Make Inoperative Exemptions; Retrofit On-Off Switches for Air Bags |
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David L. Strickland
National Highway Traffic Safety Administration
August 30, 2012
[Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)]
[Rules and Regulations]
[Pages 52619-52623]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21468]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 595
[Docket No. NHTSA-2012-0078]
RIN 2127-AL19
Make Inoperative Exemptions; Retrofit On-Off Switches for Air
Bags
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: NHTSA has a regulation that permits motor vehicle dealers and
repair businesses to install retrofit on-off switches for air bags in
vehicles owned by or used by persons whose request for a switch has
been approved by the agency. This regulation is only available for
motor vehicles manufactured before September 1, 2012. This document
extends the availability of this regulation for three additional years,
so that it applies to motor vehicles manufactured before September 1,
2015.
DATES: Effective Date: This rule is effective August 30, 2012.
Petitions: Petitions for reconsideration must be received by October
15, 2012.
ADDRESSES: Any petitions for reconsideration should refer to the docket
number of this document and be submitted to: Administrator, National
Highway Traffic Safety Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Washington,
DC 20590.
FOR FURTHER INFORMATION CONTACT:
For non-legal issues: Ms. Carla Rush, Office of Crashworthiness
Standards, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590 (telephone 202-366-1740, fax
202-493-2739).
For legal issues: Mr. William Shakely, Office of the Chief Counsel,
National Highway Traffic Safety Administration, 1200 New Jersey Avenue
SE., Washington, DC 20590 (telephone 202-366-2992, fax 202-366-3820).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. NPRM Summary
III. Discussion of Comments and Agency Decision
IV. Rulemaking Analyses and Notices
I. Background \1\
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\1\ For a more detailed discussion, see the June 8, 2012 Notice
of Proposed Rulemaking (77 FR 33998).
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To prevent or mitigate the risk of injuries or fatalities in
frontal crashes, Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
``Occupant crash protection'' (49 CFR 571.208), requires that vehicles
be equipped with seat belts and frontal air bags.
In the 1990s, while air bags proved to be highly effective in
reducing fatalities from frontal crashes, they were found to cause a
small number of fatalities, especially to unrestrained, out-of-position
children, in relatively low speed crashes.\2\ To address this problem,
NHTSA developed a plan that included an array of immediate, interim and
long-term measures. As one of the interim measures, on November 21,
1997, NHTSA published in the Federal Register (62 FR 62406) a final
rule permitting motor vehicle dealers and repair businesses to install
retrofit on-off switches for frontal air bags in vehicles owned by or
used by persons whose request for a switch had been approved by the
agency (subpart B of 49 CFR Part 595). This rule provided a limited
exemption from a statutory provision that generally prohibits motor
vehicle dealers and repair businesses from making 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 FMVSS.\3\
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\2\ See preamble to agency final rule on advanced air bags, 65
FR 30680, 30682-83, May 12, 2000.
\3\ The ``make inoperative'' provision is at 49 U.S.C. 30122.
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Under the procedures set forth in the 1997 rule, vehicle owners can
request a retrofit air bag on-off switch by completing an agency
request form (Appendix B of Part 595) and submitting the form to the
agency. Owners must certify that they have read the information
brochure, in Appendix A of Part 595, discussing air bag safety and
risks. The brochure describes the steps that the vast majority of
people can take to minimize the risk of serious injuries from air bags
while preserving the benefits of air bags, without going to the expense
of buying an on-off switch. The agency developed the brochure to enable
owners to determine whether they are, or a user of their vehicle is, in
one of the groups of people at risk of a serious air bag injury and to
make a careful, informed decision about requesting an on-off switch.\4\
Owners also must certify that they or another user of their vehicle is
a member of one of the risk groups. Since the risk groups for drivers
are different from those for passengers, a separate certification must
be made on the request form for each frontal air bag to be equipped
with a retrofit air bag on-off switch.
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\4\ At NHTSA's request, an expert panel of physicians convened
to formulate recommendations on specific medical indications for air
bag deactivation. The panel concluded that air bags are effective
lifesavers and that a medical condition does not warrant turning off
an air bag unless the condition makes it impossible for a person to
maintain an adequate distance from the air bag. Specifically, the
panel recommended disconnecting an air bag if a safe sitting
distance or position cannot be maintained by a: driver or front
passenger because of scoliosis, osteoporosis/arthritis; driver
because of achondroplasia; or passenger because of Down syndrome and
atlantoaxial instability. The panel also warranted the disconnection
of air bags if the need for wheelchair related modifications made it
necessary or if there is a medical condition that requires an infant
or child to be placed in the front passenger seat for monitoring
purposes. (The Ronald Reagan Institute of Emergency Medicine
Department of Emergency Medicine and The National Crash Analysis
Center, ``National Conference on Medical Indications for Air Bag
Disconnection,'' July 16-18, 1997.)
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If NHTSA approves a request, the agency will send the owner a
letter authorizing the installation of one or more on-off switches in
the owner's vehicle. The owner may give the authorization letter to a
dealer or repair business, which may then install an on-off switch for
the driver or passenger air bag or both, as approved by the agency. The
retrofit air bag on-off switch must meet certain criteria, such as
being equipped with a telltale light to alert vehicle occupants when an
air bag has been turned off. The dealer or repair
[[Page 52620]]
business must then fill in information about itself and its
installation in a form in the letter and return the form to the agency.
On May 12, 2000, NHTSA published in the Federal Register (65 FR
30680) its final rule to require advanced frontal air bags. The rule
required that future air bags be designed to reduce the risk of serious
air bag-induced injuries compared to then-current air bags,
particularly for small-statured women and young children; and provide
improved frontal crash protection for all occupants, by means that
include advanced air bag technology.
In the preamble to the May 2000 advanced air bag final rule, the
agency decided to continue the exemption procedures for retrofit air
bag on-off switches for vehicles manufactured through August 31, 2012.
This provided time to allow manufacturers to perfect the suppression
and low-risk deployment systems for air bags in all of their vehicles.
It also provided a number of years to verify the reliability of
advanced air bags based on real-world experience.
NHTSA also indicated in the advanced air bag final rule that there
would be a need for deactivation of some sort (via on-off switch or
permanently) for at-risk individuals who cannot be accommodated through
sensors or other suppression technology (such as individuals with
disabilities or certain medical conditions). The agency stated at that
time that it believed such needs could be best accommodated through the
authorization system for deactivation of air bags in current use by
NHTSA (65 FR at 30722).
In addition to the exemption provided by subpart B of Part 595, on
February 27, 2001, NHTSA published a final rule in the Federal Register
(66 FR 12638) providing a limited exemption from the make inoperative
prohibition covering various provisions in a number of safety
standards, to facilitate the mobility of persons with disabilities.
This disability exemption, which is in subpart C of Part 595, permits
the installation of air bag on-off switches or the permanent
disconnection of air bags in certain, significantly more limited
circumstances than provided for in subpart B of that part. However,
unlike subpart B, prior agency approval is not required for an
exemption under subpart C.
II. NPRM Summary
On June 8, 2012, the agency published a Notice of Proposed
Rulemaking (NPRM) to extend the availability of the existing regulation
(Subpart B of 49 CFR part 595) that permits motor vehicle dealers and
repair businesses to install retrofit on-off switches for air bags in
vehicles owned by or used by persons whose request for a switch has
been approved by the agency. The proposed extension was for three
additional years, so that it would apply to motor vehicles manufactured
before September 1, 2015 (77 FR 33998; Docket No. NHTSA-2012-0078).
The NPRM stated that the agency plans to use the three-year
extension to evaluate several aspects of the regulation. Specifically,
the agency would evaluate the criteria for granting the retrofit on-off
switches (at-risk groups) in light of the existence of advanced air bag
technology and the retrofit switch brochures and forms that were
included in Part 595. The agency would also consider other topics that
have arisen over the years such as our continued use of prosecutorial
discretion for circumstances not covered by Part 595 (e.g., the
application of retrofit switches for emergency and law enforcement
vehicles).
The NPRM also explained that given the imminence of the September
1, 2012 date, it would not be possible for the agency to complete the
necessary evaluation and possible rulemaking before that time, and the
extension would avoid any gap in the availability of the retrofit on-
off air bag switches while the agency considers further rulemaking that
could permanently allow such switches in specified circumstances. The
agency expects to be able to fully analyze the issues surrounding such
a rulemaking within these three additional years.
III. Discussion of Comments and Agency Decision
The comment period for the NPRM closed on July 9, 2012. The agency
received two comments. Advocates for Highway and Auto Safety
(Advocates) supported the proposed extension.\5\ Advocates stated that
although advances in air bag design and other vehicle safety systems
have minimized the need for air bag on-off switches, the organization
recognized a continuing need for on-off switches to accommodate certain
at-risk individuals who could not be accommodated by current
technologies, including individuals with disabilities or certain
medical conditions, as well as younger passengers in child restraint
systems in vehicles without rear seats. Advocates asserted that a
three-year extension of the exemption procedures to allow timely review
of the regulation by the agency will pose minimal risk and permit the
regulation to be updated to reflect state-of-the-art safety technology.
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\5\ Advocates Comment, Docket No. NHTSA-2012-0078-0002.
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The National Automobile Dealer Association (NADA), an organization
representing automobile and truck dealers, urged NHTSA to conduct a
more expeditious evaluation of the air bag on-off exemption regulation
than the three-year period proposed in the NPRM.\6\ NADA asserted that
it should not take NHTSA long to conduct an analysis of the number and
nature of switch installation and air bag deactivation requests
received since the regulation was promulgated. NADA cited anecdotal
evidence that information requests submitted to NADA by dealerships
regarding the air bag on-off exemption have dropped to near zero. NADA
asserted that this evidence indicated a drop in demand for retrofit on-
off switches and air bag deactivations consistent with the rate at
which advanced air bags and switch-equipped two-passenger vehicles have
penetrated the market.
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\6\ NADA Comment, Docket No. NHTSA-2012-0078-0003.
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The agency has considered NADA's comments urging a more expeditious
evaluation period than the three year period proposed in the NPRM.
However, the agency declines to adopt NADA's suggestion. NADA's
reasoning is that a review of the number and nature of requests for
exemptions should not take long, asserting that the organization's
anecdotal evidence indicates a drop in demand for such exemptions.
First, the agency would like to emphasize that the demand for
retrofit switches is certainly a factor that the agency will consider
as we evaluate subpart B of part 595, but it is not the only factor the
agency will be examining. We will also reexamine the at-risk groups in
light of advanced air bag technology, the brochures and forms included
in Part 595, and the need for the continued use of prosecutorial
discretion for circumstances not covered by Part 595, among other
things. Accordingly, the time needed to examine the demand for retrofit
on-off switches does not reflect the total time needed to evaluate the
issue.
Additionally, as explained in the NPRM, the three-year extension
period is intended not only to provide the agency time to evaluate this
issue, but to potentially conduct rulemaking to update subpart B.
Finally, NADA did not describe any benefits that would result from a
shorter extension period or any consequences associated with the three-
year period proposed in the
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NPRM. Therefore, for the reasons expressed in the NPRM, this final rule
adopts the three-year extension period proposed in the NPRM and amends
Subpart B of 49 CFR Part 595 to extend the availability of retrofit on-
off switches for air bags so that it will apply to motor vehicles
manufactured before September 1, 2015.
IV. Rulemaking Analyses and Notices
A. Executive Order (E.O.) 12866, E.O. 13563, and DOT Regulatory
Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Orders 12866 and 13563, and the Department of
Transportation's regulatory policies and procedures (44 FR 11034 (Feb.
26, 1979)). This action was not reviewed by the Office of Management
and Budget under these executive orders. It is not considered to be
significant under the Department's regulatory policies and procedures.
This document delays the sunset date of an existing exemption for
retrofit on-off switches for frontal air bags. They are currently
available, under specified circumstances, for vehicles manufactured
before September 1, 2012. We are extending that date so that they will
be available for vehicles manufactured before September 1, 2015.
This final rule does not require a motor vehicle manufacturer,
dealer or repair business to take any action or bear any costs except
in instances in which a dealer or repair business agrees to install an
on-off switch for an air bag. For consumers, the purchasing and
installation of on-off switches is permissive, not prescriptive.
When an eligible consumer obtains the agency's authorization for
the installation of a retrofit on-off switch and a dealer or repair
business agrees to install the switch, there will be costs associated
with that action. The agency estimates that the installation of an on-
off switch would typically require less than one hour of shop time, at
the average national labor rate of approximately $80 per hour. NHTSA
estimates that the cost of an air bag on-off switch for one seating
position is $51 to $84 and the cost of an on-off switch for two seating
positions is $68 to $101. The agency estimates that approximately 500
air bag on-off switch requests are received and authorized annually.
However, we are uncertain about how many people actually pay to get
them installed after we authorize it. Given the relatively low number
of vehicle owners who will ultimately get the retrofit air bag on-off
switches installed and the above estimated costs, the annual net
economic impact of the actions taken under this final rule will not
exceed $100 million per year.
Moreover, given the above, the fact that this has been a
longstanding exemption available for consumers and since the agency is
merely extending the availability of this exemption for an additional
three years of vehicle production, the impacts are so minimal that a
full regulatory evaluation is not needed.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of proposed rulemaking or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Small Business Administration's regulations at 13 CFR part 121
define a small business, in part, as a business entity ``which operates
primarily within the United States.'' (13 CFR 121.105(a)). No
regulatory flexibility analysis is required if the head of an agency
certifies the proposal will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a proposal will not have a
significant economic impact on a substantial number of small entities.
I hereby certify that this final rule will not have a significant
economic impact on a substantial number of small entities. This final
rule would merely extend the sunset provision in Subpart B of Part 595.
No other changes are being made in this document. Small organizations
and small governmental units will not be significantly affected since
the potential cost impacts associated with this action will be
insignificant.
C. Executive Order 13132 (Federalism)
NHTSA has examined today's rule pursuant to Executive Order 13132
(64 FR 43255, August 10, 1999) and concluded that no additional
consultation with States, local governments or their representatives is
mandated beyond the rulemaking process. The agency has concluded that
the rulemaking does not have sufficient federalism implications to
warrant consultation with State and local officials or the preparation
of a federalism summary impact statement. The final rule does not have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' Today's
final rule does not impose any additional requirements. Instead, it
delays the sunset date of an existing exemption for retrofit on-off
switches for frontal air bags, thereby lessening burdens on the
exempted entities.
NHTSA rules can preempt in two ways. First, the National Traffic
and Motor Vehicle Safety Act contains an express preemption provision:
when a motor vehicle safety standard is in effect under this chapter, a
State or a political subdivision of a State may prescribe or continue
in effect a standard applicable to the same aspect of performance of a
motor vehicle or motor vehicle equipment only if the standard is
identical to the standard prescribed under this chapter. 49 U.S.C.
30103(b)(1). It is this statutory command by Congress that preempts any
non-identical State legislative and administrative law addressing the
same aspect of performance. This provision is not relevant to this
final rule as this final rule does not involve the establishing,
amending or revoking of a Federal motor vehicle safety standard.
However, general principles of preemption law could apply so as to
displace any conflicting state law or regulations. We are unaware of
any State law or action that would prohibit the actions that this
exemption would permit.
This second way that NHTSA rules can preempt is dependent upon
there being an actual conflict between a NHTSA regulation and the
higher standard that would effectively be imposed on regulated entities
if someone obtained a State common law tort judgment against a
regulated entity, notwithstanding the regulated entity's compliance
with the NHTSA regulation. Because most NHTSA standards established by
an FMVSS are minimum standards, a State common law tort cause of action
that seeks to impose a higher standard on regulated entities will
generally not be preempted. However, if and when such a conflict does
exist--for example, when the standard at issue is both a minimum and a
maximum standard--the State common law tort cause of action is
impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S.
861 (2000).
Although this final rule does not establish, amend, or revoke an
FMVSS,
[[Page 52622]]
NHTSA has considered, pursuant to Executive Orders 13132 and 12988,
whether this final rule could or should preempt State common law causes
of action. The agency's ability to announce its conclusion regarding
the preemptive effect of one of its rules reduces the likelihood that
preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (e.g., the language
and structure of the regulatory text) and objectives of today's final
rule and finds that this final rule would increase flexibility for
certain exempted entities. As such, NHTSA does not intend that this
final rule would preempt state tort law that would effectively impose a
higher standard on regulated entities than that would be established by
today's rule. Establishment of a higher standard by means of State tort
law would not conflict with the exemption. Without any conflict, there
could not be any implied preemption of a State common law tort cause of
action.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal
agencies to prepare a written assessment of the costs, benefits and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually (adjusted annually for inflation, with base year
of 1995). UMRA also requires an agency issuing a final rule subject to
the Act to select the ``least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule.'' This
final rule will not result in a Federal mandate that will likely result
in the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of more than $100 million annually
(adjusted annually for inflation, with base year of 1995).
E. National Environmental Policy Act
NHTSA has analyzed this final rule for the purposes of the National
Environmental Policy Act. The agency has determined that implementation
of this action will not have any significant impact on the quality of
the human environment.
F. Executive Order 12778 (Civil Justice Reform)
When promulgating a regulation, agencies are required under
Executive Order 12988 to make every reasonable effort to ensure that
the regulation, as appropriate: (1) Specifies in clear language the
preemptive effect; (2) specifies in clear language the effect on
existing Federal law or regulation, including all provisions repealed,
circumscribed, displaced, impaired, or modified; (3) provides a clear
legal standard for affected conduct rather than a general standard,
while promoting simplification and burden reduction; (4) specifies in
clear language the retroactive effect; (5) specifies whether
administrative proceedings are to be required before parties may file
suit in court; (6) explicitly or implicitly defines key terms; and (7)
addresses other important issues affecting clarity and general
draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The preemptive
effect of this final rule is discussed above. NHTSA notes further that
there is no requirement that individuals submit a petition for
reconsideration or pursue other administrative proceeding before they
may file suit in court.
G. Paperwork Reduction Act (PRA)
Under the Paperwork Reduction Act of 1995, a person is not required
to respond to a collection of information by a Federal agency unless
the collection displays a valid OMB control number. Several of the
conditions placed by this exemption from the make inoperative
prohibition are considered to be information collection requirements as
defined by the OMB in 5 CFR part 1320. Specifically, this exemption
from the make inoperative prohibition for motor vehicle dealers and
repair businesses is conditioned upon vehicle owners filling out and
submitting a request form to the agency, obtaining an authorization
letter from the agency and then presenting the letter to a dealer or
repair business. The exemption is also conditioned upon the dealer or
repair business filling in information about itself and the
installation of the retrofit on-off switch in the form provided for
that purpose in the authorization letter and then returning the form to
NHTSA. These information collection requirements in Part 595 have been
approved by OMB (OMB Control No. 2127-0588) through June 30, 2013,
pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C.
3501 et seq). NHTSA will request an extension of this approval in a
timely manner.
H. National Technology Transfer and Advancement Act
Under the National Technology Transfer and Advancement Act of 1995
(NTTAA) (Pub. L. 104-113), all Federal agencies and departments shall
use technical standards that are developed or adopted by voluntary
consensus standards bodies, using such technical standards as a means
to carry out policy objectives or activities determined by the agencies
and departments. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies, such as the International Organization for
Standardization (ISO) and the Society of Automotive Engineers (SAE).
The NTTAA directs us to provide Congress, through OMB, explanations
when we decide not to use available and applicable voluntary consensus
standards. There are no voluntary consensus standards developed by
voluntary consensus standards bodies pertaining to this rule.
I. Plain Language
Executive Order 12866 requires each agency to write all rules in
plain language. Application of the principles of plain language
includes consideration of the following questions:
Have we organized the material to suit the public's needs?
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
NHTSA has considered these questions and attempted to use plain
language in promulgating this final rule.
J. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
K. Privacy Act
Petitions for reconsideration will be placed in the docket. Anyone
is able to search the electronic form of all petitions received into
any of our dockets by the name of the individual submitting the
petition (or signing the
[[Page 52623]]
petition, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78).
List of Subjects in 49 CFR Part 595
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA is amending 49 CFR part
595 as follows:
PART 595--MAKE INOPERATIVE EXEMPTIONS
0
1. The authority citation for part 595 continues to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and
30166; delegation of authority at 49 CFR 1.50.
0
2. Amend Sec. 595.5 by revising paragraph (a) to read as follows:
Sec. 595.5 Requirements.
(a) Beginning January 19, 1998, a dealer or motor vehicle repair
business may modify a motor vehicle manufactured before September 1,
2015, by installing an on-off switch that allows an occupant of the
vehicle to turn off an air bag in that vehicle, subject to the
conditions in paragraphs (b)(1) through (5) of this section.
* * * * *
Issued on: August 24, 2012.
David L. Strickland,
Administrator.
[FR Doc. 2012-21468 Filed 8-29-12; 8:45 am]
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