[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4359]


[[Page Unknown]]

[Federal Register: February 25, 1994]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

 

Requirements for Clacker Balls; Amendments

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends its existing regulation, under the 
Federal Hazardous Substances Act, that bans clacker balls that do not 
meet specified requirements. The amendments include revising the 
definition of clacker ball to exclude those devices where the balls are 
suspended by plastic rods that are integrally molded to the balls and 
are mounted on a pivot so that movement of the balls is essentially 
limited to a single plane. The amendments also exempt from the ban 
those clacker balls that meet specified maximum ball-weight and cord-
length specifications and a minimum safety factor specification. The 
amendments clarify the regulation and benefit consumers, manufacturers, 
importers, distributors, and retailers by allowing the marketing of 
currently-banned products that do not present the unreasonable risk of 
injury the ban was intended to prevent.

DATES: The amendments are effective March 25, 1994.

FOR FURTHER INFORMATION CONTACT: Frank Krivda, Division of Regulatory 
Management, Consumer Product Safety Commission, Washington, DC 20207; 
telephone (301) 504-0400.

SUPPLEMENTARY INFORMATION:

A. Background

    The Commission's regulations, issued under the Federal Hazardous 
Substances Act (``FHSA''), 15 U.S.C. 1261-1277, ban clacker balls 
(defined in 16 CFR 1500.18(a)(7)), unless the clacker balls meet the 
requirements in 16 CFR 1500.86(a)(5). The regulations define clacker 
balls as consisting of two balls of plastic or another material 
connected by a length of line or cord or similar connector * * * 
intended to be operated in a rhythmic manner by an upward and downward 
motion of the hand so that the two balls will meet forcefully at the 
top and bottom of two semicircles thus causing a ``clacking'' sound, 
which toys present a mechanical hazard because their design or 
manufacture presents an unreasonable risk of personal injury from 
fracture, fragmentations, or disassembly of the toy and from propulsion 
of the toy or its part(s). (But see Sec. 1500.86(a)(5))
    These requirements were issued in 1971 by the Food and Drug 
Administration, which administered the FHSA at that time.
    The criteria in Sec. 1500.86(a)(5) were designed to ensure the 
safety of the type of clacker ball that was on the market before the 
regulation was issued in 1971. This type of clacker ball used balls 
that were relatively large and heavy, and the balls were mounted on 
flexible cords. The criteria include an impact test for the balls and 
strength tests for the cords and attachment points.
    In August of 1989, Mr. William Hones of Fascinations Toys and 
Gifts, Inc., petitioned the Commission to amend its requirements for 
clacker balls to exclude products that (1) mechanically restrict the 
motion of the balls to a plane perpendicular to a supporting shaft and 
(2) withstand impact and centrifugal stresses at least 10 times those 
produced in normal use. [1, Tab A]1 The petitioner marketed a 
product similar to a clacker ball but that operated in the manner that 
would be excluded by the requested amendment.
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    \1\Numbers in brackets represent the number of a relevant 
document in Appendix 1 (List of Relevant Documents) at the end of 
this notice.
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    The device marketed by the petitioner mounted the balls by 
integrally molding them onto the apex of a V-shaped plastic member 
mounted so that the arms of the V pivot on a shaft. This mounting 
limits the movement of the balls to a single plane that is 
perpendicular to the axis of the shaft. Compared to the pre-1972 type 
of clacker balls, the petitioner's product had lighter balls and 
shorter mounting arms. Because of this, the petitioner's product did 
not generate the impact or centrifugal forces that the earlier clacker 
balls did. The Commission's staff agreed that the criteria of 
Sec. 1500.18(a)(5) vastly exceeded the stresses generated by 
petitioner's device and by various other brands and types of clacker 
balls that were on the market.
    After considering the petition, the Commission decided that the 
term ``clacker ball'' did not encompass the product marketed by the 
petitioner and similar products. The Commission (3-0) also directed the 
staff to prepare, for the Commission's consideration, a draft Federal 
Register notice that would propose to amend the definition of clacker 
ball to explicitly exclude petitioner's and similar products and to 
amend Sec. 1500.86(a)(5) to exempt clacker balls meeting maximum ball-
weight and cord-length specifications and a minimum safety factor 
specification. On June 25, 1993, the Commission published proposed 
amendments in the Federal Register. 58 FR 34385. The period for public 
comment on the proposal ended on September 8, 1993; no comments were 
received.

B. Procedure

    A regulation such as the Commission's clacker ball regulation is 
issued under section 3(e) of the FHSA, 15 U.S.C. 1262(e), which applies 
to determinations that a toy or other article intended for use by 
children presents a mechanical, electrical, or thermal hazard and is 
thus a hazardous substance pursuant to section 2(f)(1)(D), 15 U.S.C. 
1261(f)(1)(D). The original issuance of such a regulation would be 
governed by the procedure in section 3(f) of the FHSA, 15 U.S.C. 
1262(f), which specifies a three-stage rulemaking procedure that is 
initiated by the publication of an advance notice of proposed 
rulemaking (``ANPR''). The amendments issued below, however, eliminate 
from the scope of the rule those products that do not present the 
mechanical risk that the regulation originally intended to cover. 
Accordingly, since new obligations are not being imposed, sections 3 
(e) and (f) do not apply. In addition, the provisions of section 3(f) 
governing the required content of the ANPR show that the ANPR is 
intended to apply only to cases where new requirements are being 
imposed and not to the case where previously covered products are being 
exempted or otherwise released from coverage. Therefore the two-stage 
rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. 
553, apply.

C. The Amendments

    Amended Sec. 1500.18(a)(7). As explained above, the device marketed 
by the petitioner was mounted on plastic rods so that the balls move 
only in a single plane. This prevents off-center hits of the balls, and 
the limitation to ``plastic'' material should limit any likelihood of 
loose particles caused by flaking or fragmentation of the balls. The 
Commission determined that the definition of clacker ball did not cover 
the petitioner's device, or similar devices with these features. 
Therefore, the amendments add language specifically stating that the 
definition of clacker ball ``does not include products that are 
constructed such that the connecting members consist of plastic rods 
integrally molded to the balls and are mounted on a pivot so that 
movement of the balls is essentially limited to a single plane.''
    Amended Sec. 1500.86(a)(5). As discussed above, the Commission 
concluded that the criteria in the current exemption in 
Sec. 1500.86(a)(5) are too stringent for the lighter and smaller 
clacker balls that are currently on the market, which have balls with 
masses of less than 12 grams each and pivot lengths of less than 180 mm 
(7.1 inches). Accordingly, the staff examined how the exemption 
criteria might be changed so that they would be more appropriate for 
these lighter and smaller clacker balls. The criteria that must be 
changed in order to do this are (1) The cord-strength requirement of 
Sec. 1500.86(a)(5)(i)(B), (2) the ball-impact test in 
Sec. 1500.86(a)(5)(ii)(B), (3) the cord-strength test of 
Sec. 1500.86(a)(5)(ii)(D), and (4) the holding-device strength test of 
Sec. 1500.86(a)(5)(ii)(E). These criteria are discussed separately 
below. How the formulae for adjusting these factors were derived is 
explained in detail in the report ``Engineering Analysis Supporting 
Proposed Amendments to the Clacker Ball Regulation at 16 CFR Sections 
1500.18(a)(7) and 1500.86(a)(5),'' Scott R. Heh, CPSC Directorate for 
Engineering Sciences, December 1992 [6, Tab B]. For clacker balls with 
masses of 12 grams or more, or with pivot lengths of 180 mm or more, 
the current provisions of the regulation will continue to apply.
    Cord-strength test. The staff calculated the safety factor that the 
current regulation applied to the large and heavy clacker balls that 
the regulation was intended to address and determined that it provides 
a cord-strength safety factor, for those clacker balls, of 
approximately 35. Therefore, this safety factor was also applied to the 
reduced forces proposed to be allowed when testing the cord strength of 
smaller and lighter clacker balls.
    The tensile forces applied to the cord of a clacker ball during use 
are mainly due to the centrifugal forces generated by the motion of the 
balls. The centrifugal force of an object is equal to the mass of the 
object times its acceleration, which in turn is a function of the 
velocity of the object and the radius of the curve being traveled by 
the object. The velocity of the ball is established by specifying a 
maximum ``clack'' rate of 20 clacks per second. (As specified in the 
definition of clacker ball at Sec. 1500.18(a)(7), a clack is produced 
when the two balls collide at the top and bottom of their semicircular 
paths. The highest clack rate that the Commission's staff was able to 
achieve in testing was 17 clacks per second.)
    Applying the safety factor of 35, the adjusted cord strength value 
in Newtons can be calculated by 0.1382(mb)(Rp), where mb 
is the mass of a single ball in grams and Rp is the radius of the 
arc described by the ball (pivot length) in mm. Accordingly, the 
Commission is amending the regulation as set forth below so that this 
adjusted cord strength value will be one of the criteria for exempting 
the smaller and lighter clacker balls described above.
    Ball-impact test. The current regulation provides that a clacker 
ball shall be tested by 10 drops of a 5-lb steel weight from a height 
of 48 inches. The Commission's staff determined that this provides a 
safety factor of about 20 for the large and heavy clacker balls for 
which the test was designed.
    The clacker ball experiences an impact related to the magnitude of 
the kinetic energy it achieves in use, which is a function of the mass 
of the clacker ball times its velocity. The velocity can be calculated 
from the ``clack rate,'' which, as described above, is assumed to be 20 
clacks per second. Accordingly, the height from which a 5-lb weight 
must be dropped in order to achieve an impact equal to what the clacker 
ball can generate, times the safety factor of 20, can be calculated as 
179 x 10-5(mb)(Rp2), where mb is the mass of a 
single ball in grams and Rp is the radius of the arc described by 
the ball (pivot length) in mm. Accordingly, the Commission amends its 
regulations to allow this adjusted drop height value to be one of the 
criteria for exempting the smaller and lighter clacker balls described 
above.
    Holding device test force. Present Sec. 1500.86(a)(5)(ii)(E) 
provides that the device for holding the cords together shall be tested 
by applying a force of 50 lb to each cord separately, while the holding 
device is clamped in position. Since this is half the force provided by 
the current regulation for the cord-strength test, the Commission 
amends its regulations to allow an adjusted holding device test force 
of half the adjusted cord-strength test force, to exempt the smaller 
and lighter clacker balls described above.

D. Metric Units

    Current Federal policy encourages the use of metric units in 
regulations. Exec. Order No. 12770, 3 CFR, 1991 Comp., p. 343. 
Accordingly, wherever current Sec. 1500.86(a)(5) uses inch/pound units 
that can be specified instead in metric units, the amendments proposed 
below give the corresponding metric units as the   primary   criteria,  
 with   the   inch/pound equivalent in parentheses.

E. Correction

    The exemptions at Sec. 1500.86(a)(5) have a typographical error in 
the table in Sec. 1500.86(a)(5)(vi). The word ``rental'' in the heading 
of the first column should be ``retail.'' Accordingly, the amendments 
issued below correct this discrepancy.

F. Effective Date

    This amendment grants an exemption. A delayed effective date of 30 
days from the date a final rule is issued will be sufficient for 
parties to test their products to determine whether the products comply 
with the amended regulation. Accordingly, these amendments will become 
effective March 28, 1994.

G. Regulatory Flexibility Act Certification

    When an agency undertakes a rulemaking proceeding, the Regulatory 
Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601 et seq.) generally 
requires the agency to prepare initial and final regulatory flexibility 
analyses describing the impact of the rule on small businesses and 
other small entities. The purpose of the Regulatory Flexibility Act, as 
stated in section 2(b) (5 U.S.C. 602 note), is to require agencies, 
consistent with their objectives, to fit the requirements of 
regulations to the scale of the businesses, organizations, and 
governmental jurisdictions subject to the regulations. Section 605 of 
the Act provides that an agency is not required to prepare a regulatory 
flexibility analysis if the head of the agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    The Commission's Directorate for Economics prepared Initial and 
Final Regulatory Flexibility Act Analyses to examine the effect of the 
rule on small entities. [6, Tab D; 8, Tab D] The findings of the Final 
Regulatory Flexibility Analysis are repeated below.
    The potential cost of the rule includes the possibility of future 
injury or death associated with these products, if that were due to 
less safe clacker balls being on the market because the exemption 
criteria of the regulation were made less stringent. The Commission has 
no information that would support a conclusion that this will occur.
    The Commission is aware of 13 incidents from January 1, 1973, 
through 1992 that were associated with clacker balls. [6, Tab C] Three 
of these incidents involved fatalities. In one of these fatal 
incidents, a child strangled when she got the cord of a clacker ball 
around her neck. In the two others, infants were asphyxiated when 
clacker balls obstructed their airways. Such strangulation and 
asphyxiation hazards are not addressed by the current requirements for 
clacker balls.
    The remaining 10 incidents involved injuries incurred when users 
were hit with clacker balls (4), fell on clacker balls (2), or ingested 
a piece of broken clacker ball (1), or involved a burn (1) or 
poisonings (2) associated with clacker balls that made a cracking sound 
and emitted smoke when the balls struck each other. None of these 
incidents is known to be due to any deficiency in the clacker balls' 
impact resistance, cord strength, or holding-device strength.
    Based on the available epidemiological and engineering information, 
no potential injuries or deaths are expected to be associated with the 
amended definition and exemption. Accordingly, no significant costs are 
expected to be associated with these changes.
    The amended definition and exemption will provide benefits to 
marketers of the product by allowing the continued marketing of these 
products as toys and novelties. Marketers would also benefit through an 
elimination of any uncertainty about enforcement of the existing 
regulations, and the regulation's effects on future product development 
would be clarified. The marketers would also benefit by avoiding any 
cost increases that would be caused by having to come into compliance 
with the present regulation.
    Consumers obtain utility from the use of these products. Sales in 
1990 of products similar to the petitioner's are estimated at 10-12 
million units, which were valued at $25-30 million. Sales in 1991 
declined to about one million units, and 1992 sales were around two 
million units. Sales of lightweight, short-cord clacker balls are 
thought to be insignificant compared to the number of products like the 
petitioner's that are marketed. However, the available information is 
not sufficient to enable an accurate estimate. To the extent that 
consumers enjoy the use of these products, their continued availability 
is a benefit, and the loss of this product on the market would be a 
loss to consumers.
    All the firms known to be currently marketing these products are 
small firms. The rule is expected to have a positive impact on these 
firms.
    For the reasons given above, the Commission concludes that the 
amendments to the Commission's regulations for clacker balls, issued 
below, will not have any significant adverse economic effect on a 
substantial number of small entities.

H. Environmental Considerations

    Pursuant to the National Environmental Policy Act, and in 
accordance with the Council on Environmental Quality regulations and 
CPSC procedures for environmental review, the Commission preliminarily 
assessed the possible environmental effects associated with the 
proposed amendments to the clacker ball regulations. [6, Tab D] Because 
that assessment found that there were no significant environmental 
effects from the rule, no final assessment is required.

List of Subjects in 16 CFR Part 1500

    Consumer protection, Hazardous materials, Hazardous substances, 
Imports, Infants and children, Labeling, Law enforcement, Toys.

I. Conclusion

    For the reasons given above, the Commission amends 16 CFR part 1500 
as follows:

PART 1500--[AMENDED]

    1. The authority citation for part 1500 is revised to read as 
follows:

    Authority: 15 U.S.C. 1261-1277.

    2. Section 1500.18(a)(7) is amended by replacing the second 
sentence with two new sentences to read as follows:


Sec. 1500.18  Banned toys and other banned articles intended for use by 
children.

* * * * *
    (a) * * *
    (7) * * * (But see Sec. 1500.86(a)(5).) This does not include 
products that are constructed so that the connecting members consist of 
plastic rods integrally molded to the balls and are mounted on a pivot 
so that movement of the balls is essentially limited to a single plane.
* * * * *


Sec. 1500.86  [AMENDED]

    3. Section 1500.86(a)(5)(i)(B) is amended by:
    a. Replacing ``100 pounds'' with ``445 Newtons (100 pounds)'' and
    b. Adding a new sentence at the end of the paragraph, to read as 
follows:


Sec. 1500.86  Exemptions from classification as a banned toy or other 
banned article for use by children.

    (a) * * *
    (5) * * *
    (i) * * *
    (B) * * * Clacker balls where the mass of each ball is less than 12 
grams (0.42 oz.) and the distance between the center of the pivot and 
the center of the ball cannot exceed 180 mm (7.1 inches) may have a 
minimum cord breaking strength of less than 445 Newtons (100 pounds), 
as computed by the following formula:

    Adjusted Cord Breaking Strength in Newtons=0.1382(mb) 
(Rp), where mb=mass of a single ball in grams and
    Rp=pivot length in mm.
* * * * *
    4. Section 1500.86(a)(5)(ii)(B) is amended by:
    a. Replacing ``5-pound'' with ``2.25 kg (5-pound)''
    b. Replacing ``2\1/4\-inch'' with ``57-mm (2\1/4\-inch)
    c. Replacing ``48 inches'' with ``1220 mm (48 inches)''
    d. Replacing ``2\3/8\-inch with ``60-mm (2\3/8\-inch)'' and
    e. Adding a sentence after the first sentence and before the last 
sentence, to read as follows:


Sec. 1500.86  Exemptions from classification as a banned toy or other 
banned article for use by children.

    (a) * * *
    (5) * * *
    (ii) * * *
    (B)* * * Clacker balls where the mass of each ball is less than 12 
grams (0.42 oz.) and the distance between the center of the pivot and 
the center of the ball cannot exceed 180 mm (7.1 inches) may be tested 
by dropping the impact weight from a height of less than 1220 mm (48 
in.), where the height is computed as follows:
    Adjusted drop height in mm=179 x 10-5(mb) 
(Rp2), where mb=mass of a single ball in grams and
    Rp=pivot length in mm. * * *
* * * * *
    5. Section 1500.86(a)(5)(ii)(D) is amended by:
    a. Replacing ``100-pound'' with ``445-Newton (100-pound)'' and
    b. Adding two sentences before the last sentence, to read as 
follows:


Sec. 1500.86  Exemptions from classification as a banned toy or other 
banned article for use by children.

    (a) * * *
    (5) * * *
    (ii) * * *
    (D) * * * Clacker balls where the mass of each ball is less than 12 
grams (0.42 oz.) and the distance between the center of the pivot and 
the center of the ball cannot exceed 180 mm (7.1 inches) may be tested 
with a force of under 445 Newtons (100 pounds). The test force for 
these clacker balls shall be the same as the cord breaking strength 
calculated in Sec. 1500.86(a)(5)(i)(B). * * *
* * * * *
    6. Section 1500.86(a)(5)(ii)(E) is amended by:
    a. Replacing ``50-pound'' with ``222-Newton (50-pound)'' and
    b. Adding two sentences after the first sentence and before the 
last sentence, to read as follows:


Sec. 1500.86  Exemptions from classification as a banned toy or other 
banned article for use by children.

    (a) * * *
    (5) * * *
    (ii) * * *
    (E) * * * Clacker balls where the mass of each ball is less than 12 
grams (0.42 oz.) and the distance between the center of the pivot and 
the center of the ball cannot exceed 180 mm (7.1 inches) may have their 
holding device tested with a force of less than 222 Newtons (50 
pounds). The holding device test force for these clacker balls shall be 
half of the cord breaking strength calculated in 
Sec. 1500.86(a)(5)(i)(B). * * *
* * * * *


Sec. 1500.86  [Amended]

    7. Section 1500.86(a)(5)(iv)(C) is amended by:
    a. Replacing ``one-quarter inch'' with ``6 mm (\1/4\ inch)'' and
    b. Replacing ``one-eighth inch'' with ``3 mm (\1/8\ inch)''.
    8. Section 1500.86(a)(5)(vi) is amended by replacing ``rental'' in 
the heading of the first column of the table with ``retail''.

    Dated: February 18, 1994.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.

Appendix 1--List of Relevant Documents

(This Appendix will not be printed in the Code of Federal 
Regulations.)

    1. Briefing Package--Petition HP 90-2--Clacker Balls: Executive 
Summary and briefing memorandum ``Petition HP 90-2: Clacker Balls,'' 
John D. Preston, Project Manager, CPSC Directorate for Engineering 
Sciences, dated Jan. 27, 1992, with Tabs A, C, and F-J.
    TAB A--Petition.
    TAB C--Photograph of petitioner's clacker ball.
    TAB F--Memorandum from Debbie Tinsworth, CPSC/EPHA, to John 
Preston, CPSC/ESME, ``Clacker Ball Incident Data,'' April 18, 1991.
    TAB G--Memorandum from Terrance R. Karels, CPSC/ECPA to John 
Preston, Project Manager, ``Clacker Ball Petition, HP 90-2,'' July 
23, 1991.
    TAB H--Memorandum from John Preston, CPSC/ESME, ``Petition HP 
90-2, Clacker Balls,'' October 4, 1991.
    TAB I--Memorandum from Bob Poth, CPSC/CERM, to John Preston, 
Project Manager, CPSC/ESME, ``Background of CE Action on `Newton's 
Yo-Yo','' Sept. 18, 1991.
    TAB J--Proposed Enforcement Policy.
    2. Tape recording of Commission briefing on March 25, 1992.
    3. Memorandum from John Preston, Project Manager, to the 
Commission, ``Response to Commission Request for Options and 
Resource Estimates to Respond to the Clacker Ball Petition,'' June 
5, 1992, with revised vote sheet.
    4. Commissioners' ballot vote sheets, signed June 29-30, 1992.
    5. Letter from the Commission's Secretary to Mr. William G. 
Hones, President of Fascinations Toys and Gifts, Inc., dated Sept. 
23, 1992.
    6. Briefing package ``Proposed Amendments to the Clacker Ball 
Regulation at 16 CFR Sections 1500.18(a)(7) and 1500.86(a)(5),'' 
consisting of Executive Summary, briefing memorandum, and Tabs A-E.
    Briefing Memorandum, ``Proposed Rule Amending the Clacker Ball 
Regulation at 16 CFR Sec. 1500.18(a)(7) and Sec. 1500.86(a)(5),'' 
April 13, 1993.
    TAB A--Photographs of products.
    TAB B--Engineering report from Scott Heh, ESME, ``Engineering 
Analysis Supporting Proposed Amendments to the Clacker Ball 
Regulation at 16 CFR Sections 1500.18(a)(7) and 1500.86(a)(5),'' 
December 17, 1992.
    TAB C--Memorandum from Suzanne P. Cassidy, EPHA, ``Injuries and 
Deaths Associated with Clacker Balls,'' Feb. 1, 1993.
    TAB D--Memorandum from A. Homan, ECPA, to Scott R. Heh, ESME, 
``Regulatory Flexibility and Regulatory Analyses, Economic and 
Environmental Assessments: Proposed Amendments to the Clacker Ball 
Regulations,'' December 10, 1992.
    TAB E--Draft Federal Register notice.
    7. 58 FR 34385 (June 25, 1993).
    8. Briefing memorandum from Scott Heh, Project Manager, to the 
Commission, ``Final Rule Amending the Clacker Ball Regulation at 16 
C.F.R. Sections 1500.18(a)(7) and 1500.86(a)(5), with Tabs A-E, 
dated January 19, 1994:
    TAB A--Photographs of Products.
    TAB B--Memorandum from Suzanne Cassidy EPHA, to Scott Heh, 
Project Manager, ``Injuries and Deaths Associated with Clacker 
Balls,'' dated February 1, 1993.
    TAB C--Memorandum from Suzanne Cassidy, EPHA, to Scott Heh, 
Project Manager, ``Data Update on Injuries and Deaths Associated 
with Clacker Balls,'' dated November 4, 1993.
    TAB D--Memorandum from A. Homan, ECPA, ``Regulatory Flexibility 
and Regulatory Analyses, and Economic Assessments: Final Regulatory 
Amendments to the Clacker Ball Regulation,'' dated December 1, 1993.
    TAB E--Draft Federal Register notice.

[FR Doc. 94-4359 Filed 2-24-94; 8:45 am]
BILLING CODE 6355-01-P