHTSA received 11,838 written requests for air bag deactivation. The volume of these requests peaked in the spring, possibly in response to the extensive publicity surrounding the NTSB hearings in mid-March, then fell steadily until the last month. In April - May , the agency received approximately 400 letters per week. In August, the weekly volume fell to slightly less than 300 letters. By mid-September, the volume bottomed out at slightly above 100. During October, the volume rebounded, averaging slightly less than 200 letters per week. That increase followed the media's reporting of the agency's submission of a draft final rule to the Office of Management and Budget on October 2.
Since October 29, 1996, the NHTSA Hotline has received over 27,000 calls seeking information about air bags. Approximately 13,500 of them were from people interested in deactivating their air bags.
More than 60 percent of the written requests, approximately 7,100 out of 11,838, concerned short adults. The vast majority of the remaining 4,738 requests concerned adults (many of whom were short) with certain medical conditions. The rest concerned children. Of those remaining requests, approximately 4,200 were granted, and 500 denied, by the agency. Approximately 85 percent of the grants were for adult medical conditions. The remaining approximately 15 percent involved children, including both children with medical conditions and children riding in vehicles lacking a rear seat capable of accommodating a rear-facing infant seat.
In its grant letters to persons with medical conditions, the agency told owners that if their physicians concluded that the risks associated with their medical condition and the deployment of their driver air bag exceeded the risks to their safety from the air bag's not deploying, NHTSA would not regard deactivation of the air bag as grounds for an enforcement proceeding.(17) Similarly, NHTSA told vehicle owners whose vehicle lacked a back seat in which to carry an infant or who needed to monitor closely a child with a special medical condition (18) that the agency would not regard the deactivation of the passenger air bag by a dealer or repair business as grounds for an enforcement proceeding against the dealer or repair business. The agency urged that the air bag be reactivated when the circumstances necessitating its deactivation ceased to exist.
Based on the current procedures for handling these requests, it is estimated that an average of about one hour is spent on each letter. This estimate covers time spent categorizing letters, making a decision whether to grant or deny, typing a response, keeping track of the letters in a data base, reviewing the response, having the response signed, mailing it, etc. Based on a weighted average of salaries of those involved, plus 15 percent overhead, and the costs of paper and postage, it is estimated that the cost to the agency of responding to these requests is about $30 per request.
17. In the absence of any other source of expertise, such as the July 1997 National Conference on Medical Indications for Air Bag Disconnection, described below, the agency has relied in the past almost solely upon statements from the physicians of persons requesting disconnection of air bags. While many of the requests were granted based upon a physician's statement, some were granted notwithstanding the absence of a physician's statement. In those case, the grant was based upon either the unique characteristics of the medical condition involved or the existence of physician's statements attached to earlier deactivation requests of other individuals with the same medical condition. As discussed below in part IX.A, the agency has changed its practices with respect to physicians' statements in response to the National Conference.
18. The majority of medical conditions were related to apnea, although exemptions have also been granted for children in wheelchairs, and children with a tendency to spit up and choke.
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