Document 3edVpbdo3Dw5dNR0zkNYa50q6

FILE NAME: Drywall Spackling Compounds (DWSC) DATE: 1977 Dec 15 DOC#: DWSC036 DOCUMENT DESCRIPTION: Federal Register - Consumer Product Safety Commission - Banned Hazardous Products Containing Free-Form Asbestos TlllilSDAY, DECEMBER 15, 1877 PART m CONSUMER PRODUCT SAFETY COMMISSION CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZING ' M ATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Banned Hazardous Products 63354 m m f .r e g u l a t io n s [ 635S-01 ] Title 16-- Commercial Practices CHAPTER: --CONSUMER PRODUCT SAFETY COMMISSION SUBCHAFTER B--CONSUMER PRODUCT SAFETY ACT REQULATiONS PART 1145-- REGULATION OF PRODUCTS SUBJECT TO OTHER ACTS UNDER THE CONSUMER PRODUCT SAFETY ACT Consumer Fetching Compounds and Artifi cial Emberizing Materials (Embers and Ash) Containing Respirable Free-Fomi Asbestes ACJENC3T: Consuma' Product Safety Commission. ACTION: Final rules. SUMMARY: The Commission issues final rules determining that it is in the public interest to regulate consumer patching compounds and artificial emberizing ma terials (embers and ash) containing res pirable, free-form asbestos, for the pur pose of addressing the risk of cancer associated with inhalation of asbestos fibers, under the Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substance Act (FHSA). According to the CPSA, a risk of injury that could be eliminated or reduced to a sufficient extent under the FHSA may not be regulated under the CPSA, unless the Commission finds by rule th a t it is to the public interest to do so. EFFECTIVE DATES: For consumer patching compounds, containing respi rable, free-form asbestos, this rufe be comes. effective on January 16, 1B78. For artificial emberizing materials (embers and ash) containing respirable free-form asbestos, this rul becomes effective De cember 15,1ST?. FOR FURTHER INFORMATION CON TACT : Chi%xJes M. Jacobson, Compliance and Enforcement Regulatory Management Division, Consumer Product Safety Commission, Washington, D.C?, 20207, 301-492-6400. SUPPLEMENTARY INFORMATION: Backomoukb On July 28, 1877, by publication of a notice in the F eber. Resets (42 FR 36762), the Commission proposed a rule under section 80(d) of the Consumer Product Safety Act (CPSA) CIS 7J.S.C. 2078(d)) as amended, that it is iin. the public interest to regulate consumer patching compounds and artificial emberising materials (embers and ash) containing respirable free-form asbestos under the CPSA rather than under the Federal Hazardous Substances Act (FHSA), (16 '013.0. 1261-12.74). Section 30(d) reads: A risk of injury which is associates! w ith a ccHosusoer product- ansi irrhicii coulfl he e 'bn insted or reduced to a sufficient) exten t under th e Federal Hazardous Substances Act * * * m ay be regulated under the CPSA only if th e O om m sloa by rate Hade th a t it is i, the public interest to regulate sublx risk o f injury under [the CPSA.} Also on July 28, 1877, the Commission proposed in the Fdrai, R esister (42 FR 38783) a regulation under the CPSA that would declare as banned hazardous products, consumer patching compounds and artificial emberizing materials (em bers and ash) containing respirable free form. asbestos. The Commission's reasons in the pro posed section 30(d) rale for proceeding: under the CPSA rather than th e FHSA are:1, The rulemaking proceedings far regulation of these products under the FHSA are likely to be lengthy and re source-consuming. 2. Rulemaking proceedings under the CPSA, are governed by provisions of .the Administrative Procedure Act (6 U&.C. 558), and are informal and nonad- versarial to nature and thus it- would be more likely that participation of the pub lic, including consumers, would be forth coming in rulemaking proceedings under the CPSA. 8. The Commission believes th a t civil penalty provisions available under the CPSA against. persons who knowingly violate' fchs CPSA may provide additional incentive for compliance under the CPrSA. The FB3A doss not provide the remedy of civil penalties, Cokmekts No comments were received by the Commission which, deal directly with the proposed section 30(d) rale. in. com ments on t!i& proposed, ban, however, several persons in the marketing chain commented approvingly on the decision to regulate under the CPSA because CPSA does not require repurchase of banned hazardous products by manufac turers, distributors, and retailers. On the other hand, several groups of consumeroriented interests noted, th at they would have preferred regulation, under FHSA because FHSA provides for such re purchase. As noted in the proposed section 30(d) rule, the Commission, is aware th at regu lation under CPSA would preclude man dated repurchase at banned hazardous products. However, the CPSA does not preclude voluntary arrangements for re purchase back up the distribution chain. Moreover, the advantages enumerated above, particularly, the advantage of having a final banning regulation in force without having to first provide for lengthy adjudicatory proceedings, ap pears to the Commission to be more beneficial to consumer health and. safety than the refunds consumers would have under FHSA. m the matter of artificial emberising materials, repurchase under the FHSA would have meant that many persons in the chain of distribution would have handled these materials rather than disposing of them Quickly in order to avoid additional exposure. Accordingly, the Commission finds th a t tor the h e a lth sad s a f e ty of con sumers, it is in the public interest to regulate consumer patching compounds and artificial emberizing materials con taining respirable free-form asbestos under the CPSA rather than the .FHSA.. Therefore, pursuant to section 5(cl; of the CPSA, Pub. L. 82-578, 86 Stat. l:-i, as. amended, SO Stat. 110, 15 U.S.C. = 2073(d), the Commission amends Title 16, Chapter H, Subchapter B, by adding---- new l i 1145.4 and 1145.5. 1 1145.4 Conromer patch iwt M afawi% " containing respirable free-form as- v bcstos; risk of ewseer M aodaeJ wisto? inhalssioK o f asbestos fibers. t'l: ' (a) The Commission finds that, it jsS in the public interest- to regulate the risk of cancer associated with inhalation!, of asbestos fibers from consumer patch: ing compounds containing respirable-: free-form asbestos under the Consumer Product Safety Act (CPSA.) rather than under the Federal Hazardous Substances'! Act (FESA) 'because of the desirability! of avoiding, possibly lengthy resource-! consuming, inefficient rulemaking pro ceedings under the FHSA (aid because of: the availability of civil penalties under:;., the CPSA for knowing noncompliance. :;! (to) Therefore, .consumer patching::, compounds containing respirable free-' form asbestos are regulated under CPSA.. 1145.5 Emberiring material* (ember*! and. ask) contslmifflg respirable free-, " form eritMtost risk oi can* ass-.' dated with lafeulatlo of asbestos (a) The Commission finds .that it is in the public interest to regulate the risk of cancer associated with inhalaUon of asbestos fibers from artificial emberizing materials (embers and ash) containing respirable free-form asbestos under the. Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA) because of the desirability of avoiding pos-siWy lengthy, resource-consuming, inefficient rutetaaking proceedings under the FHSA, and because of the availability of civil pen alties under the CPSA. for mowing noncompliance. (b) Therefore, artificial emberising materials (embers and ash) containing respirable free-form asbevtas are reg ulated under the CPSA. Effective dates: Section 1146,4 be comes effective January IS, 1978. Section 1.145.5 becomes effective December 15. 1977. (Sec, SO(d), Pab, li. BSte-'K, fif te.t: 1231 as amenaesi, 80- Stat. 6iO C-5 VS.C. 2079 <fi)) ) Dated: December 12,1877 S helbon D. B r o s , Assistant Secretary, Ctmsvmm' Product Safety Cowtmlssiaw. iFE, Boc.Ti-85744 F ilsd 13-15-77:11:52 s a ! I 6355-4111 CONSUMER PATCHFl t.:"O--'..TOUMig AHD ARTIFICIAL EMBERiZINS MAT*IRAIS (EMBERS AND ASH) RESPIRABLE FREE!F0K!M m s m V Establishment As !3a(Mied Hezerd Prodiucts AGSMOT: Coburn.er Prcduet Casttsissloa, N M R A t RESISTE, VOL, 42, KO. 2 !-- THURSDAY, pgftSMtSg IS , 197? ACTION: Final rules. SUMMARY: In this document the Com mission declares th at the following prod ucts containing respirable free-ferm as bestos are banned hazardous products under the Consumer Product Safety Act: (1) Consumer patching compounds used to join or repair interior walls and ceil ings (mixing of the product before it is applied, sanding of the product after it is dried, and cleanup after completion of the process, release asbestos fibers that can be inhaled); and (2) artificial emfcerizing materials (embers and ash) used in fireplaces to simulate live embers and ash (ordinary air currents in the house hold move asbestos fibers th at can be in haled) . The Commission issues this ban in order to reduce or eliminate the unrea sonable risk of injury from certain types of cancer that may result from inhaling asbestos fibers released during the use of these products, EFFECTIVE DATES: (1) For consumer patching compounds containing respira ble free-iorm asbestos, the regulation is sued below at section 1304, applies to products manufactured or initially intro duced into commerce on January 18, 1878, or after th at date. For all other consumer patching compounds contain ing respirable free-form asbestos, no m atter when manufactured or initially introduced into commerce, the regulation at section 1304 applies on June 12, 1978, and after that date. (2) For artificial embeming materials containing-respirable free-form asbestos, the regulation issued below at section 1305 applies to products in commerce on December 15, 1377, or after th at date. FOR FURTHER INFORMATION CON TACT: Charles M, Jacobson, Consumer Prod uct Safety Commission, Compliance and Enforcement Regulatory Manage ment Division, Washington, D.C. 20207, 301-492-8400. SUPPLEMENTARY INFORMATION: B ackground On July 29, 1977, by publication of a -notice- in the F ederal Register (42 FR 387S3), the Commission proposed rules to declare that consumer patching com pounds and artificial emberizing materi als (embers and ash) containing respira ble free-form asbestos, are banned haz ardous products under the Consumer Product Safety Act (CPSA). These rules were proposed because the Commission preliminarily determined that an unrea sonable risk of injury of certain ts^pes of cancer, such as mesothelioma and lung cancer, is associated with inhalable as bestos found in these products. The in formation on which the Commission's preliminary determination was based is s e t' forth in the proposal. The data in the proposal are incorporated herein by reference. The bibliography of 50 refer ences cited in the proposal are repeated in this preamble for convenience. Num bers 51 and over refer to additional infor mation considered in issuing this rule. On July 29, 1977, by publication of a notice in the F ederal R egister <42 FR 38782), the Commission also proposed a rule finding th at it is in the. public in terest to regulate consumer patching compounds and artificial emberizing m a terials containing respirable free-form asbestos under the Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA). Section 30(d) of the CPSA (15 U.S.C. 2079(d)) requires the Commission to make such a finding by rule, before regulating under the CPSA, a risk of in jury which could be reduced or eliminat ed to a sufficient extent under the FHSA. The Commission issues this rule else where in the F ederal R egister. The data, in these proposals are incorporated here in, by reference. Section 9(a) (2) of the CPSA requires that, in addition to providing an oppor tunity for making written submissions, the Commission shall provide interested persons with an opportunity to make oral presentations of data, views or argu ments relating to proposals to ban. Oral presentations on the bans were heard by the Commission an August 15, 1877. Views on the bans are discussed below under Comments on Proposal. In `order to have sufficient time to re view all the responses to the banning proposal, Including late responses, on October 4,1977 (42 FR 53979), the Com mission extended until November 28, 1977. the time in which it must either publish a consumer product safety rule or withdraw the proposals to ban. This date was further extended until Decem ber 12, 1977, by notice published in the F ederal Register on November 28, 1877 (42 FR 80752), Comments on P roposal Oral views on the proposal were pre sented by 7 persons on August 15, 1377 with 3 representing consumer groups and 4 representing manufacturers. In addi tion, the Commission yeeeived 30 writ ten comments which represented 17 manufacturers and 2 distributors: 4 fed eral agencies; 3 public interest groups; 2 concerned citizens; a supplier of raw materials; and a chemical research and development firm. Among the 10 cornmenters who expressed support for the ban were 5 manufacturers of patching compounds, 3 federal agencies and 2 pub lic interest groups. The significant issues raised by the oral and written, comments are set forth below. A.. Scope and definition. The proposal states that consumer patching com pounds are those that are customarily produced or distributed for sale to or for the personal use, consumption or enjoy ment of consumers in or around a house hold or residence, a school, in recreation or otherwise. The Commission considered in the proposal th at patching compounds for application in these consumer en vironments are either distributed for sale to consumers or are for the personal use or enjoyment of consumers. Moreover, information available to the Commission indicated th at most patching compounds for commercial/industrial use are dis tributed in such ways that consumers have access to these products (51) either by purchase or for their use and enjoy ment; Therefore, the Commission con cluded that these are consumer products subject to the Commission's jurisdiction unless such patching compounds are la beled as, marketed, and sold solely for industrial use. 1. Patching compounds as consumer products, (a) Several commenters re quested a clearer definition of consumer patching compound and a manufacturer questioned the boundaries of the term "consumer product." The manufacturer states that the definition of consumer patching compounds in the ban has been improperly broadened to include juris diction over building materials. He be lieves that the CPSA permits regulation only of articles used within the home, not the structure of ..the home itself or the integral parts of the structure. He states that since consumers have access to patching compounds containing res pirable free-form asbestos through most marketing channels, these products can be considered consumer products under the CPSA. Thus, he believes th at it was inappropriate to cite a recent case, ("U.S.A. v. Anaconda Co., et al.s" Misc. No. 77-0024, (D.D.C.) June 13, 1S77) which indicates that the presence of a product in st, consume? environment can help decide whether that product is a consumer product under the CPSA. Therefore, th ccmmenter urges "the Commission in its final, regulation to de lete" the pg.ragra.ph on "Anaconda" case in order to "avoid, the creation of an un necessary conflict * within the reg ulation itself." In response to this comment, the Com mission notes th at the paragraph which cites the case to. question is not in the proposed regulation but in that p art of the preamble which explains the regu lation. Ih the preamble, the Commission cited "Anaconda" not in reliance on the case as a basis for regulation but to show how the case interprets the definition of consumer product at section 3(a) (1) of the CPSA which reads, T he term "co n su m er product" m eans any article, or com ponent part thereof, produced or distributed (i) for sale to a consum er for use in or around a permanent or tem porary household or residence, a school, in recrea tion, or otherwise, or (ii) for th e personal use, consumption, or enjoyment of a con sum er in or around a permanent, or tem po rary household or residence, a school, in recreation, or otherwise; Although courts have not yet reached a definitive decision on the coverage of the term "consumer product," the Com mission believes that the statute and leg islative history, bar themselves, afford sufficient authority for Commission jurisdiction over the defined product and its use in consumer environments. I t ap pears to the Commissiofe that the defini tion of consumer patching compound in the proposal falls within section 3(a) (1) FEDERAL REG6STER, VOL, 42, NO. 241-- THURSDAY, DECEMBER IS, 1977 6335S MILES AND REGULATIONS of fee CPSA and th at the "Anaconda" case underscores the definition. In order to minimize toy confusion, a new subsection (c) has been added, to ! 1304.1 Scope and Application, to show the coverage permitted by the CPSA. That subsection reads: (c) Only consumer products are subject to this regulation. Patching compounds which are consumer products are those which a oonsum sr can purchase. Merely labeling a patching compound for industrial use would c o t exclude such articles from th e ban. I f th e sale o r us of th e p ro d u ct lay consumer* is facilitated, i t is subject to th e ban. Patching compounds which are labeled as. m arketed, and sold solely for Industrial use in n on-consum er en v iro n m en ts 'are a c t subject to th e ban. In addition to those prod ucts which can be sold directly to consumers, the be,a applies to patching compounds con taining- respirable free-form asbestos w hich are used la residence*, schools, hospitals, public buildings o r other areas where con sum ers have custom ary access. It is clear from this language that use of patching compounds in consumer en vironments determines their status as consumer products, whether fee patch ing compounds are applied profession ally or .by consumers. And, although, the fassatd may he greater for professional users of patching compounds because of their repeated exposure, residual dust from m rd ng during construction or reno* u a isIso a hazard to consumers wba a u \ not aopiy the patching compounar trev reives (38). (6 1 A r c nm"cturer who supports the ban cor,.-' t \ ' i lie would have no way of poliArtr the sate of different size conmfee:'. Toref6re. Cw.hough he packages a 1-gallon. stee of p-htotfejg compound for sale to eotruiiOT? /"* a f-gallon, size for ruiTtiftercis,'- re h re* he believes tire bstt stwate cc'p.y so tre eises. Given v e sv.'lahiiiU of patching 2>3.puni!i' to gsfnraer-' fe-ough most zc&iferetonl fhe''reels. h it Commission &giv-o ikiit j* v>-n .d b- ere aeasorae for tTrejirefsTutieh t,t ;cihrefets to assure teat large tees of p aid 'rev compounds,, wt;ie-r- the--'- Ta to a s innastrial prod ucts, are not cold, to consumers. More over, as noted In the preceding response, merely labeling a patching compcntod far non-consumer use would not exclude such articles from the ban, Where a manufacturer, distributor or retailer fosters or facilitates the product's sale to or use by consumers, fee product is considered a consumer product and is within the scope of this baa. This coramelar t adipates that it may be exceed ingly crefficult to differentiate a patching eemjttund th a t is a c>.,resar,.es* product from one that might 5>e .-umed a prod uct for induafcrtaJ ir e - ,_y Neverfeer less, as stated in seetto., *r*i.l(c) Scope and Ap-p-Kcatiaa, "pvt ,g compounds eM d i are labeled as, to*', ,,ted, and sold solely for industrial mre .r e nm-consumer esuriramtents are no c toieet to the baa," 2,, ReguMUm of patcMng. eompoundstre QuBA. A manufacturer of dry-wall joint compounds states that the commer cial and professional market for such compounds is already regulated by the Occupational Safety and Health Ad to amend the definition of patching ministration of the Department of Labor compound at 1304.3(d), (OSHA) and, since the consumer part 4. Asbestos terminology for both prod of his business is small, the ban should ucts. (a) In discussing the proposed defi not apply to compounds for commercial nition of "asbestos," a writer from a and industrial usel chemical research and development- cen As is indicated herein, any patching ter states that "silica" is a chemical com compound containing respirable free pound and as a compound is not a com form asbestos that consumers have ac ponent of asbestos. He suggests that the cess to in consumer environments or word "silicon" be used to -denote feat may purchase would be subject to the it is a single element which is present ban. Therefore, such products, although in asbestos. they may be for industrial/commercial The Commission concurs th at the use, are also considered to be consumer- term "silica" should not be used, but- ra products. ther it should be "silicates," since asbes On the subject of regulation of these tos is a generic term used to describe a products by OSHA, the Commission notes number of naturally-occurring hydrated that section 31 of the CPSA provides that mineral silicates. Therefore, the word the Commission shall have no authority "silica" is deleted from the definition of to regulate any risk of injury associated asbestos in 1304.3(b> and 1305.3(b) with a consumer product if such risk below and the term "hydrated silicates" could, be eliminated or reduced to a suffi is substituted therefor. cient extent, by actions taken under the <b> A public interest group takes is Occupational Safety and Health Act of sue with the definition of asbestos used 1970. Under that Act, OSHA has issued in the proposal and urges the Commis regulations which specify the airborne sion to adopt a definition of asbestos concentrations of asbestos fibers to which proposed by OSHA in 1975. The defini any employee may be exposed (28 CFR tion of asbestos used in the Commission ISlO.SSa). However, OSHA regulations proposal is based on the definition used apply only to workplaces and not to by the Bureau of Mines (56). The cosn- places where consumers would use -the menter believes that the OSHA proposed products themselves. Therefore, the definition could help resolve disputes Commission considers th at actions to over the presence or absence of asbestos regulate this product which can be taken in consumer products. under the Occupational Safety and As the- commenter pointed out. several Health Act, of 1873, cannot reduce or federal agencies with responsibilities for eliminate to a sufficient extent the un regulating asbestos (EPA, FDA, OSHA, reasonable risk of injury to consumers CP9C) are working toward a uniform th at is associated with the product. Ac definition of asbestos. At a recent work cordingly, the Commission regulates shop, July 18-20, 1977, at the National this product under the CPSA. Bureau of Standards on asbestos defini 3. Type. of patching compound coveredtion and identification, problems, it was by the ban. A manufacturer of caulking, agreed that there should be.a uniform sealing, glazing, adhesive and coating definition of asbestos which would be products believes the reputation of his mineralogic&lly correct as well as reflect product could be adversely affected by health concerns. However, there was the ban. Although the Commission has clearly a lack of agreement on a 'defini stated that the banned product presents tion and an interagency agreement os a a hazard because it is mixed, sanded and definition has not yet been reached. moved about during cleanup operations, The definition, which the commenter the comment believes that the defini urges the Commission to adopt was pro tion of the banned, product should spe posed by OSHA on' October 18,-1975; it cifically exclude the above-listed prod has not yet been finalized and is subject ucts because they are designed to remain to change. The OSHA' proposed defini flexible and are, therefore, not gener tion reflects OSHA's concern for fee ally sanded. Therefore, the commenter health aspects of asbestos and is based requests that the definition be amended on experimental findings associated with to cover only those compounds, "which fiber morphology (size and shape).. The after drying are required to be or are Bureau of Mines also seeks to encourage normally sanded to a smooth finish," uniform definition. Their definition In response to this comment, the Com which was used by the Commission is mission notes that the patching com based on mineralogical composition. This pounds subject to the ban are those feat has been adopted in final form by feat contain asbestos which can. be inhaled agency. es a result of mixing, sanding and clean The Commission has reviewed es up operations. Therefore, patching ma the available data on the characteristics terials such as those listed by the com- of asbestiform mineral fibers and their menter which are not sanded after nonasbestos counterparts. From these application because they are intended to data, it would appear feat use of fee remain flexible, would be exempt if they proposed OSHA definition eouM also in are not available in -dry. ready-to-mix clude nonfibrous cleavage fragments end form, The Commission believes it is other particulate substances, as well as c le a r t h a t only- c o n s u m e r p a tc h i n g com o t h e r m in e r a l fibers w i th in t h e proposed pound containing asbestos which can dimension range feat are not asbestos be inhaled when the product is in dry fibers. While the Commission is Inter form or being sanded are subject to the ested in arriving at an unambiguous uni ban and therefore declines in this case form definition of asbestos, there is not- FieBKAt.RSSISTBft. VOU 48, MO. %&%-- >rHMSSAVf PECSMMR IS, ft? ? IULES AND REGULATIONS 63357 yet enough evidence to base a definition ol "asbestos" on fiber morphology. There fore., the Commission believes the pro posed definition should not be changed in the final rule. As circumstances war ing asbestos. W henever a m anufacturer finds out th a t th e finished product contains as bestos, the m anufacturer will be considered as Knowingly using a rsw m aterial co n tain ing asbestos unless the m anufacturer takes steps to reduce the asbestos to the m aximum rant, the definition could he amended at ex ten t feasible. a later date. Therefore, the ban applies only to 5. Asbestos contamination in patcnmeconsumer patching compounds contain compounds. Several manufacturers ex pressed -concern that ail patching com pounds would be subject to the ban rath er than only those compounds to which asbestos has been intentionally added. They point out that asbestos is ubiqui tous in the environment and th at traces of asbestos may foe present as a contam inant in other minerais th a t are mined in areas of serpentine rock. One com menter suggests th at the Commission consider permitting patching compounds which contain such naturally occurring contaminants.' Other commentera 'sug gest that a percentage of asbestos con tamination by weight be permitted. The lowest percentage suggested by one com menter is 1 percent because the En vironmental Protection Agency (ErA) permits the presence of i percent asbes tos by weight in spray-on asbestos in sulation and fire proofing. As noted in the proposal, the Commis sion is aware th at asbestos is present in the environment, Further, the Commis sion does not wish to ban all consumer patching compounds in which traces of asbestos are present as a contaminant racher than, as an intentionally added sufes'ti&rics " The suggestion th at the Commission permit contamination of percent by weight, however, appears to be inappro priate for consumer patching compounds because consumers would not be suffi ciently protected. One. percent by weight could mean a substantial number of small lightweight asbestos fibers, thus cresenting a significant exposure to con sumers of respirable free-form asbestos. Therefore, the Commission declines at this - time to adopt a percentage by weight to define permissible contamina tion. ;.Industry experts do not agree as to the amount of asbestos th at might foe pres ent in products without '"'deliberately added asbestos. Nor is there agreement on the reliability of the techniques used to measure low levels (below 1 percent) of asbestos by weight. The Commission believes, however, th at the use of ap propriate quality control measures and careful selection, of raw materials can serve to minimize contamination from *iateationa!ly added asbestos (see the Commission's economic impact state ment on file at the Office of the Secre tary) .. in order to emphasize th at only Patching compounds with clearly un avoidable traces of asbestos contaminauon will be permitted, the Commission oi,nss "intentionally-added asbestos" , J 1304.3(f> of tb s rule below to mean asbesios which is ing intentionally-added respirable free form asbestos and will not apply to products having unavoidable trace amounts. 8. -Artificial emberizing materials-- exemption from ban. A manufacturer of electric artificial logs and electric fire places states that although the Commis sion proposed to ban only artificial em* berising materials containing respirable, free-form asbestos, references in the media to artificial logs and artificial fire places reflect adversely on his business. He asks, therefore, th a t his products, which use an artificial ash bed of vermic- ulite, be exempted from the ban. As the commenter noted, the Commis sion ban applies only to emberizing m a terials containing respirable free-form asbestos and not to any artificial logs or artificial fireplaces with which they may be used. Since the banned product is used with artificial logs, it is understand able that questions are raised as to dif ferent. kinds of artificial logs. The Com mission does not believe it would be ap propriate to exempt from the ban ali electric logs coated with unidentified substances, or all artificial ash used in electric fireplaces, since some of these articles could include the banned prod uct. However,in order to clarify the- m at ter for consumers as well as producers, the Commission adds a statement to 1305.3(d), the definition of emberizing materials, which reads, "electric artifi cial logs and artificial ash. beds used in electric fireplaces which do not contain respirable free-form asbestos are n et in cluded in this definition." E, Effective date. Six commentera dis cussed the proposed effective date of the ban of consumer patching compounds which was 30 days after publication of the final rule. Five manufacturers sug gested a- date latr than 3G days after publication. A public interest group sug gested th at the effective elate fee the date of publication of the final rule. (1) One commenter suggested th at the Commission consider a series of effective dates for the ban on consumer patching compounds: 30 days for manufacturers, 80 for distributors and ISO days for re tailers in order to clear inventories. Several commsnters believe that a 30day effective date might prove burden some to small manufacturers because of the inventory problem. The matter of inventories was con sidered in the July 29, 1877 proposal to ban and further discussed at the public meeting of August 15,1977, The concern of those Involved to clear their existing Inventories of consumer patching com ' t e i ^ dli6d deliberately as an ingredient in- pounds containing respirable free-form _ea to im part specific characteristics; or asb esto s w as c o n sid ere d . In fo rm a tio n Contained; in t&e a n a l p ro d u c t as a resu lt available to the Commission indicates nowingly using a raw m aterial co n tain th at manufacturers ars now m aintain ing a relatively small inventory. Dis tributors report th at they maintain, a small inventory compared to their sales. Retailers have a much slower-moving inventory (61), The Commission considered the pos sible adverse economic impact of a 30day effective date on inventories of man ufacturers, distributors and retailers. The Commission also considered the pos sible adverse effects of exposing con sumers to inbaiable asbestos by permit ting the manufacture, distribution and sale to consumers of patching' com pounds until 180 days after publication of a ban. I t appears to the Commission th at early discontinuance of the manu facture of this product would be neces sary in order to stop its continuing pro liferation in the market. On the other hand, substantial adverse economic im pacts could result from the freezing of distributors' and retailers' Inventories a t an early effective date. The Commission concludes therefore that the ban should become effective at two different points in time. For manufacturers, the effec tive date should be close to publication of the rule in order to stop the con tinuing manufacture of the product. For distributors and retailers, the effective date should be delayed to help amelio rate adverse economic impacts. Therefore, the Commission declares below at 1304.4 that consumer patch ing compounds containing respirable free-form asbestos which have been manufactured or initially introduced into commerce SO or more days after publication 02 fesH-3 rule are banned hazardous products. This means th at a banned hazardous product, having been manufactured or initially introduced into commerce, retains its status as a banned hazardous product; thus, its subsequent sale, offering for sale, or dis tribution in commerce, is prohibited by any person in the chain of distribution. In addition, the Commission declares that all other consumer patching com pounds containing respirable free-form asbestos, no m atter when manufactured or initially introduced into commerce, are banned hazardous products 180 or more clays after publication of this rule. (As stated below id 1304.4(g) of the rule, initial introduction into commerce of this product occurs when the product is physically shipped from a manufac turer's facility to a distributor, retailer, consumer or to another person for appli cation in a consumer environment.) In summary, 30 days after publication of this rale, manufacturers will be pro hibited from manufacturing or shipping the product to distributors, retailers, consumers, or to others for application in consumer environments. Further, 185 days after publication of this rule, dis tributors and retailers will be .prohibited from selling, offering for salet ov ctistrilj'ff uting any of the described products, no matter when manufactured or imtiaHy introduced into commerce, to distribu tors, retailers, consumers or to others for application in consumer environments. (2) The public interest group recom mends that the effective date of the b a n ' . H D B U l REGISTER, VOL 42, NO. 241-wTKURSDAY, DECEMBER IS, V i77 63358 RULES AND REGULATIONS on consumer patching compounds con cancer among smokers, it also indicated pational exposure to asbestos as the basis taining respirable free-form asbestos be there was also an increased risk of death tor the Commission proposal. The com the date of publication of the final rule, from, other asbestos-related diseases, in menter believes that portions of the as it is for artificial emberlzing materi cluding asbestosis, among nonsmokers OSHA review of October 1975 are scien als. (17). Data also suggest th at the high risk tifically inaccurate. The Commission proposed that the ef of mesotheliomas (cancers of the pleura The Commission notes that most of the fective date of the ban on artificial em- and peritoneum) from asbestos exposure information on hazards associated with berizing materials "be the date of publica appears to be unrelated to smoking (18, inhalation of asbestos is based on occu tion although the Administrative Proce 8), pational exposure. Ifccan be said that the dure Act (5 IX.S.C, 5S3) which governs (2) A distributor of fireplaces and fire body of scientific literature in the OSHA publication of consumer product safety place equipment doubts there is a hazard proposal has already been subjected to rules, provides that a rule should be pub associated with emberlzing materials be public scrutiny. During preparation of lished 8 days before its effective date cause the fibers used in emberlzing &a- toe Commission proposal. Commission unless the Commission finds good cause terials are relatively large and fibers staff conferred with OSHA. As a result, to provide otherwise. Unlike patching which would become airborne would be the Commission proposal deleted refer compounds, where exposure to asbestos pulled up the fireplace flue. ences to studies which OSHA termed to fibers is mast prevalent during mixing, While it is true th at the large asbestos be of questionable validity. sanding and cleanup operations, al fiber bundles pose little risk of inhalation, As pointed out in the Commission pro though the fibers may remain suspended the fiber bundles release individual fibers posal, there had been only one report of for a considerable duration of time, as whiea in turn, can break logfiudinslly consumer exposure to asbestos in the bestos fibers in emberlzing materials can into microscopic fibrils (57). Fibers could scientific literature prior to the proposal. be respired as long as such materials axe- become airborne under normal as, in Based cm tee data from th at study, a) in the home because they are alwsy in stallation, and handling conditions, as Commission assessment was made of the? dry form sa d ready to be snored about well as 'from room drafts. Once tire fibers potential increased risk of respiratory by ordinary household air currents. It become airborne, they can remato sus cancer associated with use of consumer) appeared to the Commission, therefore, pended over long periods of time, eventu patching compounds containing asbestos5 th at these embedding materials should ally settling out oti items of furniture, fibers. A be removed from commerce as quickly as draperies, etc., only to 'became airborne The Commission also based its pro possible and th at there is good cause to and available for respiration with use of posal on direct and indirect evidence off have the ban effective bn the date of pub these items. As long a-s the fre-form as asbestos inhalation in non-occupation-! lication. To assist persons who already bestos emberlzing material remains loose ally exposed individuals, including re-: had such materials in their home, the on the fireplace floor, there is a possibil ports from, autopsy findings of asbestos?! Commission, on July 21,187?, issued a ity that ifc could become airborne and fibers In tang tissues end from epidemio press release on the impendingfesmwhich thus respired. logical, studies. included a Consumer Alert advising con (3> A manufacturar states that since (5) In assessing the? degree and nature? sumers- of the dangers associated with Commission data axe based on occupa of the risk of injury to consumers from) these em bsri'"' ^ ,, -r~ a, C iw u n g tional-statistics, ifcis difficult to document patching compounds, the Commission;? instructions '3 f "*:* i u ,*.I. the Commission's view, in the proposal reviewed experimental data and human! Economic r~- -- v r \ ...'sion that, "for many people tea major ex experience information. In addition, on indicates, in t --* ,, , f guificwt posure to inhalable asbestos is m the the basis of data by Bohl on esparare to adverse econo n-'-/ , A w - -A ripat- home." asbestos during the use of consumer? ed as a result of . c j -i . *-*.au, effective While ifcxs true thex much, of tee Com patching compounds ( 88) , toe Commie-!; date for em b irirhs oi&* aZ. `51). As is mission data on a-bjsfcos-related disease sion's Health Sciences staff calculated an indicated in ,l ~ __>t .* sita, the- are based on occopctional statistics, a assessment of the risk which was de?) economic impact of % and even risk assessment was made of consumer scribed in the proposal. The calculations'; a 180-day effectsm . or patching exposure to- respirable asbestos to patch were based, on the application of a theo-) compounds would be significant and ing compounds during mixing, sanding retical model similar to that described) therefor ifc appears th at ih.a economic and cleanup operations which estimated by Enfcerline and. Henderson (1I>. Sev impact of an imrvscb&c effective date the increased risk of lung cancer tram. eral highly technical comments were re-? would 1 more B&r,Jto:.r Sines no new such exposure in the home. A report o ceived in response tc the risk assessment, information, has ure?' prhrsmted to Show asbestos in consumer patching com The significant issues raised in these) that an earlier t-Jasto'* tote should be pounds indicated th at significant levels comments are discussed below. promulgated, tbs Ccr- ,,.srioa' declines of respirable free-form asbestos fibers (a) Two comment questioned the; 51 tee suggestion of cte public interest wore detested to. rooms adjacent to- th at assumption in. toe risk assessment that; group. Therefore, the effective date of the where the actual patching and sanding -exposure to asbestos is cumulative over ai- regulation on consumer patching com operations had occurred so that other the lifetime of & person, and whether) - w pounds containiiii rsar-p'rable free-form household members could be exposed as intermittent exposure oyer several year?, asbestos is 3 drys ste-r publication of well as toe individual performing tee has the same effect as if toe same ex this rule as to n'r-iufrctare and initial .patching job (SS). In many areas of the posure had taken place in a single year,, introduction into rco..aerce and 180 country (nonurban), there appears to be In reviewing the literature on asbestos: days after pubR-cHcn as to all other a relatively low background level o as exposure, the Comnissioa finds that asr) Knife of the deSi-o-i jrodoet no m atter bestos (52). Therefore, posare in the bestes fibers are unlike many chemical?.-, when manufactured or initially intro home to asbestos fibers released from and other material which the body may duced in commerce. consumer products could represent the metabolize and. excreta. Body clearance? C. Product risks and risk assessment. major exposure. As noted in the proposal. of asbestos fibers is mueh less effective.-- Several eommenfcers discussed the com- Dr. Paul Kotin, Johns-M&nvfile, stated They have been found not only tojw-: mission's risk assessment for patching in a presentation before the Commission, main in the body but to accuxmfiatc 5* compounds and questioned other aspects June 8, 1377, that young children si Since tee data tend -to. show that inter-" of the hazard. particularly vulnerable to exposure to mitfcent exposure can lead to eum<-'e.tw (1) A marie*> tjTc: ,,uggesfe that usecarcinogens and clearly their major ex buildup of asbestos fibers, it appears, w. by the & & xnr ,, z or fey asbestos posure to fnhal&ble asbestos would bs to the Commission that intermittent exr workers is n:< U>v js and that the the home. The Commission therefore posure over several years could have ffie greatest ha-sard s to a worker during feels it is essential to minimise, to the same hazardous effect as if the kw; Badinff e&rnmMem if he also smokes. extent possible, esposare to rsspirable intermittent exposure had taten plw? The Commission notes that 'fhii.e data asbestos. within one year. . -from an epidemiological study' of asbes (4) a comments? questions Commis Cb> Two commented indicated to* tos irESsiation workers indicated there sion reliance cm OSHA's proposed the hazard from applying patching comp was an increased risk of death from lung amendment of October s. 1S78 to oocu- pounds ootd differ in different circum* r b n m i R S ssm , v a - , h o , $ t i -- yhubspay, pscem&er i s , t r y W SULE3 AND REGULATIONS 83359 stances. They indicate that persons of differing skills may release different amounts oi inhalaMe asbestos into file air. Although these differences occur, a consumer would likely release more as bestos into the air because he or she may be less skilled in the process than a pro fessional applicator. The Commission recognizes as these commenters point out that some products have a smaller per centage oi asbestos than those which were used lo r exposure data in the Com mission risk assessment. For example, one commenter submitted asbestos ex posure data from a study he conducted using a compound th at contained a smaller amount of asbestos. Based os - ds commenteris exposure data, another risk assessment was conducted. The re sults suggest th at tee of a patching com,,ound containing less asbestos may re duce but does not eliminate an excess of : deaths due to exposure to asbestos in patching compounds* The range is from 1 death per million persons, exposed for ue projected five years exposure using me model and up to 223 lifetime excess cancer respiratory deaths per million persons exposed during another model (53). It should be noted here th at while .sbestos levels may vary, they da not change the fact that there is no known level below which inhalable asbestos may be considered safe. (c) Another commenter says that us ing a premixed compound reduces the consumer's exposure to asbestos. The 'onunenter also thought that the Com mission's estimate of consumer exposure "'as too high. The Commission's risk as sessment analysis did take into consid eration the exposure during the mixing of a patching compound. While expo sure to asbestos fibers would be negligible during slight stirring of a premixed compound, the exposure during the sanding and cleaning operations involved would be the same as lor the dry -ompound. Consequently, the risk as sessment values would not be signifi cantly reduced. As for the four-day, eight-hour exposure being too high an estimate, no data were submitted to sub stantiate th at contention. As stated in fhe proposal, therefore, it appears to the Commission that although the exposure may be high, it is a reasonably foresee able exposure. D. Substitutes for asbestos. The July 29, 1977 proposal notes that substitutes for asbestos are already being used in Patching compounds. One of the most common substitutes is attapulgite, a fi brous clay. Other substitutes of a fibrous nature are wollastonite, kaolinite, sepiolite and bentonite. Several comments ex press concern that materials used as sub stitutes for asbestos may also pose haz ards. The Commission shares this concern. Substitutes for asbestos have been under consideration for only a short time. Little data are available on which to evaluate the safety of substitute materials. Ex perimental findings of Stanton (58) indi cate th at many mineral fibers (in addi- ion to asbestos) of small respirable di mentions are biologically active under experimental conditions. According to correspondence dated July 26, 1977 from Dr. Paul Kotin of the Jo'nns-Manvllls Co. with environmental consultant Barry Casileman, a JohnsManviUe study is under way to assess the potential inhalation hazard cf certain naturally-occurring or man-made min eral fibers such as ceramic fibers. Ce ramic fibers are a potential substitute tor artificial emberizing materials. Human exposure data to substitutes are extremely limited. Occupational ex posure data to certain clay,mineral fibers which are proposed asbestos substitutes are scheduled to be presented at a Sym posium on Occupational Exposure to Fi brous and Particulate Dust and their Ex tension into the Environment, in Decem ber 1377. These data are expected to in dicate the extent of exposure, rather than human experience findings on re sults of such exposure. Data on the re sults of human exposure to asbestos sub stitutes will not, in all likelihood, be available in the near future. (1) A commenter suggests that substi tutes, since they would be fibrous, would present a risk. In assessing asbestos substitutes, data available to the Commission indicates that a number of substances may be used which ars not fibrous such as calcium carbonise, clay, resins and mica. For the fibrous clay minerals winch may be used as asbestos substitutes such as wollasto nite, kaolinite, sepiolite and bentonite, the Commission is aware that there is a lack of conclusive data on the hazard potential associated with these minerals. Additional study is needed to evaluate the risk of inhalation exposure to such small mineral fibers. Nevertheless, the Commission, believes th at the known risk from, inhalable asbestos requires the banning of these products at this time. (2) A comment questions a statement in the proposal that fibrous glass could be considered a substitute for chrysotile in emberizing materials. The Commission concurs with this comment; it is currently unaware of any manufacturers or distributors who use or know of the use of fibrous glass for this purpose. In addition, from a technical viewpoint, glass fibers are not similar in size and shape to chrysotile. Unlike the rod-like glass fibers, chrysotile tends to be curved, or be of curly fibers or fiber bundles, comprised of extremely smalldiamatered fibrils. However, glass fibers ars similar--at least in shape--to some of the amphibole asbestos minerals. The diameter of most fibrous glass is report edly greater than 3-5 microns and con sidered too large to be respirable. How ever, glass fibers are not of uniform di mensions and a small percentage may be of respirable size. Additional study is needed to assess the pathologic effects of inhaled fibers, including fibrous glass. E. Economic considerations. Six cornmenters expressed concern that the ban would have an adverse economic impact on the industry. Five of the six are man ufacturers who commented on patching compounds. The sixth is a distributor cf gas fireplace logs. One patching compound manufacturer claimed that some firms in th at indus try will go out oi business should the ban be promulgated. As -noted below, our studies indicada that some small producers may not have the technical capability to refer .luate their products satisfactorily or r . "j be unable to obtain necessary raw ax, erizls by tire effective date of the ba;,, I m e, some may cc-ase production temporarily, until such, re formulation is achieved. Sams of the large manufacturers have indicated a willingness to license their asbestos-frea formulations (or parts of them) to small er firms. Two commenters discussed potential cost effects of the ban on patching compounds other than those relating to the product itself. One patching com pound producer estimated at 38 percent the increases "workload" associated with the professional application of nonasbestos formulations because of differ ent performance characteristics. The Commission has investigated the- poten tial increase in direct labor costs as sociated with existing asbestos and nonasbestos formulations; it estimates an initial 10 to 35 percent average increase ss a result of switching from the former to the latter. Other costs may accrue to professional users of the product should different application tools be needed or should sc-me jobs have to toe redone to the relatively poor shrink- and crackresistance of some non-asbestos formu lations. These increased costs are ex pected to dimmish over time a formula tions improve and as applicators become more accustomed to using non-asbestos formulations. One company which may be adversely affected by the proposed ban. reports th at attapulgite, one of the prime sub stitutes for asbestos in patching com pounds, is in "limited supply" and thaf some small manufacturers may have difficulty in obtaining th at material. Other industry sources have reported this same problem. "The larger patching compound producers, who already have asbestos-free formulations on the m ar ket, are not expected to have as much difficulty in obtaining substitute materials. Two manufacturers discussed the ban's potential adverse effect on the utility of the product. One expressed a belief that non-asbestos formulations are inferior in performance to asbestos formulations. Another reinforced that belief, reporting that the absence of asbestos formula tions may prompt workmen to add their own asbestos to toe product to help pre vent cracking when wall joints are cov ered. However, the addition of asbestos would be tantamount to manufacture of the banned product and would thus be prohibited. It appears th at at least some existing non-asbestos formulations may be less desirable, from a performance standpoint, to professional contractors; most consumer applicators are not ex- FEBE3M SS6GIS7ER, VO L 43, HO. J41-- 7HURS8AY, 0ECEM3ER IS, 6336 RULES ANIS REGULATIONS pecfcedto perceive a significant difference in the product's performance. - As Is indicated in the proposal, the Commission is aware th at economie im pacts of varying degrees will occur as a result of the ban on inhalable asbestos containing patching compounds and emberising materials containing res pirable free-fonn asbestos. Also, the Commission is aware th at technology for producing asbestos-free patchingcompound formulations is becoming more generally available. The economic impact will tend to be reduced over time as non-asbestos formulation, technology becomes more widespread and as exist ing recent formulations are improved by manufacturers. The nature and extent of the effects on the industries are dis cussed in tfae Enviroameartal and Economic Assessments now on file in the Office of the Secretary and were con sidered by the Commission during this rulemaking process. P. Other comments, (il Several com menter suggested that the Commission should investigate other products con taining asbestos in order to determine the existence of possible hazards. In the proposal, the Commission noted that information on other products con taining inhalable asbestos would con tinue to be developed in order to .deter mine whether further regulation is nec essary. Accordingly, the staff has begun ta develop plans for collecting such in formation. (2) One commenter suggested that the Commission issue a role that would prohibit stockpiling of the banned prod ucts. Section 9(d) (2) of the CPSA provides th at the Commission may, by notice and comment rulemaking, prohibit a manu facturer from stockpiling a product for which a consumer product safety rule has been promulgated. In. this case, the ban on consumer patching compounds covers the manufacture and initial in troduction of products into commerce 30 days after promulgation; the ban on artificial emberising materials covers products in commerce on the date of promulgation. Therefore, in practical ef fect, there would not be time for manu facturers to stockpile; nor would there be time prior to these effective dates lor notice and comment rulemaking. (3) A commenter expressed concern that the banned products be kept out of international commerce. The Commission notes th a t this com ment is directed not to the proposed rule but to its enforcement. If this m atter should become a problem it would be considered in the context of enforce ment. (4) Several comments suggested edi torial changes in the proposal. These suggestions were considered and, where appropriate, have been included herein. Description op the Ban The banned products. Parts 1304 and 1305 declare, respectively, that consumer patching compounds and artificial emberiaing matarais (embers and ash) containing respirable free-form asbestos are banned hazardous products under section 8 of the Consumer Product Safety Act. Scope and application. The rules apply to the named consumer products that are customarily produced or distributed for sale to or for the personal use, con sumption or enjoyment of consumers in or around a household or residence, a school, in recreation or otherwise. In ad dition to those products which can be sold directly to consumers, the ban ap plies to the named consumer products which are used and enjoyed by consum ers, such as those used in residences, schools, hospitals, public buildings or other areas where consumers have cus tomary access, whether the patching compounds are applied professionally or by consumers. Only consumer products are subject to this regulation. Patching compounds which are con sumer products include those which a consumer can purchase. Merely label ing a patching compound for industrial use would not exclude such articles from the ban. If the sale or use of the product to consumers is facilitated, it is subject to the ban. Patching compounds which are labeled as, mar keted, and sold solely for industrial use in non-consumer environments are not subject to the ban. The ban applies to patching compounds containing inten tionally-added respirable free-form as bestos sold directly to consumers and to those which are used in residences, schools, hospitals, public buildings or other areas where consumers have cus tomary aqpess. Effective dates. (1) The rule at Part 1304 below applies to consumer patching compounds containing respirable free form asbestos that are manufactured or initially introduced into commerce on January 1, 1978, or after that date. For all other consumer patching compounds containing respirable free-form asbestos, no matter when manufactured or ini tially Introduced into commerce the role at P art 1304 applies on June 12, 1978, and after that date. This means that. 30 days after publication of this rule, manufacturers are prohibited from man ufacturing or shipping the product to distributors, retailers, consumers or to others for application in consumer envi ronments, Further, 180 days after publi cation of this role, distributors and re tailers will be prohibited from, selling, of fering for sale or distributing in com merce the described products, no matter when manufactured or initially intro duced into commerce, to distributors, re tailers, and users. (2> The rule at P art 1305 below applies to arfcifiic&l emberisingmaterials (embers and ash) containing- respirable free-form. asbestos that are in commerce on De cember 15, 1977, or after that date. Hass, prohibition applies to products in inven tory as well as to those manufactured on or after the effective date. The Administrative Procedure Act (5 U.S.C. 553) which governs the matter of ,effective date for banning rules under the CPSA, provides th at a rule should be published 30 days before its effective date unless the Commission provides other wise for good cause found and published with the rule. As described in the discussion above on effective date, the Commission is con cerned that ordinary household air cur rents in homes that..coats,in artificial emberising materials, can cause continu ing exposure of consumers to the respirable free-form asbestos in artificial em bers and ash. It appears to the Commis sion, therefore, th a t these products should be removed from commerce as ex peditiously as possible in order to avoid having additional numbers of consumers unwittingly purchase these materials. The Commission finds there is good cause to issue the rule on artificial emberising materials effective on the date of pub lication. Fikbotcs 1 CPSA Section 8. Section 8 (1) and (2) of the CPSA require that, before is suing a -consumer product safety rule declaring a product to be a banned haz ardous product, the Commission must find (1) that the product presents an unreasonable risk of injury and (2) that no feasible safety standard can ade quately protect the public from the un reasonable risk of injury associated, with the product. (a) Unreasonable risk of injury. The regulations are intended to reduce or eliminate the unreasonable risk of injury to the public from cancers such as lung cancer and mesothelioma. The risk is associated with asbestos fibers which are not tightly bound Into or encapsu lated in the composition of a, product The health risk occurs when asbestos fibers become airborne such as by mix ing, sanding, or cleanup operations when using patching compounds, or by the effect of ordinary household air currents on artificial emberizing materials in fireplaces. Tests show th at certain malig nancies are related to asbestiform min erals; these can arise 20 or more years after occupational exposure. However, also reported are malignancies from in direct, non-occupational exposure. In a recent case, the court recognized a study on asbestos exposure cited by the En vironmental Protection Agency at 40 P.r. 4E208, showing "new biological evidence supporting the -significance of stogie, short-term exposures * * One-day in halation exposures i t animal experi ments have produced an increase in the incidence of mesothelioma." National Association of Demolition Contractors v. Environmental Protection Agency. Civ. Nos. 74-1545, 75-2078, D.C. Cir.. October 13, 1877. The information on which the Com mission made the determination of un reasonable risk consists primarily ol data on exposure of industrial workers to respirable free-form asbestos. Infex mation on exposure of the public to inhalable asbestos to individual consumeproducts is limited. However, as is evi dent from the extensive bibliography n eluded, hereto there is general seianfii ' FEPSi&i ISESiSipt, VOL b NO. S it--THURaMUf,. BSCSM&SR 5, i W RULES AND RSSULATSONS 8336! aid medical agreement that there is no mown threshold level below which it is :afe for people to be exposed to respi rable iree-iorm asbestos. As noted in the proposal, inhaiable sbestcs in the household from consumer latching compounds and artificial emjerismg materials presents a great risk lue to the presence in the household os persons, such as children, who may be particularly vulnerable to carcinogens. Because of the long latency period, ex posure to inhaiable asbestos in the home ;an be life shortening for children. The Commission, notes that consumers are exposed to asbestos from sources other ihan the banned products. However, con sumers who are exposed to asbestos fibers from patching compounds and artificial embers and ash receive additional doses if asbestos and can be assumed to face * greater risk th a n persons not so ex posed, and a greater cumulative risk than if no asbestos were present in .the general environment. In determining that the risk of cancers is unreasonable, the Commission con cludes that the degree and nature of the risk of injury and the probability that the risk will result in harm- outweighs the rules' effect on the products' utility, cost handicapped persons to determine the extent to which such persons may be adversely affected by such rule. The Commission has considered these needs and has determined that no adverse ef fect -on elderly or handicapped persons will result from this regulation. It is in the best interest of the entire public, in cluding the elderly and handicapped, that these hazards be reduced. 3. CFSA Section 9(c). Section 9(c) of the CFSA requires that prior to promul gating a consumer product safety rule the Commission shall consider and shall make appropriate findings for inclusion in such a rule as to : cl) The degree and nature of the risk of. injury the rule is designed to eliminate or reduce; (2) the approximate number of consumer prod ucts, or types or classes thereof, subject to such rule; (3) the need of the public for the consumer products subject to such rule, and the probable effect of such nils 'upon the utility, cost, or avail ability of such products to meet such need; (4) any means o achieving the effect of the order while minimizing ad verse effects on competition or disruption or dislocation of manufacturing and other commercial practices consistent with the public health and safety; (5) and availability to the consumer. that the rule is reasonably necessary to (b) No feasible safety, standard. Theeliminate or reduce an unreasonable risk Commission is not aware of a technically associated with such product; and (8) feasible procedure for removing the that the promulgation -of the rule is in hazards af cancer from respirable iree- the public interest (IS XJ.S.C. 2058(e)). iorm asbestos in the named products. The Commission believes th at not all The findings required by Section 9(c) patching compounds present an unrea of the act have been described generally sonable risk of injury to the public, only in the preamble and are incorporated in patching compounds containing respir able iree-iorm asbestos. The bastard as sociated with this product is caused by the free form in which the asbestos ap pears, A safe level of exposure to free form asbestos is not known. Therefore, it does not appear that a standard for Patching compounds containing respir able iree-iorm asbestos is feasible. The product artificial emberizing ma terials for fireplaces, containing respira ble free-form asbestos is used only in dry form. 'Thus individual asbestos fibers are never bound together. If the asbestos fibers were coated by another material to bind the fibers, it would no longer be the S3T304.5 and 13.05.5 of the miss below. 3131X0GHAFHV ' 1. Anderson, H. A., 1411s, R.., Daurss, S., Fisehbeta, A. S. and Selikoif, I. J .: H ouseholdC ontact Asbestos Neoplastic Bis!!;. Ann. N.Y. Acad. Sci. 371:311-323 {197). 2. Asbestos Inform ation Assoc.: Informa tion from R epresentative of th e Asbestos I n tern atio n al Association. Conference, H am burg, Germ any, 1976, Ju n e 27, 1977 memo. 3. Borrow, M., Conston, A., Llvoraese, I.-. I., and Schist, N.: M esothelioma and Its Asso ciation W ith Asbestos. JAMA (3) : 83-97 (196-7): 4. Canada. C onsum er and C orporate Affairs, Consumer Standards Directorate, Product Safety Branch, Asbestos In Toys and same product and would not give the de sired decorative effect. In considering the dry character of the product and the fact that a safe level of exposure to res pirable free-fonn asbestos is not known,, if, does not appear that a standard for artificial emberizing materials -contain ing respirable iree-iorm asbestos is feasible. The Commission believes . that no standard can render the defined prod ucts non-hazardous and concludes that orily banning these products can ade quately protect the public from unrea sonable risks of injury associated with them, M odelling M aterials Issue No. 2, Ju n e, 1976. 5. D epartm ent of Labor. O ccupational Safety and H ealth A dm inistration: Asbestos D ust S tandard. 28 CFR ISIO.SSa, 8. D epartm ent of Labor. O ccupational Safety and Health A dm inistration: Occupa tional Exposure to Asbestos. Notice of Pro posed R ulem aking. FR VoL 40. No. 197, pp. 47852-67365-, (Oct. 8, 1973). 7. D epartm ent of Labor. Occupational Safety and H ealth A dm inistration: Asbestos D ust in th e Construction. In d u stry . P re lim inary D raft: Technical Feasibility Assess m ent, Spacitling and Drywali Jo in t Com pounds, p. 112. (1977) . 3. Edge, J. 3 .: Asbestos R elated Disease in Barrow In Furness Bnv. Res. 11:344-247 (1976). 2. CP3A Section 9(b). Section 9(b) of the CFSA, 15 U.S.C. 2058(b), as amended, requires the Commission to consider and take into account in the promulgation of a rule the special needs of-elderly and S. Elmes, P. C, and Sim pson, M. J. C.: I n s u la tio n W orkers in B elfast 3. M ortality 194066. Br.J. In d . Med. 23 : 226-236 (1971). 10. England. H ealth and Safety Exec. Dept, of Prices and Consumer Protection. Asbestos Labeling Scheme. April 1976. 11. E n terlin e P., and H enderson, V.: A Model for E x trapolating to Low Levels o; Asbestos Exposure. Presented a t Conferencs on Problem s of E x trapolating th e R esults oi Laboratory Animal D ata to Men sue E xtrapolating th e R esu lts from Higli Dose Level E xperim ents to Low Dose Level Expo sure, F inehurst, N.G. (M arch 1976). 12. E nterline, P., DeCcufle, P., and H ender son, V.: M ortality in Relation to O ccupa tional Exposure in th e Asbestos Industry. J of O ccupational -Medicine 14 (12): 397-90' (1972). ` 13. Enfcicknap, J- 3 ., a n d Sm ither, W. J.: Peritoneal Tum ours in Asbestosis Brit. J. in d Med. 21:20-31 (1964). 14. E nviron m ental Defense F und: Fetirior for A ction u n d e r section 13 c f th e CPSf against fireplace ashes and Logs Containint Asbestos. Footnote 1. May 12, 1077. 15. Fletcher, D. O.: A M ortality S tudy o Shipyard W orkers and Pleural Plaques, Br. J Ind. Med. 29:142-145 (1972). 16. Greenberg, M., and Davies, A. L. Mesothelioma Register 18678, 3 r. J. Ind. Med 81:91-104 (1974). 17. Ham m ond, E. 0., Se-ikoff, I. J. anc Churg, J.: Neoplasia - Among Insuiatioi Workers In th e U nited States with Specie Reference to In.tra Abdominal Neoplasia Ann. N.Y. Acad. Sci. 132:519-5-25 (1965). 13. H am m ond. S.C., a n d Selikoff, I. J.: Re laiion of Cigarette Smoking to Risk of Deati of Asbestos Associated Disease Among In su iation W orkers in th e U nited States, pp. 312317 In te rn a tio n a l Agency for Research oi Cancer (1973!. 18. Harries, P. G.: Asbestos Hazard in Nava Dockyards. .Ann,. Occup. Hyg. 11:134-14. (1838). 20. H asan, Faysal M. e t a l : T he Signlfloancof Asbestos Exposure in th e Diagnosis o M esotheliom a: A 23 year Experience from Major U rban Hospital. Amer. Bey. Eesp. Dii 115:701-768 (1877). SI. Huff, J. E,, Ham m ons, A. S., Dinger, C A., Whitifleicl, B. L., a n d Ulrlokson, G. CJ. Asbestos: An Overview. Env. Chemical Human, and Animal Health 3rd Annual Con ference Proceedings. 22. IABC W orking G roup c n th e Hvaluatioi of the Carcinogenic Risk of Chemicals t Man. ARC M onographs o n th e E valuation o th e Carcinogenic Bisk to M an: Asbestos. Ini Agency for Research on Cancer, 1977. 23. Interagency C ollaborative G roup o: Environm ental Carcinogens, 19th M eetinj NIH. Aug. 14, 1975. 24. Jones, H. B., and G rfndoa, A.: E nviron mental Factors in the Origin of Cancer an E stim ation of th e Possible H azard to Mai: Fd, Cos-met. Toxicol. 18:251-268 (1375). 25. U S ln g to n , G. A. e t el: Conjugal Malig n a n t M esotheliom a. New Eng, J. Med. 29 11): 683-584 (Sept. 12. 1974). 23. McDonald, 1. C., McDonald, A. D., Gibbf A. W., et ai: Lice H ealth of Chrysctil Asbestos Mine an d Mill Workers of Quebec Arch. Env. H ealth 8:61 19-74. 27. McEwan, J., Finlayson, A., Mair, A,, am Gibson, A. A. M.: M esotheliom a in Scotland Br. Med. J. 4:574-673 (1870). 23. M erew eather, E. R. A., s a d Price, C. W. B epert on th e Effects of Asbestos D ust oi th e L ungs ar.d D ust Suppression in Asbesto. In d u stry . H.M. S tationary Office, Londci! (1330). 29. N ational In s titu te for O ccupations Safety and H ealth: Criteria for a Racom mended Standard . . . Occupational Expos* to Asbestos. (1972). 30. Newhouse, M. L., -and Berry G-.: Til Bisk of Developing Mesothelioma Amcni W orkers in an Asbestos Textile Factory. XVI Internationa! Congress on Occupatic: Health, Bristol, England (1375). 31. Newhouse, M. L., a n a T hom pson, H. Mesothelioma of Pleura and. P eritoneum Fol FEDERAL .REGISTER, V O L 4 2 , NO. 541-- THURSDAY, DECEMBER 13, 1 9 7 ? 633S2 RULES AND REGULATIONS lowing Exposure to Asbestos in th e Lontloa Area. B rit. J , Ind. Med. 22:261 (1965). 82. Newhouse, M.: Asbestos in. th e Worte Place and th e Community. Aim. Oee. Hyg. 16: 67-107 (1878). S3. Newlioiise, M. L., a n d Berry. G., P re dictions of M ortality from Mesothelioma T um ours in Asbestos Factory Workers, Br. J. Ind. Med. 88: 147-151 (1978). 84. Kewheuse, M. L., a n d Berry G.: As bestos a n d Laryngeal Carcinoma Lancet. 2: 616 (1873). SB. N icholson, W. S.i Case S tu d y 1; As bestos T h e TLV Approach. N.Y, Acad. Set. 271: 152-108 (1876). 30. EoM, A. N., e t ai: E xposure to Asbestos in th e Use of Consum er Sp&ekling, Patching' and T aping Compounds. Science 188:661-888 (Aug. 1 5 .1875). . 37. Selikoff, I. J ,: Asbestos a n d Neoplasia. Am. J. Med. 4 2 (4 ): 487-496 (1967). 38. Sellkoff, I. J., End Hammond, IS. G.;XZI Community Effects of N on-O ccupational En vironmental Asbestos Exoosure. Am. J. Pub. H ealth 68(9) : 1.669-188 (1908). 30. Sellkoff, I. J., Churg, J., a n d H am m ond, E. C.: T h e O ccurrence of Asbestosis Among in su la tio n W orkers in th e U n ited S tates. N.Y. Acad, of Set. 132:138--156 (1965). 40. Selifcoff, I. 3., Hammond, B. C., and Ctasi'g, J .: Asbestos Exposure, Smoking, and Neoplasia. JAMA 204(2) :108-113 (1SSS). 41. Selikoff. I. J., H am m ond, E. C., a n d Seidmsaa, H .; C&noer R isk o f la stfla tio d Workers in th e U nited States. pp. 208-213 In tern atio n al Asency for Hesearah. on canoes (1S7S). 42. Selikoff, I. J,, Hammond, E. C., am i Churg. J .: Carcinogenicity of Amoslte As bestos. Arch. E ar. H ealth 25:188-188 (1072). 43. SeEkoff, I. J., Nicholson, W. A, and Laager, A. M.: "Asbestos Air Pollution": Aren. Environ. Health, 85:113, Ju ly 1978. 44. Sheers, G .: Effects of Asbestos in Dock yard W orkers, Br. Mad. J. 3:574-679 (1968V. 45. Stell, P. M,, and McGill, T .: Asbestos and L am igeal Carcinoma. Lsneet 2:418-41? (1678). 46. Ssum phius, J.; Epidem iology of Meso theliom? o n W alcherea Islan d , Br. J. In d . Med. 28:58-96 (1971). 4?. W agner, J, C., Steggs, C. A., a n d M ar- chand, P.r Diffuse Pleural M esothelioma and Asbestos E xposure in th e N o rth W estern Cao Province. B rit. 3. In d . Med. 17:SS0~27i (I860). 48, Wagner, J. C., e t ai.: T he Effects of th e Inhalation of Asbestos to Bats. Br, d. Cancer, 29: 252-26 (19-74). 46. W ebster, I.: Asbestos s .n i Malignancy SA. Ivied. J. 7:185-171 (1988). EO. W hitwell, F.. and Hawclifie, B. M ,:.D if fuse M alignant Pleural M a n d a ifcm and Asbestos Exposure, Thorax 26:822 (1871). 51. Kearney, A. T.: Economic Im p ac t As sessment of the Proposed B aa of Asbestos Containing Patching Compounds, October 1877. 62, Bohl, A., Ls-nger, A., sa d SelikoS, l.l E m hrom neatal Asbesto* P ollution Belated to Use of Quarried Seroenttne Bock. Science, Y, 106, pp. 1310-1822, J u n e 17, 1977. 53. B ayard, S,: Memorandum. B is t of R espiratory Cancer Due to Low-Level Expo sure to Asbestos from Spacfclmg and Jo in t Taping Compounds. J u n e s, 167'?. 54. B ayard, S.: Memorandum, to Fils: Be- spouses to com m ents, October 1877. 55. Thompson, 3. . Ann. of N.Y. Aoad. Sid. 132:168-214, 1965. 86. D ept, of Exterior, B ureau of .Mines: Se lected Silicate Minerals and th eir AsbssKform V arieties. 1877. 57, H arrin g to n , J. S-, e t al.: M iners! Fibers: Chemical, Physicochemiosi and Biological Properties. Adv. Pharmacol. Chemotber. 12:281-4-32,1875. 68. Stanton, Si.. D.: Some Etiological Con siderations o f Fiber Carcinogenesis. Biological Effects of Asbestos. XABC P u b lica tio n No. 8, pp. 288-294, Lyon, 1873. CONCLUSION Upon considering the published pro posal, the oral and written responses to the proposal and other relevant material, the Commission bans consumer patching compounds and artificial emberizing ma terials (embers and ash) as set forth below. Accordingly, pursuant to provisions of the Consumer Product' Safety Act (sections 2 and 8, 88 Stafc. 1215-17, as amended, 90 Scat, 506, 15 UJB.C. 2057, 2058)', new Parts 1304 and 1305 are added to Title 16, Chapter II. Subchapter E, as follows: PART 1304---BAN OF CONSUMER PATCH1NG COMPOUNDS CONTAINING RESPI RABLE FREEFORMASBESTOS Sec. 1304.1 Seeps and application. 1804.2 Purpose. 1304.8 Definitions. .1304.4 Consumer patching compounds as banned haa&riious products. 1304.5 Findings. AuTxtoBinr: Sections 8, S, 3S Btat. 12151217, as amended 80 Stat. 506, IS TT.S.C. 2067, 2056. | 1304.1 Scope sod application, (a) In this Part 1394 the Consumer Product Safety Commission declares that consumer patching compounds contain ing intentionally-added respirable free form asbestos in such a manner th at the asbestos fibers can. become airborne under reasonably foreseeable conditions of use, are banned hazardous products under sections 8 arid 9 of the Consumer Product Safety Act (CPSA) (15 IF.S.O, 2957 and 200-S). This ban applies to patching compounds which are Cl) used to cover, seal ormask cracks, joints, holes and siiBilsr openings in the trim, walls, ceiling, etc. of building Interiors, which after drying are sanded to a smooth finish and (2) are produced and dis tributed for sale to or for the personal use, consumption or enjoyment of a con sumer in or around a permanent or temporary, 'household, or residence, a school, in.recreation or otherwise. (b) The 'Commission has found that (i.) these patching' compounds .are being or will be distributed in commerce: (2> that they present an unreasonable risk of injury: and (3) that no feasible con sumer product safety standard under the CPSA would adequately protect the pub lic from the unreasonable risk of injury associated with these products.' This rule applies to the banned hazardous products defined in section 1304.3 and described further in section 1304.4. (c> Only consumer products are sub ject ta this regulation. Patching com pounds which are consumer products include those which a consumer can pur chase. Merely labeling a patching com pound for industrial use would not ex clude such articles from the ban. If fee sale or use of the product toy -consumers is fa&tttetett, li} 12 1 '"st to the ban. Patching campon >h are labeled as, marketed, and - - i s lely far indus trial use in non-consumer environments are not subject to the baa. In addition to those products v/hich can be said directly to consumers, fee ban applies to patching compounds containing respirable free form asbestos which are used to resi dences, schools,'hospitals, public build ings or other areas where consumers have customary access. 134.2 Purpose. The purpose of tills rule is to ban con sumer patching compounds containing intentionally added respirable, free-form asbestos. These products present an un reasonable risk of injury due to inhala tion of fibers which increase the risk of developing cancer, including lung cancer and mesothelioma, diseases which have been demonstrated to be caused by expo sure to asbestos fibers, g 1394-3 Befinhi'oms. (a) The definitions in -section 3 of the Consumer Product Safety Act (15 U.S.C. 2052) apply to this Part 1304. (to) "Asbestos" means a group of min eral fibers composed of hydrated sili cates, oxygen, hydrogen, and o tter ele ments such as sodium, iron, magnesium, and calcium in diverse combinations and are: Amoslte, chrysotiie, crocidolite, anthophyllite asbestos, actinolite asbes tos, and tremoiite asbestos. (c) "Free-form. asbestos" is that,which is not bound, -or otherwise "locked-in" to a product by resins or other bonding agents, or which can readily become air borne with any reasonably foreseeable use. (d> "Patching compounds" are mix tures of talc, pigments, clays, casein, ground marble, mica or ether similar materials and a binding material such as asbestos which are sold in. a dry form ready to be- mixed with water, or such combinations in ready-mix paste form. '(e) "Consumer patching compounds" are those that are customarily produced or distributed for sals t t or for the per sonal use, consumption or enjoyment of consumers in or around a permanent or temporary household or residence, a school, in recreation or otherwise. The Commission considers that patching compounds for application in these con sumer environments are- either distrib uted for sale to or are for the persona! use or enjoyment of consumers. (} "Intentionally-added asbestos" is asbestos which is (1) added deliberately as an ingredient intended to impart spe cific characteristics; or, (2) contained in the final product as the result of know ingly using a raw materia! containing asbestos. Whenever a manufacturer finds out that the finished product 'contains asbestos, the manufacturer will be con sidered as knowingly using a raw mate rial containing asbestos, unless fee manufacturer takes steps to reduce the asbestos to- the me ximum extent feasible. (g) "initial introSurer n into com merce" occurs when the manufacturer ships a product coverto cj mis regula tion from a facility of fee manufacturer to a distributor, rate lie:, or user. ' i pgsEsM gstsree, vat. *, no. 24t--thubsi*.*, becsmbs}! is, n r r RULES AMD REGULATIONS 63368 1804.4 Consumer patching compounds as harmed hazardous products. On the basis that airborne asbestos fibers present the hazards of cancer, in cluding lung cancer and mesothelioma to the public, consumer patching com pounds containing intentionally-added, respirable free-form. asbestos, which have been manufactured or initially in troduced into commerce after January Ii3, 1978, are banned hazardous products. In addition, all other consumer patching compounds containing intentionallyadded, respirable free-form asbestos, no m atter when manufactured or initially introduced into commerce, are banned hazardous products after June 11, 1878. 1304.5 Findings. - (a) The degree and natureof the risk of injury. The Commission finds that the risk of injury which this regulation is designed to eliminate or reduce is from cancer, including lung cancer and mesothelioma. In assessing the degree and nature., of the risk of injury to consumers, the Commission Iras reviewed experimental data and human experience information. The Com mission noted that in the. scientific literature, there is general agreement th at there is no known threshold level below which exposure to respirable free form asbestos would be considered safe. Further on the basis of such scientific opinion, it appears to the Commission th at children are particularly vulnerable to carcinogens because of their longer potential lifetime and their rapid rate of growth. In. areas of the country where asbestos may not be prevalent in the en vironment, the major risk of exposure for children and others may occur in the household. In areas of the country where more asbestos fibers are present in the environment, the public is exposed to ad ditional risks from the presence of as bestos fibers in .households arid other consumer environments, the Commission concluded on the basis of these factors th at consumer patching compounds con taining respirable free-form asbestos present an unreasonable risk of injury to the public. In addition, a risk assessment was made. For purposes of this assess ment, the Commission considered the use of patching compounds by the consumer, for six hours a day four times a year, to be a high yet reasonably foreseeable ex posure. The increased risk of death from, respiratory cancer induced by this ex posure is estimated at between 10 and 2,000 per million. For five years of ex posure at these levels, the risk increases geometrically and is estimated at be tween 1,000 and 12,000 per million. The lower estimate of 10 per million is closer to the actual risk for a one-year ex posure. Nevertheless, in view of the seri ousness of the injury and the cumulative effects of asbestos exposure, even this minimum figure represents an unaccept able risk. The Commission believes that reducing exposure to respirable -free form asbestos in the home represents a substantial decrease in risk to consumers, since, for .many people, the major ex posure to inhalable asbestos is in the home. (b) Products subject to the ban. Con sumer patching compounds as defined in s 1034.3 Cd), Ce>, (f) include such prod ucts as drj'wall spackling compounds and tape joint compounds (commonly known as "joint cement" or "tape joint mud") . of asbestos formulations) are affected by the 10-25 percent increase. The burden of this cost is expected to fall directly on owners of existing hemes who may engage in some renovation, and on pur chasers of newly-renovated or newlyconstructed homes. These increased costs are expected to diminish over time as The Commission estimates annual ship formulations improve and as applicatorsments of patching compounds subject to become more accustomed to using non- the ban at approximately 30-50 million asbestos formulations. The use of asbes "units," or individual packages, of vari tos substitutes may also lead to cost In ous sises from 0.5 to 25 pounds (dry) or 0.5 to 5 gallons (wet). The Commis sion believes that about half the patch ing compounds sold, in 1977. and intended for sale to or use or enjoyment fcy con sumers, were formulated with asbestos. Many others containing significant levels creases in the manufacture ox patching compounds. The Commission estimates this cost, which may vary widely from firm to firm, at an average of 5-15 per cent. This is made up primarily of in creased costs of raw materials and of formulation research and development. of asbestos contamination will also be It is expected that the price of many affected by the ban. patching compounds may rise as a result. (c) Need of the public for the -products and effects of the rule on their utility, cost and availability. Patching com pounds, though used primarily by com mercial construction workers, are also 'used by consumers, and ars used for the patching and sealing of cracks and joints in and around the household and in other consumer environments either by consumers or professional applicators. The compounds are used to cover areas on gypsum drywall which might other wise be aesthetically undesirable or which might lead to structural damage, energy loss or lower property value. T he. asbestos in these compounds acts as a structural reinforcing agent which helps to reduce cracking and shrinkage of the compound over time, and which renders the compound more pliable or "work able" upon application. (1) Utility. Ths elimination of asbestos from these products may result in the increased use or new development of substitutes which have similar proper ties to those of asbestos, or .which impart similar qualities to the product. In cur rent reformulations, asbestos is replaced by a combination of substances, of which the most common is attapulgite, a fibrous clay. Some non-asbestos formulations are reportedly not as effective as those containing asbestos in controlling shrinkage and cracking over time. The workability of some compounds may be diminished as well. This may adversely affect the utility derived ,from the prod uct by consumers, and by professional contractors until such time as improved formulations sirs developed and available to end-users. (2) Cost. Asbestos-free patching com pound formulations may require more time to use. This would tend to increase the direct labor costs of residential and other construction and renovation. The expected increase is between 10 and 25 percent. The Commission estimates that the annual labor cost of drywall finishing in these consumer environments is on the order of $1 billion. The use of non asbestos patching compound formula tions in all applications may increase this cost by $50-$125 million, assuming that roughly half the current labor costs (i.e., th a t portion, now associated with the use Producers, distributors, and retailers of patching compounds may also have to incur costs associated with the disposal of products in inventory. The Commis sion estimates that the wholesale value of manufacturers' and distributors' in ventories at the time the ban becomes effective will be approximately $15 mil lion. These costs may be reflected in the prices charged for asbestos-free patching compound formulations, and in the prices of other drywall and paint prod ucts. It appears that, because of com petitive pressure from asbestes-eontaining compounds, producers of asbestosfree formulations have not yet passed on to purchasers their increased costs. If the increased production costs of as bestos-free formulations can be passed on completely as a result of the ban, the total annual price effect for the year fol lowing the issuar.se of ths ban may be $10-$80 million. The magnitude of this effect may be reduced significantly in successive years following the issuance of the ban as producers' development costs are amortized, as raw materials become more widely available, and as price com petition is strengt hened because of m ar ket pressure and economies of scale as sociated with production.' (3) Availability. The supply of asbes tos substitutes, particularly attapulgite clay and relatively uneontaminated talo, -for use in the manufacture of patching compounds may be insufficient to meet the short-run demand which is expected to be stimulated icy the promulgation of the ban. Farther, many small producers probably lack the technical capability to reformulate their products, and may be forced to cease production, at least until formulations of satisfactory cost- and performance are developed. This may affect some professional contractors. In the short run, consumera may be in directly affected by delays in drywall finishing and building completion. (d) Any means of achieving the ob jective of the ban while minimizing ad verse effects on competition or disruption or dislocation of manufacturing and oth er commercial practices consistent with the public health and safety. The ad verse effects of the ban on patching com pounds containing asbestos is reduced by FEDERAI REGISTER, VOL. 42, NO. 241-- -THURSDAY, DECEMBER 15, 1977 63364 RULES AMD REGULATIONS limiting Hie ban to intentionally added asbestos. Other alternatives such as limiting the scope of the ban only..to products purchased and used by con sumers or to issuing a ban. with a later effective date, were considered by the Commission, However, none was found that would, cause less disruption or dis location of manufacturing and other commenai .practices, consistent with public health-and safety. Conclusion. The Commission finds that this rule, including its effective date is reasonably necessary to eliminate or reduce the unreasonable risk of injury from cancers such as lung cancer and mesothelioma the t are associated with the banned produvlfs described herein, that no feasible eoiuisaer product safety standard under the Consumer Product Safe1:' /tot j adequately protect the put tir v ii i s risk, and that promulgatfcr. of f' ,w rule Is in the public interest. PART l.SSS~~SAM OF ARTIFiCiAL EMBER KS MATERIALS CASH AND EMBERS) COKTAiiKIMiS RESPIRABLE FREE-FORM AssihESTCfS Ss:. 18.S5,' 18053 150E * 13' i s ias;r toa|J<? si d srpLioE-uai'.. Purpose, tisS isU h .Js. A.-T"actB. fit-y la c . tew and embers s* beam f . s froducte, o i r . r iT r. `-4b s, t 0.1t o , , Pub, I,. 89- m z PS r ffi >5,3. i Si-aS#.; 86 StS.t. 121f -IT I,, v l i . i s ' 5 <?;-; SOB (15 TJ.S.O. 20E" 2"'m . gI t f - . l o -<1,0, - , . hr tf l: Fs.n 1515 i.u r m 1 mer Prod uct i-tris Courts ictoi, vchres that arris/, j! .neivnsus (ash and ember..* co.itoming respirable tree-form, asvnto- gfei1 -an? p.< fcseod m an era- berirz-g t i t L s u-e to fireplaces, and de;i'gr('-d for use to safe a manner that the astorios s-her? c-.u. become airborne u rre i reason-, o': ;u*vto5ehble conditions of u v re t-i*ane:l hsr&rioua product? under sections 8 ana l of the Consumer Product Safecr- Act (CFSA) <15 'U.8.C. 2057 and 205" This ban applies to arti ficial embenctos materials available in separata k.to or wish artificial fireplace togs for use in fireplaces and sprinkled or coated by consumers on the artificial toga to simulate live embers and ash.es and give a glowing appearance when subjected to high temperatures. Bags of material containing asbestos that are sold separately to be sprinkled on ana under artificial logs to simulate burning' and glowing ashes also come within the scope of this ban. | 1305.2 Purpose. __ The purpose of this role Is to ban arti ficial emberizing materials containing respirable free-form. asbestos. These products present an unreasonable risk of injury due to inhalation of fibers which in c r e a s e th e risk o f developing c&ncers such as lung cancer and mesothelioma, diseases which have been demonstrated to be caused by exposure to asbestos fibers. | 1305.3 Definitions. (a,)' The definitions in section 3 of the Consumer Product Safety Act <15 U.S.C. 2052) apply to this Part 1305. (b) "Asbestos" means a group of min eral fibers, composed of hydrated silicates, oxygen, hydrogen and other elements such as sodium, iron, magnesium and cal cium in diverse combinations and are: Amosite, chrysotile, crocidolite, antho- phyllite asbestos, actinolite asbestos, and tremolite asbestos. (c) "Free-form asbestos" is th at which is not bound, woven, or otherwise "lociced-in" to a product by resins or other bonding agents, or those front which fibers can readily become airborne with any reasonably foreseeable use. id) "Emberizing materials" means an asbestos-containing material generally packed in an "emberteing" kit to be Placed under artificial logs in ga$-buming fireplace systems or in artificial fire places for decorative purposes. The prod uct is also glued to artificial togs, either at a factory or by a consumer using an emberizing kit. (Synthetic. logs manufac tured of cattulosie products which are consumed by flames are not included to this definition. Electric artificial logs and artificial ash. beds used in electric fire places, which do not contain respirable free-form asbestos are not included in this definition.) 136.5.4 AirtificKiE Slrepiaee sis and eaibers m banisned siasert-dass prod ucts. On the basis that irtrbome asbestos fibers present the hazards of cancer such, as lung cancer and mesothelioma to fee public, artificial fireplace ash ana as,abets containing respirable free-form asbestos are banned hazardous products. L36-S.S RasBeg. . (a) The degree (Utr *u'i &r4 C~*risk of injurs. The Cartavsku tonfe U nt the risk of injury ton b this j againlion is designed to dim or reduce fa from. cancer, i./tisions to ,, .sneer and meso- feslioia? i('-c,,Suue'aente are not avail able oi ia , uourui of asbestos in the air from a*ucecoi -irthtsining eisbe.rM.agL mated-- at potusr. However, it appears th at the amount of airborne asbestos to cu*,! homes would increase whan air curre/fa 4,1. tiie home are created by down- Fiaftr.frc a fireplace chimney or other activities that stir air in any roam. Sinceemberizing materials may contain up to 5 percent asbestos, which if not per manently bound into artificial fireplace logs would be to respirable form, the risk associated with emberizing materials is considerable, especially since it continues to exist 24 hours &day, <b) Products subject to the 'ban. Arti ficial emberizing materials are decorative simulated ashes or embers, used in cer tain gas-buming fireplace systems, which Blow to give the appearance of real bum lag embers. The material is sprinkles a s or glued to gas. logs, or sprinkled on fire place floors. (c> Need of the public for the prod ucts and effects of tits rule on their util ity, cost, and avtdlaMlity. Artificial fire place emberizing .material serves a strictly decorative purpose and does not materially affect the actual perform ance of the fireplace gas. system in terms of its ability to provide heat. A certain degree of aesthetic .desirability exists, however, since the product "system" it self .(the gas log, ashes, and embers) is intended to simulate burning wooden logs. Gas logs may he sold with artificial emberizing material attached at the fac tory (the log commonly referred to as being "frosted"), or with the "embers" in a separate kit, often mixed with simu lated "ashes." Virtually ail gas logs are either frosted or package:! with an em berizing kit; however, the majority of gas logs produced, in 1877 were packaged wife non-asbestos-containing emberiz ing kits. The Commission estimates annua! sales of artificial gas logs at asprojdmstely 100,90& units. Borne 25,00030,000 of these would be subject to toe baa. Approximately iOC,0OO gas logs frosted or treated by consumers with as bestos are estimated to be in existence. The Commission believes that the ma jority of gas logs are sold with emberisiag kits; this gives the consumer s choice a? to whether or not to use the artificial eehWrs and ashes. (1) '0iht%'. Manufacturers of artifi cial gsi teg e/m*eming material are cur rently using four substitutes for asbestos to their prodactB: vermktilite, rock wool, mica, and &synthetic fiber. None of the four is claimed, to be as aesthetically ef fective as asUp,toe. Thus, the utility fieuvts.1by iono-mers from some gas-buro- Bn-pu.-c cystems may be adversely affected, (2) Curt Ho effeit on the overall price level of a* tor a anticipated as a result of the tan Tuv average price of'emberising to.- ir***t rise somewhat; the Com mission frsht' res the total price effect of the l ' t i oi tonstmers at under I 2S.OO0. (Si <M raa , v. Tie Commission be lieves that ,.-i ptoaucers of artificial emherisinr m a t i r a l will have elimiaated asbestos r.a,u,, if air products by the tote fee ban Itt-ou ~.r effaettee. No significant impact on feis availability of asbestos ubstttute to producers nor on the avail ability oi pc logs or emberizing kits to retail defects and cois imers is expected as a result of the baa. (d) A m m.C2 he vf m Hesing (tie objec tive of the ban while ninirnizing adverse effects on at vuil'Ucn or disruption or dislocation of wonefa'taring and other commercial practices consistent taiih the public health and safety. The Commis sion believes th at there will be .minimal disruption to the market for artificial emberizing' material* as a consequence of the ban and that no further reduction in adverse effects is feasible. Conclusion. The Commission finds that to& rutot inetuOtas ife effective date, is F S 0 I S A I 1 8 E G 8 S 7 S E ,' V 'D S ., f f , N O , . 2 4 ! ~ - T H U e | b A V , P S C S M S 8 1 8 , %WV ttJLES AND EGULATiONS reasonably necessary to eliminate or re duce the unreasonable risk o f ' injury from cancers such as lung cancer and mesothelioma that are associated with the banned products described herein, that no feasible consumer product safety standard under the Consumer Product Safety Act can adequately protect the public from this risk, and that promul gation of this rule is in the public intsrsst. Effective Bates: Part 1304 becomes ef fective January 145,1978. Part 1306 becomes effective December is, ism. Dated: December 12,1977. Sheldom D, Burrs, Assistant Secretary, Consumer Product Safety Commission. [FH. Doc.77-35748 Filed 12-12-77;U :32 amf 8S3S5 FsBERAl REGISTER, VOl.. 42, NO'; $41-- MURS9AY, PSCEMEER 15, 1 7