Document rexnxrrNy1VJ7DJDJqBQe5qZG

H^lff / *V Qk'4-^. ij'-e;^3 (LjL-^^e- (F^Lh i^-^f u&l- `'-VO'V-J'. (jrypsrum Association Eastern Office 1120 Connecticut Avenue, N.W. Washington, D.C. 20036 Mr. W. C. Lehnert Georgia-Pacific Corp, . V- L lJ~ <L (202) 293-2646 Suite 940 November 21, 1977 Misters Gafford, Houser, Lehnert, Maddox and Marshall: Attached are a number of pages taken from a Consumer Product Safety Commission document which describe the study of "patching plaster" and the Commission's proposed ban. Action by the Commission will be delayed until after December 12, 1977. There is the same question as to whether the ban will be issued at that time as there appears to be a good deal of confusion within the Commission as to what they are going to accomplish with this proposed ban. Herb Carlsen has the entire A.T. Kearney report summary, so if more details are required, please contact Herb. Very truly yours, D.E. Brackett Eastern Manager DEB/sw V. SGP 0009386 INTRODUCTION In response to petitions filed in 1976 and 1977, the Consumer Product Safety Commission (CPSC) proposed to ban the manufacture and sale of consumer patching compounds and artificial fireplace emberizing materials containing respirable free asbestos. This proposal was published in the Federal Register on July 29, 1977. The purpose of this report is to provide information to the Commission regarding the probable economic impacts of the proposed ban and of alternati available to the Commission on certain issues. Study was initiated by Hi/Economics to examine the impacts of a potential ban in mid-1976. In the course of this study, a preliminary assessment of the ban on patching compounds was provided by A.T. Kearney, Inc. Sections III and V of that^report are attached as Appendices to this document. This report is divided into two parts: the first deals with the proposed ban on patching compounds, the second with the' proposed ban on artificial emberizing materials. SGP 0009387 SUMMARY OF MAJOR ECONOMIC IMPACTS Patching Compounds If the ban is promulgated so as to cover only intentional addition of asbestos or asbestos-containing tremolitic (i.e., fibrous) talc or other raw materials to the product, thereby permitting inadvertent asbestos contamination to be present, patching compound production by many firms will be continued. Most products now on the market would have to be reformulated to comply with the ban and significant, disruption of inventoried products in distribution would occur; the production and, sale of some compounds would be continued without reformulation and without disruption of distribution channel inventories. Other principal alternatives such as setting a minimal contamination level (e.g., one fiber per thousand particles) or prohibiting the pressure of asbestos altogether (in the rule as proposed) would have substantially greater adverse effects. Many manufacturers who do not have extensive technical reformualtion capabilities may discontinue patching compound production temporarily or permanently. Some manufacturers have claimed that they may go out of business if the ban is promulgated. There may be particularly serious effects on the cost structures and competitive posture of small businesses. 'Costs associated with reformulation, raw materials procurement, production processes, inventory obsolescence and repurchase, and product testing may increase the average cost of producing patching compounds. The average prices to consumers and professional contractors m3y also rise. The total price effect of the ban may be about $10-60 million, depending on the extent of reformulation necessary and the ability of producers to pass on cost incteases. SGP 0009388 2- - In professional uses of patching compounds, the aggregate labor cost of drywall finishing may increase for the first year by as much as $50-125 million. The effective date chosen and the way in which professional use of the product is treated will have a significant impact on the magnitude of these costs and on the degree of disruption in the construction industry. In the short run, near maximum adverse effects would accompany the proposed 30-day effective date and prohibition of the use of asbestos-containing compounds by professionals. The utility derived from the product by consumers and drywall contractors may be adversely affected; many substitute formulations are expected to have poorer performance qualities than those containing asbestos. This is likely to be noticed more by professsional applicators; most consumers, who are typically infrequent and unskilled users of the product, will probably perceive no significant difference in performance. To the extent that contractors and their employees and consumers are no longer exposed to free asbestos in patching compounds, the ban may have beneficial effects on the public health. The extent of these benefits is not known, but is expected to be fairly small. Artificial Emberizing Material The cost to manufacturers of producing some eraberizing material mixtures may increase as a result of the use of substitutes for asbestos. This may lead to slight increases in the average price of separatelysold emberizing kits. This price effect is expected to total less than $25,000 in the year following the promulgation of the ban. No effect on the overall price level of gas logs is expected, whether they are frosted, unfrosted, or packaged with eraberizing kits. Some manufacturers, distributors, and retailers have incurred and will for a period of time continue to incur costs associated with the voluntary recall of potentially banned products. These costs may total up to $20,000 for some firms. SGP 0009389 -4- PART I PATCHING COMPOUNDS Patching compounds arc mixtures of casein, clays, marble, mica, and other substances which are used to cover, seal, or mask cracks, joints, and holes in interior gypsum drywali structures, including ceilings. These may be packaged in "dry" form to be mixed with water, or in preraixed ("wet") form. The Commission's proposed definition in the Federal Register notice of July 29, 1977, which discusses the hazard associated with sanding, is interpreted to cover such products as spackling compounds (including the industry term "patching plaster") and tape joint compounds (commonly referred to as "joint cement" or "tape joint mud"). f Many of these products now use or have used asbestos as an ingredient in their formulations. Under the ban, addition of asbestos to the product would become a'prohibited act under Section 19 of the Consumer Product Safety Act. It appears that the use of constituent materials (e.g., talcs) known to contain significant levels of asbestos contamination, would also'be prohibited. Further, the ban may prohibit use of these products if they are inadvertently contaminated with asbestos above a certain minimum level. Significant amounts of naturally occurring tremolite asbestos and anthophyllite asbestos may be present in talc or other substances used in the manufacture of some patching compounds. Policy Issues This section is presented in the context of three basic issues on which the Commission has available to it policy alternatives, choices among which will have a direct bearing on the economic impact of the ban. These three sets of alternatives relate to the scope and coverage of the ban, levels of asbestos contamination in the product addressed by the ban, and the effective date of the ban. SGP 0009390 9- - Thc criterion of. one asbestos fiber per thousand particles is not based on any conclusions as to the lowest level of asbestos contamination the patching compound industry could reasonably attain. It is based on the Commission's best information on the feasibility, from a testing standpoint, of using a fiber-counting procedure as a compliance screening tool. The overall effect of the inclusion of the procedure in the ban may be to ban or bring into question most, if not all, existing patching compounds, and to cause confusion in the producing industry in the process. Virtually all patching compounds contain fibrous material, be it asbestos or some other substance. Most patching compound producers have never tested their products for asbestos contamination, although for quality control purposes, they do measure their own intentional addition of asbestos or asbestos-containing (i.e.,' labeled) talc. Inten tionally-added asbestos is generally quantified in terms: of percent content by weight; this method is not directly applicable to the detec tion and measurement of end-product contamination. It has been suggested that the lowest feasible level of contamination that manufacturers could achieve is on the order of 0.5 to 1.0 percent by weight; this would probably still allow detection of more than one true asbestos fiber per thousand particles in a sample. Even those firms with products that are labeled "asbestos-free" may have to change their formulations to reduce and compensate for unintentionally-added asbestos.* Some manufacturers are probably unaware of the possibility of truly inadvertent (i.e., raw materials) asbestos contamination. *The terras "unintentionally-added" and "contamination" imply a certain ignorance on the part of manufacturers concerning what goes into their produ.cts. This is not always the case; as mentioned previously, some talcs may contain fairly high levels of asbestos, and OSHA requires all asbestos-containing talc rained and sold to patching compound producers (or anyone else) to be labeled. Talc suppliers are thus certifying to manufacturers that they know certain kinds of talc contain asbestos. Truly inadvertent contamination of talcs or other constituent substances which arc not supposed to contian fibrous material may also occur. This is likely to appear, however, at substantially lower levels than are present in compounds to which asbestos is currently added intentionally. SGP 0009391 -10- There exists considerable uncertainty in the industry over the accuracy and reliability of the screening procedure: some industry experts believe, for example, that fibrous materials other than asbestos would be counted as asbestos under the procedure. To -the extent that this is shown to be the case from actual sampling, some compounds which may contain less than one true asbestos fibesr per thousand particles may unnecessarily be banned, or manufacturers may be obliged to perform the more sophisticated forms of analysis to determine whether their products should or should not be banned. Uncertainty also exists concerning the definitions of fibers, asbestos fibers, samples, and other technical aspects of the testing procedures which manufacturers might use. This uncertainty may lead to measurement mistakes, resulting in the inadvertent marketing of a banned product. This would involve additional testing-related costs to manufacturers or raw materials suppliers. Few firms in these industries own x-ray diffraction equipment or electron microscopes (which may cost over $50,000 and $100,000, .respectively, and require one or more trained employees to operate); the only course of action for most firms would be independent laboratory certification. I7hile there arc hundreds of laboratories across the country with optical microscopy capabilities, there appear to be only a few offering x-ray diffraction and electron microscopy services. The magnitude of these testing costs may also be significant. Manufacturers may submit an unknown, but potentially large, number of samples for testing at an estimated $50 per sample for phase-contrast optical scanning and up to $300 per sample for the full complement of analytical procedures. Manufacturers would set up their own sampling plans according to good business practice, their perceived need for safety from prosecution, etc. Some compounds or production lots may be destroyed or diverted to other uses as a result; some small manufacturers have stated that they would, drop patching compounds from their product lines if significant formulation testing were required. SGP 0009392 -11- Somc compounds, such as those containing no talc, may be found after testing to be below the one-fiber-per-thousand-partides level. Some firms may still decide to stop production rather than incur testing costs, or because they perceive that their products would be banned. Thus, the very existence of the screening procedure may cause significant disruptions to the producing industry to the extent that business decisions involving costs or the financial and market status of firms may be made on the basis of perceptions about the Commission's enforcement policy. The Commission could ban intentionally-added asbestos, defining intentional addition to encompass the knovm asbestos content of fibrous talc. This would eliminate the sources of significant asbestos content in patching compounds while permitting some low level of truly inadvertent contamination, which may be greater or less than one fiber per thousand particles. The remaining discussion of the economic effects of the ban is based primarily on this alternative. Effective Date The Commission has proposed a 30-day effective date for the ban on patching compounds. Several comments were received requesting more time, typically ISO days. The costs associated with reformulation tend to be inversely related to time. As mentioned above, the major portions of virtually all patching compounds formulations are quite similar; small changes in ingredient combinations and substitutions, however, arc critical to arriving at a satisfactory result. Though the basic research on asbestos-free formulations has boon performed by the large producers, many companies claim that considerable amount of time j.;; required for research and development and testing new formulations. This is especially true for come of the smaller firms whose compounds arc sold only in one or two regions of the country in which specific climatic requirements are a prime formulation consideration. The range of .estimated reformulation time requirements is &-18 months. Some manufacturers who may not be able to reformulate their products by the effective date may have, to stop production until products are reformulated satisfactorily. SGP 0009393 Some disruption o this sort may occur even i. the effective date o tl\e ban is set at 180 days. This disruption would, however, be considerabl wore widespread, particularly among small manufacturers, under a 30day effective date. A short effective date may also aggravate any potential asbestos-substitute supply shortage problems for small manufacturers. The second major effect of the ban which would vary considerably with the effective date is the effect on manufacturers', wholesalers', and retailers' inventories. As stated below, the proposed 30-day effective date may have substantial effects on certain firms' products, depending upon the treatment of the scope and coverage and contamination issues. Generally, a 30-day effective date will have greater adverse effects than a ISO-day effective date. A 180-day effective date alone would allow fdr the clearance of most inventories, even if all patching compounds were banned. The adverse effects of a 30-day effective date would be substantially mitigated by allowing professional use of asbestos-contain ing patching compounds since the major market for the product would not be disrupted by the ban. The impact on inventories of any effective date will be strongly affected by decisions concerning professional uses of patching compounds and contamination levels. Market/Industry Characteristics A summary of the characteristics of the patching compound-producing industry and the markets for the product is outlined below:* The value of shipments of patching compounds in 1976 was between $90 million and $150 million. Total 1977 shipments may be slightly higher in value. Total annual sales to end-users, including retail sales to consumers, arc estimated to be roughly $200-400 million in 1976 and in 1977. *For a more comprehensive profile, see Section III of the A.T. Kearney report entitled, "Economic Impact Assessment of the Proposed Ban of Asbestos-Containing 'Patching compounds'," attached as Appendix I. SGP 0009394 -16- and lend desirable properties to the product. Since the three largest producers in the industry (Gcorgia-l'acific, t'ationnl Gypsum, and United States Gypsum) already appear to have eliminated asbestos from their formulations, the costs associated with reformulation necessitated by the ban will be incurred primarily by the other producers. Some of the largest of the remaining firms now have asbestos-free formulations on the market. Most of the other firms in the industry, however, are small businesses which do not have asbestos-free compounds, and which lack the technical research capability that the industry leaders have used to develop asbestos-free formulations. Manufacturers will probably not need new physical plant or equipment to produce asbestos-free patching compounds. The ebsts of reformulation are thus primarily those of technical research and development, field testing, and pilot production. The largest producer reportedly spent over $1 million over a period of a few years to develop its asbestos- free formula. Other companies v.'i.th non-asbestos formulations, or in the process of developing them, report reformulation expenditures of $10,000-100,000. Some of the large manufacturers have stated that they may be able to license their asbestos-free formulations (or parts of them) to smaller firns that wish to avoid or cannot afford the expense of reformulation, if those non-asbestos formulations do not contain sufficient contamination to be banned. The projected cost of such licensing agreements to the licensees has not yet been made available to us. All manufacturers may have to assess the amount of asbestos contamina tion in their products, and incur some testing costs, cither by their own technical staffs or by outside testing laboratories. Alternatively, talc suppliers may be asked to certify that their shipments contain less than a certain percentage by weight of asbestos, as determined by the amount of talc in the final product. Testing by manufacurers may be limited if careful raw materials selections are made. Talc-containin formulations-may be altered, or discontinued in some cases, to the extent that manufacturers perceive that existing formulations would be banned. SGP 0009395 -18- It is likely that, since average retail turnover rates are relatively 61ow (stocks turn over in approximately two to six months Cor most stores), some banned products may remain in inventory whether the effective date 16 30 days or J30 days. Producers and distributors may still be able to sell their inventories to industrial users, with some delay or some reduction in price to industrial buyers to the extent that short-run finished goods supplies exceed short-run demand. In general, the shorter the effective date, the greater the adverse effect on retail inventories will bo. Effects on Competition If some of the producers of patching compounds go out of business or cease production temporarily or permanently as a result of the ban, the producing industry will become move concentrated. The overall and regional market shares of some producers may increase. This increase in concentration nay be slight nationwide; however, significant increases in regional concentration may occur, since the firms likely to be put out of production are typically specialized, serving only certain regions, with few regional competitors. The promulgation of the ban m3y also affect, for some time after the effective date, the competitive posture of some of the smaller firms which remain in the industry if their newly-reformulated compounds arc relatively less desirable from a cost or performance standpoint and if their sales are adversely affected as a result. A competitive advantage would be afforded those firms with the greatest reformulation expertise. The current competitive advantage hold by producers of asbestos-containing compounds'will tend to disappear or be reversed until such time as all formulators can develop satisfactory products that are not banned. SGP 0009396 Othec Effects -19- Some industry sources have indicated that substitute raw materials, particularly attapulgitc clay, may be in short supply in 1977 and 1973, and that current supplies may be insufficient to meet the increased demand generated by patching compound manufacturers formulating with attapulgitc for the first time. Thus, some of these firms may lose sales and profits for a period of time until supplies are sufficient to continue production. If the major manufacturers continue production of current reformulations and can raise their prices as a result of the ban (see sections on the Construction Industry and Consumers, below), those firms or their patching compound-producing divisions may enjoy slightly higher profits, at least until other firms' products are perceived by purchasers.*'to be equivalent or better in terras of price and performance. Impacts of the .Proposed Ban on the Construction Industry Cost Effects The drywall finishing industry is generally sensitive to two major factors when purchasing and using patching compounds: price and performance. Both of these factors are likely to be adversely affected by the reformulatic.. or discontinuation of compounds in order to comply with the ban. It appears that, because of competitive pressure from asbestoscontaining formulations in recent years, producers of asbestos-free formulations have not yet passed on to purchasers their increased costs of production and research. If the increased costs of making asbestosfree formulations can be passed on as a result of the ban by virtue of the fact that all producers will have to market asbestos-free formulations SGP 0009397 -21- ref inoments are made in asbestos-free formulations; however, the widespread use of non-asbestos-containing compounds can be expected to result in less efficient drywall finishing and use of the product in terms of more material needed, more sanding required, and more time spent in actually applying the compounds and waiting for them to dry. Some contracto may be prompted to add their own asbestos to the product, if the improvement in the products' performance is perceived to be substantial. This practice would present a hazard which may be greater than the one the Commission intends to reduce. There may also be an adverse effect on aesthetics, since premature shrinkage and cracking can occur. This reported inferiority of asbestosfree products may also be expected to diminish in` subsequent years as more mature reformulations are offered which cover joints, cracks, and nailheads more satisfactorily. Until such time as drywall finishers become more accustomed to using asbestos-free products, some jobs may have to be done over. Health Benefits to rrvvjall Contractors Though the proposed ban is intended to protect consumers, the main health benefit will probably accrue to drywall contractors, if the use of asbestos-containing compounds by this industry is prohibited. Drywall mechanics arc the heaviest (i.e., almost daily) users of the product. Some benefits, in the form of longer life and reduced illness, may accrue to .these workers. The possible continued practice of adding raw asbestos to patching compounds in the field may offset this benefit somewhat. Other Effects To the extent that contractors' inventories arc banned and to the extent that the availability of new asbestos-free compounds is delayed on a local basis, housing construction and renovation projects may be delayed up to several months, resulting in an inefficient allocation of construction industry resources. SGP 0009398 -21- Impacts of the Proposed Ban on Smnll Piusincs3 As noted above, most of the manufacturers and professional users of patching compounds are small businesses. Small manufacturers may be disproportionately affected by the ban. They are the firms without extensive reformulation capabilities. Their products, which may often be sold in specialized geographical regions under specialized climatic conditions, arc most likely to be affected adversely by the use of substitute for asbestos when reformulation is achieved. Smnll producers may not have comparable access to supplies of substitute raw materials, particularly attapulgite, which may be in short supply in 1977 and 1978. Small producers may also^c in a less favorable position than larger firms to pass on cost increases to contractors because of long-term contractual price agreements. These factors may afford a competitive advantage to the larger firms in the markets for the product affected by the ban. Since virtually all drywall finishing contractors are small, the impacts of the ban on this industry would be relatively uniform. The ban may have adverse effects on contractors, including possible temporary reductions in employment, if drywall finishing cannot b completed due to regional materials shortages; this could lead to overall construction delays. Impacts on Consumers Price Effects The average price of patching compounds may rise as a result of the ban. We estimate that price increases will occur to reflect, at the minimum, the "5-15 percent production cost increases. Tims, for example, a 1-gallon container of wet material, which typically retails at about $4.00, may increase in price by about $.20-.60; a 5-gallon container -- that most commonly used by drywall contractors -- which SGP 0009399 -23- typi.cally cells in retail stores for $7.00 - 10.00, may increase in price, by about $.35-1.50. Similarly, a 5-pound container of dry material, which typically retails at about $2.50, may increase in price by about $.12-.38. Some prices of consumer-market patching compounds may increase disporportionately to compensate for cost increases which cannot be passed on to the primary market of professional contractor because of contractual arrangements, etc. Prices of other paint and drywal1-rclated products (such as textured coatings, wallboard, plaster, etc.) may also rise slightly to cover cost increases or other losses associated with patching,,compoundo. If the total increase in patching compound production costs can be passed on to end-purchasers as a result of the ban, the total annual price effect for the year following the issuance of the ban may be $1060 million. The magnitude of this effect may be reduced significantly in successive years as producers' development costs are amortized, as substitute raw materials and asbsestos-free formulation technology become more widely available, and as price competition is increased because of market pressure and economics associated with full-scale production. To the extent that now construction and renovation labor costs are increased, there may be effects on the prices of new housing and renovation projects. As noted previously, the total annual direct labor cost associated with drywall finishing is around $1 billion, and the promulgation of the ban may lead to a $50-125 million increase in this cost. This would amount to an average of about $28-70 per new residential housing start in 1978, assuming a housing start rate of about 1.8 million in that year; for a 10' x 15' room, the increase may be about $5 to $10. The burden of the increased cost is expected to be spread across owners of existing homes who may engage in some renovation, and on purchaser of newly-renovated or newly-constructed homes, though indirect long term price effects may accrue to users of.affected facilities such as schools, stores, and other public buildings. SGP 0009400 Ill - 4 (c) Product Packaging "Patching compounds" are sold in a wide variety of consumer and commercial packages, Cons umer packaging is typically one gallon or less of premix ( v/et) and five pounds or less of dry mix. Often consumer packages in clud e tape and an application knife, Commercial packaging for p remi x is typically four gallon or fifty pound boxes (in a plastic bag) or five gallon or 62.5 pound pails, Commercial packaging for d ry m ix is typically 25 pound bags. (d) Related Products "Patching compounds" are inherently part of the drywall construction process. Tape joint cement, tape, and corner beads make up the drywall finishing system. 'The drywall itself is gypsum wallooard. About 13 billion square feet of gypsum wallboard were produced in 1976(2) with a manufacturer value of shipments of approximately $850 million.(3) Hanging and finishing labor for this amount of drywall would be on the order of $2.5 billion.(4) SIZE OF MARKET There are no published series of data recording prices and total sales volumes for "patching compounds." Estimates have been developed based on industry contacts. (a) Pricing Typical prices for premix at the manufacturer level are about $1.00/gallon. For dry mix, typical prices are about about $.12/pound. Consumers prices are generally much higher ranging from about $1.00 to $4.00 for half pint to 1 gallon cans. (b) Total Mar ket The annual value of "patching compound" shipments were in the range of $90 to $150 million for 1976 based on different sources and methods of estimation. Kearney's best estimate is $120 million. (2) U. S. Bureau of Mines (3) Compo site of Industry Estimates (4) R. S. Means' Estimate SGP 0009401 Ill 5 (c) Market by User Category Kearney's estimates of sales by user category are shown in the table below: Table III - 2 Estimated Percentage of Annual Sales of "Patching Compounds" By User Category User Category Consumer - ^ Dwellings Professional Remodeling Dwellings New Dwelling Commercial/Institutional Industrial Total Estimated Percentage of Sales 5% - 8% ] ) ] 10% - 22%J 42% - 55% 15% - 20% 5% - 10% . Total 19 7 fc Constr ucti Expend j tu r 28%* 41% 18% 13% 100% * Total residential remodeling expenditures. Source: A. T. Kearney, Inc. F.W. Dodge Reports By weight, the consumer represents a smaller percentage of the total of the market than by dollar sales. This is due to the consumer pattern of purchasing s.naller packages at a higher unit price. Kearney estimates that consumers purchase from 3% to 6% of total production by weight. STRUCTURE OF THE MARKET The flow of "patching compounds" from suppliers of raw materials to end users is graphically illustrated in Exhibit III-l. These stages include raw materials suppliers, patching compound manufacturers, distributors, retailers, and professional and con sumer applicators. The role of each of these groups in the market place is briefly discussed on the following pages. SGP 0009402 Ill 6 (a) Raw Materials Suppliers Raw materials used in "patching compounds" includes lime stone, mica, talc, asbestos, clays, and other minor ingredients. The raw materials are generally supplied by large companies. The percentage of their production sold to the "patching compound" manufacturers is very small compared to overall production. For instance, the Asbestos Information Association (AIA) reported to the Commission that approximately 10,000 tons of asbestos were used annually in "patching compounds." This compares to an annual U. S. consumption of 750,000 tons of asbestos. Since the AIA report, Calidria reported to the Commission on August 15, 1977 that asDestos use was significantly reduced due to the "patch ing compound" industry's increased use of asbestos substitutes. (b) "Patching Compound" Manufacturers "Patching compound" manufacturers (see Appendix G) may be described as belonging to one of three groups. 1. Independent Operations. Thirty-eight firms or divisions were identifico whose primary products include "patching compound". Many of these are "small businesses" who typically employ ten to twenty workers, have limited financial resources, and are not well prepared to conduct extensive product research and development. These firms are typically single-plant operations and usually supply a limited number of contractors. Their markets are characteristically regional due to shipping cost and limited sales force. They typically have annual sales of $1 to 2 million. 2. Drywall Manufacturers. Six firms, (Celotex, Georgia-Pacific, Grand Rapids, Kaiser, National Gypsum and U.S. Gypsum) were identified who manufactured both wall board and "patching compound". These firms are major corporations. Three of chesa firms (Georgia Pacific, National Gypsum, and U.S. Gypsum) are estimated to supply approximately half of the total "patching compound" market. Those three firms claim to have ceased .manufacturing patching compounds with intentional asbestos additions. 3. Paint Manufacturers. Four firms were identified who manufacture paint as well as "patching compounds". These companies are not generally considered "small businesses". It is estimated that "patching compound" is not a significant element of their product line. SGP 0009403  T5 Vc *Go 4 ot: 0 a i 0 U0 4J o n r. 0w TJ o < *j u4 o u0 4r>: H U M0 1 1u x: hu M H 3 0 G <0 & IA G l> > 0 *J r > c H 1 li 4 4 C. 1 U 1 > r0 kj GG 11 *-Aa-ZW0gG40:,{0Go3GO o<a0 1C-4 GubO> n. < M H> no [p ro fe s s io n a l A p p lic a tio n s fcn th* C o n su m e r E n v iro n m e n 4J G o /> cr zO o c co 4 c o u. G S< o *O0*g-4 >4wc6GWG:A*M4AUooo3wi-4:)*u*?<OuwIfO3on3Mi<.D*o3orc0Cci.lwf>fIgltjl. > 0c In d u s tria l A p p lic a tio n s OUl'yl|| u E u O G K .4 <(*.1. w aUoa <W3J .tc4fc0C74r> Z4bUoC0t<j QHu4C-4b44AwyOcyo-0.'-HOok)><, VG) VGi O 4 <oV o 4O-^ eGO' oO OO )G .GC -* > *> O &o '* <CL o c GO U c *<>40U4 14 o 4HJ IM I*. I TG) C A c0 o -cH o wO D 3 G A V) G Q Vu tGa0: Ug oac wGm ** C .* m4 co *eu4 H hox <. rGI: GC V0U( E0oC 'Mo n9. oe C <n to s H*OVOcJL VK) co -OMC0a4 ou0r*3U.*H0*(eV4A*cg n G SGP 0009404 economic impacts. The market conditions in this application segment dominate the "patching compound" market due to its size and its professional speci1ization which results in sensitivity to product characteristics. DEFINITION OF "ASBESTOS-FREE" "Asbestos-free" can be defined as eliminating intentional additions of asbestos from the product with a practically attain able "minimum contamination" permitted or it can be more strictly defined to require an "absolutely free" from asbestos "patching compound" formulation. A "minimum contaminant" formulation is feasible and workable. "Patching c-ompounds" are currently on the market which meet this requirement although the extent of asbestos contamination in these products is not known. The economic impacts associated with the interpretation of the ban are those associated with changing over and utilizing the asbestos-free formulations. An "absolutely free" asbestos requirement for "patching compounds" is li.kely to be technically and/or economically infeasible. Asbestos contamination in raw material is common according to manufacturers. Methods of identification and meiisurement of small amounts of asbestos contamination are not well established. In order to assess the economic impact of this interpretation of the ban, it appears reasonable to consider its effect as eliminating "patching compounds" from the marketplace. In the long run, completely new, currently unidentified drywall finishing "patching compounds" might be developed, or some other finishing system might be invented and accepted. Elimination of "patching compounds" used to finish drywall would result in serious economic disruption in the construction and building products markets. IMPACTS ON CONSUMERS The impacts on consumers (aside from the beneficial health effects of the elimination of asbestos) will depend primarily on the impact on professionals since the consumer, economically, is primarily a purchaser of professionally applied product rather than a personal user. SGP 0009405 V - 10 It was gen erally reported that an exped ited effort to reformulate would inc reaso the investment required ami could expose smaller compani es to serious financial losse s if unsatisfactory formulations we re rushed to the market. Alte rnatively smaller companies expre ssed concern that if they cea sed production until a satisfactory formula were developed, they would lay-off employees and possibly lo se customers to larger compet itors. Three broad conclusions follow from this analysis: 1. The cost of reformulating is a function of time available (the more time the less likelihood of losses due to unsatisfactory product). The time available is to some extent a function of size of company. Larger companies can afford to allocate more resources at one time to the reformulation project. 2. The economic consequence of the reformulation investment is closely related to size of company. The larger the company the greater the available assets and also the broader the sales base across which the cost of reformulation may be allocated. 3. It is possible that if the required date for reformulation is*less than twelve to eighteen months after pro mulgation of the ban, the large companies will have a significant advantage over their smaller competitors who have not achieved acceptable formulations. The degree of competitive advantage will vary with the amount of qnforrnulation^ time allowed.. Any reduced competition could adversely affect the consumer by permitting significant price increases. AVAILABILITY OF SUBSTITUTE MATERIALS Research indicated that companies who plan to increase their production of asbestos-free compounds, whether they are presently producing exclusively asbestos-free, both asbestos-free and asbestos containing compounds, or exclusively asbestos containing compounds, face tv/o primary raw material supply problems. 1. Judg ing of attapulgite, this fo r the rest of 1 977 12 months. from contacts with the two pr imar y producers key asbestos s ubstitut e may be in s hort supply and may no t be readily avai lable fo r 6 to 2. The other asb'esto s substitute s use d with a ttapulgite ar e more readily ava ilable but may require more than 30 days to P* ocure in quanti ty sufficient for production of new for mulations. Kc*Vf>CY NVuM V'iiv.-nl ConstiltAntS SGP 0009406 V - 14 interviews were conducted on job-sites with employees who actually used the product on a day-to-day basis. The results of these interviews were not conclusive insofar as the amount of additional labor required is con cerned. However, the following points were noted: 1. Workers paid by the hour seemed less concerned about the quality of the product than those paid by the job. 2. Contractors using mature reformulations were less dissatisfied than those using a recent reformulation. 3. Many reported that U.S. Gypsum, which reformulated during 1975, had had a great deal of difficulty with the product for an extend-ed period, out had achieved a reasonably good pro duct after a year or so. Georgia-Pacific's ini.tial reformulated shipments of asbestos-free products were similarly perceived as lass satisfactory than their asbestos formulations. / 4. Some small contractors who paid their crew by the job rather than the hour reported that they had experimented with asbestos-free products but could not tell how much extra time was required to pe-rform satisfactory work because the crew refused to use the product long enough to develop a reasonable estimate. One of these contractors suggested 25$ more labor might be required. A contractor who paid by the hour stated that his crew using an asbestos-free formulation regularly took about 25% longer, which cost about $150 more per house. Given the variety of inputs which did not yield readily quan tifiable results, Kearney attempted to estimate a range of possible cost increases which might be expected if the asbestos-free formu lations were required. 1. The increase in direct labor could not be too great or, despite the pressures to reduce, the use of asbestos, those .manu facturers which do not use asbestos would have permanently lost a significant share of the market. This statement is supported by the finding that the three largest suppliers are now manufacturing exclusively asbestos-free material. Considering a combination of factors including customer loyalty, some regional price cutting by asbestos-free manufacturers, and the concern of contractors, their customers, and their workers about the highly publicized health issues surrounding the use of asbestos, the highest reasonable estimate of increased labor would be 25%. SGP 0009407 Georgia-Pacific Corporation 900 S. W'. Fifth A venue Portland, Oregon 97204 Telephone (503) 222-5561 0 Hovaebar 29, 1977 Mr* ft. S. Byrne, Jr* Union Carblda Corporation Minina * Metals Division P.0. Box 579 Slagara Falla, Saw York 14502 Dear Bob: Please advise whoa wa night expect to receive Union Carblda'a chock to cover the carload of UfO aabaatoa returned to Slag City last August by our Marietta plant. Va would Ilka to gat this whole oattar cleared up before year-end. Thank you* Vary truly yours. Edward I*. Aasaa Purchasing Manager Gypsan Division KLAihga cc> Messrs* ft* V. Favero - Marietta Plant , D* C. CorklU - Portland (8) Mrs* G* McCrary - Marietta Plant ^r-rv~ - , Cypaim Cost Dept* - Portland (8) FOW SGP 0009408 Georgia-Fbcific intracompany memo to Dave Corkill from W. D. Brooks subiect Joint System re: Asbestos 4^ location location date Portland Dallas December 5, 1977 For your information, attached is a copy of a letter Proko sent to the trade. Apparently asbestos hasn't been banned; Proko is still selling asbestos type joint system. WDB/kb Attachment cc s Gene Burch W. D. B. i I SGP 0009409 IKi ----------. PRODUCTS v "first Vr MX. vv MX. MX. \x. .fcX '-ir MX. MX. MX. V jX. IMPORTANT NEWS BULLETIN WAItK PAINi: ond WATER PAINT SPECIALTIES S- - / August 17, 1977 Ipportant Notice Subject: The use of Asbestos in Drywall Products - is it legal or not? Much has been written and spoken by individuals, insurance companies, labor organizations and consumer advocates about the dangers and legality of the use of Asbestos in the Build ing Trades Industry; especially its use in Drywall Products both ready-mix and powder. In this bulletin we will seek to define our position as it relates to both Proko Industries, Inc. and our customers. As of the date of this bulletin the use of Asbestos in Drywall Products is legal as far as the Federal Government is concerned.. However, some states and local Municipalities hava passed laws or ordinances banning the use of Asbestos in any product. Before ordering products for your area it would be advisable to check these two areas out. If Asbestos is banned in your area, or if- a job calls for the use of a Non-Asbestos product; be sure and specify which type you need when ordering. Until recently the use of Asbestos in Drywlll Products has been under the control of the Occupational Safety and Health Act and only applied at the manufacturing plant or when mix ing on the job-site. Under the provisions of the aforemen tioned act (OSHA) , employees jcanr)ot be exposed to excessive concentrations of Ashestos.fibers over an eight hour timeweighted period. The amount in (2) fibers per cubic centi meter of air. Also, employees at the manufacturing plants and job-sites must be given annual physical examinations and periodic monitoring of the air where employees work is required. Records must be kept on these employees for thirty (30) year9. Nedless to say this in itoelf creates quite a problem. The Consumer Products Safety Commission on Friday, July 29, 1977, published in the Federal Register their intent to ban "certain patching compounds" which contain respirable freeforn Asbestos. Under article 16cfr parts 1304 & 1305 of the 7HE Pf&k COMPANY (rSlS g Manu/arturtri "FINE WATER PAINTS" General Offices .910 Wa.l s-. Dallas. Texas 752.3 428.373 SGP 0009410 J) V N* Subject: Page 2 The use of Asbestos in Drywall Products - is it legal or not? continued: aforementioned Federal Register, Part 5, they propose to ban (consumer patching compounds used to join or repair interior vails and ceilings) which would, if implemented, . mean, a total ban on Asbestos in any Drywall Product which has to be;mixed from a dry form cr any product which might - ba. sanded after' it is applied.. Interested parties are in vited to submit in writing, on or before August 29, 1977, their comments :to [Consumer Products Safety Commission, Washiqgton, D. C. : If, this proposed ban should become reality, Proko Industries, Inc., and all other manufacturers of Drywall Products, will : be, forced to>: discontinue the use of Asbestos in all Taping, Bedding, and. Texturing Compounds. However, if this proposed ban is implemented, and we beleive that it will be, Proko Industries has Asbestos free products available at no sac rifice in quality. If Asbestos is banned it will probably be[somewhere around January 1,,1978. No one knows whether a recall of products containing Asbestos will be a part of the order or not, but it could be. With this possibility in mind, we will begin immediately to phase out the use of Asbestos in all of our Drywall Products. We hope this bulletin, which we beleive to be as accurate as possible, helps to clarify this touchy subject. ' Sincerely, , ; - ---------- -- Proko Industries, Inc. SGP 0009411 ieorgiaFfecific & intracompany memo to Mr. W, D. Brooks from D. C. Cork!11 subiect ASBESTOS IN JOINT SYSTEM PRODUCTS location location date Dallas Reg Portland December 12 For your information, attached is a copy of the latest Consumer Products Safety Commission publication on asbestos in joint compounds. DCC:de Attach. cc: 0. E. Burch - Portland D. C. C. SGP 0009412 f 43,784 ASBESTOS BAN PROPOSAL ACTION PERIOD EXTENDED The date by which proposed rule declaring two products containing respirable free-form asbestos to be banned hazardous products must be either promulgated or withdrawn has been postponed to November 28, 1977. The period for action on the proposal was extended from September 27 by the Con sumer Product Safety Commission because the Commission needs more time to analyze the large number of technical comments received concerning the proposal. The proposed rule would ban consumer patching compounds and artificial emberizing materials (embers and ash) containing respirable free-form asbestos. Preliminary determinations of the CPSC indicated that inhalation of asbestos fibers released during the use of these products presents an unreasonable risk of some types of cancer to the consumer. The Commission also determined that these products are not adequately regulated by any other standard (42 F. R. 53970, October 4, 1977). See tf4004 I 43,785 PROBLEMS FORESEEN IN POSSIBLE LABELING RULE FOR FYROL Possible courses of action available to the Consumer Product Safety Com mission in response to recent Ames-test evidence that the flame retardant Fyrol FR-2 is mutagenic have been outlined in an October 5, 1977, briefing H 43,782 1977, Commerce Clearing House, Inc. SGP 0009413 UNITED STATES GOVERNMENT Memorandum U.S. CONSUMER PRODL . SAFETY COMMISSI WASHINGTON. D.C. 202 TO THRU m See Distribution S. John Bymgton, Chairmar^^/yT Richard E. Rapps, Secretary/'-'^'. Richard A. Danca.i-.-s, Office of the Secretary DATE: SUBJECT: Follow-Up to Commission Meeting of December 1, 1977 December 1, 1977 (All Commissioners present and voting) AG Ei IDA .IJJLLi 1. ISSUE : DECISION: ACTION : 2. ISSUE DECISION ACTION Asbestos--Final Rule on Patching Compounds and Artificial Emberizing Materials (A) Consumer Patching Compounds: Issue final ban. (B) Artificial Emberizing Materials: Issue final ban. (C) Scope of Ban on Patching Compounds: Approve scope as drafted. (D) Effective Date of Ban on Patching Compounds: 30 days for manufacture and initial introduction into interstate commerce; 180 days for all other sales. (E) Unintentional Addition of Asbestos Approve substitute language prepared by OGC as revised to read "to the maximum extent possible;" direct staff to prepare a proposal to study further a feasibly-attainable level of asbestos contamination. (F) Other Changes to FR Document: Commissioners to submit editorial changes, etc. to OGC. (G) Section 30(d) Rule: Approve with editorial changes. OGC to redraft FR document to incorporate necessary changes OS~to circulate as ballot vote item. TAC/PPP Recommendation on Scent in Lighter Fluid Concur in resolution prepared by the advisory council. OGC to draft letter to lighter fluid manufacturers for Chairman's signature. UA COVtftMMlNT MINTING Of net. I|T| 7U-S1J/U04 1-J SGP 0009414 AGENDA ITEM 3. 4. . 5. Follow-Up to Commission Meeting of December 1, 1977 (Cont.) 2. ISSUE : DECISION: ACTION : ISSUE : DECISION: ACTION : ISSUE : DECISION: ACTION : Recommendation to Accept Corrective Action Plans: Bombardier, Ltd. snov/mobiles, ID 77-50; and Mikuni American Corp. snowmobile carburetors, ID 77-51 Accept and monitor corrective action plans; do not pursue timeliness case against either company. PDCD to take appropriate action. Also, staff to coordinate with Canadian Minister of Consumer and Corporate Affairs on Bombardier case and future section 15 cases involving Canadian companies. Recommendation to Accept Corrective Action Plan: Philco Consumer Electronics Corp. color television sets, ID 77-64 Accept and monitor corrective action plan. PDCD to take appropriate action. Recommendation to Close Possible Substantial Product Hazard Case: Cutler-Hammer, Inc. circuit breakers, ID 77-63 Close the case; do not pursue timeliness case. PDCD to take appropriate action. CLOSED PORTION 6. ISSUE : DECISION: ACTION : Freedom of Information Appeal from the Aluminum Association Deny appeal. OS to take appropriate action. Distribution Chairman Byington Commissioner Franklin Commissioner Pittle Executive Director Deputy Executive Director Associate Executive Directors Office Heads FO for distribution to Area Offices SGP 0009415 \jrypsum .Association Mr. c. *r. Uhnett, Gypaum Dlv** Georgia-Pacific - Tigard. Ora* 1603 Orrington Ave., Suite 1210 Evanston, Illinois 60201 (312) 491-1744 IT 7 December 27, 1977 TO ALL MEMBERS OF THE MANUFACTURING & MINING COMMITTEE Subject: Consumer Product Safety Commission Asbestos Patching Compound Can Effective January 16, 1978 Gentlemen: The attached December 15, 1977, Federal Register covers the Consumer Product Safety Commission's final rules for consumer patching compounds containing respirable, free-form asbestos effective January 16, 1978. Page 63363 of the Register, 1304.5 (b), specifies that consumer patching coumpound include drywall spackling and tape joint compounds. files. This material is forwarded for your information and Very truly yours GYPSUM ASSOCIATION FJR:mf Attachments Technical Committee F. J. Rogers Secretary ... ... - .. SGP 0009416 GeorgiaJfecffic. route slip LOCATION ^ ATTN: p/? /z#s>a/ f jdckTT PLEASE HANDLE TO CONCLUSION Q READ ANO GIVE ME YOUR COMMENT) O PLEASE REAOANO RETURN DATE FROM FOR YOUR FILES Q FOR YOUR APPROVAL 0 PER YOUR REQUEST GP02 SGP 0009417 THURSDAY, DECEMBER 15, 1977 PART III 0 0 /#?>? CONSUMER PRODUCT SAFETY COMMISSION CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZING MATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Banned Hazardous Products SGP 0009418 63354 RULES ANO REGULATIONS [6355-01] Title 16--Commercial Practices CHAPTER It--CONSUMER PRODUCT SAFETY COMMISSION auBCHAIIJPUTTCTRY aA--CTCMOONSUULMAETSIONPRSOOUCT PART 1145--REGULATION OP PRODUCTS SUBJECT TO OTHER ACTS UNDER THE CONSUMER PRODUCT SAFETY ACT Consumer Patching Compounds and Artifi cial Emberizlng Materials (Embers and Ash) Containing Respirable Frae-Form Asbestos AGENCY: Consumer Product Safety Commission. ACTION: Pinal rules. SUMMARY: The Commission Issues final rules determining that It Is In the public interest to regulate consumer patching compounds and artificial emberizlng 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 that It is In the public Interest to do so. EFFECTIVE DATES: For consumer patching compounds containing respi rable. free-form asbestos, this rule be comes effective on January 18.1978. For artificial emberizlng materials (embers and ash) containing respirable free-form asbestos, this rule becomes effective De cember 19,1977. FOR FURTHER INFORMATION CON TACT: Charles M. Jacobson, Compliance and Enforcement Regulatory Management Division, Consumer Product Safety Commission, Washington, D.C. 20207. 301-492-8400. SUPPLEMENTARY INFORMATION: Backosouhs On July 29, 1977, by publication of a notice In the Fzdxxal Rigistzr (42 Fit 38782), the Commission proposed a rule under section 30(d) of the Consumer Product Safety Act (CPSA) (18 UJ9.C. 2079(d)) as amended, that It is In the public Interest to regulate consumer patching compounds and artificial em berizlng materials (embers and ash) containing respirable free-form asbestos under the CPSA rather than under the Federal Hazardous Substances Act (FHSA), (15 UJ9.C. 1281-1274). Section 30(d) reads: A risk of Injur; which Is associated with a .consumer product and which could be eliminated or reduced to a sundent extent under the Federal Hasardoua Substances Act may be regulated under the CPSA only If the Commission by rule finds thst it Is In the pubUc Interest to regulate such risk of Injury under {the CPSA.] Also on July 29.1977, the Commission proposed In the Fkdbbal Rsoistxx (42 FR 38783) a regulation under the CPSA that would declare as banned hazardous products, consumer patching compounds and artificial emberizlng materials (em bers and ash) containing respirable free form asbestos. The Commission's reasons in the pro posed section 30(d) rule for proceeding under the CPSA rather than the FHSA are: 1. The rulemaking proceedings for 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 (5 UJS.C. 563), and are Informal and nonadversarlal In 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. 3. The Commission believes that civil penalty provisions available under the CPSA against persons who knowingly violate the CPSA may provide additional Incentive for compliance under the CPSA. The FHSA does not provide the remedy of civil penalties. Comixirrs No comments were received by the Commission which deal directly with the proposed section 30(d) rule. In com ments on the 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 that 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 that regu lation under CPSA would preclude man dated repurchase of 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. In the matter of artificial emberizlng 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 that for the health and safety of con sumers, it Is In the public Interest to regulate consumer patching compounds and artificial emberizlng materials con taining respirable free-form asbestos under the CPSA rather than the FHSA. Therefore, pursuant to section 30(d) of the CPSA. Pub. L. 92-573. 88 8tat. 1231. as amended, 90 Stat. 510, 15 VJB.C. 2079(d), the Commission amends Title 16. Chapter n. Subchapter B. by adding new II 1145.4 and 1145.5. 6 1145.4 Consumer patching compound* containing respirable free-form as bestos) risk of cancer associated with inhalation of asbestos fibers. (a) The Commission finds that It Is 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 (FHSA) because of the desirability of avoiding, possibly lengthy resource consuming. inefficient rulemaking pro ceedings under the FHSA and because of the availability of civil penalties under the CPSA for knowing noncomplianoe. (b) Therefore, consumer patching compounds containing respirable free form asbestos are regulated under CPSA. S 1145.5 Emberising materials (ember* , and ash) containing respirable free, form asbestos) risk of cancer asso ciated with inhalation of asbestos fibers. (a) The Commission finds .that it is In the public interest to regulate the risk of cancer associated with inhalation of asbestos fibers from artificial emberizlng 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 possibly lengthy, resource-consuming, Inefficient rulemak ing proceedings under the FHSA, and because of the availability of civil pen alties under the CPSA for knowing noncompliance. (b) Therefore, artificial emberizlng materials (embers and ash) containing respirable free-form asbestos are reg ulated under the CPSA. Effective dates: Section 1145.4 be comes effective January 16,1978. Section 1145.5 becomes effective December 15. 1977. (See. 30(d), Pub. L 92-873. 88 Stet. 1231 u emended, 90 Stat. 510 (15 UJ8.C. 2019 (<))) Dated: December 12.1977. Shsldon D. Bum. Assistant Secretary, Consumer Product Safety Commission. (PR Doc.77-36744 Filed 12-13-77:11:32 un| t [6355-01 ] CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZING MATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Establishment At Banned Hazardous Products AGENCY: Consumer Product Safely Commission. FEDERAL REOISTtR. VOL 42. NO. 241--THURSDAY, DECEMREI 15. 1977 SGP 0009419 RULES AND REGULATIONS 63355 ACTION: Flnsl rules. gXjMMARY-. In this document the Com mission declares that the following prod ucts containing respirable free-form 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 emberizlng materials (embers and ash) used in fireplaces to simulate live embers and ash (ordinary air currents in the house hold move asbestos fibers that 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-form asbestos, the regulation is sued below at section 1304. applies to products manufactured or initially introdil.uiscaeJd into scaowmmmaezYrciae moin .TJoanniluflayVry t1R8w; 1978, or after that date. For all other consumer patching compounds contain ing respirable free-form asbestos, ho matter when manufactured or initially On July 29, 1977, by publication of a notice in the Pxdxxal Rsorsm (42 PR 38782), the commission also proposed a rule finding that it is in the public in terest to regulate consumer patching compounds and artificial emberlzing ma terials containing respirable free-form asbestos under the Consumer Product Safety Act (CP8A) rather than under the Federal Hazardous Substances Act (PHSA). Section 30(d) of the CPSA (IS UJB.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 PHSA. The Commission issues this rule else where in the Pzdixai. Racism. 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 Commission an August 15. 1977. Views on .th.e..bans are d..iscussed. >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 information available to the Commission indicated that 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 that it was Inanpropriate to cite a recent case, ("D8A v. Anaconda Co, et al," Mlsc. at secUon l304 aPPlle. OT June l2 1878,.'/Omcistosbioenr 4e,x1t9e7n7de(4d2 PuRnti5l39N7o0v),etmhbeeCr o2m8-, and after that date. (2) For artificial em- 1977. time in which it must either berlzlng materials containing respirable free-form asbestos, the regulation issued below at section 1305 applies to products in commerce on December 15, 1977, or after that date. publish a consumer product safety rule or withdraw the proposals to ban. This date was further extended until Decem ber 12, 1077, by notice published in the Fcozkal Rioistxz on November 29, 1977 No. 77-9024, (DD.C.) June 18. 1977) which indicates that the presence of a product In a consumer environment can help decide whether that product is a consumer product under the CPSA. Therefore, the commenter urges "the Commission in its final regulation to de lete" the paragraph on "Anaconda" case FOR FURTHER INFORMATION CON (42 PR 80752). in order to "avoid the creation of an un TACTS Charles M. Jacobson, Consumer Prod uct Safety Commission, Compliance and Enforcement Regulatory Manage ment Division, Washington, D.C. 20207, 301-492-8400. CoimxMis on Pzoposal Oral views on the proposal were pre sented by 7 persons on August 15, 1977 with 3 representing consumer groups and 4 representing manufacturers. In addi tion, the Commission received 30 writ necessary conflict * within the reg ulation Itself." In response to this comment, the Com mission notes that the paragraph which cites the case in question is not in the proposed regulation but in that part of the preamble which explains the regu SUPPLEMENTARY INFORMATION: ten comments which represented 17 lation. Ifc the preamble, the Commission Background On July 29, 1977, by publication of a notice in the Fxdzial Rxoism (42 FR 38783), the Commission proposed rules to 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 corn- 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. declare that consumer patching com pounds and artificial emberlzlng materi als (embers and ash) containing respira menters who expressed support for the ban were 5 manufacturers of patching compounds. 3 federal agencies and 2 pub- The term "consumer product" means any article, or component part thereof, produced or distributed (1) tor sale to a consumer for ble free-form asbestos, are banned haz lio Interest groups. use In or around a permanent or temporary ardous products under the Consumer The significant issues raised by the household or residence, a school, in recrea Product Safety Act (CPSA). These rules were proposed because the Commission preliminarily determined that an unrea sonable risk of injury of certain types of cancer, such as mesothelioma and lung cancer, is associated with lnhalable as bestos found in these products. The in formation on which the Commission's preliminary determination was based is set 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 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 tor 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 that patching compounds for application in these consumer en tion, or otherwise, or (U) for the personal use, consumption or enjoyment of a con sumer In or around a permanent, or tempo rary household or residence, a. school, in recreation, or otherwlee; 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, by themselves, afford sufficient authority for Commission Jurisdiction over the defined product and its use in consumer environments. It ap in this preamble for convenience. Num vironments are either distributed for sale pears to the Commission that the defini bers 51 and over refer to additional lnfor- to consumers or are for the personal use tion of consumer patching compound in mation considered in issuing this rule. or enjoyment of consumers. Moreover, the proposal falls within section 3(a) (1) KDIRAl RfOISTU, VOL 4, NO. 241--THURSDAY, DKiMRIR IS, 19TT SGP 0009420 63355 RULES AND REGULATIONS of the CPSA and that the "Anaconda" Occupational Safety and Health Ad to amend the definition of patching case underscore* the definition. ministration of the Department of tabor compound at 1 1304.3(d). In order to minimize any confusion, (OSHA) and, since the consumer part 4. Asbestos terminology for both prod a new subsection (c) has been added to of his business is small, the ban should uct*. (a) In discussing the proposed defi 1 1304.1 Scope and Application, to show not apply to compounds for commercial nition of "asbestos," a writer from a the coverage permitted by the CPSA. and industrial use. chemical research and development cen That subsection reads: As Is indicated herein, any patching ter states that "silica" Is a chemical com (c) Only consumer products are subject compound containing respirable free pound and aa a compound is not a com to this regulation. Patching compounds form asbestos that consumers have ac ponent of asbestos. He suggests that the which are consumer products ars those which s consumer can purchase. Merely labeling a patching compound lor Industrial use would not exclude such articles from the ban. If the sale or use of the product by consumers Is facilitated. It Is subject to the ban. Patching compounds which are labeled cess to In consumer environments or may purchase would be subject to the ban. Therefore, such products, although they may be for Industrial/commerclal use. are also considered to be consumer products. word "silicon" be used to denote that It is a single element which is present in asbestos. The Commission concurs that the term "silica" should not be used, but ra ther it should be "silicates," since asbes as. marketed, and sold solely for industrial use in non-consumer environments are not subject to the ban. In addition to those prod ucts which can be sold directly to consumers, the ban applies to patching compounds con taining respirable free-form asbestos whloh On the subject of regulation of these products by OSHA, the Commission notes that section 31 of the CP8A provides that the Commission shall have no authority to regulate any risk of injury associated tos is a generic term used to describe a number of naturally-occurring hydrated mineral silicates. Therefore, the word "silica" is deleted from the definition of asbestos in It 1304.3(b) and 1305.2(b) an used In residences, schools, hospitals, with a consumer product if such risk below and the term `Jhydrated silicates" publlo buildings or other arses when con could be eliminated or reduced to a suffi is substituted therefor. sumers have customary access. cient extent by actions taken under the (b> A public interest group takes Is It' is clear from this language that use Occupational Safety and Health Act of sue with the definition of asbestos used of patching compounds in consumer en 1070. Under that Act, OSHA has Issued in the proposal and urges the Commis vironments determines their status as regulations which specify the airborne sion to adopt a definition of asbestos consumer products, whether the patch concentrations of asbestos fibers to which proposed by OSHA in 1075. The defini ing compounds are applied profession any employee may be exposed (20 CTO tion of asbestos used in the Commission ally or by consumers. And, although the 1010.03a). However, OSHA regulation*, proposal is based on the definition used hazard may be greater for professional apply only to workplaces and not to by the Bureau of Mines (58). The com users of patching compounds because of places where consumers would use the menter believes that the OSHA proposed their repeated exposure, residual dust products themselves. Therefore, the definition could help resolve disputes from sanding during construction or Commission considers that actions to over the presence or abeence of asbestos renovation is also a hazard to consumers regulate this product which can be taken in consumer products. who may not apply the patching com under the Occupational Safety and. As the commenter pointed out, several pounds themselves (38). Health Act of 1070, cannot reduce or federal agencies with responsibilities lor (b) A manufacturer who supports the eliminate to a sufficient extent the un regulating asbestos (EPA, PDA. OSHA. ban states that he would have no way reasonable risk of injury to consumers CPSC) are working toward a uniform of policing the sale of different size con that is associated with the product Ac definition of asbestos. At a recent work tainers. Therefore, although he package* cordingly, the Commission regulates shop. July 15-20, 1077, at the National a 1-gallon size of patching compound for this product under the CPSA. Bureau of Standards on asbestos defini sale to consumers and a 8-gallon size for 3. Type of patching compound covered tion and identification problems, it was commercial-industrial use, he believes by the ban. A manufacturer of caulking, agreed that there should be a uniform the ban should apply to all sizes. sealing, glazing, adhesive and coating definition of asbestos which would be Given the availability of patching products believes the reputation of his mtneralogically correct as well as reflect compounds to consumers through most product could be adversely affected by health concerns. However, there was marketing channels, the Commission the ban. Although the Commission has clearly a lack of agreement on a defini agrees that it would be burdensome for stated that the banned product presents tion and an Interagency agreement on a manufacturers and distributors to assure a hazard because It Is mixed, sanded and definition has not yet been reached. that large sizes of patching compounds, moved about during cleanup operations; The definition which the commenter which they claim to be Industrial prod the commenter believes that the defini urges the Commission to adopt was pro ucts, are not sold to consumers. More tion of the banned product should spe posed by OSHA on October 19, 1975; it over, as noted In the preceding response, cifically exclude the above-listed prod has not yet been finalised and Is subject merely labeling a patching compound ucts because they are designed to remain to change. The OSHA proposed defini for non-consumer use would not exclude flexible and are, therefore, not gener tion reflects OSHA's concern for the such articles from the ban. Where a ally sanded. Therefore, the commenter health aspects of asbestos and is based manufacturer, distributor or retailer requests that the definition be -mended on experimental rindlngg associated with fosters or facilitates the product's sale to cover only thoee compounds, "which fiber morphology (size and shape). The to or use by consumers, the product is after drying are required to be or are Bureau of Mines also seeks to encourage considered a consumer product and 1s normally sanded to a smooth finish." uniform definition. Their definition within the scope of this ban. This com In response to this comment, the Com which was used by the Commission is ment Indicates that It may be exceed mission notes that the patching com based on mineraloglcal composition. This ingly difficult to differentiate a patching pounds subject to the ban are those that has been adopted in final form by that compound that is a consumer product contain asbestos which can be inhaled agency. from one that might be termed a prod at a result of mixing, sanding and clean The Commission has reviewed much of uct for industrial use only. Neverthe up operations. Therefore, patching ma the available data on the characteristics less, as stated in section 1304.1(c) Scope terials such as those listed by the com of asbestlform mineral fibers and their and Application, "patching compounds menter which are not sanded after nonasbestoe counterparts. From these which are labeled as, marketed, and sold application because they are intended to data, it would appear that use of the solely for Industrial use In non-oonsumer remain flexible, would be exempt if they proposed OSHA definition could also in environments are not subject to the are not available In dry, ready-to-mlx clude nonflbrous cleavage fragments and ban." form. The Commission believes It Is other particulate substances, as well as 2. Regulation of patching compounds clear that only consumer patching com other mineral fibers within the proposed by OSHA. A manufacturer of dry-wall pounds containing asbestos which can dimension range that are not asbestos Joint compounds states that the commer be inhaled when the product Is In dry fibers. While the Commission la inter- - cial and professional market for such form or being sanded are subject to the ested in arriving at an unambiguous uni compounds is already regulated by the ban and therefore declines in this case form definition of asbestos, there is not FEDMAl HKNSTM, VOL. 42, NO. 241--THURS0AY, OtCIMgCR 15, 1W SGP 0009421 RULES AND REGULATIONS 63357 yet enough evidence to base a definition of "asbestos" on fiber morphology. There fore, the Commission believes the pro posed definition should not be changed in the final rule. As circumstances war rant, the definition could be amended at a later date* ft* A$besto* contamination in patching compounds. Several manufacturers ex pressed concern that all patching com pounds would be subject to the ban rath er than only thoee compounds to which asbestos has been Intentionally added. They point out that asbestos is ubiqui tous In the environment and that traces of asbestos may be present as a contam inant In other minerals that are mined In areas of serpentine rock. One cornmentsr suggests that the Commission consider permitting patching compounds which contain such naturally occurring contaminants. Other commonters sug gest thst a percentage of asbestos con tamination by weight be permitted. The lowest percentage suggested by one cornmenter is l percent because the En vironmental Protection Agency (EPA) permits the presence of 1 percent asbes tos by weight In spray-on asbestos In sulation and fire proofing. As noted hi the proposal, the Commis sion Is aware that 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 rather than as an intentionally added substance. The suggestion that the Commission permit contamination of 1 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 presenting 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 that might be 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, that the use of ap propriate quality control measures and careful selection of raw materials can serve to minimise contamination from unintentionally added asbestos (see the Commission's economic impact state ment on file at the Office of the Secre tary). In order to emphasise that only patching compounds with clearly un avoidable traces of asbestos contamina tion will be permitted, the Commission defines "lntentlonally-added asbestos'' at 11304.3(f) of the rule below to mean asbestos which Is (1) added deliberately aa an Ingredient In tended to Impart specific characteristic*; or (3) contained In the final product aa a result ot knowingly using a raw material contain ing asbeetoa. Whenever a manufacturer flnda out that the finished product oontalna as bestos, the manufacturer will be ooneldered aa knowingly using a raw material contain ing asbestos unless the manufacturer takes steps to reduce the asbestos to the maximum extant feasible. Therefore, the baa applies only to consumer patching compounds contain ing lntentlonally-added respirable free form asbestos and will not apply to products having unavoidable trace amounts. 6. Artificial emberizing material*-- exemption from ban. A manufacturer of electrio artificial logs and electric fire places state* that although the Commis sion proposed to ban only artificial emberizlng 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, that his products, which use an artificial ash bed of vermlculite, be exempted from the ban. As the commenter noted, the Commis sion ban applies only to emberlzing ma 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 all electric logs coated with unidentified substances, or all artificial ash used in electric fireplaces, since some ot these articles could Include the banned prod uct. However, In order to clarify the mat ter for consumers as well aa producers, the Commission adds a statement to 1 1306.3(d), the definition of emberlzing materials, which reads, "electric artifi cial logs and artificial ash beds used in electric fireplaces which do not contain respirable free-form asbestos are not In cluded in this definition.'' B. Effective Gate. Six commenters dis cussed the proposed effective date of the ban ot consumer patching compounds which eras SO days after publication ot the final rule. Five manufacturers sug gested a date later than 30 days after publication. A public Interest group sug gested that the effective date be the date of publication of the final rule. (1) One commenter suggested that the Commission consider a series of effective dates for the ban on consumer patching compounds: 30 days for manufacturers, BO for distributors and 180 days for re tailers In order to clear Inventories. Several commenters believe that a 30- day effective date might prove burden some to small manufacturers because of the inventory problem. The matter of inventories was con sidered in the July 39, 1977 proposal to ban and further discussed at the public meeting of August 18,1977. The concern of those Involved to dear their existing Inventories of consumer patching com pounds containing respirable free-form asbestos was considered. Information available to the Commission Indicates that manufacturers are now maintain ing a relatively small inventory. Dis tributors report that they maintain a small inventory compared to their sales. Retailers have a much slower-moving inventory (81). The Commission considered the pos sible advene economic Impact of a 30day effective date on Inventories of man ufacturers, distributors and retailers. The Commission also considered the pos sible advene effects of exposing con sumers to lnhalable asbestos by permit ting the manufacture, distribution and sale to consumen of patching com pounds until 180 days after publication of a ban. It appean to the commission that early discontinuance of the manu facture of this product would be neces sary tat order to stop Its continuing pro liferation tat the market. On the other hand, substantial adverse economic im pacts could result from the freezing of distributors* and retailers* Inventories at an early effective date. The commission concludes therefore that the ban should become effective at two different points tat time. For manufacturers, the effec tive date should be dose to publication of the rule tat order to stop the con tinuing manufacture of the product For distributors and retailers, the effective date should be delayed to help amelio rate advene economic impacts. Therefore; the Commission declares below at 11304.4 that consumer patch ing compounds containing resplrsbis free-form asbestos . which have been manufactured or Initially introduced into commerce 30 or more days after publication of this rule are banned hazardous products. This means that a banned hazardous product having been manufactured or Initially Introduced Into commerce, retains its statue 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 dedans that all other consumer patching com pounds containing respirable free-form asbestos, no matter when manufactured or initially Introduced Into commerce, an banned hazardous product* 180 or more days after publication of this rule. (As stated below in 11304.4(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 rule, manufacturers will be pro hibited from manufacturing or shipping the product to distributors, retailers, consumers, or to others for application In consumer environments. Further, 180 days after publication of this rule, dis tributors and retailers will be prohibited from selling, offering for sale, or distrib uting,any of the described products, no matter when manufactured or Initially Introduced into commerce, to distribu tors, retailers, consumers or to others for application in consumer environments. (3) The public Interest group recom mends that the effective date of the bon DERAl REGISTER, VOL 43, NO. 341--THURSDAY, DECEMBER IS, 1977 SGP 0009422 63359 RULES AND REGULATIONS fwi ffmimu patching compounds containinf respirable tree-form asbestos be the date of publication of the final rule, as it to for artificial emberlzlng mated- The Commission proposed that the ef fective date of the ban on artificial emberizlng materials be the date of publica tion although the Administrative Proce dure Act (S UJ3.C. 553) which governs publication of consumer product safety rules, provides that a rule should be pub lished 30 days before its effective date unless the Commission finds good cause to provide otherwise. Unlike patching compounds, where exposure to asbestos fibers to most prevalent during mixing, *ding and Cleanup operations, al though the fibers may remain suspended for a considerable duration of time, as bestos fibers in emberlzlng materials can be respired as long as such materials are In the home because they are alway in dry form and ready to be moved about by ordinary household air currents. It appeared to the Commission, therefore, that these emberlzlng materials should be removed from commerce as quickly as possible and that there to good cause to have the ban effective on the date of pub lication. To assist persons who already had such materials In their homes, the Commission, on July 31, 1077, issued a press release on the impending ban which Included a Consumer Alert advising con sumers of the dangers associated with these embertoing materials and issuing instructions for their safe removal. Economic advice to the Commission indicates, in addition, that no significant adverse economic Impacts are anticipat ed as a result of the immediate effective date for embertoing materials (51). As to Indicated in the foregoing discussion, the economic Impact of a 30-day and even a 180-day effective date for patching compounds would be significant and therefore it appears that the economic Impact of an Immediate effective date would be more significant. Since no new information has been presented to show that an earlier effective date should be promulgated, the. Commission declines the suggestion of the public interest group. Therefore, the effective date of the regulation on consumer patching com pounds containing respirable free-form asbestos to 30 days after publication of this rule as to manufacture and initial Introduction into commerce and 180 days after publication as to all other units of the defined product no matter when manufactured or Initially Intro duced In commerce. C. Product rltkt and riik assessment. Several commenten discussed the Com mission's risk assessment for patching compounds and questioned other aspects of the hazard. (1) A manufacturer suggests that use by the general public or by asbestos workers to not hazardous and that the greatest hazard to to a worker during sanding operations if he also smokes. The Commission notes that while data from an epidemiological study of asbes tos insulation workers indicated there was an Increased risk of death from lung cancer among smokers. It also indicated there was also an Increased risk of death from other asbestos-related diseases, In cluding asbestosIs, among nonsmokers (17). Data also suggest that the high risk of mesotheliomas (cancers of the pleura and peritoneum) from asbestos exposure appears to be unrelated to smoking (18, 6). (3) A distributor of fireplaces and fire place equipment doubts there to a hazard associated with emberlzlng materials be cause the fibers used in embertoing ma terials are relatively large and fibers which would become airborne would be pulled up the fireplace flue. While it to true that the large asbestos fiber bundles pose little risk of inhalation, the fiber bundles release individual fibers which in turn, can break logltudinally into microscopic fibrils (57). Fibers could become airborne under normal use. In stallation, and handling conditions, as well as from room drafts. Once the fibers become airborne, they can remain sus pended over long periods of time, eventu ally settling out on items of furniture, draperies, etc., only to become airborne and available for respiration with use of these items. As long as the'frea-fonn as bestos emberlzlng material remains loose on the fireplace floor, there to a possibil ity that It could became airborne and thus respired. (3) A manufacturer states that since Commission data are based on occupa tional statistics, it is difficult to document the Commission's view, in the proposal that, "for many people the major ex posure to lnhalable asbestos to in the home." While It to true that much of the Com mission data on asbestos-related disease are based on occupational statistics, a risk assessment was made of consumer exposure to respirable asbestos to patch ing compounds during mixing, sanding and cleanup operations which estimated the Increased risk of lung cancer from such exposure In the home. A report of asbestos In consumer patching com pounds Indicated that significant levels of respirable free-form asbestos fibers were detected in rooms adjacent to that where the actual patching and sanding operations had occurred so that other household members could be exposed as well as the individual performing the patching Job (36). In many areas of the country (nonurban), there appears to be a relatively low background level of as bestos (53). Therefore, exposure in the home to asbestos fibers released from consumer products could represent the major exposure. As noted in the proposal. Dr, Paul Kotin, Johna-ManvUle, stated in a presentation before the Commission. June 0, 1077, that young children are particularly vulnerable to exposure to carcinogens and clearly their major ex posure to lnhalable asbestos would be In the home. The Commission therefore feels it to essential to minimi**, to the extent possible, exposure to respirable asbestos. (4) A commenter questions Commis sion reliance on OSHA's proposed amendment of October 0, 1075 to occu pational exposure to asbestos as the basis for the Commission proposal. The cornmenter believes that portions of the OSHA review of October 1075 are scien tifically Inaccurate. The Commission notes that most of the Information on hazards associated with Inhalation of asbestos to based on occu pational exposure. It can be said that the body of scientific literature in the OSHA proposal has already been subjected to public scrutiny. During preparation of the Commission proposal. Commission staff conferred with OSHA. As a result, the Commission proposal deleted refer ences to studies which OSHA termed to be of questionable validity. As pointed out in the Commission pro posal, there had been only one report of consumer exposure to asbestos in the scientific literature prior to the proposal. Based on the data from that study, a Commission assessment was made of the potential Increased risk of respiratory cancer associated with use of consumer patching compounds containing asbestos fibers. The Commission also bancd Its nropoeal on direct and indirect evidence of asbestos inhalation in non-occupationally exposed individuals. Including re ports from autopsy findings of asbestos fibers in lung tissues and from epidemio logical studies. (5) In essesslng the degree and nature of the risk of Injury to consumers from patching compounds, the Commission reviewed experimental data and human experience Information. In addition, on the basis of data by Rohl on exposure to asbestos during the use of consumer patching compounds (38), the commis sion's Health Sciences staff calculated an assesment of the risk which was de scribed in the proposal. The calculations were based on the application of a theo retical model similar to that described by Enterline and Henderson (11). Sev eral highly technical comments were re ceived in response to the risk assessment The significant Issues raised In these ' comments are discussed below. (a) Two commenters questioned the assumption in the risk assessment that exposure to asbestos to cumulative over the lifetime of a person, and whether intermittent exposure over several years has the same effect as If the same ex posure had taken place in a single year. In reviewing the literature on asbestos exposure, the Commission finds that as bestos fibers are unlike many chemicals and other materials which the body may metabolize and excrete. Body clearance of asbestos fibers to much less effective. They have been found not only to re main In the body but to accumulate (55). Bines the data tend to show that Inter mittent exposure can lead to cumulative buildup of asbestos fibers, it appears to the Commission that Intermittent ex posure over several years could have the same hazardous effect as if the total intermittent exposure had taken place within one year. (b) Two commenters indicated that the hazard from applying patching com pounds could differ in different circum- FIDEtAl tfOISTt*. VOL 43, NO. ?!--THUKOAY, DCCIM3W IS, 19/7 SGP 0009423 RULES AND REGULATIONS 63359 stances. They indicate that persons of differing skills may release different amounts of lnhalahle asbestos Into the 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. Hie Commission recognises as these commenters point out that some products have a smaller per centage of asbestos than those which were used for exposure data in the Com mission risk assessment. For example, one commenter submitted asbestos ex posure data from a study he conducted ytring a compound that contained a smaller amount of asbestos. Based on this commenter1* exposure data, another risk assessment was conducted. The re sults suggest that use of a patching com pound containing less asbestos may re duce but does not eliminate an excess of deaths due to exposure to asbestos in patching compounds. Hie range Is from I death per million persons exposed for the projected five yean exposure using one model and up to 336 lifetime excess cancer respiratory deaths per million persons exposed during another model (63). It shduld be noted here that while asbestos levels may vary, they do not change the fact that there la no known level below which lnhalahle asbestos may be considered safe. (c) Another commenter says that us ing a premixed compound reduces the consumer's exposure to asbestos. The commenter also thought that the Com mission's estimate of consumer exposure wee too high. Hie 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 premized compound, the exposure during the sanding and cleaning 'operations In volved would be the same as for the dry compound. 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 that contention. As stated In the proposal, therefore. It appears to the Commission that although the exposure may be high, it la a reasonably foreseeiblo exposure. D. Substitutes for asbestos. The July 23, 1877 proposal notes that substitutes for asbestos are already being used In patching compounds. One of the moat common substitutes la attapulglte, a fi brous clay. Other substitutes of a fibrous nature are woliastonita. kaollnite, seploIIte and bentonite. Several oomments 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 (68) indi cate that many mineral fibers (in addlIon 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 Johns-Manvllle Co. with environmental consultant Barry Castleman, a JohnsManvUle study Is under way to assess the potential inhalation hazard of certain naturally-occurring or man-made min eral fibers such as ceramic fibers. Ce ramic fibers are a potential substitute for artificial embertzing materials. Human exposure data to substitutes aro extremely limited. Occupational ex posure data to certain clay mineral fibers which sue 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 1977.. 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 are not fibrous such as calcium carbonlte, clay, resins and mica. For the fibrous clay minerals which may be used as asbestos substitutes such as wollastonits, kaollnite, sepiolite and bentonite, the Commission la 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 that the known risk from lnhalahle asbestos requires the banning of these products at this time. (3) A comment questions a statement In the proposal that fibrous glass could be considered a substitute for chrysotile In emberising 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-llke glass fibers, chrysotile tends to be curved, or be of curly fibers or fiber bundles, comprised of extremely smalldlamatered fibrils. However, glass fibers are similar--at least in shape--to some of the amphibole asbestos minerals. The diameter of most fibrous glass Is report edly greater than 3-6 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 consideration*. Six com menters 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 of gas fireplace logs. One patching compound manufacturer claimed that some Anns In that Indus try will go out of business should the ban be promulgated. As noted below, our studies indicate that some small producers may not .have the technical capability to reformulate their products satisfactorily or may be unable to obtain necessary raw materials by the effective date of the ban. Thus, some may cease production temporarily, until such re formulation la achieved. Some of the large manufacturers have Indicated a willingness to license their asbestos-free formulations (or parts of them) to small er firms. Two commenters discussed potential coat effects of the ban on patching compounds other than those relating to the product itself. One patching com pound producer estimated at 60 percent the Increased "workload" associated with the professional application of non asbestos 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 non asbestos formulations; It estimates an initial 10 to 26 percent average Increase as a result of switching from the former to the latter. Other costs may accrue to professional users of the produet should different application tods be needed or should some Jobe have to be redone to the relatively poor shrink- and Erackreststance of some non-asbestos formu lations. These Increased costs are ex pected to diminish 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 that attapulglte, one of the prime sub stitutes for asbestos In patching com pounds, Is In "limited supply" and that some small manufacturers may have difficulty In obtaining that material. Other industry sources have reported this same problem. The larger patching compound producers, who already have asbestos-free formulations on the mar ket, are not expected to have as much difficulty in obtaining substitute materials. Two manufacturers discussed the ban's potential advene 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 the product to help pre vent cracking when wall Joints an cov ered. However, the addition of asbestos would be tantamount to manufacture of the banned product and would thus be prohibited. It appears that at least some existing non-asbestos formulations may be less desirable, from a performance standpoint, to professional contractors; most consumer applicators are not ex- ROHM imim, VOL 42, NO. 241--THUMOAY, DICIMUt IS, 1939 SGP 0009424 63360 RULES AND REGULATIONS pected to perceive a significant (inference containing respirable free-form asbestos CPSA, provides that a rule should be in the product'* performance. are banned hazardous products under published 30 days before its effective date A* la indicated in the proposal, the section 0 of the Consumer Product unless the Commission provides other r^miMinK i* aware that economic im Safety Act wise for good cause found and published pact* of varying degree* will occur a* Scope and application. The rules apply with the rule. a result of the ban on Inhalable asbestos to the named consumer products that As described in the discussion above f^tjdning patching compounds and are customarily produced or distributed on effective date, the Commission Is con emberizlng materials containing res tor sale to or for the personal use, con cerned that ordinary household air cur pirable free-form asbestos. Also, the sumption or enjoyment of consumers in rents In homes that contain artificial Commission is aware that technology or around a household or residence, a emberizlng materials, can cause continu for producing asbestos-free patching- school. In recreation or otherwise. In ad ing exposure of consumers to the respira compound formulations Is becoming dition to those products which can be ble free-form asbestos In artificial em more generally available. The economlo sold directly to consumers, the ban ap- bers and ash. It appears to the Commis impact will tend to be reduced over time plies to the named consumer products sion, therefore, that these products as non-asbestos formulation technology which are used and enjoyed by consum should be removed from commerce as ex becomes more widespread and as exist ers, such as those used in residences, peditiously as possible In order to avoid ing recent formulations are improved by schools, hospitals, public buildings or having additional numbers of consumers manufacturers. The nature and extent other areas where consumers have cus unwittingly purchase these materials. of the effects on the Industries are dis tomary access, whether the patching The Commission finds there is good cause cussed in the Environmental and compounds are applied professionally or to issue the rule on artificial emberizlng Economic Assessments now on file In the by consumers. Only consumer products materials effective on the date of pub Office of the Secretary and were con are subject to this regulation. lication. sidered by the Commission during this Patching compounds which are con Paramos rulemaking process. F. Other comments. (1) Several corn- menters 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 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 1. CPSA Section t. 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 (l) that the product presents an unreasonable risk of injury and (2) that no feasible safety standard can ade quately protect the public from the unreasonable risk of Injury associated with mine whether further regulation is nec subject to the ban. The ban applies to the product. essary. Accordingly, the staff has begun patching compounds containing lnten- I (a) Unreasonable risk of Injury. The to develop plans for collecting such In tlonally-added respirable free-form as regulations are Intended to reduoe or formation. (2) One commenter suggested that the Commission Issue a rule that would prohibit stockpiling of the banned prod ucts. bestos sold directly to consumers and to those which are used in residences, schools, hospitals, public buildings or [eliminate the unreasonable risk of Injury to the public from cancers such as lung cancer and mesothelioma. The risk is other areas where consumers have cus associated with asbestos fibers which tomary access. are not tightly bound Into or encapsu Section 9(d) (2) of the CP8A provides that the Commission may, by notice and comment rulemaking, prohibit a manu facturer from stockpiling a product for 1 Effective dates. (1) Hie rule at Part 1304 below applies to consumer patching compounds containing respirable free form asbestos that are manufactured or lated hi the composition of a product. The health risk occurs when asbestos fibers become airborne such as by mix ing, sanding, or cleanup operations when which a consumer product safety rule Initially introduced Into commerce on using patching compounds, or by the has been promulgated. In this case, the ban on consumer patching compounds covers the manufacture and initial in troduction of products Into commerce 30 January 10,1978, or after that date. For all other consumer patching compounds containing respirable free-form asbestos, no matter when manufactured or Ini effect of ordinary household air currents on artificial emberhdng materials In fireplaces. Tests show that certain malig nancies are related to asbestiform min 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 for notice and comment rulemaking. (3) A oommenter expressed concern that the banned products be kept out tially Introduced Into commerce the rule at Part 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 rule, distributors and re- 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 PR 48295, showing "new biological evidence supporting the significance of single, short-term exposures * * One-day In of international commerce. The Commission notes that this com ment Is directed not to the proposed rule but to Its enforcement. If this matter should become a problem It would be considered In the context of enforce ment. ' ' tellers 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 Part 1305 below applies halation exposures in animal experi ments have produced an Increase In the incidence of mesothelioma." National Association of Demolition Contractors v. Environmental Protection Agency. Civ. Nos. 74-1645, 75-2078, D.C. Cir., October 13, 1977. (4) Several comments suggested edi torial changes in the proposal. These suggestions were considered and, where appropriate, have been Included herein. Dxscumow or ths Bur to artifiical emberistng materials (embers and ash) containing respirable free-form asbestos that are in commerce on De cember 16, 1977, or after that date. This prohibition applies to products in Inven tory as well as to those manufactured The Information on which the Com mission made the determination of un reasonable risk consists primarily of data on exposure of Industrial workers to respirable free-form asbestos. Infor mation on exposure of the public to In The banned product!. Parts 1304 and . on or after the effective date. halable asbestos In Individual consumer 130S declare, respectively, that consumer The Administrative Procedure Act (5 products Is limited. However, as is evi patching compounds and artificial em- UB.C. 553) which governs the matter of dent from the extensive bibliography in berising materials (embers and ash) . effective date for banning rules under the cluded herein there la general scientific RpfXAl WMSTM, VOL 42, NO. 241--THUtSPAV, PKIM9M 15, 1977 SGP 0009425 RULES AND REGULATIONS 63361 and medical Agreement that there la no known threshold level below which It Is safe for people to be exposed to respi rable tree-form asbestos. As noted In the proposal, inhalable 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 11. Enterline P., and Henderson, V.: A Model for Extrapolating to bow Levels of Asbestos Exposure. Presented at Conference on Problems of Extrapolating the Results of Laboratory Animal Data to Men and Extrapolating the Results from High Dose asbestos In the household from consumer fect on elderly or handicapped persons Level Experiments to Low Does Level Expo patching compounds and artificial em- will result from this regulation. It is in sure, Plnehurst, N.C. (March 1878). berising materials presents a great risk due to the presence In the household of persons, such as children, who may be particularly vulnerable to carcinogens. Because of the long latency period, ex the best interest of the entire public, In cluding the elderly and handicapped, that these hazards be reduced. S. CPSA Section 9(c). Section 9(c) of the CPSA requires that prior to promul 13. Enterline. P., DeCoufle, P, and Hender son, V.: Mortality in Relation to Occupa tional Exposure In the Asbeetoe Industry. J. of Occupational Medicine 14 (13): 887-803 (1873). 13. Entleknap, J. B, and Smlther, W. J.: posure to Inhalable asbestos In the home gating a consumer product safety rule Peritoneal Tumours in Asbestoets Brit. J. Ind. can be life shortening for children. The Commission notes that consumers are exposed to asbestos from sources other than the banned products. However, con sumers who are exposed to asbestos fibers from patching compounds and artificial embers and ash receive additional doses the Commission shall consider and shall make appropriate findings for inclusion In such a rule as to: (1) 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 Med. 31:30-31 (1804). 14. Environmental Defense Fund: Petition tor Action under section 13 of the CPSA against fireplace ashee and Logs Containing Asbestos. Footnote 1. May 13. 1877. 18. Fletcher, D. O.: A Mortality Study of Shipyard Workers and Pleural Plaques. Br. J. Ind. Med. 38:143-148 (1873). of asbestos and can be assumed to face to such rule; (3) the need of the public 16. Greenberg, M, and Davies, A. L.: a greater risk than persons not so ex for the consumer products subject to posed. and a greater cumulative risk than such rule, and the probable effect of If no asbestos were present In the general such rule upon the utility, cost, or avail environment. ability of such products to meet such In determining that the risk of cancers need; (4) any means of achieving the is unreasonable, the Commission con effect of the order while minimizing ad Mesothelioma Register 18878, Br. J. Ind. Med. 81:81-104 (1874). 17. Hammond, E. C.. sellkoff, I. J. and Churg. J.: Neoplasia Among Insulation Workers In the United States with Special Reference to Intra Abdominal Neoplasia. Ann. N.T. Acad. ScL 133:818-838 (1838). cludes that the degree and nature of the verse effects on competition or disruption 15. Hammond, E.O,, and Sellkoff, I. J.: Re risk of Injury and the probability that or dislocation of manufacturing and lation of Cigarette Smoking to Risk of Death the risk will result In harm outweighs the rules' effect on the products' utility, cost and availability to the consumer. (b) No feasible safety standard. The Commission Is not aware of a technically other commercial practices consistent of Asbestos Associated Disease Among Insu with the public health and safety; (5). that the rule Is reasonably necessary to eliminate or reduce ah unreasonable risk associated with such product; and (6) lation Workers In the United States, pp. 313317 International Agency for Research on Oanoer (1873). 18. Harries, P. G.: Asbestos Haaard In Naval Dockyards. Ann. Oooup. Hyg. 11:134-148 feasible procedure for removing the that the promulgation of the'rule Is In (1838). hazards of cancer from respirable free form asbestos In the named products. The Commission believes that not all patching oompounds present an unrea sonable risk of Injury to the public, only patching compounds containing respir the public interest (15 U.8.C. 2058(c)). The findings required by Section 9(c) of the act have been described generally In the preamble and are Incorporated In II 1304.8 and 13.06.8 of the rules below. 30. Hasan. JhysalM. et al: The Significance of Asbestos Exposure In the Diagnosis of Mesothelioma: A 38 year Experience from a Major Urban Hospital. Amer. Rev. Rasp. DIs. 118:731-738 (1877). 31. Huff, J. B, Hammons. A. 8, Dinger, O. A., Whltlfleld, B. L, and Ulrlokson. O. U.: able tree-form asbestos. The hazard as BnuoairaT Asbestos: An Overview. Snv. Chemicals 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 1. Anderson. H. A., Lllis. R., Dsum. 8., Flschbeln, A. 8. end 8eUkoS, I. J.: HouseholdContact Asbestos Neoplastic Bisk Ann. N.Y. Acad. 8d. 371:811-333 (137S). 2. Asbestos Information Assoc.: Informa tion from Representative of the Asbestos In Human and Animal Health 3rd Annual Con ference Proceedings. 33. IARO Working Group on the Evaluation . of the Carcinogenic Risk of Chemicals to Man. IARO Monographs on the Evaluation of the Carelnogenle Risk to Man: Asbestos. Inti Agency for Research on Cancer, 1877. able free-form asbestos Is feasible. ternational Association Conference, Ham 33. Interagency Collaborative Group on The product artificial emberhdng ma burg, Germany, 1873, June 37, 1877 memo. Environmental Carcinogens, 18th Masting, terials for ^replaces, 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 3. Borrow, If., Conston, A., Uvorneee, L. I., and Schist, N.: Mesothelioma and Its Asso ciation With Asbestos. JAMA (3): 83-87 (1337). 4. Canada. Consumer and Corporate Affairs, Consumer Standards Directorate, Product NIH. Aug. 14. 1878. 34. Jones, H. B, and Orlndon, A.: Environ mental Factors In the Origin of Cancer and Estimation of the Possible Hazard to Man. Fd. Cosmet. Toxicol. 13:381-338 (1878). 38. Lllllngton, O. A. et al: Conjugal Malig bind the fibers. It would no longer be the Safety Branch, Asbestos In Toys and nant Mesothelioma. New Eng. J. Med. 381 same product and would not give the de Modelling Materials Issue No. 3. June, 1876. (11): 883-834 (Sept. 13. 1874). sired decorative effect. In considering the dry character of the product and the fact that a safe level of exposure to res pirable free-form asbestos Is not known. It does not appear that a standard for artificial emberiztng materials contain 5. Department of Labor. Occupational Safety and Health Administration: Asbestos Dust Standard. 38 CPR 1810.83a. 6. Department of Labor. Occupational Safety and Health Administration: Occupa tional exposure to Asbestos. Notloe of Pro posed Rulemaking. PR Vol. 40, No. 187, pp. 33. McDonald. J. C.. McDonald, A. D,, Gibbs. A. W., et al: The Health of ChrysotUe Asbestos Mine and Mill Workers of Quebec. Arch. Env. Health 38:31 1874. 37. McBwen. J, Plnlayson. A., Malr, A., and Gibson, A. A. M.: Mesothelioma In Scotland. Br.Med. J.4:874-878 (1870). ing respirable free-form asbestos Is 47383-67338, (Oct. 8. 1873). 38. Mereweether, E. R. A., and Price, C. W-: feasible. 7. Department of Labor. Occupational Report on the Effects of Asbestos Dust on The Commission believes that no standard can render the defined prod ucts non-hazardous and concludes that only banning these products can ade quately protect the public from unrea Safety and Health Administration: Asbestos Dust In the Construction Industry. Pre liminary Draft: Technical Feasibility Assess ment, Speckling and DrywaU Joint Com pounds, p. 113. (1877). 8. Edge, J. R.: Asbestos Related Disease In the Lungs and Dust Suppression In Asbestos Industry. HJ1 Stationery Office, London (1830). 38. National Institute for Occupational Safety and Health: Criteria for a Recom mended Standard__ Occupational Exposure sonable risks of injury associated with Barrow m Furness Bnv. Res. 11:344-347 to Asbestos. (1873). them. (1873). 30. Newhouse, M. L., and Berry O.: The 2. CPSA Section 8(b). Section 9(b) of the CPSA, 15 UJS.C. 2058 (b>, as amended, requires the Commission to consider and 8. Rimes, p. C. and Simpson. M. J. c.: Insu lation Workers In Belfast 3. Mortality 184083. BrJ. Ind. Med. 38: 333-333 (1871). 10. gnpland. Health and Safety Rxec. Dept, Risk of Developing Mesothelioma Among Workers In an Asbestos Textile Factory. XVII International Congress on Occupation Health, Bristol, England (1876). take Into account in the promulgation of Prices and Consumer Protection. Asbestos 81. Nawhouse, M. L, and Thompson, H.: of a rule the special needs of elderly and Labeling Scheme. AprU 1873. Mesothelioma of Pleura and Peritoneum Fol- FEDERAL MOIST!R, VOL 43, NO. 341--THURSDAY, DICEMRfR IS, 1877 SGP 0009426 RULES AND REGULATIONS KsDonr* to Asbesto* In the Uwdoa Effects of Asbestos. IABG Publication No. 8, trial use in non-consumer environment* Med. 83:301 (19*S). _ pp. 389-394, Lyon, 1973. are not subject to the ban. In addition to ms. KovhouM* U-; A*bootoo la tho Work puoo ul tn* Community. Ann. Ooo. Hjg. 18: CONCLUSION those products which can be sold directly to consumers, the ban applies to patching ^SkNewhoue*. M. L,, nd Bony, O, Pro- diction* of Mortality from MeeotlieUome Tumour* in A*b**to* Factory Worksr*. Br. J. Ind. M#d. 83:147-181 (1978). 84. Newtiouss. U. L, *nd Borry O.: Asb*to* and L*rynge*l Carcinoma Inncat. 8: 818 (1973). 38. Nicholson. W. J.: Css* Study 1: As bestos The TLV Approach. N.Y. Acad. Sol. 371: 189-189 (1978). 38. Kohl, A. N,, et *1: Exposure to A*be*to* In the C*e of Consumer Speckling. Patching and Taping Compound*. Sclenoe 189:881-883 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 emberiring ma terials (embers and ash) as set forth below. Accordingly', pursuant to provisions of the Consumer Product Safety Act (sections 8 and 9, 88 8tat. 1318-17, as amended, 90 8tat 606, 15 UjS.C. 3057, 3058), new Parts 1304 and 1305 are added compounds containing respirable free form asbestos which are used In resi dences, schools, hospitals, public build ings or other areas where consumers have customary access. 8 1304.2 Purpose. The purpose of this 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 (Aug. 18.1978). 87. Sellkoff, I. J.: Asbestos and Neoplasia. Am. J. Med. 43(4): 487-498 (1987). 88. Sellkoff, I. J., and WmmnnH *. o.:III Community Effect* of Non-Occupational En vironmental Asbestos Exposure. Am. J. Pub. to Title 16, Chapter n. Subchapter B, as follows: PART 1304--BAN OF CONSUMER PATCH ING COMPOUNDS CONTAINING RESPI RABLE FREEFORM ASBESTOS 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. Health 68(0) .1888-1888 (1988). 39. 8eUkoff, I. J., Churg. J,, and Hammond. E. C.: The Ooourrenoe of Asbeetosls Among Insulation Worker* In the United State*. N.T. Acad, of Sol. 183:139-188 (1988). 40. Sellkoff, I. J, Hammond, E. O- and Churg. J.: Asbestos Exposure. Smoking, and Neoplasia. JAMA 304(3) :108-113 (1988). 41. Sellkoff, I. J, Hammond E. C- and Seldman, H.: Cancer Risk of Tnstdatlod Worker* In the United States, pp. 309-318 International Agency for Research on cancer 8*o. 1304.1 13043 18043 1804.4 13043 Scope end application. Purpose. Definitions. Consumer patching compounds ** banned basardous product*. Findings. Atmtosrrr: Sections 8, 9. 98 Btat. 13161317. as amended 90 Stat. 806,18 US.O. 3087, 3068. 8 1304.3 Definitions, (a) The definitions in section 3 of the Consumer Product Safety Act (15 UJS.C. 2052) apply to this Part 1304. (b) "Asbestos" means a group of min eral fibers composed of hydrated sili catee. oxygen, hydrogen, and other ele ments such as sodium, lion, magnesium, and calcium in diverse combinations and are: Amoslte, chrysotlle, crocldollte, (1973). S 1304.1 Scope and application, anthophylllte asbestos, aettnolite asbes 43. Sellkoff, I. J., Hammond' E. O., and Churg, J.: Carcinogenicity of Amoslte As bestos. Arch. Bnv. Health 38:188-188 (1973). 43. Sellkoff, I. J., Nicholson, w. J, and Langer, A. M.: "Asbestos Air Pollution": Arch. Environ. Health, 3d US. July 1973. 44. Sheers, O.: Effects of Asbestos In Dock yard Workers. Br. Med. J. 3:874-879 (1988). 48. Stall, P. M,, and McCHll, T.: Asbestos and Laryngeal Cardnoma. lanoet 9:418-417 (1978). 48. Stumphlus, J.: Epidemiology of Meso thelioma on Walchersn Island. Br. J. Ind. Med. 38:89-88 (1971). 47. Wagner, J. O- Sleggs, O. A, and Mar- chand P.: Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cap* Province. Brit. J. Ind. Med. 17:389-371 (1980). 48. Wagner, J. C.. et al.: The Effect* of tbs Inhalation of Asbestos In Bats. Br. d Cancsr, 39:363-380(1974). 49. Webster, I.: Asbestos and Malignancy. 8A. Med. J. 47:188-171 (1983). 60. WhltweU. F,, and Rawcllffa. B. M.: Dif fuse Malignant Pleural Mesothelioma and Asbestos Exposure. Thorax 38:833 (1971). 61. Kearney, A. T.: Economic Impact As sessment of the Proposed Ban of Asbestos Containing Patching Compounds, October 1977. 83. Bohl, A., Langer, A, and Sellkoff. I.: Environmental Asbestos Pollution Belated to (a) In this Part 1304 the Consumer Product Safety Commission declares that consumer patching compounds contain ing Intentionally-added respirable free form asbestos in such a manner that the asbestos fibers can become airborne under reasonably foreseeable conditions of use, are banned hazardous products under sections 8 and 9 of the Consumer Product Safety Act (CPSA) (18 UJ3.C. 2057 and 2058). This ban applies to patching compounds which are (1) used to cover, seal or mask cracks, Joints, holes and similar openings In the trim, walls, celling, 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 (1) 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 tos. and tremollte asbestos. (c) "Free-form asbestos" Is thatWhich Is not bound, or otherwise "locked-ln" 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 other 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 sale to 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 personal use or enjoyment of consumers. (f) "Intentionally-added asbestos" Is asbestos which Is (1) added deliberately Us* of Quarried Serpentine Bock. Sclenoe. T. CPSA would adequately protect the pub as an Ingredient Intended to Impart spe 198. pp. 1319-1833, June IT, 1977. 83. Bayard 8.: Memorandum. Bisk of Respiratory Canoer Du* to Low-Level Expo sure to Asbestos from Spackllng and Joint Taping Compounds. June 8, 1977. 84. Bayard 8.: Memorandum to File; Re sponses to Comments, October 1977. 68. Thompson, J. O- Ann. of N.T. Aoad. Sd. 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 to this regulation. Patching com cific characteristics; or, (2) contained in the final product as the result of know ingly using a raw material 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 133:198-314, 1988. pounds which are consumer products rial containing asbestos, unless the 68. Dept, of Interior, Bureau of Mine*: Se lected Silicate Minerals and their Asbestlform Varieties. 1977. 67. Harrington. J. S,, et al.: Mineral Fibers: Chemical, Physicochemical and Biological Properties. Adv. Pharmaool. Chemother. 13:391-403,1976. Include those which a consumer can pur manufacturer takes steps to reduce the chase. Merely labeling a patching com-, asbestos to the maximum extent pound for Industrial use would not ex feasible. clude such articles from the ban. If the (g) "Initial introduction Into com sale or use of the product by consumers merce" occurs when the manufacturer is facilitated. It Is subject to the ban. ships a product covered by this regula 68. Stanton. M. Dj Some Etiological Con Patching compounds which are labeled tion from a facility of the manufacturer siderations of Fiber Carcinogenesis. Biological as, marketed, and sold solely for indus to a distributor, retailer, or user. ( FfORAl MOISTtH, VOL 42, NO. 241--THUtSOAV, DfCUUM 15, 197/ SGP 0009427 RULES AND REGULATIONS 63363 $ U04.4 Conramer patching compound* aa banned haurdoua product*. 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 16,1978, are banned hazardous products. In addition, all other consumer patching compounds containing Intentionallyadded, respirable free-form asbestos, no matter when manufactured or Initially Introduced Into cdtnmerce, are banned hazardous products after June 11, 1978. 6 1304.5 Findings. (a) The degree and nature of the risk o/ 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 has reviewed experimented data and hu man experience Information. The Com mission noted that In the scientific literature, there Is general agreement that 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 that children are particularly vulnerable to carcinogens because of their longer potential lifetime and their rapid rate of growth. In areas at 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 and other consumer environments, the Commission concluded on the basis of these factors that 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. Ftor 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 lh 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 I 1034.3 (d), (e), (f) Include such prod ucts as drywall speckling compounds and tape joint compounds (commonly known as "Joint cement" or "tape Joint mud"). The Commission estimates annual ship ments of patching compounds subject to the ban at approximately 30-60 million "units," or individual packages, of vari ous sizes 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 by con sumers, were formulated with asbestos. Many others containing significant levels of asbestos contamination will also be affected by the ban. (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 are used for the patching and sealing of cracks surd 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. The asbestos in these compounds acta 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. The 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 attapulglte, 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 aa well. This may adversely affect the utility derived from the prod uct by consumers, and by professional contractors until such time as Improved formulations are 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 $50-1125 million, assuming that roughly half the current labor costs (l.e.. that portion now associated with the use 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 homes who may engage In some renovation, and on pur chasers of newly-renovated or newlyconstructedhomes. These Increased costs are expected to diminish over time as formulations Improve and as applicators become more accustomed to using non asbestos formulations. The use of asbes tos substitutes may also lead to cost In creases In the manufacture of 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. It Is expected that the price of many patching compounds may rise as a result. 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 asbestos-contain ing 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 Issuance of the ban may be $10-$60 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 strengthened because of mar ket pressure and economies of scale as sociated with production. (3) Availability. The supply of asbes tos substitutes, particularly attapulglte clay and relatively uncontaminated talc, tor use In the manufacture of patching compounds may be Insufficient to meet the short-run demand which Is expected to be stimulated by the promulgation of the ban. Further, 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, consumers 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 FfO(Al IIOISTU, VOL 47, NO. 141--THURSDAY, DiCIMICR 15, 1977 SGP 0009428 63364 RULES AND REGULATIONS umiting the ban to Intentionally added diseases which have been demonstrated or glued to gas logs, or sprinkled on fire asbestos. Other alternatives such as to be caused by exposure to asbestos place floors. nmitiny the scope ot the ban only to fibers. (c) Need of the public for the prod products purchased and used by con sumers or to issuing a ban with a later fi 1305.3 Definitions. ucts and effects of the rule on their util ity, cost, and availability. Artificial fire effective date, were considered by the (a) The definitions In section 3 of the place emberizlng material serves a Commission. However, none was found Consumer Product Safety Act (15 UJ9.C. strictly decorative purpose and does not that would cause less disruption or dis 2052) apply to this Part 1305. materially affect the actual perform location of manufacturing and other (b) "Asbestos" means a group of min ance of the fireplace gas system in terms commerlcal practices, consistent with eral fibers composed of hydrated silicates, of its ability to provide heatf A certain public health and safety. oxygen, hydrogen and other elements degree of aesthetic desirability exists, 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 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 promulga tion of this rule Is in the public interest. such as sodium. Iron, magnesium and cal however, since the product "system" it- cium In diverse combinations and are: . self (the gas log, ashes, and embers) Is Amoslte, chrysotlle, crocldollte, antho- Intended to simulate burning wooden phylllte asbestos, actlnollte asbestos, and logs. Gas logs may be sold with artificial tremollte asbestos. emberizlng material attached at the fac (c) "Free-form asbestos" Is that which tory (the log commonly, referred to as is not bound, woven, or otherwise being "frosted"), or with the "embers" "locked-ln" to a product by. resins or In a separate kit, often mixed with simu other bonding agents, or those from lated "ashes." Virtually all gas logs sue which fibers can readily become airborne either frosted or packaged with an em with any reasonably foreseeable use. berizlng kit: however, the majority ot (d) "Emberizlng materials" means an asbestos-containing material generally gas logs produced In 1977 were packaged with non-asbestos-containlng emberiz packed In an "emberizlng" kit to be lng kits. The Commission estimates PART 1309--BAN OF ARTIFICIAL EMBER- IZINO MATERIALS (ASH AND EMBERS) CONTAINING RESPIRABLE FREE FORM ASBESTOS Sec. 1306.1 1306.3 1306.3 1306.4 Scope and application. Purpose. Definitions. Artificial fireplace ash and embers as placed under artificial logs in gas-burn ing fireplace systems or in artificial fire places for decorative purposes. The prod uct Is also glued to artificial logs, either at a factory or by a consumer using an emberizlng kit. (Synthetic logs manufac tured of celluloslc products which are consumed by flames are .not Included In this definition. Electric artificial logs and annual sales of artificial gas logs at ap proximately 100,000 units. Some 25,00030,000 of these would be subject to the ban. Approximately 100,000 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 ember izlng kits; this gives the consumer a banned hazardous products. 13063 Findings. artificial ash beds used In electric fire places, which do not contain respirable choice as to whether or not to use the artificial embers and ashes. AoTHoairr: Secs. ft. ft, 30(d), Pub. L. 80673, as amended. Pub. L. B4-384; 86 Stat. free-form asbestos are not included In this definition.) (1) Utility. Manufacturers of artifi cial gas log emberizlng material are cur 1316-17. as amended, 90 Stat. 606 (16 XJB.C. 3067, 3068). 8 1305.4 Artificial fireplace ash and embers as banned hazardous prod rently using four substitutes for asbestos In their products: vermlcullte. rock wool, S 1305.1 Scope and application. In this Part 1305 the Consumer Prod uct Safety Commission declares that artificial emberizlng materials (ash and embers) containing respirable free-form asbestos generally packaged In an em berizlng kit for use In fireplaces, and designed for use In such a manner that the asbestos fibers can become airborne under reasonably foreseeable condition* of use are banned hazardous products under sections 8 and 9 of the Consumer Product Safety Act (CPSA) (15 UJ3.C. 2057 and 2058). This ban applies to arti ficial emberizlng materials available In separate kits or with artificial fireplace logs for use In fireplaces and sprinkled or coated by consumers on the artificial logs to simulate live embers and ashes and give a glowing appearance when subjected to high temperatures. Bags of material containing asbestos that are sold separately to be sprinkled on and under artificial logs to simulate burning and glowing ashes also come within the scope of this ban. ucts. On the basis that airborne asbestos fibers present the hazards of cancer such as lung cancer and mesothelioma to the public, artificial fireplace ash and embers containing respirable free-form asbestos are banned hazardous products. 6 1305.5 Findings. (a) The degree and nature of 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 meso thelioma. Measurements are not avail able of the amounts of asbestos In the air from asbestos-containing emberizlng materials In homes. However, it appears that the amount of alrbo--s asbestos in such homes would Increase when air cur rents In the home are created by downdrafts from a fireplace chimney or other activities that stir air in any room. Since emberizlng materials may contain up to 60 percent asbestos, which If not per manently bound into artificial fireplace logs would be In respirable form, the risk mica, and a synthetic fiber. None of the four Is claimed to be as aesthetically ef fective as asbestos. Thus, the utility de rived by consumers from some gas-buming fireplace systems may be adversely affected. (2) Cost. No effect on the overall price level of gas logs Is anticipated as a result of the ban. The average price of ember izlng kits may rise somewhat; the Com mission estimates the total price effect of the ban on consumers at under $25,000. (3) Availability. The Commission be lieves that all producers of artificial em berizlng material will have eliminated asbestos from their products by the time the ban becomes effective. No significant Impact on the availability of asbestos substitutes to producers nor on the avail ability of gas logs or emberizlng kits to retail dealers and consumers Is expected as a result of the ban. (d) Any means of achieving the objec tive of the ban while minimizing adverse effects on competition or disruption or dislocation ot manufacturing and other 61305.2 Purpose. The purpose of this rule Is to ban arti ficial emberizlng materials containing respirable free-form asbestos. These products present an unreasonable risk of Injury due to Inhalation of fibers which Increase the risk of developing cancers associated with emberizlng materials Is considerable, especially since it continues to exist 24 hours a day. (b) Product* subject to the ban. Arti ficial emberizlng materials are decorative simulated ashes or embers, used In cer tain gas-burning fireplace systems, which glow to give the appearance of real burn commercial practices consistent with the public health and safety. The Commis sion believes that there will be minimal disruption to the market for artificial emberizlng materials as a consequence of the ban and that no further reduction in adverse effects is feasible. Conclusion. The Commission finds that such as lung cancer and mesothelioma, ing embers. The'material is sprinkled on this rule, Including Its effective date, is FfOfRAl IMISTH, VOL 42, NO. >41--THUI$0AY, 0KEM6U 15, 1977 \ SGP 0009429 RULES AND REGULATIONS reasonably Decenary to eliminate or re duce the unreasonable risk of injury from cancers such as iung 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 publio in terest. Effective Datet: Part 1304 becomes ef fective January 16,1078. Part 130S becomes effective December 16.1077. Dated: December 13,1077. Shsloon D. Butts, Assistant Secretary. Consumer Product Safety Commission. (FR DOC.77-35746 Filed 13-12-77:11:32 *m| 63365 FEDERAL REGISTER, VOL. 42, NO. 241--THURSDAY, DECEM6ER IS. 1077 SGP 0009430  ? i THURSDAY, DECEMBER 15, 1977 4 ! PART III COMMISSION CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZING I < I MATERIALS (EMBERS } AND ASH) CONTAINING j. RESPIRABLE FREE-FORM \ ASBESTOS I Banned Hazardous Products SGP 0009431 RUUS Am RIGUIATIONS ACTION: Final rule*. On July 39. 1977. by publication of a SUMMARY: In this document the Com* mission declares that the following prodacts containing respirable free-form as bestos are banned hazardous products under the Consumer Product 8afety Act: (1) Consumer patching compounds used to loin or repair Interior walls and ceil ings (mixing of the produet before It Is applied, sanding of the product after It is dried, and cleanup after completion of the process, release asbestos fibers that in be Inhaled); and (2) artificial emberlxlng materials (embers and ash) used in fireplaces to simulate live embers and ash (ordinary air currents In the house hold move asbestos fibers that can be In haled) . The Commission Issues this ben 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. notice In the Fescau. Rsotsm (42 FR 38782). the Commission also proposed a rule finding that it is In the public In terest to regulate consumer patching compounds and artificial embericing ma terials containing respirable free-form asbestoe 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 FcoraAL Rsoisra. Tlie data In these proposals are Incorporated here in. by reference. Section 9(s) (3) of tho CPSA require* that, in addition to providing an oppor tunity for written submissions, the Commission shall provide interested EFFECTIVE DATES: (1) For consumer persons with an opportunity to make oral pafa.Mwy compounds containing respira presentations of data, views or argu ble free-form asbestos, the regulation is ments relating to proposals to ban. Oral sued below at section 1304. applies to presentations on tho bans were heard by products manufactured or initially Intro the Commission an August 19. 1977. duced fnto commerce on January 16. Views on tho bans are dlscussad below 1973. or after that gate, ror au outer under Comments on Proposal. oonsumer patching compounds contain In order to have sufficient time to re ing respirable free-form asbestos, no. >'n manufactured nr Initially Itntittrmodmucipefdi into commefrje* the rwwnlatlnn at sectloo isos atmurn on June 12. 1973. S__p_r_t___________H__.t_._ rs> For artificial emharing materials containing respirable free-form asbestos, the regulation issued below at section 1303 applies to products in commerce on December 18, 1977, or after that data. view all the responses to the banning proposal. Including lata responses, on October 4.1977 (43 FR 83970). 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 13. 1377. by notice published In the Fromax. Reams* on November 29. 1977 information available to the Commission indicated that most patching compounds for commercial/Industrial use an dis tributed In such ways that consumen have access to these products (31) 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 us*. -- 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 tha structure. He states that sines consumers have access to patching compounds containing res pirable free-form asbestos through most marketing channels, thess products can be considered consumer products under the CPSA. Thus, ha believes that It was Inappropriate to cite a recent ease, ("U.S.A. r. Anaconda Co, at *1," Mlso. No. 77-0024. (D-D.C.) June 13, 1377) which Indicates that the presence of a product In a consumer environment can help decide whether that product Is a consumer product under the CPSA. Therefore, the commenter urges "the Commission In Its final regulation to de lete" the paragraph on "Anaconda" cast FOR FURTHER INFORMATION CON (43 FR 90793). m order to "avoid the creation of an un TACT: Charles If. Jacobson. Consumer Prod uct Safety Commission. Compliance and Enforcement Regulatory Manage ment Division. Washington. D.C. 20207, 301-493-3400. SUPPLEMENTARY INFORMATION: Bscwaomm On July 39, 1977, by publication of a notice in the Fnttxx. Rtoisnm (43 PR 39793), the Commission proposed rules to declare that consumer patching com pounds and artificial emberislng materi als (embers and ash) containing respira ble tree-form asbestos, are banned haz ardous products under the Oonsumer Product Safety Act (CPSA). These rules were proposed because the Commission preliminarily determined that an unrea sonable risk of Injury of certain types 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 set forth in the proposal. The data in the proposal are Incorporated herein by reference. The bibliography of 30 refer ences cited In the proposal are repeated in this preamble for convenience. Num Coeamrrs ow Psorossx. Oral view* on the proposal warn pre sented by 7 persons on August 19. 1977 with 3 representing consumer groups and 4 representing manufacturers. In addi tion. tha Commission received 30 writ ten comments which represented 17 manufacturers and 3 distributors: 4 fed eral agendas; 3 public tntsrest groups: 2 concerned citizens: a supplier of raw materials: and a chemical research and development firm. Among the 10 cornmenten who expreseed support for tho ban wen 9'manufacturers of patching compounds. 9 federal agendas and 3 pub lic tntsrest groups. The significant issues raised by the oral and written comments am set forth below. A. Scope and definition. The proposal states that consumer patching com pounds are those that are customarily produced or distributed for sal* 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 that patching compounds for application In these consumer en vironments are either distributed for sale necessary conflict , within tha reg ulation Itself." In response to tha comment, tha Com mission notes that the paragraph which cites tha ease In question a not In the proposed regulation but In that part of the preamble which explains tha regu lation. m the preamble, the Commission cited "Anaconda" not In reliance on tha ease as a basis for regulation but to show how the ease interprets the definition of consumer peoduet at section 3(a) (1) of the CPSA which reads. The term "consumer product" mcene any article, or component part thereof, produced or distributed (I) for sal* to a consumer for use In or around a permanent or temporary household or restdsnee. a school, in rtcrac tion. or otherwise, or (U) for the pertonal use, consumption or enjoyment of a con sumer in or around a permanent, or tempo rary household or residence, a school, la 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, by themselves, afford sufficient authority for Commission jurisdiction over the defined product and Its use in consumer environments. It ap pears to the Commission that the defini bers 31 and over refer to additional infor to consumers or an for the personal use tion of consumer patching compound In mation considered in issuing this rule. or enjoyment of consumers. Moreover, tha proposal falls within section 3(a) (1) NORM Udism, VOi. 43. NO. 341--IMUBSOAT, 0K3MM9 19, it77 SGP 0009432 MASS AND REGULATIONS 63357 yet mouth evidence to tea* definition ing aebootoc. Whenever a manufacturer finds ing a relatively snail inventory. Dis of "asheitoa" on fiber morphology. There for*. the Commission believes the pro posed definition should not be chinged tn the final rule. As circumstances war out that tha finished product eonteina aebestoe. the manufacturer wut be considered ae knowingly using rw material contain ing aabeatoa unless tha manufacturer takee ctepe to reduce tbe aabeetoe to the maximum tributor* reoort that they maintain a small inventory compared to their sales. Hetollers have a much slower-moving inventory (91). rant, the definition could be amended at extent feasible. The Commission considered the pos a later date. Therefore, the ban applies only to sible adverse economic Impact of a 30- 0. Asbestos contamination in patching consumer patching compounds contain day effective d<*te on inventories of man compounds. Several manufacturers ex ing intentionally-added respirable free ufacturers. distributors and retailers. pressed concern that all patching com form asbestos and will not apply to The Commission also considered the pos pounds would be subject to the ban rath products having unavoidable trace sible adverse effects of exposing con er than only those compounds to which amounts. sumers to Inhalable asbestos by permit asbestos has been Intentionally added. 9. Artificial emberitlng materials-- ting the manufacture, distribution and They point out that asbestos is ubiaul- exemption from ban. A manufacturer of sale to consumers of patching com tous In the environment and that traces electric artificial logs and electric fire pounds until 130 days after publication of asbestos may be present as a contam places states that although the commis of a ban. It appears to the Commission inant in other minerals that are mined sion proposed to ban only artificial em- that early discontinuance of the manu tn areas of serpentine rock. One com berizmg materials containing respirable, facture of this product would be neces monter suggests that the Commission frve-form asbestos, references In the sary In order to stop Its continuing pro consider permitting patching compounds media to artificial logs and artificial fire liferation in the market. On the other which contain such naturally occurring places reflect adversely on bis business. hand, substantial adverse economic Im contaminants, other eommenters sug gest that a percentage of asbestos con tamination by weight be permitted. The Re asks, therefore, that his products, which use an artificial ash bed of vermlcullte, be exempted from the ban. pacts could result from the freezing of distributors' and retailers* inventories at an early effective date. The Commission lowest percentage suggested by one corn- menter Is 1 percent because the En vironmental Protection Agency (EPA) permits the presence of 1 percent asbes tos by weight in spray-on asbestos in- ItllAfeiAW RTtrf fiff DfOOflOft. As noted In the proposal, the Commis sion Is aware that 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 rather than as an intentionally added substance. The suggestion that the Commission permit contamination of 1 percent by weight, howerer, 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 presenting a significant exposure to con sumers of respirable frec-form asbestos. Therefore, the Commission declines at this' time to adopt a percentage by w>ifht 10 penniiiibl# cooumiM* ttoo. Industry experts do not agree as to the amount of asbestos that might be 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 asbestoe by weight. The Commitstan believe*, however, that tbe use of ap propriate quality control measures and careful selection of raw materials can servo to minimise contamination from unintentionally added asbestos (see the Commission's economta impact state ment on fils at the Offlc* of the Secre tary). In order to emphasize that only patching compounds with clearly un avoidable traces of asbestos contamina tion will be permitted, the Commission defines "Intentionally-added asbestos" at 11304.3(f) of the rule below to mean asbestos which is As tha commenter noted, the Commis sion ban applies only to emberlziag ma terials containing respirable frec-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 all 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 mat ter for consumers as well as producers, tbe Commission adds a statement to f 1309.3(d), the definition of emberlzlRg materials, which reads, "electric artifi cial logs and artificial ash beds used in electric fireplaces which do not contain mplrahle tree-form asbestoe are not in cluded bt this definition." B. Effective dot*. Six eommenters 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 later than 30 days after publication. A public Interest group sug gested that the effective date be the date of publication of the final rule. (1) On* commenter suggested that the Commission consider a series of effective dates for the ban on consumer patching compounds: 30 days for manufacturers, 99 for distributors end 180 days for re tailers tat order to clear Inventories. Severel eommenters 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. 1977 proposal to ban and further discussed at the public meeting of August IS. 1977. The concern of those involved to clear their existing Inventories of consumer patching com 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 1 1304.4 that consumer patch ing compounds containing respirable fres-form asbestoe which have been manufactured or Initially Introduced Into commerce 30 or more days after publication of this rule are banned hazardous products. This means that e banned hazardous product, having been manufactured or Initially Introduced Into commerce, retains its status as a banned hazardous product: thus, its subsequent sals, 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 asbestoe, no matter when manufactured or initially introduced Into commerce, are banned hazardous products 180 or more days after publication of this rule. (As stated below in 1 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 rule, manufacturers will be pro hibited from manufacturing or shipping the product to distributors, retailers, consumers, or to others for application in consumer environments. Further, 139 days after publication of this rule, dis tributors and retailers will be prohibited from selling, offering for sale, or distrib uting any of the described producM, no matter when manufactured or initially Introduced into commerce, to distribu (1) edded deliberately ae an Ingredient In pounds containing respirable free-form tors. retailers, consumers or to otnera for tended to impart epeciQe charaeterteUca: or asbestos was considered. Information application In consumer environments. (3) contained In tbe Anal product ae a reeuit available to the Commission Indicates (2) The public Interest group recom of knowingly ueing a raw material contain that manufacturers are now maintain mends that the effective date of the bon fUMAi IKUSTU, VOL 41, NO. 141--THUUOAY, 0ICIM9U 19, 1977 SGP 0009433 RULKS AND RIGULAT10NS 63359 stsnoss. thtr tadteatt that person* 'of fflgelni skills may release different amounts of lnhsltbls asbestos into the air. Although these differences occur, a oonaumer would likely release more as bestos into the air because be or she may be late skilled in the process than a pro fessional applicator. The Commission recognizes as these commenten point out that some products have a smaller per centage of asbestos than those which were used for exposure data in the Commission risk assessment. For example, one eommenter submitted asbestos ex posure data from a study he conducted udng a compound that contained a mans* amount of asbestos. Based on this eommenter's exposure data, another risk assessment was conducted. The re sults susrsst that use of a patching com pound containing less asbestos may re does but does not eliminate an excess of dsaths due to exposure to asbestos in patching compounds. The range is from 1 death per million persons exposed for the protected five years exposure using cos modal and up to 320 lifetime excess respiratory deaths per million rMn exposed during another model (S3). It should be noted here that while esbestne levels may vary, they do not change the fact that there is no known level below which inhalaMe asbestos may be considered cafe. - (o) Another eommenter says that us ing a premixed compound reduces the eooramar'a exposure to asbestos. The eommenter also thought that the Com mission's estimate of consumer exposure was 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 premiaed compound. the exposure dining the --~*<"g and cleaning operations in volved would be the same as for the dry eoeapound. Consequently, the risk as sessment values would not be signifi cantly reduced. As for the four-day. eight-hour exposure being too high an --n--no data were submitted to sub stantiate that contention. As stated in the proposal, therefore, it appears to the Oommlsslon that although the exposure may be high, it Is a reasonably foresee able exposure. XX SubttUnUt lor asbestos. The July 2ft, 1#T7 proposal notes that substitutes for asbestos are already being used in compounds. One at the most whm substitutes is aUspulftts. a fi brous clay, other substitutes of a fibrous nature are woUastonlta. kaolin!to. sepiolttc and bentonite. Several comments ex press concern that msterlals used as sub stitutes for asbestos may also pose hagaids. 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 Stsnton (66) indi cate that many mineral fibers (in addi tion to asbestos) of small respirabls di mentions are biologically active under experimental conditions. According to correspondence dated July 26.1977 from Dr. Paul Kotin of the Johns-Manvllle Co. with environmental consultant Barry Castleman. a JohnsManville study is under way to assess the potential Inhalation hazard of certain naturally-occurring or man-made min eral fibers such as ceramic fibers. Ce ramic fibers are a potential substitute for artificial emberizinc 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 1977. 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 ail likelihood, be available In the near future. (1) A eommenter 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 are not fibrous such as calcium caroonlte, clay, resins and mica. For the fibrous clay minerals which msy be used as asbestos substitutes such as wollastonlte, ksoiinite. seplolite 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 that 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 class could be considered a substitute for chrysotlle in cmberulng 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 purposs. m addition, from a technical viewpoint, class fibers are not similar in size and shape to chrysotlle. Unlike the rod-like glass fibers, chrysotlle tends to be curved, or be of curly fibers or fiber bundles, comprised of extremely smalldiamatered fibrils. However, glass fibers arc similar--at least In shape--to some of the amphibole asbestos minerals. The diameter of most fibrous glass is report edly greater than 3-6 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 consideration*. Six com- menters expressed concern that the baa would have an adverse economic impact on the industry. Five of the six are man ufacturers who commented on patching fawifiwwit The sixth is a distributor of gas fireplace logs. One patching compound manufacturer claimed that some firms in that indus try will go out of business should the ban be promulgated. As noted below, our studies indicate that some small producers may not have the technical capability to reformulate their products satisfactorily or may be unable to obtain necessary raw materials by the effective date of the bon. Thus, some may cease production temporarily, until such re formulation is achieved. Some of the large manufacturers have indicated a willingness to license their asbestos-free formulations (or parts of them) to small er Anns. 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 60 percent the increased "workload" associated with the professional application of nonasbeatoo 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 25 percent average increase as 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 some Jobe have to be redone to the relatively poor shrink- and crackresistance of some non-asbestos formu lations. These increased costs are ex pected to diminish over time a formula tions improve and os applicators become more accustomed to using nan-asbestos formulations. One company which may be adversely affected by the proposed ban reports that attapulglt*. on* of the prime sub stitutes for asbestos in patching com pounds. is in "limited supply" and that soma small manufacturers may have difficulty in obtaining that material. Other Industry sources have reported this same problem. The larger patching compound producers, who already have asbestos-free formulations on the mar 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 asbestoe to the product to help pre vent cracking when wall Joints are cov ered. However, the addition of asbestoe would be tantamount to manufacture of the banned product and would thus bo prohibited. It appears that at least some existing non-asbestos formulations may be less desirable, from a performance standpoint, to professional contractors: most consumer applicators are not ex- NMM UOUTO, VOL 42. NO. 341--TMUMOAr, 0IC6M6U 15. 1939 SGP 0009434