While air bags have proven to be highly effective in reducing fatalities in frontal crashes, and have saved about 2,287 drivers and 332 passengers (as of November 1, 1997), they are also known to have killed 35 drivers, 49 children, and 3 adult passengers (as of November 1, 1997). As discussed above, all of these fatalities occurred because of extreme proximity to the air bag, and almost all could have been prevented by behavioral changes, such as not placing infants in rear-facing infant restraints in the front seat, placing all children in the back seat, moving front seats farther back, and ensuring that all occupants are properly restrained.

As a whole, media reports about air bag fatalities have contributed to the heightening of the public's concerns about air bags, and of their desire to deactivate their air bags. Those reports deserve credit for helping spread the word about the real risks associated with air bags for some people. Increased public knowledge about the risks has helped induce changes in behavior to reduce or even eliminate those risks, e.g., by putting children in the back seat of vehicles.

However, some behavioral effects of those accounts may not be positive. Some media accounts which initially served the public by drawing attention to an initially unknown or underappreciated risk may ultimately have had the unintended consequence of causing people to generalize and exaggerate those risks. Unfortunately, many members of the public have focused their attention on the possibility of being killed by an air bag, to the exclusion of other factors that may be more determinative of their overall safety. These factors include the very small magnitude of risk from the air bag, the ability of teenagers and adults to preserve the benefits of air bags and nearly eliminate any risk by behavioral actions such as wearing safety belts and moving front seats back, and the much greater risk, almost always faced by the same occupants in the absence of an air bag, of hitting their heads, necks or chests on the steering wheel or dashboard in a moderate or serious crash.

By focusing on only one of an interrelated set of risks which consumers face while traveling by motor vehicle, and thus magnifying that one risk out of proportion to those other risks, some media accounts may also have had the effect of obscuring those other risks. Those accounts may cause some people to so focus on that one risk to the exclusion of the other risks that they induce those people to take actions that increase, instead of decrease, their overall risk of injury in a motor vehicle. The potential exists for a significant number of people doing just that. As noted elsewhere in this notice, several public opinion surveys indicate that the extent of the public interest in turning off air bags exceeds the number of persons actually at risk from them. For many of the teenagers and adults among these people, concern about air bags apparently tends to overshadow a much greater risk faced by these same occupants, i.e., the risk that, in the absence of an air bag, they will strike their head, neck or chest on the steering wheel or dashboard in a moderate to severe crash. This risk exists even for properly belted occupants.

As noted above, air bag-related deaths are not random. They tend to involve particular groups of people who share common behavioral or other characteristics. The relatively few people who share those characteristics will be safer overall if they turn off their air bags. Conversely, people who do not share those characteristics would be less safe overall if they did so.

The primary source of risk is contact with or close proximity to the air bag module at the initial instant of deployment. The deploying force is the greatest in the first 2-3 inches of deployment.

On the passenger side, it is primarily children who get too close to the air bag. Infants get too close by being placed in a rear-facing infant restraint. That positions the child's head so that it is very close to the dashboard where the air bag is stored. Older children, i.e., children age 1-12, get too close typically because they are allowed to ride completely unrestrained. During pre-crash braking, these unrestrained children slide forward and are up against or very near the dashboard when the air bag begins to deploy. A few children have gotten too close because although they were placed in lap and shoulder belts, they either removed their shoulder belt or leaned far forward.

On the driver side, the fatally-injured drivers are believed to be people who sat close to their steering wheels primarily out of habit, although some may have done it out of necessity. Some may have been drivers who were physically unable to maintain a 10-inch distance between their air bag cover and their breastbone because of the limits of their reach (arm and leg length) or because of fatigue or other physical factors. However, they were generally tall enough that all or almost all of them should have been get back 10 inches. While they may have been able to maintain that distance, perhaps they did not do so because they had grown accustomed to sitting close to their steering wheel as matter of a preference. A few of the drivers were slumped over their steering wheel at the time of deployment due to medical conditions.

A second source of potential risk is a very limited number of medical conditions. Apart from the medical conditions which caused several drivers to lose consciousness and slump over their steering wheels, none of the air bag fatalities confirmed to date has been attributed to the existence of a pre-existing medical condition that made the fatally-injured person more susceptible than the average person to injury from an air bag.⁽²⁶⁾ To provide vehicle owners and their physicians with guidance concerning which medical conditions warrant turning off an air bag, NHTSA arranged for the convening of representatives of the medical community in July 1997. The results of their deliberations are discussed above. Briefly, it appears that, in a very small number of cases in which a medical condition prevents a person from getting back 10 inches, a medical condition might, in combination with an air bag, present enough of a risk to warrant turning off either a driver or passenger air bag.

In the longer term, the problems associated with air bags will be addressed and largely eliminated by changes in technology, initially by depowering and making various incremental improvements to air bags, and ultimately by installing advanced air bags. Standard No. 208 has provided all the flexibility necessary to enable vehicle manufacturers to develop and introduce those air bags, but thus far has not required their introduction. However, the challenge now facing NHTSA and the public is how to preserve the life-saving benefits of current air bags, while addressing the needs of the relatively small number of persons facing risks from these air bags as well as the fears being experienced by a much larger number of persons.

In meeting this challenge, NHTSA believes that it is essential to consider safety benefits in both the shorter term and longer term. The agency recognizes that, given the small number of fatalities associated with air bags as compared to the number of lives saved, the short-run safety benefits of air bags would be best preserved by minimizing the situations in which air bags are turned off, i.e., limiting the situations to the relatively rare ones where a person is actually better off with his or her air bag turned off.

However, the agency believes that great care must be taken with respect to how this is accomplished, to avoid a potentially much greater loss of safety benefits in the longer run. As the agency discussed in the depowering final rule, the continued availability of any safety device as standard equipment, whether provided voluntarily by manufacturers or pursuant to a regulation, is ultimately dependent on public acceptability. The agency believes that air bags which fatally injure occupants, particularly children in low speed crashes, place the concept of air bags at risk despite their overall net safety benefits. Thus, the agency believes it must take great care in how it responds to requests for turning off air bags, lest its actions have the unintended effect of reducing the public acceptability of air bags and their potential as a life-saving device.

Mindful of these considerations, the agency is taking the following actions:

1. In light of changed circumstances which make retrofit on-off switches a much more readily available option, NHTSA is specifying that they will be the only means authorized under the exemption for turning off an air bag. This will ensure that any air bag which is turned off for an occupant at risk can be readily turned on again for occupants who are not at risk. (In very limited cases, deactivation will continue to be available through the agency's exercise of its prosecutorial discretion.)

2. NHTSA has taken a balanced approach in establishing the process for determining which vehicle owners may have a dealer or repair business install an on-off switch. The agency is not going to insist that facts establishing the need for turning off an air bag be documented by the vehicle owner. Instead, the agency is requiring owners who wish to obtain on-off switches to certify, by marking a box on a request form developed by the agency, that they have read an agency information brochure providing guidance about the risks created by current air bags and discussing the circumstances in which it may be appropriate to use on-off switches. Owners must also certify that they or a user of their vehicle belongs to one of the risk groups identified by the agency. NHTSA is also requiring that vehicle owners submit their completed request forms to the agency for approval. This requirement will help reinforce the need for care and accuracy by owners in certifying risk group membership. The requirement will also enable the agency to monitor, from the very beginning, the patterns in switch requests and risk group certifications.

The agency has identified four risk groups. Based on the agency's assessment of risk, persons in the first two groups have a high enough risk that they would definitely be better off if an on-off switch is used to turn off their air bag:

• Infants in rear-facing infant seats.

• Drivers or passengers with unusual medical or physical conditions.

Persons in the two other groups of people may be better off using an air bag on-off switch.

• Children ages 1 to 12.

• Drivers who cannot get back 10 inches.

3. Finally, the agency plans, in conjunction with other organizations, a public education information campaign to put air bag risks and benefits into proper perspective, to encourage those persons at special risk from current air bags to take steps to reduce those risks without losing the protection of their air bags, and to promote the enactment and effective enforcement of State laws concerning the use of seat belts and child restraints.

C. Changes in Circumstances since the NPRM Make Retrofit On-Off Switches Preferable to Deactivation.

In the January 1997 deactivation proposal, the agency compared the merits of deactivation to those of on-off switches in a companion notice, i.e., a January 1997 final rule extending the duration of the option allowing on-off switches for passenger air bags in certain new vehicles. NHTSA concluded in the preamble to the on-off switch final rule that it was better from a safety standpoint to selectively deactivate the air bags after the vehicles had been produced, in response to specific consumer requests, than to authorize installation of on-off switches as standard equipment in those vehicles when they were produced. NHTSA placed great weight in that discussion on the long leadtime that vehicle manufacturers had previously said would be needed to integrate standard equipment on-off switches into new vehicles and on concerns expressed by the vehicle manufacturers that the integration efforts would disrupt the development of advanced air bags. In response to an August 1996 NPRM, the vehicle manufacturers had indicated that development and installation of standard equipment on-off switches for makes and models not already equipped with them would take at least one year. As a practical matter, given the time estimates from the vehicle manufacturers regarding on-off switch availability, deactivation was the only readily available means for turning off air bags in existing vehicles. Accordingly, in issuing the NPRM, the agency proposed to allow deactivation. Nevertheless, it expressly requested comment regarding on-off switches. A wide variety of commenters responded to that request.

The facts underlying the agency's comparison of the relative merits of deactivation and on-off switches changed dramatically after issuance of the deactivation NPRM. Not long after the issuance of the January 1997 NPRM, a number of major vehicle manufacturers began announcing that retrofit on-off switches could be made available at reasonable cost and in anywhere from 2 to 6 months.

These announcements fundamentally changed the agency's assessment of the relative merits of on-off switches and deactivation. As a result of the new information from the vehicle manufacturers, on-off switches were elevated from a theoretically available alternative to an alternative that is actually available within a relatively short time. The new information also indicated that retrofit on-off switches could be made available without disrupting the development of advanced air bags.

D. Specifying that Retrofit On-Off Switches are the Only Means Authorized under the Exemption for Turning Off Air Bags is Reasonable and Consistent with Safety.

The ready availability of on-off switches and their safety advantage over deactivation make authorizing deactivation both unnecessary and undesirable. The primary source of that safety advantage is the flexibility of on-off switches.⁽³⁰⁾ With an on-off switch, an air bag's operational status can be changed at the flip of a switch. The flexibility of on-off switches gives them considerably greater potential than deactivation for promoting overall safety. On-off switches allow air bags to be turned off and on as needed, according to whether an air bag creates risks for particular occupants.

In addition to making it possible to accommodate the different risks faced by different people, on-off switches can likewise accommodate the changing needs, knowledge and attitudes of people. For example, a child will be at increasingly less risk as he or she grows older. In addition, a person whose attention is focused now on the perceived risk of an air bag fatality if he or she does not turn the air bag off may later recognize that there is a much greater risk of serious injury or death if he or she does not leave the air bag on. Finally, subsequent owners of existing vehicles may have no need to turn off their air bags. The ability of on-off switches to allow vehicle owners to respond to these changes will have important implications for the percentage of occasions on which air bags are able to deploy when needed.

NHTSA recognizes that the opinion survey conducted by IIHS in January indicates that there is apparently significant public interest in on-off switches. The agency is aware also of IIHS' suggestion that its January 1997 survey indicates that if the agency specifies on-off switches as the means for turning off air bags, more people may get on-off switches than would have had their air bags deactivated.

However, there are several reasons for believing that the January 1997 survey substantially overstates the number of people who will obtain on-off switches under this final rule. First, and foremost, the agency's decisions to require agency approval of each request and to limit eligibility for on-off switches to those vehicle owners who can certify membership in a particular risk group will significantly and appropriately limit the availability of on-off switches to persons with a real safety need for them. Further, the agency does not believe that a respondent's expressed interest in on-off switches in that January 1997 telephone public opinion survey will necessarily translate into a decision in January 1998 or thereafter to go to a dealer or repair business and pay to obtain an on-off switch. In addition, a consumer's decision to acquire and even to use the on-off switch does not mean that the consumer will continue to use the switch. The survey methods and results reflect not only the underlying safety problem, but also the atmosphere in which the survey was taken. That atmosphere was colored heavily by those media accounts that focused on an important, but limited, portion of the full story about air bags. Some of that same narrow focus can be seen in the survey.⁽³¹⁾

NHTSA recognizes that a new survey by IIHS cures some of the shortcomings of its January 1997 survey.⁽³²⁾ The new survey, conducted in August 1997, informed respondents about the cost of deactivation and on-off switches, the benefits of air bags and the steps that can be taken to minimize or even eliminate air bag risks for the vast majority of people. While the new survey suggests that many people are interested in on-off switches, it also shows that providing people with even minimal facts regarding these matters substantially reduced the extent of that interest. Before the respondents were provided with such information, 27 percent of the respondents indicated that they wanted on-off switches for driver air bags and 26 percent wanted them for passenger air bags. After receiving the information, these percentages fell to 12 percent and 16 percent, respectively. As noted below, the agency believes that a sustained, comprehensive public education campaign would reduce the level of interest in obtaining on-off switches even further.

Since the percentage of respondents to both IIHS surveys who expressed general interest in turning off their air bags far exceeds the percentage of the population at any significant risk, it is evident that the risks of air bag fatalities are significantly overestimated by many people. It is equally apparent that the misperception of risk regarding air bag-related fatalities is leading some consumers to insufficiently appreciate the risks of turning off an air bag. The agency expects that the requirement that owners certify that they have read the information brochure as well as the public education campaign, will lead to a more balanced view of the risks associated with current air bag designs, and that the requirement for agency approval and for owner certification of risk group membership will appropriately limit the requesting of on-off switches.

The misperception of the risks in everyday life, whether related to air bags or other problems, arises from a variety of factors. An article published in Smithsonian, the magazine of the Smithsonian Institution, addressed some of the factors that make assessing and comparing risks difficult for scientists and engineers, and even harder for the average person without access to all available information and analytical methods:

In a landmark test in 1980, a group of psychologists asked a representative sampling of the populace to rank 30 activities and technologies by risk; then they compared the results with rankings assigned by a panel of risk-assessment experts. In places, the two groups agreed, such as on the risk of motor vehicles, placed number one by the experts and number two by the public. But on others, there were large discrepancies: the public rated nuclear power as their number one risk, whereas the experts ranked it as a lowly number 20. Experts ranked x-rays as number 7, while the man-in-the-street saw them as a number 22. What, the risk-communication scientists next asked, was influencing the public's perception of risk?

 

For starters, they found that the public responds differently to voluntary and involuntary risks. You and I are willing to tolerate far greater risks when it is our own doing, such as smoking cigarettes or climbing mountains. But if the risk is something we can't control, such as pesticides on food or radiation from a nuclear power plant, we protest, even if the threat is minimal.

 

Second, we tend to overestimate the probability of splashy and dreadful deaths and underestimate common but far more deadly risks....

 

Yet another factor about how we rank risks revolves around whether or not the risk is perceived as "natural...."⁽³³⁾

As the author also noted, our problem in making everyday decisions about the risks we face is more difficult than simply assessing a single risk correctly.

We're also realizing that the trade-offs are not always so clear. Reducing risk in one area may very well increase the risk in another....⁽³⁴⁾

The actions being announced by NHTSA in this final rule will have the effect, directly or indirectly, of giving the public a sense of control over the risks associated with current air bags, and restoring objectivity to the public's perception of those risks. As a result, whatever the extent of the public's initial inclination to acquire and use on-off switches, these actions will thereby reduce that inclination. The air bag deaths are not random. Further, the risk of death is highly influenced by behavior. Through informing the public about how the vast majority of people can eliminate or substantially minimize any risk through behavioral changes and how the rest can eliminate the risk through the use of an on-off switch, the agency will give the public a significantly increased sense of control over the risk of air bag fatalities. Through these same means, the agency will inform the public about the steps that they can take to reduce, and thus control, this risk without turning off air bags.

Together, these actions will put air bag risks into proper perspective, enable those truly at risk to reduce or eliminate their risk, and calm the fears of others. As the public comes to appreciate more fully just how limited and controllable the risks are, interest in obtaining and using on-off switches to turn off air bags is expected to decline. Likewise, any inappropriate use of on-off switches will be reduced to a minimum. As noted above, the August 1997 IIHS survey demonstrates that giving the public even the barest facts reduces the level of interest in on-off switches. NHTSA believes that a sustained public education campaign which includes comprehensive reading materials, explanatory graphics and video clips will reduce the level of interest even further.

NHTSA notes also that some company and group commenters argued that on-off switches would be misused. They were particularly concerned that air bags would be turned off for people who are not at risk of serious air bag injuries and who would benefit from air bag protection. The agency recognizes that misuse is a possibility. However, the agency does not have any information indicating that there is a misuse problem associated with the 1.3 million vehicles equipped with an original equipment manufacturer (OEM) on-off switch for the passenger air bag. Further, the agency believes that any problem of misuse will be small, particularly given the requirements for agency approval and for vehicle owners to certify the reading of the information brochure and risk group membership. The public education campaign will also help minimize that problem. Because of these factors, the people who submit request forms for on-off switches will be aware of the dangers of misusing on-off switches by leaving them off when the vehicle is being used by people who are not at risk of being seriously injured by an air bag.⁽³⁵⁾

Further, any small possibility of misuse will be more than offset by the fact that the use of an on-off switch instead of deactivation to turn off air bags will make it much more likely that air bags will be on for those people who will benefit from them. Compared to retrofit on-off switches, deactivation is an inflexible, overly broad, and essentially permanent method of turning off air bags. With deactivation, the consequence is universal, i.e., "off for one, off for all." Deactivation does turn off an air bag for those who are at risk and need the air bag to be off, and thereby can prevent air bag fatalities. However, it accomplishes this only at the price of sacrificing protection for those who could benefit from that protection. The net effect of widespread deactivation would likely be even greater loss of life. Further, another likely consequence of deactivation is permanency, i.e., "once off, forever off." In most instances, a consumer is unable, on his or her own, to change the operational status of a deactivated air bag to suit the needs of occupants on a particular trip. Likewise, a consumer cannot go to a dealer or repair business each time that the operational status of an air bag needs to be adjusted to meet the needs of the occupants on a particular trip. Given the time and expense involved, relatively few of the vehicle owners who have their bags deactivated are expected to make a return trip to the dealer or repair business to have them reactivated when needs or attitudes change, or when the vehicle is sold.

E. Case-by-Case Agency Authorizations of Retrofit On-Off Switch Installation, Based on Vehicle Owner Certification of Risk Group Membership and on Informed Consumer Decisionmaking, Is Reasonable and Consistent with Safety.

As noted above, this rulemaking is being conducted under section 30122(c)(1) of Title 49, U.S.C., which provides that the Secretary of Transportation may prescribe regulations "to exempt a person from ...[the make inoperative prohibition]... if the Secretary decides the exemption is consistent with motor vehicle safety and section 30101 of this title." Section 30101 sets forth the purpose and policy of Chapter 301, "Motor Vehicle Safety," of Title 49. The section states that, among other things, "(t)he purpose of this chapter is to reduce traffic accidents and deaths and injuries resulting from traffic accidents." This final rule will promote safety by reducing the fatalities caused by current air bags, particularly in existing vehicles, and promoting the long run acceptability of the concept of air bags.

This final rule will achieve these safety goals by authorizing persons at risk to obtain retrofit on-off switches, based on a combination of informed decisionmaking, owner certification of risk group membership, and agency approval of each request. To promote informed decisionmaking, the agency will, in conjunction with other organizations (ABSC, AAA, NSC, and IIHS), conduct a public education campaign explaining that most people are not at risk and that even among people at risk, not all people need obtain and use on-off switches to turn off their air bags. The agency will discuss who is at risk from air bags, who is not at risk, and why. It will advise consumers of a series of easy steps that will reduce this risk to a point that obtaining an on-off switch is unnecessary for all but a relatively small number of people. Only if those steps are insufficient should motorists consider seeking an on-off switch. These messages will be reinforced and echoed in an agency information brochure. Further, the request form provides a place where each vehicle owner desiring an on-off switch must certify that he or she has read the information brochure.

To obtain a switch that turns a driver air bag on and off, vehicle owners must also certify on the request form that the owner or a driver of their vehicle is a member of a particular driver risk group. Similarly, to obtain an on-off switch for a passenger air bag, vehicle owners must certify on the request form that they or a passenger of their vehicle is a member of a particular passenger risk group. If an owner wants on-off switches for both air bags, the owner must make separate certifications on the same request form, one for the driver air bag and another for the passenger air bag.

NHTSA believes that requiring owners to certify that they have read the information brochure and that they or a user of their vehicle is a member of a risk group and requiring that each request be approved by the agency is justified by the current climate of heightened, and exaggerated, concern about air bag fatalities. These requirements will help limit the availability of on-off switches to persons with a genuine safety need for them. Having to make the certifications will help induce consumers to read the information brochure, separate fact from fiction, and avoid trading one safety risk for another, larger safety risk. The necessity of obtaining agency approval will induce an even greater level of care and caution in requesting an on-off switch. As the public education campaign moves forward, media coverage expands to cover the safety benefits, risks and tradeoffs associated with air bags more broadly, public and private efforts result in increased seat belt use rates, and air bags with advanced attributes start to appear in new vehicles, the public will increasingly appreciate the low risk of air bag fatalities and the steps they can take, short of turning their air bags off, to reduce that risk. The requirement for vehicle owners to certify that they have read the information brochure and fill out the request form will also help ensure that any decision to seek and use on-off switches is a thoughtful, responsible one.

Allowing vehicle owners to obtain on-off switches, based on risk group certification and on informed decisionmaking, and subject to agency approval, will enhance safety because it will speed the reduction of serious and fatal injuries related to air bag deployment. It will also enhance the public acceptance of air bags. Public acceptance of motor vehicle safety technology is not only a relevant consideration in assessing the practicability of a Federal motor vehicle safety standard,⁽³⁶⁾ but also it is vital to the long run success of any vehicle safety program and to the effectiveness of all types of safety equipment.

Making retrofit on-off switches available will promote public acceptance of air bags by providing those people at risk with a means of eliminating their risk. NHTSA anticipates members of the public will, with their concerns thus allayed, be increasingly receptive to the public education campaign concerning air bag safety and seat belt use. The agency anticipates that the public will also increasingly come to appreciate the limited nature of the risk, the factors that create that risk, the limited number of people affected by those factors, and the ways in which those people can reduce and even eliminate the risks without sacrificing the benefits of air bag protection. The public will come to appreciate also that turning off air bags will make the vast majority of people less safe, not more safe. As a result, the demand for retrofit on-off switches, and the inclination to use them to turn off air bags, will decrease.

Making retrofit on-off switches available will also have other salutary effects that are consistent with motor vehicle safety and section 30101. As noted elsewhere, the agency is mindful of the surveys by IIHS and others showing that the percentage of respondents interested in deactivation or on-off switches exceeds the percentage of the general population that is at risk. Availability of on-off switches will minimize the likelihood that consumers, potentially including consumers not actually at risk, will obtain unauthorized deactivations with the negative consequences discussed above. It will also lessen the possibility of owners attempting to deactivate their air bags on their own. While owners are not prohibited by Federal law from removing or disabling safety features and equipment installed pursuant to NHTSA's safety standards, attempts by inexperienced people to deactivate air bags or install on-off switches could result in serious injuries to those people. Further, whether performed by commercial entities or the owners themselves, these illicit deactivations would not only be inflexible and essentially permanent, but they could also be invisible to current users and future owners, since they might not be accompanied by any labeling or recordkeeping.

NHTSA recognizes that the final rule will not allow installation of on-off switches for people who are concerned about their air bags, but who are not at risk and thus cannot certify that they are, or a user of their vehicle is, in a risk group. It would not be consistent with safety for the agency to authorize these people to obtain on-off switches and to turn off their air bags, since their doing so would make them significantly less safe. However, action is needed to address the concerns of these people. The agency is seeking to alleviate their concerns by providing the public with information about who really is at risk, and why. The information brochure and public education campaign are the key elements of that effort.

Before deciding to limit the availability of on-off switches to members of risk groups and to allow installation of on-off switches only after prior approval by the agency of each request for switches, the agency considered a spectrum of possible approaches, listed below in decreasing degree of administrative complexity: (1) full documentation by the vehicle owner of the facts establishing membership in a particular risk group specified by the agency and case-by-case agency review of the owner's request and documentation before the agency authorizes installation of an on-off switch, (2) case-by-case agency approval of the owner's request (unaccompanied by documentation of the underlying facts) to confirm that he or she has properly certified membership in a particular risk group specified by the agency before it authorizes installation of an on-off switch, (3) presentation by owner to a dealer or repair business of his or her certification of having read the information brochure and of membership in a particular risk group specified by the agency, plus post-installation submission by the dealers and repair businesses of the certification to agency, (4) presentation by owner to a dealer or repair business of his or her certification of having read the agency information brochure and retention of the certification document by dealer or repair business of certification, and (5) presentation by owner to dealer or repair business of his or her simple request. The second approach was suggested in a comment by GM,⁽³⁷⁾ the fourth was proposed by the agency in January, and the fifth was suggested in a comment by the Competitive Enterprise Institute (CEI).

In developing the fourth approach, i.e., its January 1997 proposal, the agency indicated that it had considered the relative merits of two alternatives: continuing case-by-case agency approval of individual requests from persons seeking authorization to turn off their air bags based on a demonstrated safety need, or providing an information brochure informing vehicle owners about the factors that create risk and who is at risk, requiring owners to certify that they had read the brochure, and then letting them make their own decision. Given the complexity and time-consuming nature of the process then being used by the agency for processing deactivation requests, the agency proposed the latter alternative, which would have allowed any person to choose to deactivate, without having to demonstrate or claim a particular safety need, and without having to obtain the agency's approval. However, under the proposal, applicants would have had to submit a written authorization to the dealer or repair business performing the deactivation and certify that they had read an agency information brochure explaining the consequences of having an air bag deactivated.

Nevertheless, NHTSA requested views regarding the feasibility and advisability of limiting eligibility for deactivation to persons in specified risk groups. Specifically, the agency asked--

• Should deactivation of air bags be allowed at the owner's option in all cases or should deactivation be limited to situations in which death or serious injury might reasonably be expected to occur?
• Would the administrative details involved in establishing and implementing limitations on eligibility overly complicate the availability of deactivation?

The agency has decided that it is necessary to go beyond the fourth and even the third approaches and adopt provisions that give greater assurance that on-off switches are installed only when it is consistent with the interests of safety to do so. The complexities associated with such additional provisions are outweighed by other factors. Prior approval of requests for switches will encourage greater attention to the importance of on-off switches being requested and used only for people whose safety would be enhanced by turning off their air bag. As was noted by many of the group and company commenters, consistency with safety is the basic requirement of the statutory provision permitting the agency to issue exemptions from the make inoperative prohibition. Safety is also NHTSA's primary focus and responsibility under Chapter 301. Prior approval will also enable the agency to monitor directly, from the very beginning, the implementation of the regulation and the effectiveness of its regulation and the associated educational materials in promoting informed decisionmaking about air bag on-off switches.⁽³⁸⁾

The final rule supplements the provision regarding informed decisionmaking by requiring that vehicle owners desiring on-off switches certify that the owner or a user of their vehicle is a member of a particular safety risk group. The necessity of certifying membership in a particular risk group will induce greater care on the part of vehicle owners who are considering authorizing the installation of an on-off switch. NHTSA notes, as it did in its proposal, that people not in a risk group would be less safe, not more safe, if they turned off their air bags. The further necessity for obtaining agency approval for an owner's request will induce vehicle owners to exercise even greater caution and to consider even more carefully whether they are at risk and, if so, whether they should request a switch.

A secondary reason for the decision to require agency approval of owner requests for on-off switches is the belief that the task of reviewing the owner request forms is more properly performed by NHTSA instead of the dealers and repair businesses. This belief became decisive with the addition of the provision for risk group certification. Determining eligibility for exemptions from statutory requirements and prohibitions is traditionally and most suitably a governmental function.

NHTSA recognizes that the decision to require prior agency approval of each request will add increased cost and administrative complexity to the process of obtaining on-off switches and is accordingly taking steps to streamline the approval process. The form has been designed to allow for a speedy review. To minimize any disruption of normal agency activities, the agency will contract out for the performance of the review process. The agency will ensure that word and data processing technologies are used to establish efficient processes for reviewing the on-off switch request forms and recording data from them.⁽³⁹⁾

NHTSA also rejected the first approach which was more administratively complex and cumbersome than the final rule in that it would have required each vehicle owner to document the facts underlying his or her claim of risk group membership. NHTSA believes that a requirement for documenting risk group membership would be unduly burdensome and impracticable for vehicle owners. For example, documenting the necessity for carrying children in the front seat would be time consuming and difficult, if not impossible. Would a vehicle owner whose family has too many young children to place all of them in the back seat have to submit the birth certificates of each child? Would a parent who car pools children to soccer games have to submit affidavits from the parents of the other children? And would a driver unable to maintain the proper distance from his or her steering wheel have to submit photographs showing the driver holding a ruler? Finally, the delays under such an approach might create unsafe conditions, either by inducing people to seek illegal deactivations or by simply extending the time that people must drive their vehicles without means for eliminating the risks for people in risk groups.

NHTSA also rejected the fifth approach, suggested by CEI, which would let people obtain an on-off switch without even requiring that they first read the agency information brochure so that they could make a fully informed decision. CEI also suggested that air bags should be optional instead of required equipment. This suggestion is premised primarily on the shortcomings of current air bag designs. Making air bags optional is inconsistent with safety. It is also inconsistent with the ISTEA, which mandates air bags. Further, the rationale underlying CEI's suggestion is akin to the rationale unsuccessfully used by this agency in the early 1980's to rescind the automatic restraint requirements adopted in the mid 1970's. The agency rescinded those requirements because the vehicle manufacturers chose to comply with them by means (detachable automatic seat belts) that were potentially ineffective and might not have produced significant safety benefits, instead of by more effective means (either nondetachable automatic seat belts or air bags) that were available to the vehicle manufacturers. The U. S. Supreme Court unanimously concluded that the appropriate regulatory response of the agency under the Vehicle Safety Act to ineffective or undesirable design choices under the automatic restraint requirements should not be simply to rescind those requirements, but first to consider the alternative of amending the requirements to preclude those choices. Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 403 U.S. 29 (1983). Similarly, the judgment that current air bag designs do not provide an optimal level of safety is not a sufficient reason to undercut or negate the Congressional mandate for air bags. Instead, the appropriate short term response is to allow the installation of on-off switches so that air bags can be readily turned off for people who are actually at risk from current air bags, as well as to require new labeling and expedite the depowering of air bags. Ultimately, the solution is to ensure that the manufacturers introduce advanced air bag designs.

F. Continued Use of Prosecutorial Discretion for Case-by-Case Authorizations of Air Bag Deactivation until Retrofit On-Off Switches Become Available.

Between now and January 19, 1998, the date on which on-off switch installation may begin, NHTSA will continue its current practice of using its prosecutorial discretion to grant requests for deactivating the air bags in all vehicle makes and models. This will be done on a case-by-case basis in a limited set of circumstances, e.g., those in which certain medical conditions suggest that deactivation is appropriate. The agency will continue to limit the circumstances because of the inflexible and relatively permanent nature of deactivation.

After January 19, NHTSA will cease granting deactivation requests for those vehicle makes and models for which the vehicle manufacturer makes on-off switches available.⁽⁴⁰⁾ NHTSA expects that most vehicle manufacturers will promptly make on-off switches available for most vehicle makes and models.⁽⁴¹⁾ Vehicle owners can consult with dealers about the availability of such switches. As on-off switches become available from a vehicle manufacturer for a specific make and model, NHTSA will cease granting deactivation requests for that make and model. Owners of the make and model can then fill out request forms and send them to NHTSA for approval. If on-off switches are available both from the vehicle manufacturer and from an independent aftermarket manufacturer, a vehicle owner who obtains an authorization letter from the agency for a switch can choose to have the on-off switch installed by either a dealer or a repair business.

Owners of vehicle makes and models for which the vehicle manufacturer has not made available an on-off switch may have several options after January 19, 1998. They can write to NHTSA for authorization to deactivate their air bags. The agency will continue to grant such requests indefinitely under the same criteria that the agency is currently using in making such grants. Owners can also consult with a repair business to determine if an aftermarket parts manufacturer has made an on-off switch available for the owner's particular make/model. If such an on-off switch is available, these consumers could fill out an request form, send it to the agency, and ask it for authorization to have an on-off switch installed.

Since the agency will continue to authorize deactivation at least until January 19, and since some vehicle owners may have been delaying submitting a request for deactivation in anticipation of the issuance of this rule with an immediate effective date, NHTSA is providing below an updated explanation of its procedure and criteria for reviewing and granting deactivation requests. This will help vehicle owners understand the limited circumstances in which NHTSA will be authorizing deactivations. Those circumstances have been modified to reflect the issuance of the physicians' report on medical conditions. The explanation will also inform the public about the nature of the information that NHTSA needs from vehicle owners to make appropriate decisions about the deactivation requests.

G. Other Issues.

NHTSA is requiring owners who want an on-off switch to submit a filled out request form and obtain agency approval before they can have an on-off switch installed. Most commenters who addressed the issue supported the use of a request form. As revised in this final rule, the form serves three major purposes.

First, the request form provides the agency, and the dealer or repair business, with a measure of assurance that the person requesting the on-off switch is the person with authority to authorize the installation of a switch. The dealer or repair business may, in addition, require further proof of ownership or authority. However, the necessity of submitting a signed request form on which the signer of the form must claim, subject to 18 U.S.C. §1001, ownership of the vehicle to be modified should help forestall installation requests by persons other than the owner of a vehicle.

Second, as noted above, the form reinforces the value of the information brochure by requiring the owner to certify that the owner has read the brochure and that the owner or a user of the vehicle is a member of a risk group listed on the brochure. In response to the concern expressed by several commenters that, partly because of the complexity of the subject matter involved, owners would not read the proposed information brochure, NHTSA has changed the brochure to make it more customer-friendly.

Third, the request form is intended to make the owner understand that he or she is responsible for the consequences of the decision to install, and later to use, the on-off switch. To that end, the form includes statements that the owner is aware of the safety risks and consequences of turning off an air bag.

The agency will begin processing of request forms on December 18, 1997. If a form is submitted before that date, it will be given the same priority as a form submitted after that date. Accordingly, there will be no advantage to submitting forms early.

To address the anticipated concerns of motor vehicle dealers, repair businesses and others regarding liability issues associated with turning off air bags, the agency proposed making the decision of vehicle owners to obtain on-off switches dependent upon informed decisionmaking, acknowledgment of the adverse safety consequences of turning air bags and execution of a limited standardized waiver in the proposed authorization form. The waiver would have stated that the owner's act of authorizing a deactivation would waive any claim or cause of action that the owner might have against the dealer or repair business by virtue of the fact that the air bag had been deactivated. A number of commenters questioned the efficacy of any such waiver, asserting that it would not apply to other possible vehicle occupants, such as family members or friends of the owner or to future owners and their family members and friends. Several vehicle manufacturers expressed concern that the waiver did not extend to actions and claims involving vehicle manufacturers. One commenter stated that only legislation could provide effective relief from liability risks.

NHTSA believes that the liability risks have been essentially eliminated and that those risks should not interfere with the implementation of this exemption. First, under this final rule, dealers and repair businesses will play no role in determining whether vehicle owners qualify for the installation of on-off switches. Those parties will have no involvement in the process until the vehicle owners contact them with agency authorization letters in hand.

Second, in recognition of the dealers' and repair businesses' concerns, NHTSA has switched from an authorization form to a request form and included a statement alerting vehicle owners that dealers and repair businesses may condition their agreement to install an on-off switch upon the owner's signing of a liability waiver. Owners desiring an on-off switch must acknowledge that possibility by marking the box next to that statement. This will facilitate the efforts of dealers and repair businesses to obtain waivers from owners.

Upon reviewing its proposal and the public comments, the agency decided not to include a standardized waiver in the request form. NHTSA agrees that the proposed waiver would not have covered all possible litigants. Further, the agency is concerned about state-to-state variations in the law regarding the precise language that is sufficient to waive a claim even by the vehicle owner. Those variations could undermine the value of any standardized waiver. Moreover, NHTSA is concerned that adoption of a standardized waiver might give some dealers and repair businesses false assurances of protection from liability in all states and in all cases. Finally, NHTSA believes that, to the extent dealers want vehicle owners to sign a waiver before they will install an on-off switch, this is an issue between them and vehicle owners. By taking this position regarding waivers, the agency believes that dealers and repair businesses will be in a better position to craft individualized waivers that reflect the law of the State in which they operate.

The agency's decision not to include a waiver moots the requests of some commenters to expand the proposed waiver to cover claims against vehicle manufacturers, distributors and employers who operate fleets. This final rule places no limitation on efforts by those parties to seek waivers from vehicle owners. Vehicle manufacturers can work together with their dealers to develop a waiver that covers both. Further, no implication should be drawn from this decision that the general concept of seeking of such waivers is in any way inappropriate. To the contrary, it reflects NHTSA's belief that any waiver is more appropriately a decision between the vehicle owner and the dealer or repair business. Dealers and repair businesses may condition their installation of on-off switches upon the making of waivers by vehicle owners. Employers that provide fleet vehicles to their employees may write their own waivers and condition any installation of on-off switches on the employees' signing those waivers.

Third, NHTSA believes that the various provisions included in the final rule regarding informed decisionmaking and risk group membership have the additional effect of significantly reducing the liability concerns of the dealers and repair businesses.

Fourth, the agency's decision to restrict the means of turning off air bags under the exemption adopted in this final rule to on-off switches substantially increases the likelihood that air bags will be turned on and protect those persons not in a risk group. One concern with allowing deactivation as proposed in the NPRM was that a deactivated air bag would not deploy in situations in which deployment would save lives. This concern was particularly great with respect to the friends and family of vehicle owners and the subsequent purchasers of vehicles with deactivated air bags. The presence of on-off switches in the clearly marked "off" position and/or the illumination of their indicator lights will be readily obvious to all front seat occupants, largely eliminating the concern about uninformed vehicle occupants and owners. In addition, the provisions requiring that owners read a government information brochure warning about the dangers of turning off air bags and that the owners expressly acknowledge those dangers should have the effect of reducing liability concerns.

There are additional reasons why the agency's decision to specify on-off switches will reduce any potential liability of manufacturers, dealers, and repair businesses. Under the deactivation proposal in the NPRM, it would have been the dealer or repair business itself that turned off the air bag. Subsequent purchasers might not know that an air bag has been turned off. In contrast, with on-off switches, no air bag will be turned off except by the hand of the owner or another user of the owner's vehicle. The last critical action or inaction that determines whether a vehicle's air bags will deploy in a crash is that of an occupant of that vehicle who has chosen whether the air bags are on or off. This is just as much true if the vehicle is owned by a subsequent purchaser as if it is still owned by the person who authorized the installation of the on-off switch.

The agency has not added a statement, requested by the National Association of Independent Insurers, that the obtaining or using of on-off switches may affect insurance premiums, or that it is the owner's responsibility to report the installation of an on-off switch to the insurance carrier. NHTSA wishes to maintain a strict safety orientation to the request form, and keep the paperwork to a minimum. Further, these are matters between insurers and their customers. An insurer can require its customers to notify it of on-off switch installation or attach whatever conditions it deems appropriate to continuing coverage of vehicles with on-off switches.

In response to the commenters and the focus groups, the agency has revised the information brochure to make it much more informative. The focus groups requested not only detailed information about who was at risk and why, but also basic background information about how air bags work. That information is needed to address persistent misconceptions about some aspects of how air bags operate. The revised brochure--

• explains how air bags work,
• explains how air bags save many lives and prevent many injuries,
• describes the groups of people who have been killed by air bags,
• identifies the single factor that is common to all air bag deaths,
• makes clear why certain groups of people are at risk,
• gives practical advice to consumers on how to reduce their individual risk and that of the users of their vehicle without modifying their vehicles, and
• as printed by the agency, includes simple graphics showing the steps that drivers at risk can take to reduce those risks.

NHTSA agrees with IIHS and other commenters that the proposed information brochure was too technical, and has completely rewritten it to make it more consumer-friendly.⁽⁴²⁾ The data tables on historical fatalities and injuries in the proposed information brochure have been replaced by a practical, succinct, question and answer format. This makes it much more likely that the brochure will be read, and understood, in its entirety.

The agency recognizes that no single information brochure will fully meet everyone's needs and that some consumers will prefer more information. However, the agency disagrees that not being able to tailor the information brochure to individual needs means that the brochure will not contribute to informed decisionmaking by consumers. The brochure contains basic information, geared to the average person. Persons wishing more information can visit NHTSA's Internet Web site or call the agency's toll-free Hotline.

NHTSA will distribute the information brochure widely. In addition, on its Internet Web site, the agency is providing the public with an opportunity to view video clips of crash tests showing the difference in the amount of protection that test dummies receive when using both seat belts and air bags and when using seat belts alone. The clips show that when the air bag is turned off and does not deploy in a moderate to severe crash, the head of a dummy representing a short female driver strikes the steering wheel hard enough to cause fatal injuries. The opportunity to view these video clips is prominently noted on the information brochure. The agency believes that this multi-media approach will effectively inform consumers about the importance of air bag protection and about the limited circumstances in which turning off an air bag should be considered. However, although the video is a useful educational tool, the agency is not conditioning eligibility for an on-off switch upon viewing a video presentation of the information in the brochure, as suggested by one commenter.

The agency disagrees with Chrysler's argument that basing advice to drivers on distance from the steering wheel is not meaningful. While Chrysler is correct that differences in air bag systems and steering wheel inclinations will affect the appropriate distances, NHTSA believes that giving general advice is useful and effective, and that no other measure is better (height being only a rough proxy for distance). Moreover, the vehicle manufacturers have not provided information to the agency on which it could base distance recommendations that are individually tailored to each vehicle make and model. By focusing on the ability of the vast majority of drivers, particularly short ones, to move a sufficient distance away from the steering wheel, this general guidance will help drivers identify ways they can reduce and even eliminate their risk. NHTSA anticipates that the vehicle manufacturers will supplement this general guidance as appropriate to fit the circumstances and air bag performance of their individual makes and models of vehicles.

Many dealer and repair business commenters objected to the agency's proposal to require them to receive authorization forms from vehicle owners and to check the forms. Under this final rule, dealers and repair businesses will not have these responsibilities. They will be performed instead by the agency.

Many dealer and repair business commenters also objected to the agency's proposal to require them to distribute the request form and the information brochure. NHTSA is not requiring that they do so. The information brochures and request forms will be available to anyone who visits NHTSA's Internet Web site or uses U.S. Government Printing Office (GPO) Access.⁽⁴³⁾ The public can also call the agency's Hotline and arrange to have copies faxed or mailed to them. NHTSA will also send copies to dealers and repair businesses and to State Departments of Motor Vehicles. In addition, other organizations, such as the American Automobile Association, will assist in distributing these documents.

NHTSA has decided not to adopt its proposal that dealers and repair businesses be required to provide vehicle owners with a copy of the information brochure as an insert for the vehicle owner's manual. A requirement that the dealer or repair business provide the entire brochure seems unnecessary given that the owner must certify that he or she has read the brochure prior to signing the request form.

However, as a reminder about the proper use of on-off switches, the agency is requiring that vehicle owners be given an owner's manual insert describing the operation of the on-off switch, listing the risk groups, stating that the on-off switch should be used to turn off an air bag for risk group members only, and stating the vehicle specific safety consequences of using the on-off switch for a person who is not in any risk group. Those consequences will include the effect of any energy managing features, e.g., load limiters, on seat belt performance. (See the discussion of safety belts with energy managing features in part II.B.2 above.)

In the deactivation proposal, the agency proposed to require that dealers and repair businesses send filled-out authorization forms to the appropriate vehicle manufacturer and that vehicle manufacturers be required to retain those forms for five years. The primary purpose of these proposals was to ensure that subsequent owners had a way of learning whether their air bags had been deactivated. The agency realized that the deactivated status of an air bag is not readily apparent from a visual examination of a vehicle interior and that the labels proposed by the agency could fall off, deteriorate over time or be removed.

NHTSA has concluded that recordkeeping by the vehicle manufacturers is not necessary to accomplish the primary goal of ensuring that the public is aware of the operational status of air bags that have been turned off by means of on-off switches. On-off switches and their warning lights are relatively conspicuous and more permanent than labels. Thus, keeping records for the benefit of other vehicle occupants and subsequent owners is unnecessary, and indeed, not so effective as these visible cues.

Instead, NHTSA is requiring that, when a dealer or repair business receives an agency authorization letter from a vehicle owner and installs a switch, the dealer or repair business must fill in the form provided in the letter for reporting information about the dealer or repair business and about the installation. See Appendix C. The form must then be returned to NHTSA. This requirement will facilitate agency efforts to ensure that the exemption from the make inoperative prohibition is being implemented in accordance with the conditions set forth in this final rule. It will also aid the agency in monitoring the volume of requests and the geographic and other patterns of switch requests and installations. To ensure that the forms are returned to the agency in a timely fashion, NHTSA is requiring that each form be mailed within seven days of the installation of an on-off switch by the dealer or repair business.

With respect to its continued exercise of prosecutorial discretion to authorize deactivation, NHTSA will keep records regarding the vehicles for which it has allowed deactivations and for which it is able to obtain sufficient information. NHTSA will be sending labels to all owners for whom it has authorized deactivation, and will enclose a request for information on whether a deactivation was performed, whether it was a driver or passenger air bag deactivation (or both), and the vehicle identification number (VIN). This will enable NHTSA to keep records on vehicles for which the agency has approved air bag deactivation. The VINs of those vehicles, but no other identifying information, will be made available on NHTSA's Internet Web site, or by phone to aid subsequent purchasers in identifying vehicles with deactivated air bags.

The agency proposed labeling for the same reason it proposed recordkeeping, i.e., the difficulty of determining by visual inspection whether an air bag has been deactivated. Since the agency has decided to specify retrofit on-off switches instead of deactivation as the means for turning off air bags, a labeling requirement is unnecessary. To be eligible for the exemption, the dealer or motor vehicle repair business must install a retrofit on-off switch meeting certain requirements, including a requirement for a telltale light that illuminates to indicate when the air bag is off and a requirement that the device be operable only by means of a key. The "on" or "off" position of the on-off switch and/or illumination or non-illumination of the telltale light will be readily apparent to other occupants and future owners and inform them of the on or off status of the air bags.

NHTSA intends to distribute warning labels to people who receive deactivation letters before retrofit on-off switches become available and for vehicles for which on-off switches do not become available. The agency will also distribute those labels to persons who have already received such a letter from the agency. The agency expects that those labels will be available in the near future.

A leasing association and a fleet managers association commented that the proposal did not address how to handle special issues concerning deactivations of air bags in leased vehicles. These associations emphasized the contractual distinctions between commercial (corporate fleets) and consumer (individual) lease arrangements, the difficulty that a repair business would have in determining whether the person presenting the leased vehicle for modification has authority to have the air bag deactivated, and the many different use scenarios and occupants of fleet vehicles. One association stated that the corporate employer in charge of the operation of fleet vehicles, whether as an owner or lessee, should be the sole party with authority to request deactivation. It also stated that a fleet maintenance facility should be considered a "repair facility."⁽⁴⁴⁾

NHTSA appreciates the complexity of the issue, and that it may be difficult for a dealer or repair business to determine whether the person presenting a leased vehicle has authority to request an on-off switch. This is, in part, why the agency did not make a specific proposal, but instead raised the issue of lessees and asked how issues relating to them should be addressed.

Under this final rule, the exemption from the make inoperative prohibition applies to leased vehicles as well as owned vehicles. The request form has been changed accordingly.

The agency has become aware that some businesses are holding themselves out as being willing and able to deactivate a vehicle's air bags. This is permissible so long as the owner of the vehicle has a letter from NHTSA authorizing the deactivation of the air bags. However, some businesses have suggested that they will deactivate air bags even for people who do not have such a letter from NHTSA, on the theory that they are "air bag technicians" (or perhaps mere "agents" of the owners) and not motor vehicle repair businesses.

The relevant part of 49 U.S.C. §30122(b) states that a "manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard . . . ." Air bags are items of safety equipment installed in compliance with applicable motor vehicle safety standard No. 208, and deactivating them, by definition, makes them inoperative.

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." Especially in light of the broadly inclusive list of commercial entities in the statutory provision, NHTSA interprets this term as including the activities of mechanics, technicians, or any other individuals or commercial entities that knowingly make modifications to or perform work on safety equipment for a fee, if those modifications cause the vehicle no longer to comply with applicable Federal motor vehicle safety standards. The agency believes that Congress was drawing a distinction in the make inoperative prohibition between commercial entities that might work on a vehicle and a vehicle owner, or an owner's friend or relative who might work on a vehicle without compensation.

The legislative history of the Motor Vehicle and Schoolbus Safety Amendments of 1974, which added the "make inoperative" prohibition, supports this broad interpretation. The Conference Report states that it "is intended to ensure that safety equipment continues to benefit motorists for the life of the vehicle. The protection of subsequent . . . purchasers of a vehicle is thereby assured." H.R. Rep. No. 93-1452, 93rd Cong., 2d Sess. 39 (1974). It would subvert the purposes of Congress in enacting this prohibition to read the statutory term "repair" literally and allow a business to perform, for compensation, the very acts which the prohibition was intended to prohibit. Deactivating an air bag makes its benefits unavailable to subsequent purchasers.

NHTSA is aware that there is a court decision that addressed the definition of "repair business." A United States District Court concluded that businesses installing window tint film were not repair businesses because "the plain meaning of the term 'repair business' will prevail . . . The plain meaning of the word 'repair' is to restore to sound condition something that has been damaged or broken . . . they are not in the business of restoring or replacing motor vehicle equipment." United States v. Blue Skies Projects, Inc., 785 F. Supp. 957, 961 (M.D. Fla. 1991).

NHTSA believes this case was not correctly decided. The court did not recognize and give sufficient effect to Congress's intent, expressed in legislative history, that federally-required safety equipment should continue to ensure safe performance of vehicles over their lifetime. Further, it is evident from the inclusion of repair businesses among the listed entities subject to the prohibition that some repair businesses sometimes do things other than restoring components and systems to sound condition. This implies a broader definition of "repair" than the one offered by the court.

Accordingly, NHTSA interprets the term "motor vehicle repair business" to include mechanics, technicians, or any other individuals or commercial entities that, for compensation, add, remove, replace or make modifications to motor vehicles and motor vehicle equipment, including safety equipment such as air bags, regardless of whether the vehicle or component was previously "broken" or needed to be "repaired." The description that a business applies to itself is not controlling; it is the business' commercial relationship with the public and the nature of the operations it performs on motor vehicles that is determinative. Any business currently deactivating air bags for customers who have not received authorization from NHTSA is violating the law and subject to enforcement action by the agency.

NHTSA proposed an immediate effective date in the January 1997 NPRM. As noted in the summary of comments, the vehicle manufacturers indicated that an immediate effective date would not be sufficient even for deactivation, for which minimal parts, if any, are needed. NHTSA recognizes that special parts are needed for on-off switches, and that their production requires additional time. The industry has indicated that the time necessary to produce retrofit on-off switches in large enough quantity to meet all of the anticipated demand is 4 to 6 months. This period was calculated from March 1997, not from the actual date of a final rule. In anticipation of retrofit on-off switches being allowed as an alternative, vehicle manufacturers began developing them in March. At an NTSB hearing regarding air bag safety on March 17-19, 1997, two manufacturers stated that the time needed to develop switches was dependent on the volume needed. Smaller volumes would take less time. Although NHTSA has no information indicating that anyone other than vehicle manufacturers plans to produce on-off switches, it notes that independent aftermarket producers would not be precluded from doing so. Their implementation time might be different from that estimated by the vehicle manufacturers.

NHTSA has decided to make the exemption effective on December 18, 1997 and to set January 19, 1998, as the date on which switch installation may begin. NHTSA finds good cause for making the exemption effective less than 30 days after the publication of the final rule. Making the exemption effective on December 18 is necessary to enable the agency to begin processing requests at an early enough date that owners can have their agency authorization letters in hand by January 19. In this way, persons at risk can begin obtaining switches on that date or as soon thereafter as switches become available for the make and model of their vehicle.

A delayed date for the beginning of switch installation will promote the orderly implementation of the exemption. Based on the calls to NHTSA from consumers regarding deactivation, it appears likely that most owners who obtain agency authorization for switches will go to dealerships to obtain their switches. The date of January 19, 1998, will allow the manufacturers time to complete design of on-off switches, start production, and begin delivery to their dealers before consumers start expecting their requests to be filled. It will also allow them to develop procedures for installing on-off switches, and conduct necessary training for dealer service technicians. The date will also give the agency and many of the company and group commenters the time required to educate the public about air bag benefits and risks before the on-off switches become available.

Although the selection of January 19 provides less time than the manufacturers suggested in early 1997 would be needed to satisfy all anticipated requests for on-off switches, NHTSA believes that this date provides sufficient time for the manufacturers to begin to make retrofit on-off switches available for installation. The agency reiterates that the 4 to 6 month estimate by the vehicle manufacturers was made with reference to March of this year, not the date of the issuance of this rule. Further, a number of vehicle manufacturers are already producing on-off switches in anticipation of this final rule. In addition, on-off switches from aftermarket manufacturers might be available to satisfy any unmet orders for on-off switches.

The NPRM proposed that deactivation of advanced air bags would not be permitted under the exemption. NHTSA also stated that it would consider not allowing deactivation of driver air bags that had been depowered. GM and other manufacturers stated that NHTSA had not adequately defined "smart" (i.e., advanced) air bags, and that it was therefore inappropriate to sunset the availability of deactivation once advanced air bags were introduced. A safety group stated that a sunset was appropriate because on-off switches would not be necessary after advanced air bags were available.

Although NHTSA continues to believe, based on safety considerations, that it should prohibit dealers and repair businesses from retrofitting advanced air bag vehicles with on-off switches, there is no immediate need to do so. Widespread installation of advanced air bags is not expected to begin for another several years. Further, NHTSA notes that the existing definition of "advanced" air bag does not include driver air bags and needs updating. NHTSA will address these issues in the proposal on advanced air bag rulemaking scheduled to be issued this winter and will include a proposed sunset date for retrofit on-off switches.

As to permitting on-off switches for depowered air bags, NHTSA anticipates that those air bags 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 on-off switches are not appropriate in vehicles with depowered air bags. For the present, the exemption will apply to vehicles with depowered air bags.

Many public commenters on the January 1997 deactivation proposal favored extending the existing option for installing on-off switches in certain new vehicles to all new vehicles. However, the company and group commenters were overwhelmingly opposed to the idea. NHTSA considered this idea and then rejected it in its January 6, 1997 final rule regarding on-off switches for passenger air bags in new vehicles with no rear seat or an inadequate rear seat for rear-facing infant seats (62 FR 798). The major reasons for this decision were (1) assertions of the vehicle manufacturers (at that time) that OEM on-off switches for new vehicles could not be developed quickly, (2) the possibility that extending the option to all new vehicles might result in on-off switches' being installed as standard equipment instead of being installed upon special request by those at risk, (3) the possibility that universal installation of on-off switches in new vehicles might do more harm than good (4) the lower cost of deactivation, and the fact that the cost would be borne primarily by those who actually at risk and therefore in need of deactivation, and (5) the possibility that the effort to develop on-off switches and integrate them into the design of new vehicles might necessitate a diversion of manufacturer engineering resources from development of advanced air bags.

While the extension of the option for OEM on-off switches for new vehicles to all air bag vehicles is outside the scope of this rulemaking, that same issue was raised in a pending petition from the National Motorists Association for reconsideration of the January final rule. NHTSA remains concerned that extending the option to all new vehicles might result in on-off switches' being installed as standard equipment in all new vehicles, thus resulting in many more vehicles being equipped with on-off switches than will occur under this final rule. The agency has concluded that such widespread installation of on-off switches without regard to whether individual consumers are actually at risk would not be in the best interests of safety. The agency also remains concerned that integrating on-off switches into new vehicles, which would entail redesigning dashboards, will require more resources than retrofitting on-off switches and thus could divert resources from the development of advanced air bags. For these reasons, NHTSA denies this petition for reconsideration.

This final rule amends Standard No. 208 so that the Standard refers to "on-off switches" instead of "cutoff switches." It also amends the Standard to revise the owner's manual insert for passenger air bag on-off switches installed in new vehicles. Instead of stating that use of the switch should be limited to instances in which the right front passenger seating position is occupied by an infant in a rear-facing infant seat, the insert will say that use should be limited to persons in one of the passenger risk groups identified in the request for in Appendix B of Part 595.

^22. As explained below, full deactivation will continue to be available in limited circumstances through the agency's exercise of its prosecutorial discretion.

^23. Contrary to some media reports, the back seat has always been much safer than the front seat. Sitting in the back seat significantly reduces the likelihood of fatal injury for children, even in vehicles without air bags. Further, sitting in the back seat helps restrained children just as much as it helps unrestrained children. To quantify the benefits of sitting in the back seat, NHTSA analyzed data from vehicle crashes in 1988-1994. Very few of the vehicles in those crashes had passenger air bags. The agency concluded that placing children in back reduced the risk of death in a crash by 27 percent. This conclusion applies to restrained as well as unrestrained children. The size of this reduction can be appreciated from considering the following example. The number of children killed each year while riding in the front seat of a vehicle is over 500. If those 500 children had instead been sitting in the back seat, 135 of those children would still be alive because the back seat is a much safer seating environment for reasons having nothing to do with air bags. A new study by IIHS reaches a similar conclusion about the benefits of sitting in the back seat. After examining data from essentially the same time period regarding more than 26,000 children riding in vehicles that were involved in fatal crashes and lacked passenger air bags, IIHS concluded that sitting in the back seat reduced the death rates by more than 27 percent, whether the children were restrained or not. The safest position of all was the center rear seat.

^24. NHTSA is recommending 10 inches as the minimum distance that drivers should keep between their breastbone and their air bags for several reasons. First, the agency believes that drivers who sit 10 inches away and buckle up will not be at risk of serious air bag injury. Drivers who can maintain that distance will be much safer if they keep their air bags on. The 10-inch distance is a general guideline that includes a clear safety margin. IIHS recommended the same distance in its comments. The 10-inch distance ensures that vehicle occupants start far enough back so that, between the time that pre-crash braking begins and time that the air bag begins to inflate, the occupants will not have time to move forward and contact the air bag until it has completed or nearly completed its inflation. The 10 inch-distance was calculated by allowing 2-3 inches for the size of the risk zone around the air bag cover, 5 inches for the distance that occupants may move forward while the air bags are fully inflating, and 2-3 more inches to give a margin of safety. The 5-inch rule of thumb commonly used in air bag design is described in the paper, "How Airbags Work (Design, Deploying Criteria, Costs, Perspectives)" presented by David Breed at the October 19-20, 1992 Canadian Association of Road Safety Professional International Conference on Airbags and Seat Belts. Second, the agency is focusing attention on the 10-inch distance because it wants drivers to strive to get back 10 inches. NHTSA believes that almost everyone can achieve at least 10 inches and get the extra margin of safety that comes from sitting that far back. See the July 1997 survey submitted by IIHS. However, some drivers who cannot get back a full 10 inches will still be safer, on balance, if they are protected by their air bag. The nearer that these drivers can come to achieving the 10-inch distance, the lower their risk of being injured by the air bag and the higher their chance of being saved by the air bag. Since air bag performance differs among vehicle models, drivers may wish to consult their vehicle manufacturer for additional advice. NHTSA considered an alternative suggestion by Ford in a late August 1997 meeting with the agency that the 10-inch distance be measured from the air bag to the chin instead of the breastbone. The agency has decided to use the breastbone as the measuring point because of the greater safety margin provided.

^25. Vehicle manufacturers that install on-off switches in new vehicles lacking a rear seat capable of accommodating a rear-facing infant seat must, among other things, include in the owner's manual a statement of the safety consequences of using the on-off switch to turn off the passenger air bag for persons other than infants in such seats. See S4.5.4 and S4.5.4.4 of Standard No. 208. To comply with that requirement, manufacturers must state that the air bag will not inflate in a crash and that the occupant therefore will not have the extra protection of the air bag. To conform S4.5.4.4 to this final rule, NHTSA has amended that provision in this final rule so that the provision requires the listing the same risk groups listed in the information brochure and requires a statement of the vehicle specific safety consequences of using the on-off switch for persons not listed in those groups.

^26. Two of the fatally-injured drivers were diabetics. While diabetes did not by itself make those persons more prone to injury, it did cause them to black out and slump over their steering wheel prior to the fatal crash.

^27. In its August 1997 survey concerning public interest in turning off air bags, IIHS asked the 137 respondents who owned dual air bag vehicles and said they carried children in the front seat why they carried children in that location. Approximately 20 percent of the respondents gave answers indicating that they carried children in the front seat out of necessity, e.g, "no room in back seat," "big family," "car pool," and "no rear seats in vehicle." Over half of the remaining 80 percent of the respondents said either "child wants to ride in front seat," or "driver wants child in front seat."

^28. Drivers who think that they are currently sitting closer than 10 inches should get a ruler and measure the distance. Research shows that many drivers underestimate the distance between them and their air bags. When they actually measure the distance, they often find that it is 10 or more inches.

^29. Drivers may underestimate their ability to change their driving position to achieve the 10-inch distance. A recent IIHS survey indicates that only 5 percent of female drivers (approximately 2.5 percent of all drivers) normally now sit less than 10 inches away from their air bag module. Another recent IIHS survey shows that most short-statured female drivers (10 out of 13 women ranging in height from 4 feet 8 inches to 5 feet 2 inches) could adjust their driving position to achieve that 10 inch distance in all 12 test vehicles used by IIHS. The remaining three drivers could achieve 10 inches in almost all of the vehicles.

^30. An additional safety advantage of on-off switches will be that they, together with the "Air Bag Off" telltale, will provide a permanent means of ensuring that people will not ride in a vehicle without knowing that an air bag has been turned off.

^31. There are other reasons for discounting the results of this early 1997 IIHS survey as a basis for predicting how many people will obtain on-off switches. In asking the respondents whether they wanted on-off switches, the surveyors did not ask whether the respondents were aware of a number of key factors that might heavily influence the extent of their desire for an on-off switch. Further, the surveyors did not take the alternative approach of informing the respondents of these factors and then asking them whether learning any or all of this information influenced their desire for an on-off switch. Based on the factors that affect how the public perceives risk (see footnote 35), three undiscussed factors in particular seem key: (1) most people would be making significant safety tradeoffs if they turned off their air bags; (2) most people could control and virtually eliminate the risk of serious air bag injuries by changing their driving and riding habits instead of physically changing their vehicle; and (3) the cost of an on-off switch is not insubstantial. A survey by the Harvard School of Public Health's Center for Risk Analysis in late February and early March had similar shortcomings. The absence of these factors from these surveys in part simply reflects the fact that there was less of a consensus in early 1997 about the air bag-related risks and the most appropriate measures for reducing them. Nevertheless, their absence is a concern since the survey results themselves may not only measure (or at least attempt to measure) existing public attitudes regarding air bags and on-off switches, but also potentially affect future public attitudes regarding those matters. NHTSA expects that when media reports and the agency's information brochure make the public more aware of the safety tradeoffs and available means of controlling and reducing risk, the level of public interest in obtaining on-off switches will fall. Interest is expected to fall further in response to the public education campaign to be conducted the agency and other organizations about air bags.

^32. The difference between the new IIHS survey and the January IIHS survey regarding the level of general interest in on-off switches for passenger air bags appears to demonstrate the influence which media accounts of recent air bag fatalities can have on survey results. The January survey, which was taken when media accounts of a particular child fatality were relatively fresh in the public mind, indicated that 67 percent of the respondents were generally interested in an on-off switch for passenger air bags. The August survey was not closely preceded by similar accounts. Its figure for general interest in passenger air bag on-off switches was 26 percent.

^33. John F. Ross, Risk: Where Do Real Dangers Lie?, Smithsonian, November 1995, at 42. See also Marcia Angell, Overdosing on Health Risks, New York Times, May 4, 1997, Magazine Section, which, in part, notes that the media are not the only players that affect public risk perception; Michael Ryan, What is Really Risky?, Parade Magazine, June 15, 1997, which discusses a recent Harvard study concerning differences between the risk perceptions of scientists and the general public; and Matthew Wald, Freewheeling Freedom; Appalled by Risk, Except in the Car, New York Times, June 14, 1997, section 4, Week in Review. For a related account of the difficulty in obtaining comparative information on risks and tradeoffs, see David Shaw's three-part series, Living Scared. Why Do the Media Make Life Seem So Risky?, in the Los Angeles Times, September 11-13, 1994.

^34. Ibid.

^35. The requirement for a telltale light that indicates if the air bag is not operational will also eliminate the possibility that occupants will unknowingly ride without the protection of an air bag.

^36. Pacific Legal Foundation v. Department of Transportation, 593 F.2d 1338, 1345 (D.C. Cir. 1979).

^37. GM suggested that the agency select and describe the most frequent circumstances warranting an on-off switch and develop a "...form letter that owners could complete (i.e., by checking the appropriate one of the circumstances specified on the form), sign and submit to NHTSA." As to "...requests that do not fit under one of the defined circumstances...," owners could still submit them "...to NHTSA in non-form letters that detail the reasons for the request." GM apparently contemplated that the agency would quickly examine the form letters and concentrate on the non-form requests. GM described the agency's review function as follows: "The agency could process requests made with the form letter in an expedited manner, and focus attention principally on the non-form requests." (Emphasis added.)

^38. The agency's decision to require that vehicle owners be individually authorized by the agency to obtain a on-off switch moots the arguments by some commenters, most notably GM and the Association of International Automobile Manufacturers, that the agency can exempt individuals on a case-by-case basis, but lacks authority to exempt classes of people. To reach this conclusion, those commenters attributed unwarranted significance to the use of the singular "person" in the statutory exemption provision. Since the exemption authority runs to dealers and repair businesses, not to consumers, these commenters apparently contemplated that the agency issue a separate exemption to each dealer or repair business and perhaps even issue a separate exemption for each owner who desires a retrofit cutoff switch. There is no reason to believe that Congress intended to limit exemptions to ones granted to specific individuals. In the agency's view, the exemption provision can reasonably be read to permit an exemption based on classes of people. The singular includes the plural, absent contrary statutory language or purpose. Section 30122 neither contains any language nor has any purpose that would preclude reading "person" in the plural. NHTSA notes that similar use of the singular in 15 U.S.C. §1402(e), the statutory predecessor to 49 U.S.C. §30118(a) regarding the making of a defect and noncompliance determination concerning a motor vehicle or replacement equipment, has repeatedly been judicially interpreted to permit NHTSA to make determinations regarding classes of vehicles or equipment. Section 30118(a) was enacted in the same public law, Pub. L. No. 93-492, that contained the make inoperative prohibition.

^39. NHTSA notes that some proponents of prior agency approval of on-off switch requests credited the introduction of streamlined practices and increased use of information technologies with being the key factors leading to substantial decreases this year in the agency's average processing time of air bag deactivation requests. Those parties further suggested that use of the same information technologies will enable the agency to process on-off switch requests with equal speed. While the introduction of those practices and technologies increased the efficiency of the agency's processing of the deactivation requests, by far the most important factor was the steady and substantial decline in the number of deactivation requests. The volume fell from a high of 400 requests per week in April and May to 100 requests per week in September.

^40. However, if on-off switches become available for a vehicle make and model from an independent aftermarket manufacturer, but not the vehicle manufacturer, the agency will continue to authorize deactivation for that make and model. While the agency believes that on-off switches are superior to deactivation from a safety standpoint, it will continue to authorize deactivation in this limited circumstance in view of the agency's greater difficulty in tracking the availability of on-off switches from aftermarket manufacturers and the lack of a mechanism for testing the performance of an on-off switch as installed in a particular vehicle.

^41. The agency is aware that the incidence of air bag fatalities is not the same for all vehicle manufacturers and that some manufacturers have indicated that they may not make on-off switches available. NHTSA notes that its exemption authority under section 30122 does not permit it to require manufacturers to make these on-off switches available.

^42. NHTSA notes, however, the focus groups expressed a clear desire for extensive and detailed information about air bag safety and on-off switches to increase their understanding and aid their decisionmaking. Accordingly, the agency has not shortened the information brochure as urged by some commenters. It has, however, attempted to provide that information in a simple, readily understandable form. As printed by the agency, the information brochure will be supplemented with various graphics.

^43. GPO Access is a service of the U.S. Government Printing Office and is available directly as a subscription, or free through participating Federal Depository Libraries.

^44. NHTSA assumes that, in many cases, fleet maintenance facilities are owned by the same business that owns the fleet itself. Since vehicle owners are not subject to the make inoperative prohibition, and thus can modify their vehicles as they wish, subject to state and local law, the common ownership of the facilities and the fleet means that the fleet owners can have their maintenance facilities install on-off switches or even deactivate their air bags without NHTSA authorization. If the facilities are not operated by the owners of the fleet, then they are considered to be repair businesses, for purposes of 49 U.S.C. §30122(a).

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