Statement of Policy or Interpretation; Enforcement Policy for Art Materials

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

Statement of Policy or Interpretation; Enforcement Policy for Art

Materials

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule; statement of enforcement policy.

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SUMMARY: In 1988, Congress enacted the Labeling of Hazardous Art

Materials Act which mandated a labeling standard and certain other

requirements for art materials. Based on its experience enforcing these

requirements, the Commission is issuing a statement of enforcement

policy to more clearly apprise the public of its intended enforcement

focus.

[[Page 8189]] DATES: Effective Date; February 13, 1995.

Applicability Dates: For items for which this policy relieves a

restriction, this policy is applicable for products introduced into

interstate commerce on or after February 13, 1995. For items against

which the Commission previously stated it would not enforce under

LHAMA, the policy becomes applicable for products introduced into

interstate commerce on or after August 14, 1995.

FOR FURTHER INFORMATION CONTACT: Mary Toro, Division of Regulatory

Management, Office of Compliance and Enforcement, Consumer Product

Safety Commission, Washington, DC 20207; telephone (301) 504-0400.

SUPPLEMENTARY INFORMATION:

A. Background

In 1988, Congress enacted the Labeling of Hazardous Art Materials

Act (``LHAMA''), 15 U.S.C. 1277. Through LHAMA, Congress expressed its

desire that art materials should be labeled to warn consumers of

potential chronic hazards. LHAMA mandated a voluntary standard, ASTM D

4236, with certain modifications, as a mandatory Commission rule under

section 3(b) of the Federal Hazardous Substances Act (``FHSA'').

On October 9, 1992, the Commission issued a notice in the Federal

Register that codified the standard as mandated by Congress. 57 FR

46626. (At that time, the Commission also issued guidelines for

determining when a product presents a chronic hazard, and a

supplemental regulatory definition of the term ``toxic'' that

explicitly includes chronic toxicity.) The standard is codified at 16

CFR 1500.14(b)(8).

LHAMA and the standard it mandated provide certain requirements for

art materials. Under these requirements, the producer or repackager of

an art material must submit the product's formulation to a toxicologist

to determine whether the art material has potential to produce chronic

adverse health effects through customary or reasonably foreseeable use.

If the toxicologist determines that the art material has this

potential, the producer or repackager must use suitable labeling on the

product. The producer or manufacturer of the art material must submit

to the Commission (1) the criteria the toxicologist uses to determine

whether the producer/repackager's product presents a chronic hazard and

(2) a list of art materials that require chronic hazard labeling. The

standard also requires that the product bear or be displayed with a

conformance statement indicating that it has been reviewed in

accordance with the standard. The standard, which is set forth at 16

CFR 1500.14(b)(8), and section 2(p) of the FHSA, 15 U.S.C. 1261(p),

provide additional information on the required content of labels and

the conformance statement.

B. The Scope of ``Art Materials''

1. The Statute and Previous Commission Interpretation

The requirements described above apply to ``art materials'' as

broadly defined in LHAMA. The term art material is defined in the

statute as ``any substance marketed or represented by the producer or

repackager as suitable for use in any phase of the creation of any work

of visual or graphic art of any medium.'' 15 U.S.C. 1277(b)(1). The

definition applies to art materials intended for users of any age, but

excludes pesticides, drugs, devices, and cosmetics subject to other

federal statutes, Id. 1277(b) (1) and (2).

When the Commission issued the final rule implementing the LHAMA

provisions on October 9, 1992, it recognized that the statutory

definition of art material could be interpreted to reach far beyond the

common perception of the meaning of that term. Accordingly, the

Commission identified three categories of products that it would not

enforce the LHAMA requirements against, although they arguably fall

within the statutory definition of art materials. Specifically, the

Commission stated that it would not enforce the LHAMA requirements

against tools, implements, and furniture that were used in the process

of creating a work of art but do not become part of the work of art

(called ``category 3 products'' in the October 9, 1992 notice).

Examples provided of items that might fall into this category were

drafting tables and chairs, easels, picture frames, canvas stretchers,

potter's wheels, hammers, chisels, and air pumps for air brushes.

The Commission also delineated two general categories of products

which could fall within the statutory definition and against which the

Commission would enforce the LHAMA requirements. The October 9, 1992

notice identified these items as products which actually become a

component of the work of art (e.g., paint, canvas, inks) (previously

``category 1 products'') and products closely and intimately associated

with the creation of an art work (e.g., brush cleaners, solvents, photo

developing chemicals) (previously ``category 2 products'').

2. The Statement of Enforcement Policy

The distinctions made in the October 9, 1992 notice have proved

unsatisfactory in the practical enforcement of the LHAMA requirements.

The staff has found that these categories, and enforcement policies

based on the categories, may lead to inconsistent determinations. Thus,

the Commission began to reconsider its enforcement of the LHAMA

requirements against certain products. On March 8, 1994, the Commission

published a proposed Enforcement Policy for Art Materials. 59 FR 10761.

Today, the Commission is finalizing its enforcement policy essentially

as it was proposed. This notice restates the enforcement policy,

clarifies several issues, and responds to public comments received on

the proposal. This interpretation will supersede the enforcement policy

stated in the October 9, 1992 notice and other related interpretations.

The Commission will focus its enforcement efforts on items that

have traditionally been considered art materials, such as paints, inks,

solvents, pastes, ceramic glazes, and crayons, and on other items that

may present a risk of chronic injury. This enforcement policy will not

compromise public safety because there is virtually no risk of chronic

health effects with the types of products and materials--such as paper

or hard plastic--that the Commission will not enforce against. Also,

even if such products presented such a risk, the Federal Hazardous

Substances Act, 15 U.S.C. 1261(p), requires cautionary labeling for any

article intended or packaged for household use if it contains a

hazardous substance. This includes, but is not limited to, art

materials that, under reasonably foreseeable conditions of purchase,

storage, or use, may be used in or around the household. Unless

expressly exempted, children's articles are banned under the FHSA if

they are or contain a hazardous substance. The Commission believes that

the public interest will be better served by this exercise of

enforcement discretion because the staff can use its limited resources

more efficiently to pursue enforcement actions against those art

materials that present the greatest risk of chronic health effects.

The Commission will not enforce against the following types of

products under LHAMA.

(1) General use products. The Commission will not take enforcement

action under LHAMA against general use products which might

incidentally be used to create art, unless a particular

[[Page 8190]] product is specifically packaged, promoted, or marketed

in a manner that would lead a reasonable person to conclude that it is

intended for use as an art material. Examples of such general use

products are common wood pencils, pens, markers, and chalk. For

enforcement purposes, the Commission presumes that these types of items

are not art materials. The presumption can be overcome, however, by

evidence that such an item is intended for specific use in creating

art. Factors the Commission will consider to determine the status of

such items include how the items are packaged (e.g., packages of

multiple colored pencils, chalks, or markers unless promoted for non-

art material uses are likely to be art materials), how they are

marketed and promoted (e.g., pencils and pens intended specifically for

sketching and drawing are likely to be art materials), and where they

are sold (e.g., products sold in an art supply store are likely to be

art materials).

(2) Tools, implements, and furniture. The Commission will not take

enforcement action under LHAMA against tools, implements, and furniture

used in the creation of a work of art, such as brushes, chisels,

easels, picture frames, drafting tables and chairs, canvas stretchers,

potter's wheels, hammers, and air pumps for air brushes. In this policy

statement the Commission expands the scope of what were referred to as

``category 3'' art materials in the October 9, 1992 notice. Based on

the Commission's enforcement experience, the Commission will consider

some items that it previously categorized as closely and intimately

associated with creation of a work of art (previously ``category 2''

products) to be tools, implements and furniture. The Commission

believes that these items (brushes, kilns, and molds) are better

characterized as tools and implements against which the Commission will

not enforce the LHAMA requirements. The Commission believes this

revised interpretation is more consistent with the purposes of LHAMA.

They are not like the more traditional art materials mentioned in LHAMA

floor debates, and they are unlikely to pose a chronic hazard to the

user.

(3) Surface materials. The Commission will not take enforcement

action under LHAMA against the surface materials to which an art

material is applied. Examples are coloring books and canvas. In many

instances, an art material is applied to a surface such as paper,

plastic, wood, or cloth. These surfaces continue to be components of

the work of art and thus art materials, but are now characterized as

products against which the Commission will not enforce the LHAMA

requirements.

(4) Specific Materials. The Commission will also not take

enforcement action under LHAMA against the following specifically

enumerated materials: paper, cloth, plastic, film, yarn, threads,

rubber, sand, wood, stone, tile, masonry, and metal. Several of these

materials are often used as a surface for art work while others are

used to create the work of art itself. Regardless of whether such items

are used as a surface or not, the Commission will not enforce the LHAMA

requirements against them.

The guidance given in (3) and (4) above does not apply if the

processing or handling of a material exposes users to chemicals in or

on the material in a manner which makes those chemicals susceptible to

being ingested, absorbed through the skin, or inhaled. The Commission

believes that in most cases, the surfaces and specific materials listed

do not present a chronic risk. These types of materials are unlikely to

allow exposure. However, if it is likely that reasonably foreseeable

handling or use of the material would expose the consumer to chemicals,

the Commission will enforce all LHAMA requirements with respect to that

product. This is a question of potential exposure, not the

manufacturer's assessment of hazard. Thus, even if the chemical to

which the consumer might be exposed is potentially non-hazardous, the

Commission would enforce the LHAMA requirements, including review by a

toxicologist. This is consistent with Congress's intention that a

toxicologist, not the manufacturer, should assess the potential chronic

hazard.

For example, paper stickers marketed or promoted as art materials

often have an adhesive backing that users lick. The act of licking the

backing can result in the ingestion of chemicals, and the LHAMA

requirements will therefore be enforced. For self-adhesive stickers, on

the other hand, which present little risk of exposure, the staff will

generally refrain from enforcement unless there is reason to believe

that the nature of a particular sticker and its intended use presents a

genuine risk of exposure to a potential chemical hazard either by

ingestion or absorption.

Another example involves plastic. If the artistic use for which the

plastic is intended requires heating or melting it in a manner that

results in the emission of chemical vapors, the LHAMA requirements will

be enforced.

C. Craft and Hobby Kits and Supplies

1. Kits

a. Previous Interpretation

In enforcing LHAMA, the Commission has encountered the question of

the applicability of LHAMA requirements to certain craft or hobby kits.

The basic issue centers on the meaning of the term ``work of art.'' In

previous letters to industry, the staff has advised that the

determination depends on whether the end product produced from the kit

would be primarily functional or aesthetic. If the former were true,

the staff has said that the end product would not be a work of art and

none of the components would be art materials. If the latter were true,

the end product would be a work of art and all of the components of the

kit would be art materials. This distinction proved difficult for

practical enforcement, and has raised the possibility of inconsistent

enforcement results. For example, if the same paints that were included

in a kit to make a working model airplane were also included in a

paint-by-number set, under the staff's previous interpretation, the

Commission would enforce the LHAMA requirements against the paints in

the second kit, but not in the first.

b. Statement of Enforcement Policy

After considering the above, as well as the purpose of LHAMA to

alert consumers to the potential dangers associated with products used

in the creation of art, the Commission published its proposed policy to

clarify its enforcement of LHAMA concerning craft and hobby kits. The

Commission is finalizing that aspect of the policy as proposed. As

explained below, the Commission believes that its LHAMA enforcement

should include both (1) kits to make items for display and (2) kits

which involve decorating an item, regardless of the end use of the item

created. Models and similar kits to make hobby or art/craft items can

have dual purposes, both functional and for display. In addition, when

a consumer creatively decorates a functional object, it arguably

becomes a work of art just as decorated canvas or paper would.

Therefore, the Commission believes that materials for decorating and

assembling models and art/craft items come within the reach of LHAMA.

The Commission believes that the following interpretation is more

workable than the previous one and is consistent with the intent of

Congress.

For kits that include materials to decorate products whether the

products are functional, for display, or both, the Commission will

enforce the LHAMA [[Page 8191]] requirements against materials in the

kit that are intended to decorate or assemble an item in the kit--i.e.,

traditional art materials, such as, paints, crayons, colored pencils,

adhesives, and putties--even if the finished product is a toy or other

item whose primary use may be functional. Thus, for a kit that contains

a plastic toy or a paint-by number board, along with paints or

adhesives to decorate or assemble the item, the Commission will expect

the paints and adhesives in each case to meet all the LHAMA

requirements. However, as explained in section B.2.(3) & (4) above

pertaining to surfaces and specific materials, the Commission would not

enforce the requirements against the plastic toy or the board.

For kits that package an item that would be subject to enforcement

under this policy together with an item that would not, any necessary

chronic hazard statements or labeling, including any required

conformance statement, must appear on the outer container or wrapping

of the kit, or must be visible through it, and must specify the item to

which the statement or labeling refers. Any conformance statement must

be visible at the point of sale. In addition to being visible at the

point of sale, any required chronic hazard warning label must be on the

immediate package of the item that is subject to LHAMA as well as on

accompanying literature where there are instructions for use. See 16

CFR 1500.125.

2. Enforcement Policy for Separate Supplies

As stated in the March 8, 1994 proposal, the Commission will

enforce LHAMA requirements against materials intended to decorate art

and craft, model and hobby items, such as paints, even if they are sold

separately and not part of a kit. Similarly, paints or markers intended

for decorating clothes will be considered art materials for enforcement

purposes since they are intended for decorating clothing, even though

the resulting item, the garment, has a functional purpose. Note that as

explained in section B above, the Commission would not enforce the

requirements against the surface upon which the art material is

applied, regardless of the primary use of the finished product.

The status of glues, adhesives, and putties will depend on their

intended use. Some illustrative examples follow. Glues which are

marketed for general repair use only would not be art materials, and

the Commission will not enforce the LHAMA requirements against them.

Glue sticks for glue guns which are for art or craft use would be

considered art materials. Spray adhesives and rubber cements will

normally be considered art materials unless they are marketed for some

specialty non-art use. School pastes and glues will also be considered

art materials.

D. Conformance Statement

Section 1500.14(b)(8)(i)(C)(7) of the LHAMA rule requires that a

conformance statement appear with an art material. In the preamble to

the original LHAMA rule, the Commission stated that every art material

must display either a conformance statement or a hazard warning, but

not both. See 57 FR 46629, October 9, 1992.

The Commission has reviewed this matter in light of one comment it

received opposing the Commission's policy on this issue and its

experience enforcing the LHAMA requirements. The Commission agrees with

the commenter and is now modifying its policy concerning the

conformance statement.

The language of the standard that was mandated by LHAMA is not

entirely clear on this question. 16 CFR 1500.14(b)(8)(i)(C). However,

based on its experience enforcing LHAMA, the Commission agrees with the

commenter that there is the potential for confusion if some products

that have been reviewed according to the standard display a conformance

statement but others do not. Thus, the Commission's policy is that a

conformance statement must appear with all toxicologist-reviewed art

materials subject to LHAMA regardless of whether they also have a

hazard warning statement. A subsection has been added to the

enforcement policy, Sec. 1500.14(b)(8)(iv)(C), stating this policy.

Since the conformance statement constitutes ``other cautionary

labeling'' as defined in 16 CFR 1500.121(a)(2)(viii), it must comply

with the conspicuousness requirements of 16 CFR 1500.121 (c) and (d),

including the type-size requirement laid out in Table 1 of

1500.121(c)(2).

E. Response to Comments

1. General

The Commission heard from six commenters on its proposed

enforcement policy. For the most part, commenters supported the

Commission's effort to clarify its enforcement intentions in this area.

For example, one commenter stated that the proposed enforcement policy

alleviates practical problems, follows common sense, is consistent with

Congressional intent, and appropriately focuses on intended use.

However, commenters did raise several specific criticisms of certain

aspects of the proposed policy. These comments and the Commission's

responses are discussed below.

2. Scope of ``Art Materials''

One commenter suggested changing 16 CFR 1500.14(b)(8)(iv)(A)(1) to

state that markers sold in art supply stores are art materials, rather

than likely to be art materials.

The Commission declines to make this change. For general use

products, the Commission will look at a variety of factors, including

packaging, marketing, and where the item is sold. Often a single factor

will not be determinative. For example, along with other markers, an

art supply store might sell high-lighters which are clearly promoted

for use by students in marking textbooks. These are probably general

use products, and the enforcement policy should be flexible enough to

allow this determination.

The Writing Instrument Manufacturer's Association (``WIMA''), a

trade association for the writing instrument industry, commented that

it generally supported the proposed enforcement policy but suggested

that cased pencils (referred to as common wood pencils in the proposed

policy) should generally be considered art materials. WIMA asserted

that these pencils are generally considered in the industry to be art

materials and are used for drawing and sketching. Another commenter

argued that if the enforcement policy considers these general use

pencils not to be art materials, products from China and other

countries without consumer protection laws will flood the market.

The Commission declines to make this change in the enforcement

policy. The Commission believes that common pencils, much like pens or

markers, are generally used as writing materials. Under the policy,

specific pencils that are intended primarily for drawing or sketching

(such as colored pencils) will be considered art materials for

enforcement purposes. Of course, pencil makers who wish to submit their

formulations to a toxicologist for evaluation and label them

accordingly may do so. However, the Commission will not enforce the

LHAMA requirements against common pencils unless they are specifically

intended or marketed as art materials. Whether products are produced

domestically or imported, they are all subject to the consumer

protection laws and regulations of this country if they are sold here.

With respect to the comment concerning imports from countries

[[Page 8192]] without consumer protection laws, CPSC reminds the

commenter that imports are subject to the same requirements as products

made in this country.

One commenter stated support for the proposed enforcement policy's

treatment of brushes, kilns, and molds, finding it to be consistent

with other CPSC policy interpretations. CPSC agrees.

3. Actual Toxicity Hazards

One commenter argued that the proposed enforcement policy would

allow products which present chronic toxicity hazards to consumers to

evade the review required by LHAMA. The commenter stated that items

``such as pencils, paper, fabric, paint brushes, and sand have all been

found to present chronic toxicity hazards in the past * * *.''

The Commission's scientific staff examined this comment, and does

not agree. Neither the Commission nor the staff have concluded that any

of the listed items typically present chronic toxicity hazards. The

staff has in the past examined some uses of some of these materials

outside of the context of art materials. For example, children's

playsand was evaluated to see if the sand posed a hazard through

tremolite asbestos or non-asbestos tremolite. No such hazard was

established. Paper has been found to contain extremely small amounts of

dioxin, but the amount is so small that the risk is negligible. Through

its enforcement policy, the Commission is attempting to focus

enforcement efforts on items that may actually harm consumers. The

Commission believes this policy furthers that goal. It is worth noting

that in the unlikely event that any of these items were found to be

dangerous, the labeling and banning provisions of the Federal Hazardous

Substances Act (15 U.S.C. 1261 (f), (p), and (q)(1), and 15 U.S.C.

1263) still apply.

Another commenter agreed with the Commission's focus on potential

for genuine risk of exposure but suggested that the language of the

proposed policy be changed in 16 CFR 1500.14(b)(8)(iv)(A) (3) and (4)

to state that the user's exposure must be to a hazardous chemical

before the Commission will enforce LHAMA against the materials listed

in those subsections. In the sections referred to, the enforcement

policy provides that the Commission will not enforce the LHAMA

requirements against surface materials and certain specifically

enumerated materials unless it is likely that handling or processing

the material may expose the user to chemicals in or on the material.

The Commission declines to make the commenter's suggested change.

As explained in section B.2 above, although the Commission believes

that generally there will not be a chronic hazard with use of these

materials, the Commission is concerned that a situation could arise in

which a unique manner of handling or using these materials could pose a

risk of exposure. An example is paper stickers with adhesive that is

licked. The commenter's suggestion would put the manufacturer in the

position of deciding whether a particular chemical is hazardous.

However, Congress intended that this determination be made by the

toxicologist reviewing a product's formulation. The enforcement policy

concerns the initial question of whether exposure is likely, not

whether a chemical is hazardous. Thus, under the Commission's

enforcement policy, if there is the potential for exposure to a

chemical from a surface or specifically enumerated material, the LHAMA

requirements will be enforced.

4. Enforcing LHAMA Against Non-Hazardous Products

Comments suggested that all art materials should have to comply

with LHAMA regardless of actual risk, and that the items listed in the

proposed enforcement policy should not be excluded from enforcement

efforts. They noted that the conformance statement on a non-hazardous

product tells the consumer that the product has been cleared by a

toxicologist. An unlabeled product, on the other hand, could either

have been evaluated as non-toxic, or not evaluated at all. Thus the

commenters argue that the Commission should enforce against all art

materials, whether hazardous or not.

In response, the Commission notes that focusing its enforcement

efforts is important to ensure that the enforcement program is as

effective as possible through the effective use of the Commission's

limited resources. The Commission believes that the categories of

products against which it will no longer enforce present virtually no

risk of exposing consumers to chronic toxicity hazards. No evidence of

consumer confusion was presented with the comments, and we think any

such confusion should be minimal.

5. Conformance Statement and Warnings

As explained above, one commenter argued that the conformance

statement should accompany all art materials, including those that also

require a hazard warning. The preamble to the original LHAMA rule

stated that every art material must display either a conformance

statement or a hazard warning, but not both. See 57 FR 46629, October

9, 1992.

The Commission has reviewed this issue in light of this comment and

its experience. For reasons explained in greater detail above, the

Commission agrees with the commenter and has added a subsection to the

enforcement policy making this change.

6. Other Labeling Issues

One commenter noted that some labels bear adequate safe handling

instructions, but do not list the chronic hazards that necessitate

these precautions. LHAMA and the ASTM standard clearly require that

both the chronic hazard and the safety instructions be on the label.

Another commenter noted that facially adequate labels should be

examined for accuracy. The Commission considers this a very important

issue. If labels are inaccurate, the labels and the standard itself

become meaningless to the consumer. It is clearly unacceptable for

labels to indicate that they have been reviewed by a toxicologist (by

display of the conformance statement) if they in fact have not.

7. Kits and Supplies

One commenter stated specific support for the proposed enforcement

policy concerning kits and separate supplies.

8. Status of Enforcement Policy

One commenter argued that the Commission is actually exempting

certain products from the FHSA, and it is therefore improper to issue

an enforcement policy rather than a regulation under section 3(c) of

the FHSA (15 U.S.C. 1262(c)). The commenter argued that the enforcement

policy would create confusion.

The Commission disagrees with this comment. This policy does not

exempt any items from the FHSA. First, the policy does not grant

exemptions from the LHAMA provisions, but rather clarifies the

Commission's interpretation of the statutory term ``art material'' and

informs the public that the Commission's enforcement efforts under

LHAMA will be directed against those products that present the greatest

risk. Through this policy, the Commission is explaining what that means

in practice. The policy explains how the Commission will interpret the

statutory definition of ``art material'' for purposes of enforcement

and that it does not intend to enforce LHAMA [[Page 8193]] requirements

against certain items or materials which are unlikely to present a

chronic hazard. The Commission believes that the policy, with its

general guidance and specific examples, will help to clarify existing

confusion. The enforcement policy will be published in the CFR with the

LHAMA regulations so that all will be aware of Commission policy. In

addition, the policy has no impact on the enforcement of other

provisions of the FHSA, such as recall or notice actions under section

15 of the FHSA, as to art materials.

Focusing enforcement efforts to make them maximally effective is an

appropriate use of an enforcement policy. The commenter stated that

enforcement policies should clarify where an agency will take action,

rather than where it will not. No authority was cited for this

proposition, and the Commission is not aware of any such authority.

However, the Commission is modifying the language of section

1500.14(b)(8)(iv)(A)(1) slightly to clarify its interpretation with

respect to that one category of products. The Commission does not

consider the products described in that subsection (products intended

for general use) to be art materials under the statutory definition.

This is now stated explicitly in that subsection.

9. Effective Date

One commenter requested that manufacturers have one year to comply

with this enforcement policy, rather than six months. No data were

submitted as to why compliance in six months would be unduly

burdensome. The Commission believes that six months is adequate time to

submit formulae to toxicologists and comply with relevant labeling

requirements. The Commission will, however, apply the policy to those

products initially introduced into interstate commerce after six

months, rather than those manufactured or imported after that date.

10. Prohibition of Lead in Children's Products

One commenter suggested that the Commission should prohibit the use

of lead in products intended or marketed for the use of children. This

comment is beyond the scope of this enforcement policy. However, we

remind the commenter that the hazard of lead in consumer products

intended for children is dealt with by regulations under the CPSA, 16

CFR 1303.4, and provisions of the FHSA, 15 U.S.C. 1261 (f)(1)(A) &

(q)(1)(A).

F. Environmental Considerations

The Commission has considered whether issuance of this enforcement

statement will produce any environmental effects and has determined

that it will not. The Commission's regulations at 16 CFR 1021.5(c)(1)

state that rules and safety standards ordinarily have little or no

potential to affect the human environment, and therefore, do not

require an environmental impact statement or environmental assessment.

The Commission believes that, as with such standards, this enforcement

policy would have no adverse impact on the environment.

G. Regulatory Flexibility Act Certification

The Regulatory Flexibility Act generally requires agencies to

prepare proposed and final regulatory analyses describing the impact of

a rule on small businesses and other small entities. Section 605 of the

Act provides that an agency is not required to prepare a regulatory

flexibility analysis if the head of an agency certifies that the rule

will not have a significant economic impact on a substantial number of

small entities. The Commission believes that this enforcement statement

will have little effect on businesses in general or on small businesses

in particular. Accordingly, the Commission concludes that its

enforcement statement concerning the labeling of hazardous art

materials would not have any significant economic effect on a

substantial number of small entities.

H. Authority

Section 10 of the FHSA gives the Commission authority to issue

regulations for the efficient enforcement of the FHSA. 15 U.S.C.

1269(a). This provision authorizes the Commission to issue statements

of enforcement policy in which the Commission explains how it intends

to enforce a Commission requirement.

I. Applicability Date

Since this notice issues an interpretative rule/statement of

policy, no particular applicability date is required by the

Administrative Procedure Act. 5 U.S.C. 553(d)(2). The Commission

recognizes, however, that as to items against which the Commission

previously stated that it would not enforce LHAMA, manufacturers will

need time to bring their products into compliance. Thus, this policy

regarding such items applies to products introduced into interstate

commerce on or after 6 months from the date this policy is published in

the Federal Register. The Commission believes that this is adequate

time to submit formulae to toxicologists and comply with relevant

labeling requirements. As to those items where this policy relieves a

restriction, the policy becomes applicable for such products introduced

into interstate commerce on or after the date of publication of this

notice.

List of Subjects in 16 CFR Part 1500

Arts and crafts, Consumer protection, Hazardous materials,

Hazardous substances, Imports, Infants and children, Labeling, Law

enforcement, Toys.

For the reasons given above, the Commission amends 16 CFR 1500.14

as follows:

PART 1500--[AMENDED]

1. The authority citation for part 1500 continues to read as

follows:

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

2. Section 1500.14 is amended by adding a new paragraph (b)(8)(iv)

to read as follows:

Sec. 1500.14 Products requiring special labeling under section 3(b) of

the Act.

* * * * *

(b) * * *

(8) * * *

(iv) Policies and interpretations.

(A) For purposes of enforcement policy, the Commission will not

consider as sufficient grounds for bringing an enforcement action under

the Labeling of Hazardous Art Materials Act (``LHAMA'') the failure of

the following types of products to meet the requirements of

Sec. 1500.14(b)(8) (i) through (iii).

(1) Products whose intended general use is not to create art (e.g.,

common wood pencils, and single colored pens, markers, and chalk),

unless the particular product is specifically packaged, promoted, or

marketed in a manner that would lead a reasonable person to conclude

that it is intended for use as an art material. Factors the Commission

would consider in making this determination are how an item is packaged

(e.g., packages of multiple colored pencils, chalks, or markers unless

promoted for non-art materials uses are likely to be art materials),

how it is marketed and promoted (e.g., pencils and pens intended

specifically for sketching and drawing are likely to be art materials),

and where it is sold (e.g., products sold in an art supply store are

likely to be art materials). The products described in this paragraph

do not meet the statutory definition of ``art material.''

[[Page 8194]]

(2) Tools, implements, and furniture used in the creation of a work

of art such as brushes, chisels, easels, picture frames, drafting

tables and chairs, canvas stretchers, potter's wheels, hammers, air

pumps for air brushes, kilns, and molds.

(3) Surface materials upon which an art material is applied, such

as coloring books and canvas, unless, as a result of processing or

handling, the consumer is likely to be exposed to a chemical in or on

the surface material in a manner which makes that chemical susceptible

to being ingested, absorbed, or inhaled.

(4) The following materials whether used as a surface or applied to

one, unless, as a result of processing or handling, the consumer is

likely to be exposed to a chemical in or on the surface material in a

manner which makes that chemical susceptible to being ingested,

absorbed, or inhaled: paper, cloth, plastics, films, yarn, threads,

rubber, sand, wood, stone, tile, masonry, and metal.

(B) For purposes of LHAMA enforcement policy, the Commission will

enforce against materials including, but not limited to, paints,

crayons, colored pencils, glues, adhesives, and putties, if such

materials are sold as part of an art, craft, model, or hobby kit. The

Commission will enforce the LHAMA requirements against paints or other

materials sold separately which are intended to decorate art, craft,

model, and hobby items. Adhesives, glues, and putties intended for

general repair or construction uses are not subject to LHAMA. However,

the Commission will enforce the LHAMA requirements against adhesives,

glues, and putties sold separately (not part of a kit) if they are

intended for art and craft and model construction uses. This paragraph

(b)(8)(iv)(B) applies to products introduced into interstate commerce

on or after August 14, 1995.

(C) Commission regulations at Sec. 1500.14(b)(8)(i)(C)(7) require

that a statement of conformance appear with art materials that have

been reviewed in accordance with the Commission standard. The

Commission interprets this provision to require a conformance statement

regardless of the presence of any chronic hazard warnings.

(D) Nothing in this enforcement statement should be deemed to alter

any of the requirements of the Federal Hazardous Substances Act

(``FHSA''), such as, but not limited to, the requirement that any

hazardous substance intended or packaged in a form suitable for

household use must be labeled in accordance with section 2(p) of the

FHSA.

Dated: February 6, 1995.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 95-3450 Filed 2-10-95; 8:45 am]

BILLING CODE 6355-01-P