III. Deactivation Proposal (January 1997)

On January 6, 1997, NHTSA published an NPRM (62 FR 831) to exempt motor vehicle dealers and repair businesses conditionally from the statutory "make inoperative" prohibition of 49 U.S.C. §30122, so that they could deactivate either or both the driver and passenger air bags at the request of a vehicle owner. As noted above, this proposal was issued to help reduce the fatalities and injuries that current air bags are causing to persons who may be facing special risks from air bags.

The agency stated that, while it expected that advanced air bags will offer means for significantly reducing or eliminating the risk of adverse side effects from air bags, advanced air bags will not be widely available in the next several years. The agency said it believes that, in the interim, steps need to be taken to minimize the possibility that air bags will cause harm in existing vehicles and in new vehicles produced prior to the availability of advanced air bags. Just as depowering will provide a technological solution that will prevent a significant number of the air bag fatalities that might otherwise have occurred in new vehicles, so deactivation would provide a technological solution for persons facing special risks in existing vehicles. Although the agency recognized that retrofit on-off switches offered certain advantages, the agency proposed deactivation instead of installation of retrofit on-off switches based on information from the vehicle manufacturers indicating that they could not provide retrofit on-off switches for existing vehicles in a timely manner.

Noting that a depowered passenger air bag may not completely eliminate the risk to an infant in a rear-facing infant seat or to an unrestrained child who is near the dashboard as a result of pre-crash braking, the agency stated that deactivation of depowered passenger air bags would be permitted. However, since on-off switches and advanced air bags could be used to essentially eliminate the risks to children, deactivation of a passenger air bag would not be permitted under the proposal if that air bag were equipped with such an on-off switch or if the air bag were an advanced air bag.

NHTSA proposed to limit authorization to deactivate driver air bags to existing vehicles and vehicles lacking advanced driver air bags. The agency indicated that it might further restrict authorization to deactivate driver air bags by excluding vehicles with depowered driver air bags.

NHTSA noted that there were safety tradeoffs associated with air bag deactivation. The agency strongly recommended that air bag deactivation be undertaken only in instances in which the vehicle owner reasonably believes that the air bag poses a significant risk, based on the individual's particular circumstances. The agency indicated that there would be limited need for passenger air bag deactivation and even less need for driver air bag deactivation.

The mechanics of the proposed exemption from the make inoperative prohibition were based in large measure upon recommendations from BMW and Volvo in 1996 that the agency develop procedures similar to those being used in Europe for temporarily deactivating air bags. According to BMW,

(I)n Europe, a BMW dealer is allowed to temporarily deactivate the passenger air bag for individuals who may have a special need or normally transport children after advising them of the benefits of air bags and approval forms are signed.

Given the administrative complexity and time that would be associated with reviewing individual applications, the agency proposed to allow any person to choose to deactivate, without having to demonstrate a particular safety need. However, applicants would have had to submit a written authorization to the dealer or repair business performing the deactivation and indicate that they had received and read an information brochure explaining the consequences of having an air bag deactivated.

NHTSA requested commenters to provide views regarding a number of specific issues, including--

• 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?
• If it becomes permissible to deactivate air bags, with the result that an air bag could be turned off permanently, should the agency permit lesser measures as well, such as an on-off switch?
• Should there be a requirement that deactivation be performed in a manner that facilitates reactivation?
• In the rulemaking regarding OEM on-off switches, the agency estimated that there would be more benefits than losses if the misuse rate were less than 7 percent. Since a seat with a deactivated air bag may sometimes be occupied by a person who would benefit from the air bag, is there a percentage of such occupancy that would result in the losses from deactivation outweighing the benefits?
• Should a vehicle lessee be allowed to seek deactivation?

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