IX. Implementation of Agency Decision
A. Limited Continued Use of Prosecutorial Discretion to Authorize Deactivation: Procedures and Requirements.
Between now and January 19, 1998, the date on which switch installation may begin, NHTSA will continue its current practice of granting requests for deactivating the air bags in all vehicle makes and models. This will be done on a case-by-case basis. The agency will grant those requests only if they are based on the justifications that are currently being accepted under existing agency practice, as modified to reflect changed circumstances such as the issuance of the report on medical conditions warranting turning off an air bag. Continuing to limit deactivation to requests based on these justifications is appropriate, given the inflexibility and relative permanency of deactivation.
NHTSA will grant deactivation requests after January 19, 1998, only for those vehicle makes and models for which the vehicle manufacturer does not make on-off switches available. NHTSA expects that vehicle manufacturers will make on-off switches available for most vehicle makes and models. For those specific makes and models for which on-off switches are available on January 19, the agency will cease granting deactivation requests as of that date. Likewise, as on-off switches become available from the vehicle manufacturer for a specific make and model after that date, NHTSA will cease granting deactivation requests for that make and model. Owners of that make and model can fill out an on-off switch request form and send it to the agency for approval. If an on-off switch is also manufactured by an aftermarket manufacturer, a consumer may wish to request that a dealer or repair business install it. For vehicle makes and models for which the vehicle manufacturer does not make available an on-off switch, the agency will continue to grant deactivation requests, even if an aftermarket parts manufacturer makes an on-off switch available for those vehicles.
As noted above, this section describes the procedures and practices that the agency will follow in response to changed circumstances such as the issuance of a report by the National Conference on Medical Indications for Air Bag Disconnection. Those procedures and practices differ from the ones previously followed regarding requests based on medical conditions since that report does not recommend deactivation for many of the medical conditions for which deactivation requests have been granted in the past. In addition, this section describes the legal effect of an agency letter authorizing deactivation and describes the conditions which motor vehicle dealers and repair businesses must meet in deactivating an air bag pursuant to such a letter.
If the owner of an air bag-equipped vehicle wishes to obtain the agency's authorization to have an air bag deactivated, based on one of the justifications described below, the consumer may write to NHTSA stating the consumer's justification and requesting authorization for deactivation. If the agency determines that the justification meets the criteria for granting requests, it sends the consumer a letter authorizing a dealer or repair business to deactivate the consumer's air bag. The consumer presents the letter to a dealer or repair business. Since the letter authorizes, but cannot require, the dealer or repair business to perform a deactivation, the dealer or repair business then decides whether to deactivate the air bag(s), as authorized in NHTSA's letter. If the dealer or repair business decides to do so, it must meet certain conditions in deactivating the air bag.
Air bag deactivation: Who is eligible, and how is authorization obtained?
1. NHTSA will authorize deactivation based upon the following justifications:
That risk outweighs the increased risk that the person's head, neck or chest will violently strike the steering wheel or dashboard during a crash if the air bag is turned off (driver and/or passenger air bag, as appropriate).
2. An owner who wants deactivation for any of the above reasons should describe the reason in a letter and send it to: National Highway Traffic Safety Administration, Attention: Air Bag Deactivation Requests, 400 7th St. S. W., Washington, D.C. 20590. Deactivation is not available for other reasons. The request can also be faxed to (202) 366-3443.
The request must contain the following:
If the request concerns a child that must ride in the front seat to enable the driver to monitor the child's medical condition, the supporting physician's statement must identify the condition and state that frequent monitoring by the driver is necessary. NHTSA notes that the American Academy of Pediatrics has stated that medical conditions requiring such monitoring are very rare. According to the final report of the National Conference on Medical Indications for Air Bag Disconnection: "It is anticipated that the American Academy of Pediatrics will make recommendations regarding which specific conditions warrant close monitoring while driving" (passenger air bag only).
3. The agency will respond in writing, enclosing a copy of the information brochure in Appendix A of Part 595, labels to be attached to the vehicle interior for alerting vehicle users about the deactivated air bags, and a form to be filled out and mailed back to the agency regarding the deactivation. NHTSA will answer the deactivation requests as quickly as possible. It screens the incoming requests for requests involving rear-facing child restraints (because of the higher risk associated with those requests) and processes those requests first. Depending on the volume of requests being received by the agency, the processing usually occurs within several days. All other requests are handled in the order in which they are received. These requests currently take a couple days longer to answer.
The central reason for convening the National Conference on Medical Indications for Air Bag Disconnection was that the belief that the public and many physicians might benefit from guidance by physicians having expertise relating to automotive crash-induced trauma. The agency will attempt to ensure that due consideration is given the National Conference's report. If the agency receives a deactivation request accompanied by a physician's statement based on one of the medical conditions for which the National Conference did not recommend deactivation, the agency will defer to the requestor's physician and send a letter to the requestor granting his or her request. However, the agency will also enclose the report and urge that the requestor discuss it with his or her physician before having any modifications made to the requestor's air bags. NHTSA will also send a copy of the letter and report directly to the physician to ensure that he or she is made aware of the report's contents.
4. If a request has been granted, the recipient should call his or her dealer or a repair business and ask if it will disconnect the air bag. If the dealer or repair business says that it will, the recipient should ask further whether it is necessary to bring proof of owner status to the dealer or repair business.
5. Some dealers and repair businesses have a policy of not disconnecting air bags. NHTSA has no authority to require them to do so--that is the dealer's or business' decision. The owner may have to shop around to find a qualified automotive mechanic or technician who will disconnect the air bag.
6. If there is a motor vehicle insurance premium discount based on the presence of air bags in a vehicle, the premiums may increase slightly if the air bag(s) is(are) disconnected.
7. Seat belts should always be worn, whether a person's air bag is operational or deactivated. If a person's air bag is deactivated, seat belts are the only available means of restraint to reduce the likelihood that the person will hit the vehicle interior in a crash. Thus, it will be more important than ever to be properly restrained at all times.
8. NHTSA strongly urges owners to have their air bag reactivated if the condition that caused the deactivation ceases to exist, or if they sell the vehicle. If they do not reactivate the air bag upon sale, they should inform the new owner that the air bag has been deactivated.
9. If the agency denies a request, it will give the reason for the denial. The reason may be that there was not enough explanatory or supporting information submitted for NHTSA to approve the request. In that event, the request may be resubmitted with the necessary information. If a request was denied because the owner does not provide an accepted justification, the owner must wait for retrofit on-off switches to become available for his or her make/model of vehicle in order to turn off the air bag(s). If the owner or a user of his or her vehicle is a member of a risk group, the owner may request an on-off switch once one becomes available.
Motor vehicle dealers and repair businesses
Steps which must be taken if an air bag is deactivated pursuant to an agency authorization letter
1. If a person requests deactivation of an air bag, the dealer or repair business should determine that the person is the owner of the vehicle and that the person possesses a letter from the agency authorizing that person to have that air bag deactivated. Owner status can normally be checked by looking at the vehicle title or registration. (NOTE: A dealer or repair business is prohibited by statute from deactivating a vehicle's air bag unless the owner has an authorization letter from the agency.)
2. The agency letter will indicate which air bag(s) may be deactivated. If the letter authorizes deactivation of the driver air bag, the passenger air bag may not be deactivated, and vice versa.
3. NHTSA recommends that the dealer or repair business consult with the vehicle's manufacturer regarding a deactivation procedure if there are any doubts about how to deactivate an air bag.
4. An air bag must be deactivated in a manner such that:
5. These steps may be supplemented in any manner, such as by keeping a copy of the agency grant letter. Some dealers and repair businesses are requiring owners to permit them to apply warning labels to the vehicle or sign waivers of liability.
B. Providing Retrofit On-Off Switches under the Exemption: Procedures and Requirements.
Consumers can request the installation of an on-off switch by completely filling out the request form in Appendix B of Part 595 and sending it to NHTSA for approval. The agency will begin processing request forms on December 18. 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.
When the agency approves a request, it will send an authorization letter to the vehicle owner. Motor vehicle dealers and repair business may begin installing switches on January 19, 1998. If a dealer or repair business installs an on-off switch, it must comply with the conditions set forth in Part 595. Those conditions include obtaining the owner's authorization letter which includes a form to be filled in by the dealer or repair business and mailed back to NHTSA.
Air bag on-off switches: Who is eligible, and how is authorization requested?
1. Ask a dealer or vehicle repair business if a retrofit on-off switch is available. As noted above, NHTSA will grant deactivation requests after January 19, 1998 for only those vehicle makes and models for which the vehicle manufacturer does not make on-off switches available. As on-off switches become available from the vehicle manufacturer for a specific make and model, NHTSA will cease granting deactivation requests for that make and model. If an owner of such a make and model writes to NHTSA requesting authorization to have an air bag deactivated, NHTSA will deny the request and notify the person that a retrofit on-off switch is available. Eligible owners of the make and model may fill out a request form and send it to the agency for approval. If the agency approves the request and sends an authorization letter to the owner, the owner may then give the letter to a dealer or repair business, and ask it to install the vehicle manufacturer's on-off switch. If an on-off switch is also manufactured by an aftermarket manufacturer, a consumer may wish to request that a dealer or repair business install it.
For vehicle makes and models for which the vehicle manufacturer does not make available an on-off switch, the agency will continue to consider deactivation requests, even if an aftermarket parts manufacturer makes an on-off switch available for those vehicles. If an aftermarket parts manufacturer does make an on-off switch, the eligible owner of such a vehicle has the choice of requesting the agency to authorize deactivation or submitting an on-off switch request form to the agency for approval. If the agency approves the request for a switch, the owner can then give the agency authorization letter to a dealer or repair business, and ask it to install the aftermarket on-off switch.
2. Determine if the vehicle owner or a user of the owner's vehicle meets the criteria in one of the risk groups and if obtaining a retrofit on-off switch is appropriate. The information brochure in Appendix A of Part 595 will help the owner make this decision. The owner will have to certify on the request form that he or she has read the information brochure and that he or she or a user of the owner's vehicle is a member of one of the risk groups listed on the form. Separate certifications, one for a risk group related to the driver air bag and another for a risk group related to the passenger air bag, must be made on the form if the owner wants an on-off switch or switches for both the driver and passenger air bags.
3. Completely fill out the request form in Appendix B of Part 595. The agency cannot approve a request for an on-off switch unless the form is completely filled out and signed and dated by the owner.
4. Send the completed form to NHTSA.
5. Upon reviewing the owner's form and approving it, NHTSA will send an authorization letter to the owner.
6. Call your dealer or repair business and ask about the installation of a switch and the associated costs.
7. Give your authorization letter to a dealer or repair businesses willing to install the switch and request the installation of an on-off switch.
8. Use the retrofit on-off switch appropriately. The on-off switch should only be used if the person occupying the seating position is a member of one of the risk groups listed in the information brochure in Appendix A of Part 595. At all other times, the air bag should be on.
Motor Vehicle Dealers and Repair Businesses
Steps which must be taken if an air bag on-off switch is installed pursuant to the exemption from the make inoperative prohibition
1. Make sure the vehicle owner presents an authorization letter from NHTSA. The dealer or repair business may also require the owner to fill out a form devised by the dealer or repair business. That form may include a waiver of liability.
2. Install a retrofit on-off switch for each air bag covered by the agency's authorization.
3. Ensure that each on-off switch meets all of the following performance requirements-
a. Be activated solely by a key.
b. Cause the air bag to remain turned off until manually turned back on using a key and the on-off switch.
c. Be accompanied by a telltale light in the vehicle interior. The telltale must indicate when an air bag has been turned off and be visible to an occupant of the driver's seat, in the case of a light for the driver air bag, and to all front seat occupants, in the case of a light for the passenger air bag.
d. Not affect the ability of the required air bag readiness indicator to monitor an air bag that is not turned off. The indicator must show whether the air bag is functioning properly.
e. If a single on-off switch is installed to control both the driver's and passenger's air bag, the on-off switch must be capable of turning off one air bag without turning off the other. For a single on-off switch controlling both air bags, the telltale light must indicate which air bag is off.
4. Provide the owner with an insert for the vehicle owner's manual describing the operation of the on-off switch, listing the risk groups on the request form, stating that the on-off switch should only be used to turn off an air bag for a member of one of those risk groups, and stating the vehicle specific consequences for using it for persons who are not members of any of those risk groups. Those consequences must include the effect of any energy managing features, e.g., load limiters, on seat belt performance. NHTSA anticipates that the inserts can be obtained primarily from the vehicle manufacturers, although in some cases, they might be available from independent on-off switch manufacturers.
5. Fill in information about your dealership or repair business and about the installation on the form included in the authorization letter and return the form by mail to NHTSA within seven days of your installation of an on-off switch pursuant to that letter.
C. Steps to Promote Informed Decisionmaking by Consumers about Retrofit On-Off Switches.
1. Information Brochure.
To limit the obtaining and use of retrofit on-off switches to persons who may be at risk from serious air bag injury, the agency is issuing guidance to aid consumers in determining if they or a user of their vehicle is in a risk group and in making informed decisions about requesting and using retrofit on-off switches. This guidance is contained in the information brochure in Appendix A of Part 595. In response to public comments about the information brochure in the deactivation NPRM, the brochure has been rewritten in a question and answer format to be more user friendly. The brochure will be distributed widely and made available on the Internet. The electronic version of the information brochure on NHTSA's Web site will supplemented by video clips showing what happens to a belted dummy in a crash test when the driver air bag is turned off.
The information brochure explains which consumers may be at any risk from air bags, and which are not. The brochure identifies the factors that create risk and tells consumers how to reduce that risk. For those who may be at risk, it stresses how infrequently people, particularly drivers and adult passengers, are fatally injured by air bags.
The information brochure also emphasizes that on-off switches should not be used to turn off air bags for the people not at risk. They represent the vast majority of vehicle occupants. Their use of on-off switches to turn off air bags will not make them safer in low speed crashes, but will make them less safe in moderate and high speed crashes.
2. Insert for Vehicle Owner's Manual.
To remind vehicle owners and users about the proper use of on-off switches, the agency is requiring that dealer or repair businesses which install switches give vehicle owners 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 would include the effect of any energy managing features, e.g., load limiters, on seat belt performance.
3. Physicians' Guidance regarding Medical Conditions Warranting Turning Off an Air Bag.
As noted above, a national conference of physicians, convened by George Washington University at the request of NHTSA, has examined the medical conditions that have been cited by vehicle owners as the basis for requesting deactivation of air bags. The conference participants recently issued a report containing their assessment of each of those conditions as a justification for deactivation. The agency expects that publicizing the report will reduce some of the confusion and misapprehension about which medical conditions really justify air bag deactivation. NHTSA has briefly summarized the report in the information brochure and is placing it on the agency's Web site.
4. Campaign to Increase Use of Child Restraints and Seat Belts.
NHTSA is also undertaking a campaign in conjunction with safety groups, vehicle manufacturers and state and local authorities to promote increased use of all types of occupants restraints. NHTSA is urging motorists to use child restraints and seat belts and place children in the back seat, whenever possible, as well as spreading the word about the benefits of air bags for most people. Proper use of the restraint(s) most appropriate to the weight and age of each child fatally injured to date by air bags would have saved all or almost all of them. While increasing numbers of parents are placing their children in the back seat or ensuring that they are properly secured in the front seat, much consumer education work remains to be done.
Disturbingly, most of the fatally-injured children were allowed to ride in the front without any type of restraint whatsoever. And, as of July 15, 1997, five out of the last seven fatally injured children aged 1 to 12 were simply "held in place" on the lap of a front seat passenger. There were no similar fatalities before December 1996. It is not known whether the sudden appearance of fatalities under these particular circumstances is mere chance or a response to the publicity given child air bag fatalities last fall. It is known that the combined effects of the risk of an air bag to an unrestrained child, and the weight that an adult places on a child during a frontal crash can make the decision to attempt to hold a child in place a fatal one. Children should ride fully restrained, and in the back seat whenever possible.
In addition, NHTSA is seeking to increase the rate of seat belt use from the current 68 percent to 90 percent by 2005 by promoting the enactment of primary seat belt use laws and high-visibility enforcement of use laws. Such an increase could save an estimated additional 5,000 lives each year. Since most persons fatally injured by air bags have been unbelted, this increase would also provide an additional way of preventing air bag fatalities. This provides an additional reason why on-off switches should only be used when a person in one of the identified risk groups is in the seat.
45. The reference to owners is intended to include lessees as well.
46. As noted above in IV, Summary of Comments on Proposal, IIHS conducted a study in which it found the almost all women in a group of women ranging in height from 4 feet, 8 inches to 5 feet, 2 inches were able to get back 10 inches from their driver air bag in all test vehicles and all of the women could achieve that distance in almost all of those vehicles.
47. The physicians at the National Conference did not recommend turning off air bags for pacemakers, supplemental oxygen, eyeglasses, median sternotomy, angina, chronic obstructive pulmonary disease, emphysema, asthma, breast reconstruction, mastectomy, scoliosis (if the person is capable of being positioned properly), previously back or neck surgery, previous facial reconstructive surgery or facial injury, hyperacusis, tinnitus, advanced age, osteogenesis imperfecta, osteoporosis and arthritis (if the person can sit back at a safe distance from the air bag), previous ophthalmologic surgery, Down syndrome and atlantoaxial instability (if the person can reliably sit properly aligned in the front seat), or pregnancy. However, the physicians did recommend turning off an air bag if a safe sitting distance or position cannot be maintained by a driver because of scoliosis or achondroplasia or by a passenger because of scoliosis or Down syndrome and atlantoaxial instability. The physicians also noted that a passenger air bag might have to be turned off if an infant or child has a medical condition and must ride in front so that he or she can be monitored. This report is summarized more fully earlier in this notice. To obtain a complete copy of the detailed recommendations by the panel, call the NHTSA Hotline (1-800-424-9393) or download it from the NHTSA Web site.
48. Physicians considering whether a person's medical condition makes it desirable for that person to turn off his or her air bag should consider the report of the National Conference and the following three points and guidance.
As noted above in the description of the report of the National Conference, very few medical conditions will cause an air bag to create a special risk. The few conditions that do create such a risk do so by making it necessary for persons with one of those conditions to sit less than 10 inches from an air bag. This is true for both low speed crashes and higher speed crashes. This guidance is based on the following facts:
1. The force of a deploying air bag decreases as the air bag moves away from the steering wheel or dashboard, and
2. An air bag spreads out the forces that a person experiences during a crash, reduces the crash forces that seat belts transmit to particular areas of the body, and decreases the risk that the person's head, neck or chest (even those of a belted person) will strike the steering wheel or dashboard.
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