[Federal Register Volume 68, Number 10 (Wednesday, January 15, 2003)]
[Proposed Rules]
[Pages 2003-2006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-821]



[[Page 2003]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571


Federal Motor Vehicle Safety Standards; Child Restraint Systems; 
Denial of Petition for Rulemaking

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

ACTION: Denial of petition for rulemaking.

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SUMMARY: This document denies a petition for rulemaking from Xportation 
Safety Concepts, Incorporated, requesting that NHTSA amend an air bag 
warning label requirement in the Federal motor vehicle safety standard 
for child restraints. The standard requires that each child restraint 
that can be used rear-facing bear a label directing caregivers not to 
place the child restraint on the front seat with an air bag, and 
provides other related warnings. The petitioner suggests that if a 
rear-facing child restraint is able to limit forces imposed on a test 
dummy by a deploying air bag, the child restraint should be excluded 
from the warning label requirement. The petitioner believes that its 
rear-facing child restraint is such a restraint.
    NHTSA is denying the petition because the petitioner's suggested 
methodology for testing the capability of rear-facing child restraints 
to protect against air bag forces does not adequately assess the safety 
risks that air bags pose to children. Further, there is no other 
available test that assures that a child restraint will perform well 
with the myriad of air bag systems in current and future vehicles. The 
agency reaffirms the merits of urging parents to place infants in a 
rear-facing child restraint in a rear seating position because a child 
is safer there than in a front passenger seating position. This 
document also presents other reasons for denying the petition.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call 
Mike Huntley of the NHTSA Office of Crashworthiness Standards, at 202-
366-0029.
    For legal issues, you may call Deirdre Fujita of the NHTSA Office 
of Chief Counsel at 202-366-2992.
    You may send mail to both of these officials at the National 
Highway Traffic Safety Administration, 400 Seventh St., SW., 
Washington, DC., 20590.

SUPPLEMENTARY INFORMATION:

Background

    To prevent or mitigate the effects of a crash, Federal Motor 
Vehicle Safety Standard No. 208 requires that vehicles be equipped with 
seat belts and, for front seat occupants, air bags that provide 
protection in frontal crashes. Lap/shoulder belts, when used properly, 
are highly effective in reducing the risk of fatal and moderate-to-
critical injury. Frontal air bags are also highly effective in reducing 
fatalities. Between 1986 and July 1, 2002, air bags saved an estimated 
9,325 front seat occupants (7,786 drivers: 2,180 belted and 5,606 
unbelted; and 1,539 front-right passengers: 431 belted and 1,108 
unbelted). The number of lives saved annually by air bags is continuing 
to increase as the percentage of air bag-equipped vehicles on the road 
increases.
    However, while air bags are saving an increasing number of people 
each year in moderate and high speed crashes, some air bags, 
particularly those installed in vehicles manufactured prior to model 
year (MY) 1998, have also caused fatalities, especially to 
unrestrained, out-of-position children, in relatively low speed 
crashes. As of October 1, 2002, NHTSA's Special Crash Investigation 
(SCI) program has confirmed a total of 221 fatalities induced by the 
deployment of an air bag. Of that total, 137 were children, 74 were 
adult drivers, and 10 were adult passengers. The number of air bag-
related fatalities generally increased from 1990 (1) to 1997 (53), and 
decreased from 1997 to 2001 (6 confirmed \1\) and 2002 (2 confirmed). 
The following table sets forth the number of confirmed air bag-related 
fatalities by crash year.
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    \1\ Confirmed means that the Special Crash Investigation has 
been completed.

                                             Counts for Confirmed* Air Bag Related Fatalities By Crash Year
                                                                   [Through 10/01/02]
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                                               Children in rear-
                                                 facing child     Children not in                                       Totals by year   Females 62'' or
                Fatals by Year                    safety seat          RFCSS         Adult drivers   Adult passengers     (confirmed)          less
                                                    (RFCSS)                                                                                (confirmed)
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1990.........................................                0                 0                 1                 0                 1                 1
1991.........................................                0                 0                 4                 0                 4                 1
1992.........................................                0                 0                 3                 0                 3                 2
1993.........................................                0                 1                 4                 0                 5                 2
1994.........................................                0                 5                 8                 0                13                 1
1995.........................................                3                 5                 5                 0                13                 4
1996.........................................                6                19                 7                 2                34                 2
1997.........................................                4                27                18                 4                53                 4
1998.........................................                5                27                13                 2                47                 6
1999.........................................                3                18                 3                 0                24                 2
2000.........................................                0                 8                 6                 2                16                 3
2001.........................................                1                 3                 2                 0                 6                 0
2002.........................................                0                 2                 0                 0                 2                 0
2003.........................................                0                 0                 0                 0                 0                 0
                                              -------------------
        Total................................               22               115                74                10               221               28
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*Confirmed cases are those where the air bag has been confirmed to be the injury mechanism.

    Infants in rear-facing child restraints have been killed by air 
bags primarily because their riding position places them close to the 
air bag. A rear-facing infant seat that is installed in the front seat 
of a vehicle with a passenger air bag

[[Page 2004]]

will almost always position the infant's head very close to that air 
bag. Closeness is a problem because, in order for an air bag to cushion 
an occupant's head, neck, chest and abdomen and keep the occupant from 
hitting the steering wheel, windshield or instrument panel, the air bag 
must move into place quickly. The force of a deploying air bag is 
typically greatest close to the air bag module as the air bag begins to 
inflate. If occupants are very close to or in contact with the cover of 
an air bag, they can be hit with enough force to cause serious injury 
or death when the air bag begins to inflate. Twenty-two fatally-injured 
infants were close to the air bag because they were in rear-facing 
infant seats installed directly in front of a passenger air bag.
    In recent years, significant changes have occurred that have 
reduced the number of persons killed by air bags. As a result of public 
education programs, improved labeling, and media coverage, the public 
is much more aware of the dangers air bags pose to children in the 
front seat and is taking steps to reduce those dangers. Children are 
riding in the back seat more regularly. In cars with passenger air 
bags, the percentage of toddlers and infants riding in the back seat 
increased from about 70 percent in 1995 to about 90 percent in 1999. 
Technological changes in the design of air bag systems have also 
reduced the risk posed by air bags. These changes include reducing the 
air bag outputs (i.e., pressure rise rate and the peak pressure), 
relocating the air bag modules farther away from the driver and 
passenger, and changes to features of air bags. Additional 
technological changes will be made in the future. NHTSA has amended 
Standard No. 208 by adding a wide variety of new requirements, test 
procedures, and injury criteria to require that future air bags be 
designed to create less risk of serious injury than current air bags, 
particularly for small women and young children. 65 FR 30680, May 12, 
2000; as amended 66 FR 65376, December 18, 2001.

Petition for Rulemaking

    Today's document responds to a December 3, 2001 petition for 
rulemaking from a child restraint manufacturer that seeks to amend 
Federal Motor Vehicle Safety Standard No. 213, ``Child Restraint 
Systems'' (49 CFR 571.213), to implement changes that the petitioner 
believes would aid the sale of its restraints. The petitioner, 
Xportation Safety Concepts, Inc. (Xportation), believes it has 
developed an ``air bag resistant, rear-facing infant restraint.'' The 
petitioner further believes that it has identified a test procedure 
that can be used to demonstrate the compatibility of its infant 
restraints with an air bag. Xportation asks that the test procedure be 
added to Standard No. 213, and that child restraints shown, when tested 
in accordance with that test procedure, to be able to limit 
sufficiently the forces that are imposed on a test dummy restrained in 
the child restraint be excluded from the requirement to bear the air 
bag warning label specified in S5.5.2(k)(4) and Figure 10 of the 
standard. The label, which is required to be a permanent and prominent 
part of rear-facing restraints, is intended to provide greater 
assurance that caregivers are aware of the dangers posed by passenger 
air bags to children in rear-facing restraints.
    Xportation's very brief petition did not discuss in any level of 
detail the suggested test procedure, the test devices, or the injury 
criteria. It did not provide any test data regarding its child 
restraint. Instead, Xportation stated that the standard should be 
amended because: (a) The agency indicated in a rulemaking document (59 
FR 7643; February 16, 1994) that it would consider a test procedure 
then under development by the Society of Automotive Engineers (SAE) for 
testing child restraints with air bags for incorporation into Standard 
No. 213; and, (b) in the petitioner's view, since the SAE-developed 
test procedure was completed, the agency should now proceed to 
incorporate the work of SAE and others into the standard to facilitate 
the manufacture of ``air bag resistant infant restraints.'' Xportation 
did not discuss the merits of the work, but attached a bibliography to 
its petition and referred to documents referenced in the bibliography.
    The following constitutes the bulk of the petition:

    The [SAE] task force completed the aforementioned guidelines, 
which were published by the Society of Automotive Engineers as a 
Surface Vehicle Information Report (Reference 1). Section 7 of the 
document discusses dynamic test procedures, and section 10 describes 
the test fixture. The seating portion of the fixture resembles that 
of the FMVSS 213 test fixture, and it is likely that its features 
could be incorporated into that fixture.
    At the request of the CRABI \2\ Task Force, the SAE Infant Dummy 
Task Force developed specifications for the 6 Month Old and 12 Month 
Old CRABI Dummies, and they are now readily available (Reference 2). 
Further, a member of the CRABI Task Force has developed the 
appropriate injury assessment values for the 6 Month Old Dummy 
(Reference 3).
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    \2\ CRABI: Child Restraint Air Bag Interaction. (Footnote not in 
quoted text.)
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    NHTSA, in its early efforts to determine the interaction of 
child restraints and passenger air bags, conducted a number of 
impact simulations using a HYGE sled. The study was reported in 
Reference 4. In the report, it is noted that the test buck is 
similar to the buck design in the CRABI Task Force Information 
Report, and that it used the Standard 213 seat. The report further 
notes that the Standard 213 seat was modified to have the same seat 
cushion and seat back attitudes as the seat in the CRABI buck.
    We submit that there are now a test procedure, a test buck, 
dummies, and injury assessment values, all of the elements necessary 
to allow the agency to proceed with rulemaking to accommodate air 
bag resistant, rear-facing infant restraints. The rulemaking will, 
of course, include the incorporation of the CRABI dummies into 49 
CFR part 572.\3\

    \3\ ``Reference 1'' in petitioner's bibliography was 
``Guidelines For Evaluating Child Restraint System Interactions With 
Deploying Airbags.'' SAE J2189 (March 1993); Reference 2 was ``FTSS 
Product Catalog: CRABI 6 Month Older Infant Dummy 910420-000; 12 
Month Old Child Dummy 921022-000;'' Reference 3 was ``Injury 
Assessment Values for the CRABI 6-Month Infant Dummy in a Rear-
Facing Infant Restraint With Airbag Development. SAE 950872,'' J.W. 
Melvin, 1995; and Reference 4 was ``Child Restraint/Passenger Air 
Bag Interaction Analysis. Final Report, HS 808 004,'' L.K. Sullivan, 
1992. (Footnote not in quoted text.)
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Discussion

Previous Rulemaking

    In 1994, before there were any injuries or fatalities to infants in 
rear-facing restraints caused by an air bag, NHTSA issued a final rule 
that required these restraints to have a warning label against using 
the restraint in any vehicle seating position equipped with an air bag 
(59 FR 7643). Public comments on the notice of proposed rulemaking 
(NPRM) preceding the rule expressed concerns that the rule would 
restrict child restraint design in the face of what was then only a 
theoretical risk posed to children. In response, the agency stated that 
it ``[did] not intend for this rule to impede the development of rear-
facing restraints that are compatible with an air bag.'' The agency 
explained that it was monitoring the work of a task force on Child 
Restraint and Air Bag Interaction (CRABI) formed by the Society of 
Automotive Engineers (SAE), particularly the work on test procedures 
that could evaluate the performance of an infant restraint when used 
with a passenger air bag. NHTSA stated that if the CRABI task force 
were to develop a test procedure from its guidelines, NHTSA would 
evaluate it to determine whether the procedure is appropriate for 
Standard No. 213. ``Among other things,'' the agency stated, ``the 
procedure would have to be suitable for

[[Page 2005]]

testing all types of infant restraints, and be able to provide test 
results that assess the performance of the restraint in the real 
world.'' The agency also stated that it ``will consider a test 
procedure for incorporation into Standard 213 as soon as a suitable one 
is developed'' (59 FR 7646).
    We do not agree with Xportation that the CRABI test procedure 
merits adoption into the Federal safety standard or that child 
restraints tested to the procedure need not be labeled with the air bag 
warning label that all rear-facing restraints must now bear. The 
agency's knowledge of air bags has changed tremendously since 1994, 
when NHTSA undertook the rulemaking that first required an air bag 
warning label. We undertook the air bag warning rulemaking after 
finding in NHTSA laboratory sled tests with top- and mid-mounted air 
bags that the air bags produced substantial increases in the values for 
the head injury criterion (HIC) and chest acceleration of dummies 
seated in rear-facing restraints, compared to the values for dummies in 
rear-facing restraints tested with no air bag. There had not yet been 
any deaths or injuries caused by an air bag at that time. At that time, 
the agency was guardedly optimistic about the possibility that a 
suitable test procedure could develop out of the CRABI task force work 
that would obviate the need for requiring all rear-facing restraints to 
have an air bag warning label.
    Beginning in 1994, however, the risk posed by passenger air bags to 
infants in rear-facing restraints began to manifest itself in real-
world deaths and injuries. Three air bag-related fatalities were 
children in rear-facing restraints in 1995, 6 in 1996, 4 in 1997, 5 in 
1998, and 3 in 1999.\4\ NHTSA developed various strategies to counter 
the rising number of fatally-injured children in rear-facing child 
restraints, including amending Standard No. 213 to make the warning 
label more direct in its warning and much more conspicuous (61 FR 
60206; November 27, 1996). The agency, together with the automobile 
industry and child passenger advocates, also began a vigorous and 
successful consumer information campaign to get children seated in the 
back seat rather than in the front passenger seat.
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    \4\ There were 0 in 2000 and 1 in 2001.
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    We also became much more knowledgeable about air bags. In December 
1997, to better understand air bag design and performance 
characteristics, NHTSA sent an information request to nine automobile 
manufacturers requesting detailed technical information on then-current 
industry practices on air bag technologies and how design and 
performance had evolved through the 1990s. The agency analyzed the 
responses and identified numerous trends in air bag design both on the 
driver side and the passenger side. The information showed that 
manufacturers have made many changes to air bag design. ``Air Bag 
Technology In Light Passenger Vehicles,'' Hinch et al., October 26, 
1999 (see Docket 2814-47).
    This information has led us to evaluate the CRABI procedure in a 
better informed, more critical light. While at one point we were 
somewhat optimistic about the CRABI procedure, we now do not believe 
that it or any other procedure adequately assesses the safety risks to 
rear-facing children from an air bag.

Review of the SAE procedure

    The CRABI procedure is set forth in the SAE's Surface Vehicle 
Information Report SAE J2189, ``Guidelines for Evaluating Child 
Restraint System Interactions With Deploying Airbags,'' March 1993. As 
noted by the SAE in that document, there are many uncertainties 
associated with the procedure. The SAE explained that the document is 
styled an ``information report,'' as opposed to a ``recommended 
practice,'' ``because of the general inexperience in testing the 
interaction between child restraint systems and deploying air bags and 
the lack of real-world accident data.'' The explanation continues:

    This document describes dummies, procedures, and configurations 
that can be used for investigating the interactions that occur 
between a deploying airbag and a CRS [child restraint system]. 
Static tests may be used to sort CRS/airbag interaction on a 
comparative basis in either an actual or a simulated vehicle 
environment. Systems that appear to warrant further testing may be 
subjected to an appropriate dynamic test at a speed near that needed 
to deploy an airbag or at a higher speed commonly used to evaluate 
CRS performance. No test matrix is specified at this time for 
evaluating either a CRS or an airbag during interaction with each 
other. Instead, engineering judgment based on prior experience with 
CRS and/or airbag testing should be used in selecting the tests to 
be conducted with each individual system. Such tests may be aimed 
not only at producing interactions with the most severe results but 
also at identifying those conditions that produce the least 
interaction and/or satisfactory CRS performance results. Baseline 
tests to indicate the performance of a CRS in the absence of airbag 
deployment are also recommended for comparison purposes.

    The CRABI test procedure could be an acceptable starting point in 
evaluating the performance of particular child restraints with specific 
air bag systems. However, NHTSA believes that the procedure alone would 
not be able to provide test results that sufficiently assess the 
performance of a restraint in the real world. J2189 does not specify a 
test matrix, but relies on the tester's engineering judgment as to the 
test configurations and conditions that should be used. Xportation 
provides no explanation or discussion as to which configurations and 
conditions it believes need or need not be specified that would assure 
the safe performance of a child restraint with the air bags in existing 
and future model year vehicles.
    Perhaps the reason that Xportation did not do so is because it is 
virtually impossible to do so. J2189 is predicated on the tester's 
being able to tune the air bag system to simulate a specific air bag 
system. If J2189 were incorporated into Standard No. 213, a very 
limited type of air bag system would be simulated by the standard. Yet, 
NHTSA's survey data (Hinch et al., supra) show great variation in air 
bag system characteristics and performance. Moreover, air bag systems 
have changed significantly in recent years. Some of the changes reduced 
the aggressivity of air bags, such as by reducing air bag outputs in 
the most recent model year vehicles compared to the earlier generation 
vehicles. Some of the changes involved changes in inflator 
characteristics, new air bag shapes, sizes, fabrics, venting systems 
and venting levels, occupant size and location sensors, seat position 
sensors, belt use sensors, and crash severity sensors, as well as 
computation algorithms that use the information in making air bag 
deployment decisions. Manufacturers also seem to be on the threshold of 
making a significant leap in introduction of sophisticated technologies 
to improve air bag performance. In short, a test procedure that only 
replicates one or a few types of air bag systems does not assure that a 
child restraint that meets performance criteria tested to that 
procedure will perform adequately with the myriad of air bag designs 
currently on the road and those that will be installed in future 
vehicles.
    The safety risk posed to infants in rear-facing child restraints by 
deploying air bags is so great that a test procedure used to assess the 
performance of the child restraint must carefully evaluate that risk. 
For example, if an ``air bag-resistant'' child restraint fails to work, 
an infant in that restraint is almost certain to be injured when the 
air bag deploys. Xportation has not provided data showing that a child 
would not be injured by a type of air bag system that

[[Page 2006]]

was not simulated by the J2189 procedure, or that the child would be 
protected if the restraint were misused.\5\ Nor did Xportation provide 
data showing that the test dummies could satisfactorily evaluate the 
harm resulting from a deploying air bag. In the absence of such data, 
we conclude that the suggested amendment would subject rear-facing 
infants to too high a risk of injury from an air bag.
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    \5\ The SAE explains in J2189 that the information report 
``addresses only the effects of the interactions between deploying 
airbags and child restraint systems that would have been considered 
properly installed and used in the right and center front passenger 
positions before the advent of passenger airbags and may be properly 
installed there in the future. Child restraint misuse is not 
otherwise addressed in this document.''
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    As a practical matter, NHTSA cannot test products in every 
configuration or circumstance they could be used. However, this 
limitation is generally acceptable since test procedures simulating a 
relatively narrow set of real world circumstances generally have a 
positive impact on individuals in a broader range of circumstances. 
However, in this particular case, testing to a test procedure of one 
sort could have severe consequences to a child in a broad range of 
circumstances. Thus, we deem the requirements and test procedures to be 
too narrow and not adequately representative of types of air bag 
systems not simulated by the J2189 procedure.
    The agency will not attempt to develop a suitable test procedure in 
response to the petition. Developing a suitable test procedure 
(assuming that it would be practicable to do so) would use agency 
resources that are better spent on areas that would result in definite 
safety benefits. Moreover, for the reasons stated above, we believe 
that no procedure could adequately assure the overall safety of 
children. There is a risk of injury associated with the forces imposed 
by the air bag on a rear-facing infant.\6\ There are no such risks when 
the child is in the back seat. Even in vehicles without air bags, 
infants, as well as other occupants, are 26 percent safer against 
fatality when seated in the rear seat than in the front seat. Thus, 
even if air bag risks could be completely controlled, overall safety 
would be diminished if some infants were restrained in the front seat 
instead of in the rear seat, which would occur if petitioner's 
suggested amendment was adopted. Keeping infants restrained in the rear 
seat instead of in the front seat assures that a more injurious event 
would not be substituted for a less injurious one.\7\
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    \6\ Limits on the force levels imposed on the dummy indicate an 
injury risk assessment above which the risk of injury is 
unacceptably high. The risk of injury of force levels below the 
threshold, while lower, still exists.
    \7\ For vehicles with either (a) no rear seats, or (b) rear 
seats that are too small to accommodate rear-facing child restraints 
in accordance with the provision of S4.5.4.1(b) of FMVSS No. 208, 
vehicle manufacturers may install a device (an on/off switch) that 
deactivates the air bag at the front passenger position. In 
addition, under appropriate circumstances, owners of all vehicles 
may obtain an on/off switch (see 49 CFR part 595).
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    Xportation has argued that placing children in the back increases 
the risk for crashes because of the possibility of distraction due to 
parents' having to turn to attend to them. Based on a review of 2000 
Fatal Analysis Reporting System (FARS) data \8\, a total of 3,946 
drivers (or 6.9 percent of all drivers involved in fatal crashes) were 
determined to be inattentive. However, the 2000 FARS database does not 
distinguish between various causes of inattentiveness, such as talking, 
eating, cell phone use, or attending to a child in either the front or 
rear seat. As such, the agency is unable to definitively ascertain from 
this data whether children are more or less of a distraction in the 
front seat as compared to the rear seat. However, placing children in 
rear seats does significantly increase the chances that the child will 
survive a crash should one occur as noted in the preceding paragraph.
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    \8\ ``Traffic Safety Facts 2000: A Compilation of Motor Vehicle 
Crash Data From the Fatal Analysis Reporting System and the General 
Estimates System,'' National Highway Traffic Safety Administration, 
National Center for Statistic and Analysis, December 2001.
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    In conclusion, NHTSA has evaluated the test procedure suggested by 
the petitioner for incorporation into the Federal standard. We conclude 
that the procedure does not go far enough in assessing the injury risk 
posed by air bags to infants in rear-facing restraints. Further, we 
affirm the continuing merit of urging parents to place infants in rear-
facing restraints in a rear seating position, since the infants are 
safer there than in a front passenger seating position. This message 
saves lives.
    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 the rulemaking proceeding. 
Accordingly, the petition is denied.

    Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; 
delegation of authority at 49 CFR 1.50.

    Issued on January 9, 2003.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. 03-821 Filed 1-14-03; 8:45 am]
BILLING CODE 4910-59-P