Make Inoperative Exemptions; Retrofit Air Bag On-Off Switches and Air Bag Deactivations

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Regulatory History of Air Bag On-Off Switches and Deactivation

B. Background on Advanced Air Bag Systems

C. Current Part 595 Subpart B Requirements and Procedures for Obtaining Exemptions for Retrofit On-Off Switches

D. Air Bag Deactivations

III. Proposed Amendments

A. Removal of the Sunset Date Provision for Retrofit Air Bag On-Off Switches

B. Adjustment of Criteria for At-Risk Occupants To Obtain a Retrofit Air Bag On-Off Switch for Vehicles Equipped With Advanced Air Bags

i. Exemptions for Infants in Rear-Facing Child Restraint Systems Who Must Be Transported in the Front Passenger Seat

ii. Exemptions for Children Ages 1 to 12 Who Must Be Transported in the Front Passenger Seat

C. Requests for Air Bag Deactivations (General Public)

D. Exemptions for Law Enforcement and Emergency Vehicles

i. On-Off Switches

ii. Deactivations

E. Update of Information Brochure

IV. Estimates of Benefits and Costs

V. Proposed Effective Date

VI. Regulatory Notices and Analyses

VII. Public Participation

I. Executive Summary

Since the late 1990s, NHTSA has permitted, under certain circumstances, both manufacturers and repair shops to install switches in motor vehicles that allow the occupant to turn on and off the vehicle's air bag system. This installation would typically be a violation of the “make inoperative” provision of the National Traffic and Motor Vehicle Safety Act, but NHTSA added an express exemption to that provision for air bags because of the threat of injury that early air bag systems posed to children and smaller statured occupants. This exemption—49 CFR part 595 subpart B—outlines the process by which an individual can petition the agency for an air bag on-off switch to be installed in their vehicle.

NHTSA has stated repeatedly since creating part 595 subpart B that the solution to the dangers posed by early air bag systems was advanced air bag systems that could adapt or suppress their deployment based on the vehicle occupant. Accordingly, NHTSA has repeatedly put a sunset date on the on-off switch provision, with the most recent sunset date in 2015. Since then, NHTSA has continued to use its enforcement discretion to grant requests for air bag on-off switches. The agency has also used its enforcement discretion to grant air bag system deactivation in special circumstances, even though the Federal Motor Vehicle Safety Standards (FMVSS) do not currently provide a formal process for requesting deactivation. This NPRM proposes several updates to part 595 to take into account the continued development and effectiveness of advanced air bag systems. Additionally, the NPRM proposes codifying the process by which individuals may petition the agency for air bag deactivation in special circumstances. The agency seeks public comment on the proposals listed below.

II. Background

A. Regulatory History of Air Bag On-Off Switches and Deactivation

To prevent or mitigate the risk of injuries or fatalities in frontal crashes, FMVSS No. 208, Occupant Crash Protection, requires that passenger vehicles be equipped with seat belts and frontal air bags. Although FMVSS No. 208 did not require frontal air bags on passenger cars until model year (MY) 1998 and on multipurpose passenger vehicles and light trucks until MY 1999, air bags were already in widespread use by the early 1990s. These early-generation air bags were highly effective in protecting occupants in frontal crashes, but caused a number of fatalities to certain occupants who were especially vulnerable to air bag-related risks.

NHTSA has long maintained that the long-term solution to the problem of air bag-related injuries to these at-risk populations was the development and widespread implementation of advanced air bag systems, which could sense the kind of occupant seated and adjust deployment to protect at-risk passengers. However, during the 1990s, when air bag-related injuries and fatalities emerged as a safety problem, advanced air bags were still a nascent technology. To provide time for the development and dissemination of advanced air bag systems into new vehicle production, and to address safety concerns posed by pre-advanced air bags in vehicles already on the road, NHTSA implemented an array of interim measures designed to protect those passengers most susceptible to air bag-related injuries. These measures focused both on behavioral changes ( e.g., consumer education on the importance of seat belts and on putting children in rear seating positions) and relatively modest technological changes ( e.g., amending FMVSS No. 208 to temporarily allow for depowered air bags and permitting installation of on/off switches).

Consumer Education Efforts

A particular focus of these measures was efforts to protect children from air bag related injuries and fatalities. Early data indicated that children were at a significant risk of harm from air bags. The data indicated that children who were either seated in child restraint systems (CRS) or seated without CRSs were at risk of serious injury or death when seated in a position with a frontal air bag. Because of the agency's significant concern for the safety of children, NHTSA took multiple actions throughout the 1990s to protect children from potential harm from air bags.

First, the agency began providing CRS recommendations informing caretakers how and where they should equip child restraints in a vehicle. NHTSA's recommendation has always been to install CRSs in the back seat of vehicles. Furthermore, there are different CRSs for children of different ages. NHTSA recommends that from birth to 12-months old a child should be secured in a rear-facing CRS. From 1 year old to 3 years old NHTSA recommends keeping a child in a rear facing seat for as long as possible—the child's height and weight will determine when they should be moved to a forward-facing CRS. From 4 years old to 7 years old NHTSA recommends keeping a child in a forward-facing CRS until they exceed the weight and height maximums for the respective seat. Once a child outgrows the forward-facing seat NHTSA recommends children be belted using the traditional seat belt, but with the use to a booster seat; children should remain in a booster seat until they are tall enough to fit in a seat belt properly without the assistance of a booster seat. NHTSA recommends that the child be belted in the back seat of a vehicle for all of these different stages.

Second, the agency made several recommendations and took several actions to ensure children seated in the front were protected from air bags. Early on, the agency primarily encouraged behavioral changes from owners of vehicles with air bags. For example, in the early 1990s, agency testing showed that using a rear-facing child restraint in the front seat of a vehicle where frontal air bags were active presented a significant risk to child occupants. In December 1991 the agency issued a Consumer Advisory warning owners of rear-facing child restraints to not use such devices in the front seat of a vehicle equipped with a passenger air bag. Throughout the 1990s, NHTSA released several additional News Releases on this issue. NHTSA also took regulatory action on this issue in 1993, when it issued a final rule which, in part, required that vehicles equipped with air bags include labels on sun visors providing specific cautions, including a statement not to install rearward-facing child seats in front passenger positions. The agency took further regulatory action in 1994, when it required rear-facing child restraints manufactured on or after August 15, 1994, to include a warning against using the restraint in any vehicle seating position equipped with an air bag.

Third, the agency took a number of other communication-based actions to improve safety outcomes relating to children and air bags. On October 27, 1995, after several fatalities to children seated in air bag-equipped seating positions, NHTSA issued a warning in a press release, “SAFETY AGENCY ISSUES WARNING ON AIR BAG DANGER TO CHILDREN.” In the press release, the agency warned that children sitting in air bag-equipped seating positions not restrained by a seat belt could be seriously injured or killed by an air bag. The release also stated in very strong terms that parents should ensure their children are belted in the back seat of a vehicle whenever possible. During the late 1990s, the agency also published several articles in widely circulated journals and periodicals on the dangers air bags pose to children. NHTSA has continued this education campaign by publishing information on the NHTSA website on the dangers air bags pose to children.

In addition to these efforts to protect children, NHTSA also considered that certain adult passengers were at risk from air bag systems. As described in the paragraphs above, many of the agency's attempts to both educate the public and improve vehicle technology countermeasures to increase the safety outcomes of early air bag systems were focused on children. The agency has also acknowledged in both informal guidance as well as previous rulemakings that certain adults may also be at risk of serious injury from air bag systems. For example, certain smaller-statured individuals may have to sit closer to the steering wheel to reach the foot pedals, which may put them at increased risk of injury if an air bag were to deploy. NHTSA's website recommends that individuals sit at least 10 inches away from the steering wheel to reduce the risk of injury from air bag deployment. Accordingly, individuals who must sit closer than 10 inches to the steering wheel to reach the pedals may need to have an air bag on-off switch installed. The 1997 final rule that allowed for air bag on-off switches to be installed (discussed below) explicitly discussed specific situations where adult passengers (including adult drivers) may need an on-off switch installed.

Vehicle Technology Countermeasures

Although NHTSA recommended (and continues to recommend) that children be placed in a rear seating position and that adults sit 10 inches or more away from the steering wheel, the agency recognized early on that there were instances where this guidance would not be helpful. For example, certain vehicles don't have rear seats and certain adults can't sit more than 10 inches from the steering wheel without their feet reaching the foot pedals. When the agency first considered taking action to improve vehicle technology countermeasures in the mid-1990s to ensure children and shorter statured adults were protected from potential harm from air bags, advanced air bag systems were still a nascent technology. Starting in 1995, NHTSA began facilitating a few different types of vehicle technology countermeasures: original equipment on-off switches, retrofit on-off switches, and air bag deactivations.

Original Equipment On-Off Switches. In 1995, NHTSA for the first time promulgated a final rule that allowed manufacturers the option of installing a manual device that motorists could use to deactivate the front passenger-side air bag in vehicles in which infant restraints could only be used in the front seat. This final rule was the first instance in which the agency allowed an original equipment manufacturer (OEM) to install an air bag on-off switch, but the scenario in which the OEM on-off switch could be installed was very narrow and left up to the discretion of the OEM. Because on-off switches were intended only as a temporary measure, the agency sunset this provision. The provision sunset on September 1, 2012.

Retrofit on-off switches. In 1997, NHTSA published another final rule addressing air bag on-off switches. This rule broadened the 1995 final rule that had been extended in 1997, and focused on more than just children needing protections from on-off switches.

Under National Traffic and Motor Vehicle Safety Act (Safety Act), 49 U.S.C. 30122, no manufacturer, distributor, dealer, rental company, or motor vehicle repair business may knowingly make inoperative any part of a device or element of design installed or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard. This provision is commonly referred to as the “make inoperative” provision of the Safety Act. Because of this provision, unless NHTSA explicitly exempts a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from this requirement, those entities cannot knowingly make a compliant motor vehicle or motor vehicle part inoperative. In other words, without an explicit exemption from this requirement, the entities listed above could not knowingly make air bags inoperative, because they would be making a FMVSS No. 208 compliant motor vehicle part inoperative.

Among additional details discussed below, the most notable action the 1997 final rule took was creating an explicit exemption for motor vehicle dealers and repair businesses from the make inoperative provision of the Safety Act. This exemption permitted on-off switches to be installed not just in new vehicles but also to be retrofitted into vehicles that had already been sold. It also meant that an additional entity—motor vehicle repair businesses—could now install on-off switches. Thus, NHTSA's regulations, at that point, allowed for two different types of on-off switches: (1) original equipment air bag switches, installed as original equipment on a vehicle before the vehicle was sold other than for resale; and (2) retrofit air bag switches, installed after the vehicle had been produced and sold to the consumer. Because retrofit air bag switches are installed after purchase of a vehicle, the onus is on the vehicle owner to decide if they would like an on-off switch installed. However, as discussed below, air bags generally improve safety outcomes significantly for most individuals involved in crashes. So instead of leaving the decision up to the individual whether an on-off switch would produce a beneficial safety outcome for a specific individual, the 1997 final rule created a process by which individuals could submit a request to NHTSA for an air bag on-off switch, and if approved, the individual could then have one installed. That process is discussed in more detail in Section II.C. As with original equipment on-off switches, the part 595 exemption for retrofit on-off switches was subject to a sunset provision; this exemption expired on September 1, 2015.

Air bag deactivations. Although air bag on-off switches were an effective solution to protect individuals who may be vulnerable to air bag systems, there are certain scenarios where on-off switches cannot be installed in a vehicle. In situations where an on-off switch cannot be installed, the 1997 final rule outlined that NHTSA would continue to use its enforcement discretion to allow air bag deactivation. The key distinction between an air bag switch and air bag deactivation is that the vehicle operator can turn the air bag system on or off with a switch, whereas once a repair shop or manufacturer deactivates an air bag system, the vehicle operator cannot turn the system back on. NHTSA has not codified a process for individuals to request an air bag system deactivation.

B. Background on Advanced Air Bag Systems

As discussed in the section above, early air bag technology presented several safety risks to both children and smaller-statured individuals. The agency has repeatedly expressed that the solution to the dangers from early air bag technology was to develop advanced air bag technology. This belief is also reflected in the sunset dates for air bag on-off switches. FMVSS No. 208, Occupant crash protection, requires that all new passenger vehicles and light trucks sold in the United States meet certain minimum performance criteria for protecting vehicle occupants during and after a collision. “Advanced air bag requirements” is a term used to refer collectively to a subset of these requirements that was added to FMVSS No. 208 as part of a May 12, 2000, final rule to protect children and other at-risk occupants from air bag-related injury. The advanced air bag requirements became fully phased-in on September 1, 2010.

Under the advanced air bag requirements, both the driver-side and passenger-side frontal air bag system must pass several barrier crash tests using 50th percentile adult male and 5th percentile adult female dummies in both belted and unbelted conditions (the tests require various test speeds, test conditions, and dummy placement). These tests must be performed at both the driver and right front passenger seating positions. In addition to barrier tests (which are designed to protect the adult-sized population at-large), passenger-side advanced air bag systems must also meet several requirements that are intended to protect children. Specifically, passenger-side frontal air bag systems must alter their deployment in the presence of three child-sized test dummies—representing a 12-month-old, a 3-year-old, and a 6-year-old—in multiple positions, both with and without the child restraints specified in Appendix A-1 of FMVSS No. 208. Unlike the barrier tests described above, the tests for deployment in the presence of children are static tests conducted in a stationary setting.

The requirements and static tests related to child and smaller-statured occupants may be met using one of three strategies: suppression, low risk deployment (LRD), or a dynamic automatic suppression system (DASS). Suppression-based advanced air bag systems will suppress ( i.e., not deploy) the passenger air bag in a crash if the system senses a child in a rear-facing CRS, a child in a forward-facing CRS, or a child not in a CRS but who is below a certain size or is out of position in the passenger seat. LRD-based advanced air bag systems will deploy the passenger air bag in all of these situations, but will do so in a low-risk manner that does not exceed certain injury assessment reference values for children. DASS-based advanced air bag systems dynamically suppress air bag deployment during a crash by sensing and interpreting the occupant characteristics and/or locations of occupants in relation to the air bag.

Manufacturers are not required to use the same option for all three child dummy sizes. Currently, all vehicles equipped with advanced air bags use either “conventional” ( i.e., non-DASS) suppression or LRD to meet advanced air bag requirements, with the vast majority of manufacturers choosing suppression. For the remainder of the discussion, unless indicated otherwise, “suppression” systems are conventional, non-DASS systems.

Data collected by NHTSA indicate that advanced air bags substantially reduce the risk of air bag-related injuries to children and smaller statured adults. In 1997, when air bag-related fatalities peaked in the era before advanced air bags were introduced, there were 52 air bag-related fatalities, 31 of which were children. Since the introduction of advanced air bags, air bag-related fatalities have declined significantly, and in fact there have been no confirmed air bag-related fatalities among children in vehicles equipped with certified advanced air bags. ¹⁵ Although it is likely that much of this reduction can be attributed to child safety initiatives ( i.e., air bag warning label requirements, changes to State laws, greater enforcement of those laws, and publicity campaigns) that have encouraged parents and caregivers to move children 12 and younger from the front seat to the rear seat of vehicles, the agency nonetheless believes that the complete absence of air bag-related fatalities in children over the last several years demonstrates that advanced air bags provide a crucial safety countermeasure backstop for situations in which children are placed in the front passenger seat.

C. Current Part 595 Subpart B Requirements and Procedures for Obtaining Exemptions for Retrofit On-Off Switches

The 1997 final rule created part 595 subpart B. Subpart B sets out several requirements for vehicle owners who want to request a retrofit on-off switch. Specifically, it identifies five situations in which the agency will authorize on-off switches:

• Medical condition: The driver has a medical condition and a doctor indicates that an air bag would pose a special risk of harm to that person and the risk of harm outweighs the risk of the passenger hitting the steering wheel or windshield in a crash;
• Distance from driver air bag: Despite taking all reasonable steps to move back from the driver air bag, the driver is not able to maintain a 10-inch distance from the center of his or her breastbone to the center of the driver air bag cover;
• Infant: An infant (less than 1 year old) must ride in the front seat because the vehicle has no rear seat, the vehicle's rear seat is too small to accommodate a rear-facing infant seat, or the infant has a medical condition that makes it necessary for the infant to ride in the front seat so the driver can monitor the infant;
• Child Age 1 to 12: A child age 1 to 12 must ride in the front seat because the vehicle has no rear seat, children ages 1 to 12 must ride in the front seat of the vehicle because no space is available in the rear seat, or the child has a medical condition that makes it necessary for the child to ride in the front seat so the driver can monitor the child.

These criteria were consistent with the general rationale of the 1997 final rule, as advanced air bag technology was still in the early stages of development. As discussed previously, the agency created the part 595 petition as a temporary measure to ensure vulnerable passengers were protected from potential harm from air bag systems. It was intended to be a temporary measure as advanced air bag technologies developed. Accordingly, the provision sunset in 2015.

Subpart B of part 595 sets out the specific steps that a vehicle owner/installation technician must follow to obtain an exemption for an on-off switch.

If an individual wants an on-off switch installed in their vehicle, they must fill out the request form that can be found in appendix B to part 595. The first portion of this form provides instructions to individuals seeking the installation of an on-off switch, and part of these instructions directs the vehicle owner or lessee to read NHTSA's information brochure on air bag on-off switches, which can be found in appendix A to part 595. After reviewing the brochure, if the vehicle owner/lessee is still interested in having an air bag on-off switch installed, the vehicle owner/lessee then fills the request form out, including an indication of which air bags (passenger or driver) they would like the on-off switch for. The request form includes a list of the eligibility criteria NHTSA deemed acceptable for a retrofit on-off switch in the 1997 final rule with a check box next to each justification. A list of these eligibility criteria is also included in the safety brochure (appendix A to part 595). The applicant must check which justification they are requesting an on-off switch under as part of completing the request form. After completing the request form, the owner/lessee mails the form to NHTSA. NHTSA then reviews the request form and determines whether the owner/lessee should be granted their request to have an on-off switch installed. If NHTSA determines the information provided in the request is sufficient, the agency notifies the individual if the request is granted or denied in writing. If the request is missing information, the agency will request the necessary information from the requestor. In addition to the signed form, NHTSA also sends the installation form (appendix C to part 595) (to be filled out by the manufacturer or repair shop).

The manufacturer or repair shop has several obligations that it must also comply with under part 595. These include ensuring a telltale light is installed and operating that indicates when the air bag switch is in the “off” mode and providing the owner/lessee of the vehicle with an insert for the vehicle owner's manual that describes the operation of the switch, explains the at-risk groups set forth in Appendix B, and indicates that the on-off switch should only be used in the “off” mode if one of the at-risk groups is present in the relevant seat. The manufacturer or repair shop must also fill out the installation form that can be found in appendix C to part 595 and return it to NHTSA within seven (7) days of installation.

D. Air Bag Deactivations

As noted earlier, while part 595 does not provide for air bag deactivations, NHTSA has been considering requests for air bag deactivations on a case-by-case basis using its enforcement discretion. Under the existing process, vehicle owners who would like to have their air bag system (or part of the system) deactivated must submit their request in a letter to NHTSA with a detailed explanation for why deactivation is necessary. This letter must include information such as the subject vehicle's make, model, and vehicle identification number. In addition, requests based on certain medical conditions other than those for which the National Conference on Medical Indications for Air Bag Deactivation has recommended air bag deactivation must be accompanied by a physician statement. This statement must indicate the particular medical condition of the patient, as well as the physician's judgment that the condition causes air bags to pose a special risk to that person, and that the condition makes the potential harm to the person from contacting an air bag in a crash greater than the potential harm from turning off the air bag.

Once NHTSA reviews the deactivation request letter, it notifies the requestor in writing of its decision to either grant or deny the request. If NHTSA denies the request, it explains the basis for the denial; if the reason for the denial was a lack of information, the request may be resubmitted with the necessary information. If NHTSA grants the request, it provides the requestor with an authorization letter, a copy of the information brochure contained in appendix A to part 595, labels to be attached to the vehicle interior for alerting vehicle users about the deactivated air bag(s), and a form to be filled out and mailed back to the agency regarding the deactivation. The recipient can then take the authorization letter to a car dealer or a motor vehicle repair business to have their vehicle's air bag deactivated.

III. Proposed Amendments

The changes proposed in this document would revise NHTSA's policies and procedures regarding retrofit on-off switches and deactivations to account for the benefits of advanced air bags. Over the last two and a half decades, NHTSA has repeatedly stated in multiple rulemaking notices that its regulations permitting air bag on-off switches and deactivations were intended to be temporary. During the 1990s, NHTSA's primary reason for allowing air bag on-off switches and deactivations was to provide time for manufacturers to develop advanced air bag technology. NHTSA also continued allowing air bag on-off switches and deactivations even after the phase-in of advanced air bag requirements to promote public acceptance of the technology and to give the agency time to study advanced air bags in real-world situations before making long-term policy decisions regarding the continued need for air bag on-off switches and deactivations.

This rulemaking would complete NHTSA's evaluation of current advanced air bag efficacy and the need for on-off switches and deactivations. Unlike our previous rulemakings in this area, the changes proposed in this document are not intended to be interim solutions. Rather, they represent NHTSA's conclusions regarding the need for air bag switches and deactivations as it exists for the foreseeable future. NHTSA considered several factors in crafting the proposed amendments in this NPRM, including the interest in and need for retrofit air bag on-off switches and air bag deactivations, the degree to which advanced air bags mitigate the risk of air bag-related injuries, and the safety benefits of advanced air bags relative to retrofit on-off switches and deactivations.

Furthermore, the changes proposed in the following sections will improve motor vehicle safety. As discussed above, data indicate that advanced air bag systems significantly improve safety outcomes for most vehicle occupants. NHTSA acknowledges that certain individuals have the potential to be harmed by air bags, primarily because of their stature; however, advancements in air bag suppression technology have resulted in most air bag suppression systems protecting smaller stature occupants without needing an air bag on-off switch. Retrofit on-off switches can be misused by consumers because they may forget to set the switch to the position appropriate for the passenger occupying the seat. By narrowing the eligibility criteria for obtaining an air bag on-off switch to only include groups that are at heightened risk of air bag-related injuries even with advanced air bag systems, the proposed rule would result in fewer installations of unnecessary retrofit switches. By eliminating the sunset date provision, the proposed rule would increase NHTSA's regulatory flexibility to allow the installation of retrofit air bag on-off switches to serve at-risk groups, regardless of when their vehicles were manufactured. In addition, the proposed rule improves overall agency transparency and public accountability by articulating and codifying NHTSA's processes for approving requests for retrofit air bag on-off switches and, if necessary, for air bag deactivation, when warranted by a safety need.

As the 1997 final rule indicates, the part 595 petition process has always focused on weighing the safety benefits that air bags provide vis-à-vis the potential harm that air bag systems can do to at-risk populations. The development and widespread use of advanced air bag systems has significantly altered this calculus, which is why the agency is proposing changes to part 595's substantive requirements as part of this NPRM.

A. Removal of the Sunset Date Provision for Retrofit Air Bag On-Off Switches

This rulemaking would remove from part 595 subpart B the language limiting the installation of retrofit air bag on-off switches to vehicles manufactured before September 1, 2015. As noted above, when NHTSA authorized air bag on-off switches in past rulemakings, the agency imposed a sunset date for their availability because it believed that advanced air bags would largely obviate the need for manual air bag on-off switches. NHTSA tried to set these sunset dates far enough in the future to provide sufficient time both for manufacturers to develop advanced air bags and for the agency to assess advanced air bags' effect on safety.

NHTSA has determined that, even with advanced air bags, there is and will be a continuing need for retrofit air bag on-off switches for the foreseeable future for at least some at-risk segments of the population. There is a small segment of the vehicle occupant population ( e.g., those that meet our new eligibility criteria to obtain a retrofit air bag on-off switch, which are discussed below) to whom current frontal air bags pose a risk that outweighs a safety benefit, and whose risk characteristics are such that they cannot necessarily be detected or mitigated by current advanced air bag technology. Because the risks to this population are not addressed by advanced air bags, we tentatively believe that it would be safer in some instances for air bags to be suppressed by a manually operated air bag on-off switch than to deploy as designed. This population will likely need the continued availability of retrofit air bag on-off switches for the indefinite future, so NHTSA proposes to remove the sunset date of September 1, 2015, and to continue allowing retrofit air bag on-off switches for certain at-risk populations until further notice.

Comments are requested on this proposal.

B. Adjustment of Criteria for At-Risk Occupants To Obtain a Retrofit Air Bag On-Off Switch for Vehicles Equipped With Advanced Air Bags

This rulemaking proposes to amend the eligibility criteria for owners and users of vehicles equipped with advanced air bags to obtain a retrofit air bag on-off switch under part 595 subpart B. We believe that advanced air bags have sufficiently addressed the safety concerns of some of the groups that were previously deemed at-risk for air bag-related injuries at the time that Part 595 subpart B was established. This rulemaking would narrow the eligibility requirements for obtaining a retrofit air bag on-off switch under part 595 subpart B such that these groups would not all qualify for an air bag on-off switch on vehicles equipped with advanced air bags. The proposed amendments specifically relate to the categories concerning infants in rear-facing CRSs and children ages 1 to 12 who must be transported in the front passenger seat. Below we discuss each in turn.

i. Exemptions for Infants in Rear-Facing Child Restraint Systems Who Must Be Transported in the Front Passenger Seat

1. Vehicles Certified to the Suppression-Based Compliance Option Would No Longer Be Eligible for an Exemption

This NPRM distinguishes between vehicles meeting the advanced air bag requirements by way of suppression versus via a low-risk deployment option. Under this NPRM, vehicles certified to meet the advanced air bag requirements for children in rear-facing CRSs in the front seat using suppression would not be eligible for a retrofit air bag on-off switch. This proposal reflects our tentative conclusion, based on over two and a half decades of field data, that air bag suppression is an extremely effective tool for protecting children in rear-facing CRSs from air bag-related injuries. Based on these data, NHTSA tentatively believes there is no longer a safety need to permit the installation of retrofit air bag on-off switches in these circumstances.

Like on-off switches, suppression-based advanced air bags mitigate the risk to children in rear-facing CRSs by eliminating the possibility of air bag/CRS interaction entirely. Moreover, the automatic operation of suppression-based advanced air bags makes the suppression systems safer overall as compared to retrofit air bag on-off switches, which do not operate automatically and are susceptible to misuse. Thus, NHTSA tentatively believes there is no longer a safety need to permit the installation of retrofit air bag on-off switches in vehicles equipped with suppression-based advanced air bags for the transport of children in rear-facing CRSs in the front passenger seat. NHTSA tentatively believes that this proposal would benefit safety by reducing the number of unneeded retrofit air bag on-off switches that would be present in the fleet that could potentially be misused.

2. Vehicles Certified to the Low-Risk Deployment Compliance Option Would Still Be Eligible for an Exemption

Under the proposed rule, vehicles certified to meet advanced air bag requirements for children in rear-facing CRSs in the front seat using low risk deployment (LRD) would continue to be eligible for a make inoperative exemption for a retrofit air bag on-off switch.

The agency has decided to differentiate between suppression-based and LRD-based advanced air bag systems for children in rear-facing CRSs because, although NHTSA has confidence in both suppression and LRD technologies, LRD systems are not as prevalent in the fleet and have not had the same degree of field experience confirming their effectiveness as have suppression systems.

There are several safety considerations specific to rear-facing CRSs interacting with LRD-based advanced air bags that NHTSA believes justify the agency's cautious approach here. First, children in rear-facing CRSs are typically younger and more vulnerable than other at-risk groups. Second, children in rear-facing seats are always exceedingly close to a front-mounted air bag, especially compared to other categories of at-risk occupants. This proximity matters because the primary factor that determines a child's risk of air bag-related injury is the child's proximity to the air bag at the time of deployment. Given that children in rear-facing CRSs are especially at risk for air bag-related injuries because of their constant close proximity to the air bag risk zone as compared to other at-risk groups, NHTSA has determined that it would be prudent at this time to allow vehicle owners with LRD advanced air bag systems to have the option of an on-off switch if they must seat a child in the front seat of their vehicle.

ii. Exemptions for Children Ages 1 to 12 Who Must Be Transported in the Front Passenger Seat

Under the proposed rule, vehicles meeting the advanced air bag requirements that are used to transport children ages 1 to 12 in the front passenger seat (including children secured in a forward-facing CRS) would not be eligible for a make inoperative exemption for a retrofit air bag on-off switch. This change would apply regardless of whether the vehicle is equipped with suppression-based or LRD-based advanced air bags.

NHTSA originally designated children ages 1 to 12 an “at-risk” group for purposes of determining eligibility for an exemption under part 595, to address the dangers that early (non-advanced) air bags posed to unrestrained older children. Identifying this risk group required NHTSA to establish an objective, practicable way of determining both when a child is large enough that the air bags deploying would not pose a significant safety risk, and when a child was behaviorally mature enough that the child was not likely to be out of position at the time an air bag deploys. NHTSA chose age as a proxy for making these determinations, because age normally correlates to a child's size and level of maturity, and it is a simple and objective way to determine eligibility. However, a child's age is, at best, an imperfect measure of whether the child is at risk for air bag-related injuries because age is an imperfect proxy for size or maturity.

Advanced air bag systems do not rely on age as a proxy for a child's size or likely position at the time of air bag deployment. Rather, they use sensors to detect a child's size and use either sensors or other design features to safely account for children who are out of position at the time of a crash. Because a child's size and position are the two most important indicators of whether it is safe to deploy the air bag (or whether to deploy it in a low-risk manner), advanced air bags can use that data to either suppress the air bag or tailor the air bag's deployment to the child (as opposed to early generation air bags, which would always deploy the air bag at full force in a triggering crash, regardless of the size or position of the occupant). The agency is unaware of a single reported crash fatality of a child aged 1 to 12 (or a child in a forward-facing CRS) that has been attributed to a certified advanced air bag since the technology was introduced. Based on available evidence, the agency believes there is no longer a safety need that justifies permitting the installation of retrofit air bag on-off switches for children ages 1 to 12 (or children in forward-facing CRSs) in vehicles equipped with advanced air bags solely on the basis of age. The agency would continue to approve requests for retrofit on-off switches for children ages 1 to 12 (or children in forward-facing CRSs) in vehicles equipped with non-advanced air bags.

Notwithstanding the agency's tentative conclusion that children ages 1 to 12 (or children in forward-facing CRSs) are not an at-risk group under part 595, subpart B in vehicles equipped with advanced air bags, NHTSA acknowledges that there is a remote possibility an air bag on-off switch may be permissible for these children under certain circumstances, such as if a specific child in that age range has unique characteristics that a vehicle's advanced air bag system has difficulty detecting. Similarly, given the variety of forward-facing and rear-facing CRSs that exist, the agency acknowledges that there is a remote possibility that some advanced air bag systems may not be designed to detect certain models of forward-facing CRSs that have unusual footprints. To address these sorts of edge cases, the agency foresees using its enforcement discretion to permit the installation of retrofit on-off switches in these rare situations.

Comments are requested on the above issues.

C. Requests for Air Bag Deactivations (General Public)

NHTSA proposes to codify the process by which vehicle owners request a “make inoperative” exemption so that they may have their vehicles' air bags deactivated. This informal process for requesting deactivations was initially intended to be used in a limited number of circumstances where the requestor was eligible for an exemption to install an air bag on-off switch, but an air bag on-off switch was not available from the manufacturer of the requestor's vehicle. The agency believes it can improve on the deactivation request process with the proposals described in detail below.

NHTSA's proposal to codify the deactivation request process would improve transparency while keeping the process largely unchanged aside from a few slight modifications. First, NHTSA would require that deactivation requestors certify that they have read the information brochure contained in appendix A, since the safety justification underlying that requirement ( e.g., ensuring the requestor is aware of the risks associated with switching off the air bag) applies to deactivations as well as on-off switches. Second, consistent with the requirements for on-off switch exemptions based on a medical need, we would no longer require a physician statement if the deactivation is for a medical purpose. Lastly, we would require that requestors specifically explain why an air bag on-off switch is insufficient for their needs. The reason for this requirement is that NHTSA considers deactivations to be a greater potential risk to overall vehicle safety than on-off switches. A deactivated air bag deprives all vehicle occupants of the safety benefits of air bags regardless of whether they are at-risk of air bag-related injuries, whereas an on-off switch enables occupants who are not at-risk to keep the air bag activated.

NHTSA will continue to evaluate deactivation requests on a case-by-case basis, and will only grant them if the agency believes that doing so is consistent with the Safety Act and is in the interest of motor vehicle safety.

Comments are requested on the codification of the deactivation request process.

D. Exemptions for Law Enforcement and Emergency Vehicles On-Off Switches

NHTSA proposes amending part 595 subpart B to add a process that specifically applies to air bag on-off switch requests for law enforcement and emergency vehicles, along with a corresponding request form. The form would be codified as appendix D to part 595.

For a number of years, NHTSA has granted requests from law enforcement and emergency service officials to install air bag on-off switches through the exercise of the agency's enforcement discretion. In the 2012 final rule, the agency explained that one reason for extending the sunset date under part 595 subpart B was to “consider other topics that have arisen over the years such as our continued use of our enforcement discretion for circumstances not covered by part 595 ( e.g., the application of retrofit switches for emergency and law enforcement vehicles).” The agency's primary safety concern with air bags in law enforcement and emergency vehicles is that these vehicles are necessarily outfitted with job-related equipment that could pose a danger to occupants should the air bag deploy. This danger is not necessarily addressed by advanced air bags, since FMVSS No. 208 does not require that advanced air bags be tested in the presence of this job-related equipment, nor would such a requirement be reasonably practicable at this time. Given this concern, we have used our enforcement discretion to permit the installation of retrofit on-off switches and air bag deactivations on law enforcement and emergency vehicles through a process similar to the process used to evaluate deactivation requests from the general public.

In the interest of transparency of agency processes, NHTSA seeks to formalize the process by which law enforcement and emergency service providers obtain make inoperative exemptions for retrofit on-off switch installations. To this end, this NPRM proposes to add a new section to part 595 subpart B specifically for “Emergency Vehicles” along with a corresponding new form contained in appendix D. This new section would contain the procedures that emergency service providers must follow to obtain a make inoperative exemption for their law enforcement or emergency vehicles. The accompanying form would require that a requesting entity certify that the vehicle on which the air bag on-off switch will be installed is intended to be used for law enforcement, fire response, or medical response.

Comments are requested on this proposal.

ii. Deactivations

As with exemption requests from the general public, if a retrofit air bag on-off switch is unavailable or inadequate for an emergency or law enforcement vehicle, officials may request approval for an air bag deactivation. The process for requesting an air bag deactivation for a law enforcement vehicle or an emergency vehicle would be the same as the process for the general public.

Comments are requested on the above issues. A copy of the law enforcement and emergency response request form can be found in the docket for this NPRM.

E. Update of Information Brochure

NHTSA proposes to revise the Information Brochure contained in appendix A to part 595. Appendix A contains the Information Brochure that air bag on-off switch requestors must read as part of the application process for obtaining an exemption for a retrofit air bag on-off switch under subpart B. The purpose of the Information Brochure is to provide requestors with relevant information about the safety benefits and potential risks of air bags, so that they can make an informed decision whether to request an exemption under part 595 subpart B.

NHTSA codified the Information Brochure as appendix A to part 595 as part of the same November 1997 final rule that established part 595 subpart B. In the more than two decades that have passed since then, air bag technology has evolved substantially. Given these changes, the Information Brochure currently found in appendix A to part 595 is no longer complete or accurate.

To address this problem, this NPRM proposes major revisions to the Information Brochure. The updated brochure would provide more complete and accurate information about current air bag technology to better ensure consumers will make an informed decision regarding whether to request an exemption under part 595 subpart B. The agency has also included stylistic changes, such as formatting changes that make the material more engaging and easier to read, and a 10-inch ruler printed on the outer cover so that drivers can measure their distance to the steering wheel. A copy of our proposed revised Information Brochure for at-risk passengers has been placed in the docket to this NPRM.

The agency seeks comment on our proposed revisions to the Information Brochure contained in Appendix A to part 595.

IV. Estimates of Benefits and Costs

NHTSA performed an economic analysis for the proposed rule, and has determined that the proposed rule would be net beneficial. The agency found that there would be significant cost savings as a result of the proposed rule. A summary of the economic analysis is below, and the full economic analysis can be found in the docket for this NPRM.

Methodology. To determine the costs and safety impacts of this NPRM, NHTSA considered two baselines in its analysis. The first baseline is what the agency refers to as the Enforcement Discretion Baseline. This baseline considers the status quo, where NHTSA uses its enforcement discretion to grant air bag on-off switch requests since the last sunset for the on-off program for MY 2015 vehicles. This baseline assumes that there is potential for all vehicles (not just MY 2015 and earlier vehicles) to receive exemptions. In other words, this baseline includes analysis of all MY vehicles, rather than incorporating only MY 2015 and earlier vehicles not impacted by the 2015 sunset.

The second baseline is what the agency refers to as the Enforcement Non-Discretion Baseline. This baseline considers a scenario under which the sunset provision is strictly enforced. Under this baseline, the proposed rule has a smaller net effect because enforcing just the sunset provision would yield the same procedural changes as the proposed rule for all MY 2016 and later vehicles. Thus, the net effect under the Enforcement Non-Discretion Baseline would be limited to pre-MY 2016 vehicles with advanced air bags.

Air Bag On-Off Switch Cost Impacts. For this analysis, NHTSA assumed that the volume of annual exemption requests for air bag on-off switches will be equal to the annual average from 2015-2017 (the most recent available data), or 58 requests per year under the Enforcement Discretion baseline. For the Enforcement Non-Discretion baseline, NHTSA assumed that the number of annual requests will be equal to the estimated share of all vehicles with advanced air bags comprised of pre-MY 2016 vehicles, multiplied by 58. The share of all vehicles with advanced air bags comprised of pre-MY 2016 vehicles is estimated as the sum of surviving MY 2004 ( i.e., the first year with mandatory advanced air bags) through MY 2015 vehicles, divided by the projected sum of MY 2004 through MY 2021 vehicles at the end of 2021. The resulting estimate of the relevant share comprised of pre-MY 2016 vehicles is approximately 59 percent, yielding an estimate of 34.2 requests per year under the Enforcement Non-Discretion baseline.

The total annual cost impact for the subset of on-off switch exemption requests that would be eliminated under the proposed rule compared to the costs under the Enforcement Discretion baseline is summarized in Table 1 (See the docketed economic analysis for this proposed rule for details):