[Federal Register Volume 63, Number 239 (Monday, December 14, 1998)]
[Proposed Rules]
[Pages 68730-68733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32908]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571


Federal Motor Vehicle Safety Standards; Denial of Petition for 
Rulemaking

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Denial of petition for rulemaking.

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SUMMARY: This document denies a petition for rulemaking submitted by 
the National Mobility Equipment Dealers Association (NMEDA). NMEDA 
sought to extend the duration of the exclusion (now expired) of light 
trucks and vans (LTVs) ``manufactured for operation by persons with 
disabilities'' from the dynamic test requirements for manual seat belts 
and automatic restraints in the Federal occupant crash protection 
standard. The petition also sought to expand the exclusion to apply to 
all types of vehicles manufactured to be operated by individuals with 
disabilities.
    The exclusion was established for businesses that either 
manufacture light trucks and vans designed to be operated by persons 
with disabilities or alter those vehicles before their first retail 
sale. In the absence of the exclusion, these businesses would have been 
required to certify that their vehicles met the dynamic and automatic 
crash protection requirements. The exclusion indirectly benefitted 
another group of businesses, ones that modify vehicles, after their 
first retail sale, so that they can be operated by persons with 
disabilities. In the absence of the exclusion, a statutory prohibition 
against making federally-required safety equipment inoperative would 
have prevented this second group of businesses from modifying or 
removing equipment required by the dynamic and automatic crash 
protection requirements.
    The agency is denying the petition because the exclusion is no 
longer needed by the businesses that were subject to it. Data from a 
representative number of manufacturers and alterers of light trucks and 
vans for persons with disabilities demonstrate their ability to comply 
with the dynamic testing requirements.
    In a separate but related notice, the agency has proposed a limited 
exemption from the make inoperative prohibition. The proposal addresses 
NMEDA's concerns to the extent that it would allow businesses to modify 
vehicles after the first retail sale in a manner that adversely affects 
the vehicle's compliance with specified safety standards so that 
persons with disabilities can drive or ride in them. Standard 208, 
Occupant Crash Protection, is one of those standards.

FOR FURTHER INFORMATION CONTACT:
    For non-legal issues: Lou Molino or Clarke Harper, Office of 
Crashworthiness Standards, NPS-11, National Highway Traffic Safety 
Administration, 400 Seventh Street, S.W., Washington, D.C., 20590. 
Telephone: (202) 366-2264. Facsimile (202) 493-2739.
    For legal issues: Nicole Fradette, Office of Chief Counsel, NCC-20, 
National Highway Traffic Safety Administration, 400 Seventh Street, 
S.W., Washington, D.C. 20590. Telephone: (202) 366-2992. Facsimile 
(202) 366-3820.

SUPPLEMENTARY INFORMATION:

I. Background

    The National Highway Traffic Safety Administration (NHTSA) issues 
Federal motor vehicle safety standards (Standards) that specify 
performance requirements that apply to new motor vehicles and items of 
motor vehicle equipment before their first sale for purposes other than 
resale. 49 USC Sec. 30101, et seq. Vehicle and equipment manufacturers 
must certify that their products comply with all applicable Standards 
before they sell their products. For vehicles manufactured by two or 
more manufacturers, the final-stage manufacturer is ultimately 
responsible for certifying the vehicle.1 If a completed, 
certified vehicle is modified before its first retail sale (other than 
by the addition, substitution, or removal of readily attachable 
components), the person making the modification is an alterer and is 
required to certify that, as altered, the vehicle continues to comply 
with all applicable Standards. 49 CFR Part 567.7.
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    \1\ A final-stage manufacturer is defined as a person who 
performs such manufacturing operations on an incomplete vehicle that 
it becomes a completed vehicle. 49 CFR Part 568.3.
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    Businesses that modify a vehicle after its first retail sale are 
not required to certify that the vehicle, as modified,

[[Page 68731]]

continues to comply with the Standards. After the first retail sale, 
however, manufacturers, distributors, dealers 2 and motor 
vehicle repair businesses 3 are prohibited from knowingly 
making inoperative any part of a device or element of design installed 
on or in a motor vehicle in compliance with an applicable Standard. 49 
U.S.C. Sec. 30122. Violations of this prohibition are punishable by 
civil penalties of up to $1,100 per violation.4
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    \2\ Section 30102 defines ``dealer'' as ``a person selling and 
distributing new motor vehicles or motor vehicle equipment primarily 
to purchasers that in good faith purchase the vehicles or equipment 
other than for resale.''
    \3\ Section 30122(a) defines ``motor vehicle repair business'' 
as ``a person holding itself out to the public to repair for 
compensation a motor vehicle or motor vehicle equipment.'' NHTSA has 
interpreted this term to include businesses that service vehicles by 
adding features or components to or otherwise customizing those 
vehicles.
    \4\ The statute, however, allows the agency to prescribe 
regulations to exempt a person from the ``make inoperative'' 
provision if such an exemption is consistent with safety concerns. 
49 U.S.C. Sec. 30122(1).
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A. Exclusion From Dynamic Test Requirements of FMVSS 208 for 
Manufacturers and Alterers of LTVs Designed To Be Driven by Persons 
With Disability

    In 1993, in response to a petition from the Recreation Vehicle 
Industry Association (RVIA) and a letter from Braun Corporation (a 
manufacturer of vehicles for persons with disabilities), NHTSA amended 
Standard 208 to provide manufacturers (including alterers) of light 
trucks and vans (LTVs) ``designed to be driven by persons with 
disabilities'' the alternative of installing integrated lap and 
shoulder belts in lieu of complying with the dynamic testing 
requirement for manual seat belts and automatic restraints at outboard 
seating positions.5 (58 FR 11975; March 2, 1993) NHTSA 
excluded these manufacturers because they were not then able to certify 
compliance with Standard 208's dynamic test requirements for manual 
seat belts and automatic restraints. In the notice establishing the 
exclusion, NHTSA explained that final stage manufacturers and alterers 
who produce these vehicles could not readily certify compliance with 
the dynamic test requirements for manual belts and automatic restraints 
by passing through the certification of the manufacturer of the 
incomplete or previously certified vehicle because of the types of 
modifications they made to these vehicles. (58 FR 11975; March 2, 1993) 
NHTSA concluded that because the final stage manufacturers and alterers 
of these vehicles were small businesses, they could not individually 
``take the alternative course of independently certifying compliance 
with the dynamic test requirements for these vehicles'' at that 
particular time. (58 FR 11975; March 2, 1993) In the same notice, NHTSA 
declined to grant Ford Motor Company's request to extend the exclusion 
to passenger cars manufactured for drivers with disabilities because 
the request was beyond the scope of the rulemaking. However, the agency 
stated that it did not believe that an exclusion was needed for 
passenger cars because it did not know of any passenger cars that were 
being manufactured for drivers in wheelchairs that would need to be 
excluded from the dynamic testing requirements of Standard 208.
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    \5\ To qualify for this exclusion, a vehicle had to:
     Be a light truck or van manufactured before September 
1, 1997,
     Incorporate a level change device (e.g., lift or ramp) 
for on loading or off loading an occupant in a wheelchair,
     Have an interior element of design intended to provide 
the vertical clearance necessary to permit a person in a wheelchair 
to move between the lift or ramp and the driver's position or to 
occupy that position (e.g., a raised roof or dropped floor), and
     Have either an adaptive control or special driver 
seating accommodation (e.g., an easily removable driver's seat for 
driving from a wheelchair, or a power seat base for those who 
transfer) to enable persons who have limited use of their arms or 
legs to operate the vehicle.
    NHTSA amended the rule in 1994 to allow the installation of Type 
2A belts (separate lap and shoulder belts) instead of Type 2 belts 
(integrated lap and shoulder belt) for the driver's seating position 
because a Type 2 belt cannot be positioned properly for some 
wheelchairs. (50 FR 25826; May 18, 1994)
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    The agency specified in the final rule that the exclusion would 
expire September 1, 1997. As scheduled, the exclusion expired on that 
date, the same date on which requirements for air bags at both front 
outboard seating positions were statutorily-required to take effect.
    In a September 23, 1997 letter to manufacturers and alterers of 
vehicles for operation by persons with disabilities, NHTSA noted that 
the exclusion had expired on September 1, 1997, and that trucks and 
multipurpose passenger vehicles manufactured for operation by persons 
with disabilities would now have to comply with the dynamic test and 
automatic crash protection requirements of Standard 208. NHTSA asked 
various sized manufacturers and alterers to provide the agency with any 
information pertaining to the tests performed to ensure that the 
vehicles complied with the performance requirements contained in 
Standard 208. NHTSA also asked respondents to describe any other 
actions they were taking that related to Standard 208.
    In response to NHTSA's request, alterers and other manufacturers of 
vehicles for the disabled provided NHTSA with information that 
demonstrated their ability to certify compliance with the dynamic test 
and automatic crash protection requirements of Standard 208. According 
to the information submitted to the agency, manufacturers and alterers 
of vehicles for persons with disabilities are performing vehicle crash 
tests or using other engineering analysis to determine compliance with 
Standard 208's dynamic test and automatic crash protection 
requirements. Alterers and final stage manufacturers supplied NHTSA 
with the name of the organization who performed the Standard 208 
compliance test, the date of the test, and the year, make and model of 
the vehicle that was tested. All of the vehicles that were tested met 
the requirements of Standard 208.6
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    \6\ Most manufacturers and alterers have performed tests using a 
Hybrid III test dummy in the driver's seat. Further, at least one 
alterer also conducted a crash test with a dummy in a wheel chair. 
The vehicle met the requirements of Standard 208.
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B. Make Inoperative Prohibition and Vehicle Modifications for Persons 
With Disabilities

    As noted above in the summary, while the exclusion from Standard 
208 applied to manufacturers and alterers of LTVs designed to be driven 
by persons with disabilities, the exclusion indirectly benefitted 
another group of businesses, i.e., those who modify LTVs after the 
first retail sale to accommodate a driver with a disability. Although 
businesses that modify a vehicle after its first retail sale are not 
required to certify that the vehicle, as modified, continues to comply 
with the Standards, they are prohibited from knowingly making 
inoperative any part of a device or element of design installed on or 
in a motor vehicle in compliance with an applicable Standard. This 
means that businesses that modify vehicles, after their first retail 
sale, to accommodate persons with disabilities must ensure that their 
modifications do not violate the prohibition.
    Under a long line of interpretations issued by the agency, 
modifications that make inoperative federally-required safety devices 
and have the effect of converting a vehicle from one vehicle class to 
another (e.g., from a hard-top to a convertible) do not, however, 
necessarily violate the ``make inoperative'' prohibition. Whether there 
is a violation in this circumstance depends on whether the vehicle, as 
converted into a new class of vehicle, has the safety devices that 
would have been required had the vehicle been originally manufactured 
as a vehicle in

[[Page 68732]]

the new class instead of as a vehicle in the original class. For 
example, if a repair business converts a hard-top passenger car into a 
convertible passenger car after the vehicle's first retail sale, the 
business would not be regarded as having violated the make inoperative 
prohibition if the converted vehicle has all the safety features that 
would have been required had the vehicle originally been manufactured 
as a convertible passenger car.
    NHTSA applied this line of interpretation to LTVs modified after 
first retail sale for drivers with disabilities. It stated that if an 
LTV were modified so that it met the criteria in Standard 208 for an 
LTV ``designed to be driven by persons with disabilities,'' there would 
be no violation of the ``make inoperative'' prohibition even if the 
modifications caused the vehicle to cease to comply with the dynamic 
test and automatic restraint requirements of the Standard. For example, 
a repair business could, without violating the make inoperative 
provision, convert an LTV into an ``LTV designed to be operated by a 
person with a disability'' by raising the vehicle's roof and installing 
a wheelchair lift, a power seat base, replacing the air bag equipped 
steering wheel with special adaptive control and Type 2A manual belts 
in the vehicle. As long as the vehicle met the requirements necessary 
to qualify for the exclusion, removal of the air bag would not violate 
the make inoperative prohibition.

II. NMEDA Petition

    By petition dated July 18, 1997, NMEDA requested the agency to 
initiate rulemaking to extend the duration of the exclusion from 
Standard 208's dynamic test and automatic crash protection requirements 
for LTVs and to extend the exclusion to include all vehicles modified 
to be operated by individuals with disabilities. In support of its 
petition, NMEDA stated that its members, 7 the majority of 
whom modify vehicles after the first retail sale, and others modify 
thousands of passenger cars and light trucks every year to enable 
persons with disabilities to operate them. NMEDA explained that 
modifiers often install, for example:
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    \7\ According to the petition, NMEDA's members include 
businesses that structurally modify large and small vans, those that 
manufacture separate components such as wheelchair lifts, ramps, 
hand-controls, and car-top wheelchair storage devices, those that 
install adaptive equipment and those that instruct the customer in 
its appropriate use.
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     Wheelchair/scooter hoists,
     Hand controls, joysticks, horizontal steering controls, 
foot operated steering systems and reduced diameter steering wheels to 
allow persons with disabilities to drive,
     Transfer seats to assist a person with a disability to 
transfer from a wheelchair to the driver or passenger seat, and
     Power seat bases in vehicles.
    According to the petition, many of these modifications compromise 
the vehicle's compliance with the dynamic testing requirements of 
Standard 208.8 The petition stated that manufacturers and 
alterers are unable to certify compliance with these requirements by 
passing through the certification of the manufacturer of the incomplete 
or previously certified vehicle. In addition, the petition stated that 
because these manufacturers and alterers are small businesses, they 
cannot individually certify the vehicle's compliance with the dynamic 
test requirements.
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    \8\ The agency notes that many of these modifications may also 
compromise the vehicle's compliance with other standards set out in 
49 CFR Part 571.
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    The petition also explained that certain necessary modifications 
could not be made without removing or disabling one or more components 
of the automatic restraint system. For example, NMEDA explained that, 
in certain vehicles, the air bag sensor may have to be removed to 
accommodate the installation of a six-way power seat base. In other 
vehicles, the original steering wheel and the driver's side air bag may 
have to be replaced by a reduced diameter steering wheel.
    The petition also stated that the air bag should be disabled if 
certain modifications, such as the addition of certain adaptive 
equipment, are made to the vehicle. The petition explained that persons 
with disabilities who must use adaptive equipment to drive, such as 
hand controls, are at risk of injury from a deploying air bag. The 
petition noted that the American Automobile Manufacturers Association 
(AAMA) had advised against placing certain equipment, such as steering 
devices, in the air bag deployment zone because of the potential risk 
of harm to the occupant. NMEDA also noted that research conducted at 
the University of Virginia (UVa) found that drivers using tri-pin 
steering devices could be injured by a deploying air bag.9 
The UVa study advised against installing steering devices that spanned 
the steering wheel and recommended sitting as far back as possible from 
the air bag. The petition explained that in certain cases the modifier 
has no choice but to place equipment in the air bag deployment zone 
because of the person's specific disability. In addition, the petition 
noted that some individuals' disabilities require them to sit close to 
the air bag. The petition stated that until there was sufficient 
evidence that air bags do not pose a risk to persons using adaptive 
driving equipment, ``NHTSA should grant authority, via appropriate 
exclusion, to disable or remove air bags.''
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    \9\ Petition for Rulemaking to Amend FMVSS 208 in Support of 
Persons With Disabilities, National Mobility Equipment Dealers 
Association at 7-9 (July 18, 1997).
    The agency notes that the UVa study cited by NMEDA found that of 
all the steering control devices (SCD) tested, the tri-pin was the 
only SCD that showed the possibility of interacting with air bag 
deployment and needed further study. See Air Bag Interaction With 
and Injury Potential from Common Steering Control Devices; DOT-HS-
808-580; Pilkey et al, University of Virginia for NHTSA; Nov. 1996. 
Additional research was conducted at the University of Virginia 
which revealed that tri-pins do not interact significantly with the 
deployment of the air bag. Air Bag Interaction With and Injury 
Potential from Common Steering Control Devices, Phase II, Final 
Report; Pilkey et al, University of Virginia for NHTSA; DTRS-57-93-
C-00105; March 1998.
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III. Denial of Petition

    In the 1993 final rule establishing the exclusion, NHTSA stated 
that ``the goal of providing all individuals with an equivalent level 
of occupant protection must be balanced with the goal of providing 
mobility for all Americans . . . [and] that the exclusion from the 
dynamic testing requirements should be no broader than necessary to 
accommodate the mobility needs of persons with disabilities.'' (58 FR 
11975; March 2, 1993) At the time the agency established the exclusion, 
alterers and final stage manufacturers who were small businesses stated 
that they could not then comply with the certification requirements of 
Standard 208. NHTSA established the exclusion so that manufacturers and 
alterers could continue to produce these LTVs for use by persons with 
disabilities. As discussed above, the agency now has information that 
demonstrates that manufacturers and alterers of LTVs for persons with 
disabilities are now able to comply with Standard 208's dynamic testing 
requirements.
    In response to the agency's September 23, 1997 letter, 16 
manufacturers and alterers of vehicles for persons with disabilities 
explained that they were complying with Standard 208 in a variety of 
ways. The largest of these manufacturers and alterers (which produce 
from 200 to 1,600 vehicles per year) stated that they were performing 
crash tests to ensure compliance with Standard 208's dynamic and 
automatic crash protection requirements.10 These

[[Page 68733]]

manufacturers and alterers provided NHTSA with the name of the 
organization that performed the Standard 208 compliance test, the date 
of the test, and the year, make and model of the vehicle that was 
tested. All of the vehicles that were tested met the requirements of 
Standard 208. Two alterers (which produce between 20 and 65 vehicles 
per year) stated that they did not believe that their modifications 
affected the performance of the vehicle in such a way that the 
vehicle's original certification to Standard 208 was affected. They 
explained that they were, therefore, basing their certification on the 
original manufacturer's certification to Standard 208.
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    \10\ Most manufacturers and alterers have performed tests using 
a Hybrid III test dummy in the driver's seat. Further, at least one 
alterer also conducted a crash test with a dummy in a wheel chair. 
The vehicle met the requirements of Standard 208.
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    NHTSA notes that NMEDA did not submit any information with its 
petition that demonstrated that alterers and manufacturers could not 
comply. The agency also notes that the RVIA, which originally 
petitioned the agency to establish the exclusion, did not ask the 
agency to extend the exclusion. Moreover, Braun, which also asked the 
agency to establish the exclusion and is a member of NMEDA, provided 
the agency with dates on which it tested its vehicles for compliance 
with Standard 208's dynamic test requirements. All of the vehicles 
passed.
    The agency believes that not renewing the exclusion will enhance 
the safety of persons with disabilities while not adversely affecting 
their ability to obtain vehicles modified for their use. As of 
September 1, 1998, all LTVs are required to be equipped with air bags 
at both front outboard seating positions. NHTSA believes that persons 
who can transfer from a wheelchair to the original vehicle seat are 
much safer with an operational air bag in a vehicle that has been 
certified as meeting Standard 208's dynamic test requirements than in a 
vehicle that has not been required to certify to those requirements. In 
addition, the agency believes that persons driving while seated in a 
wheelchair can also benefit from an air bag, provided the original 
steering wheel remains in the vehicle and the person is seated an 
appropriate distance away from the air bag.
    For these reasons, NHTSA is denying the petition.

IV. NPRM Proposing an Exemption From the Make Inoperative 
Prohibition

    NHTSA recognizes that while businesses that either manufacture LTVs 
to be operated by persons with disabilities or alter those vehicles for 
that purpose before their first retail sale no longer need 
accommodation with respect to the dynamic test and automatic restraint 
requirements, manufacturers and alterers that modify vehicles for 
people with disabilities after the first retail sale of those vehicles 
do still need accommodation. Further, the agency is aware that many of 
the modifications made after the first retail sale compromise a 
vehicle's compliance not only with Standard 208, but with other 
Standards, such as Standard 207, Seating Systems, and Standard 204, 
Steering Control Rearward Displacement, as well.
    Accordingly, in a separate but related notice (63 FR 51547; 
September 28, 1998), NHTSA has proposed an exemption from the make 
inoperative prohibition that would enable repair businesses and dealers 
to modify motor vehicles after the first retail sale to accommodate a 
person with a disability without violating the prohibition and making 
themselves liable for civil penalties. The exemption would permit 
modifications affecting safety features installed pursuant to some, but 
not all Standards. Among the included Standards is Standard 208. The 
agency believes a regulation exempting vehicles from the make 
inoperative prohibition would more effectively and directly address the 
needs of those who modify vehicles for people with disabilities than 
re-establishing and expanding the exclusion from Standard 208. The 
agency notes that the proposed rule would directly benefit the NMEDA 
members that modify vehicles after their first retail sale.

V. Petitioner's Concerns Over Adverse Interaction of Air Bags and 
Adaptive Steering Devices

    As noted above, NMEDA raised a number of concerns with respect to 
air bags. NMEDA expressed concern over the risk air bags pose to 
individuals who use adaptive equipment to drive. NHTSA is aware that 
vehicle manufacturers have instructed modifiers not to place adaptive 
driving equipment, such as steering control devices, in the air bag 
deployment zone. The agency's own research indicates, however, that 
steering control devices, including tripins, do not interact 
significantly with the deployment of the air bag.11 Spanner 
bars, however, pose a danger as they interfere with the proper 
deployment of the air bag and may be projected toward the occupant by 
the force of the deploying air bag.
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    \11\ See footnote 9 above.
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    NMEDA stated that the deactivation or removal of an air bag should 
be allowed in a number of circumstances. NMEDA stated that due to their 
particular disabilities, some drivers have no choice but to sit 
dangerously close to an air bag. The petitioner also explained that 
some of the modifications that are needed to allow a person with a 
disability to drive, such as the installation of horizontal steering, 
can only be performed by removing the driver's air bag.
    Any person with a disability who believes that he or she is at risk 
of injury from an air bag because of their physical or medical 
condition may request an on-off switch by filling out an agency request 
form and submitting the form to the agency. If the agency approves the 
request, the agency will send the owner a letter authorizing the 
installation of a switch. (See Final Rule on Manual Cut-off Switches 
for Air Bags, 62 FR 62406; Nov. 21, 1997) Further, if a switch is not 
available from the vehicle manufacturer for the person's vehicle or if 
the modification requires removal or deactivation of the air bag, the 
person may submit a written request to the agency to have his or her 
air bag deactivated. In those cases where an air bag must be 
deactivated or removed to accommodate a person's disability, the agency 
will issue a letter authorizing the deactivation.
    In accordance with 49 CFR part 552, this completes the agency's 
review of the petition. The agency has concluded that there is no 
reasonable possibility that the amendment requested by the petitioner 
would be issued at the conclusion of a rulemaking proceeding. After 
considering all relevant factors, the agency has decided to deny the 
petition.

    Authority: 49 U.S.C. 30162; delegation of authority at 49 CFR 
1.50 and 501.8.

    Issued: December 7, 1998.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 98-32908 Filed 12-11-98; 8:45 am]
BILLING CODE 4910-59-P