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Consumer Product Safety Commission 1304.1 based paints may be accelerated some what by the effects of the ban. (d) Alternatives. (1) The Commission has considered other means of achiev ing the objective of this rule, but has found none that would cause less dis ruption or dislocation of manufactur ing and other commercial practices, consistent with public health and safe ty. (2) The Commission estimates that this ban may, because of testing costs and the necessity for improved house keeping practices in the manufacture of paint and similar surface-coating materials to prevent lead contaimination, have some relatively minor adverse effect on individual firms within some markets. (3) The Commission, however, finds that competition will not be adversely affected by this rule. Although costs of reformulation and testing may be rel atively higher for small manufacturers than large manufacturers, these costs are not so onerous as to lead to greater concentration in the industry. The pe riod of time before the effective date is sufficient to minimize problems of compliance with the rule. (4) The reduction of the permissible level of lead in paint will affect paint manufacturers, raw materials suppli ers, professional and non-professional painters, and manufacturers of fur niture and children's articles. For those producers of paint which are al ready subject to the regulations under the Federal Hazardous Substances Act (FHSA), the impact of this CPSA ban will involve only a change to non-lead driers since lead pigments are pre cluded from practical use under the 0.5 percent lead restriction now in effect under the FHSA (16 CFR 1500.17(a)(6)). The manufacturers of some painted furniture who were not affected by the 0.5 percent limit under the FHSA may now be, if they use lead pigments or driers. Producers of children's articles who were subject to the 0.5 percent FHSA limit will have to ensure that the paint they use conforms to the 0.06 percent level. (e) Conclusion. The Commission finds that this rule, including its effective date, is reasonably necessary to elimi nate or reduce the unreasonable risk of lead poisoning of young children that is associated with the banned products which are described in 1303.4 and that promulgation of the rule is in the pub lic interest. PART 1304--BAN OF CONSUMER PATCHING COMPOUNDS CON TAINING RESPIRABLE FREE-FORM ASBESTOS Sec. 1304.1 Scope and application. 1304.2 Purpose. 1304.3 Definitions. 1304.4 Consumer patching compounds banned hazardous products. 1304.5 Findings. as AUTHORITY: Secs. 8. 9, 86 Stat. 1215-1217, as amended 90 Stat. 506, 15 U.S.C. 2057, 2058. Source: 42 FR 63362, Dec. 15, 1977, unless otherwise noted. 1304.1 Scope and application. (a) In this part 1304 the Consumer Product Safety Commission declares that consumer patching compounds containing intentionally-added res pirable freeform asbestos in such a manner that the asbestos fibers can be come airborne under reasonably fore seeable conditions of use, are banned hazardous products under sections 8 and 9 of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2057 and 2058). This ban applies to patching com pounds which are (1) used to cover, seal or mask cracks, joints, holes and simi lar openings in the trim, walls, ceiling, etc. of building interiors, which after drying are sanded to a smooth finish and (2) are produced and distributed for sale to or for the personal use, con sumption or enjoyment of a consumer 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 consumer product safety standard under the CPSA would adequately pro tect the public from the unreasonable risk of injury associated with these products. This rule applies to the banned hazardous products defined in 1304.3 and described further in 1304.4. 349 1304.2 16 CFR Ch. II (1-1-97 Edition) (c) Only consumer products are sub ject to this regulation. Patching com pounds which are consumer products include those which a consumer can purchase. Merely labeling a patching compound for industrial use would not exclude such articles from the ban. If the sale or use of the product by con sumers is facilitated, it is subject to the ban. Patching compounds which are labeled as, marketed, and sold sole ly for industrial use in non-consumer environments are not subject to the ban. In addition to those products which can be sold directly to consum ers, the ban applies to patching com pounds containing respirable free-form asbestos which are used in residences, schools, hospitals, public buildings or other areas where consumers have cus tomary access. 1304.2 Purpose. The purpose of this rule is to ban consumer patching compounds contain ing intentionally added respirable, free-form asbestos. These products present an unreasonable risk of injury due to inhalation of fibers which in crease the risk of developing cancer, including lung cancer and mesotheli oma, diseases which have been dem onstrated to be caused by exposure to asbestos fibers. 1304.3 Definitions. (a) The definitions in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052) apply to this part 1304. (b) Asbestos means a group of mineral fibers composed of hydrated silicates, oxygen, hydrogen, and other elements such as sodium, iron, magnesium, and calcium in diverse combinations and are: Amosite, chrysotile, crocidolite, anthophyllite asbestos, actinolite as bestos, and tremolite asbestos. (c) Free-form asbestos is that which is not bound, or otherwise "locked-in" to a product by resins or other bonding agents, or which can readily become airborne with any reasonably foresee able use. (d) Patching compounds are mixtures of talc, pigments, clays, casein, ground marble, mica or other similar mate rials and a binding material such as as bestos 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 consumer environments are either dis tributed for sale to or are for the per sonal use or enjoyment of consumers. (f) Intentionally-added asbestos is as bestos which is (1) added deliberately as an ingredient intended to impart specific characteristics; or, (2) con tained in the final product as the result of knowingly using a raw material con taining asbestos. Whenever a manufac turer finds out that the finished prod uct contains asbestos, the manufac turer will be considered as knowingly using a raw material containing asbes tos, unless the manufacturer takes steps to reduce the asbestos to the maximum extent feasible. (g) Initial introduction into commerce occurs when the manufacturer ships a product covered by this regulation from a facility of the manufacturer to a distributor, retailer, or user. 1304.4 Consumer patching com pounds as banned hazardous prod ucts. 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 inten tionally-added, respirable free-form as bestos, no matter when manufactured or initially introduced into commerce, are banned hazardous products after June 11, 1978. 1304.5 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 350 Consumer Product Safety Commission 1304.5 cancer, including lung cancer and mesothelioma. In assessing the degree and nature of the risk of injury to con sumers, the Commission has reviewed experimental data and human experi ence information. The Commission 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. Fur ther, on the basis of such scientific opinion, it appears to the Commission that children are particularly vulner able to carcinogens because of their longer potential lifetime and their rapid rate of growth. In areas of the country where asbestos may not be prevalent in the environment, the major risk of exposure for children and others may occur in the household. In areas of the country where more asbes tos fibers are present in the environ ment, the public is exposed to addi tional risks from the presence of asbes tos fibers in households and other consumer environments. The Commis sion concluded on the basis of these factors that consumer patching com pounds containing respirable free-form asbestos present an unreasonable risk uf injuiy to the public. In addition, a risk assessment was made. For pur poses of this assessment, the Commis sion 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 expo sure. 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 in creases geometrically atid IS OSLilliaied at between 1,000 and 12,000 per million. The lower estimate of 10 per million is closer to the actual risk for a one-year exposure. Nevertheless, in view of the seriousness of the injury and the cumu lative effects of asbestos exposure, even this minimum figure represents an unacceptable risk. The Commission believes that reducing exposure to res pirable free-form asbestos in the home represents a substantial decrease in risk to consumers, since, for many peo ple, the major exposure to inhalable as bestos is in the home. (b) Products subject to the ban. Consumer patching compounds as de fined in 1034.3 (d), (e), (0 includes such products as drywall spackling com pounds and tape joint compounds (com monly known as "joint cement" or "tape joint mud j. The Commission es timates annual shipments of patching compounds subject to the ban at ap proximately 30-50 million "units," or individual packages, of various sizes from 0.5 to 25 pounds (dry) or 0.5 to 5 gallons (wet). The Commission believes that about half the patching com pounds sold in 1977, and intended for sale to or use or enjoyment by consum ers, 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 and joints in and around the household and in other consumer environments either by consumers or professional applica tors. The compounds are used to cover areas on gypsum drywall which might otherwise be aesthetically undesirable or which might lead to structural dam age, energy loss or lower property value. The asbestos in these compounds acts as a structural reinforcing agent which helps to reduce cracking and shrinkage of the compound over time, and which renders the compound more pliable or "workable" upon applica tion. (1) Utility. The elimination of asbes tos from these products may result in the increased use or new development of substitutes which have similar prop erties to those of asbestos, or which impart similar qualities to the product. In current reformulations, asbestos is replaced by a combination of sub stances, of which the most common is attapulgite, a fibrous clay. Some non asbestos formulations are reportedly not as effective as those containing as bestos in controlling shrinkage and cracking over time. The workability of some compounds may be diminished as well. This may adversely affect the utility derived from the product by 351 1304.5 16 CFR Ch. II (1-1-97 Edition) consumers, and by professional con tractors until such time as improved formulations are developed and avail able to end-users (2) Cost. Asbestos-free patching compound formulations may require more time to use. This would tend to increase the direct labor costs of resi dential and other construction and ren ovation. The expected increase is be tween 10 and 25 percent. The Commis sion estimates that the annual labor cost of drywall finishing in these consumer environments is on the order of $1 billion. The use of nonasbestos patching compound formulations in all applications may increase this cost by $50--$125 million, assuming that roughly half the current labor costs (i.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 newlyconstructed homes. These increased costs are expected to diminish over time as formulations improve and as applicators become more accustomed to using nonasbestos formulations. The use of asbestos substitutes may also lead to cost increases in the manufac ture of patching compounds. The Com mission estimates this cost, which may vary widely from firm to firm, at an average of 5-15 percent. This is made up primarily of increased 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, dis tributors, and retailers of patching compounds may also have to incur costs associated with the disposal of products in inventory. The Commission estimates that the wholesale value of manufacturers' and distributors' inven tories at the time the ban becomes ef fective 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 products. It appears that, because of competitive pressure from asbestoscontaining compounds, producers of as bestos-free formulations have not yet passed on to purchasers their increased costs. If the increased production costs of asbestos-free formulations can be passed on completely as a result of the ban, the total annual price effect for the year following the issuance of the ban may be $10-$60 million. The mag nitude of this effect may be reduced significantly in successive years fol lowing the issuance of the ban as pro ducers' development costs are amor tized, as raw materials become more widely available, and as price competi tion is strengthened because of market pressure and economies of sale associ ated with production. (3) Availability. The supply of asbestos substitutes, particularly attapulgite clay and relatively uncontaminated talc, for use in the manufacture of patching compounds may be insuffi cient 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 formu lations of satisfactory cost and per formance are developed. This may af fect some professional contractors. In the short run, consumers may be indi rectly affected by delays in drywall fin ishing and building completion. (d) Any means of achieving the objec tive of the ban while minimizing adverse effects on competition or disruption or dis location of manufacturing and other com mercial practices consistent with the pub lic health and safety. The adverse effects of the ban on patching compounds con taining asbestos is reduced by limiting the ban to intentionally added asbes tos. Other alternatives such as limiting the scope of the ban only to products purchased and used by consumers or to issuing a ban with a later effective date, were considered by the Commis sion. However, none was found that would cause less disruption or disloca tion of manufacturing and other com mercial practices, consistent with pub lic health and safety. PART 1305--BAN OF ARTIFICIAL EMBERIZING MATERIALS (ASH AND EMBERS) CONTAINING RES PIRABLE FREE-FORM ASBESTOS Sec. 1305.1 Scope and application. 352