Document zz3dKn2RzxnKVYyYmO0J2LxMB

PLAINTIFF'S EXHIBIT 63354 RULES AND REGULATIONS [6355-01] Also on July 29, 1977, the Commission Title 16--Commercial proposed in the Federal Register (42 FR 38783) a regulation under the CPSA CHAPTER II--CONSUMER PRODUCT that would declare as banned hazardous SAFETY COMMISSION products, consumer patching compounds SUBCHAPTER B--CONSUMER PRODUCT SAFETY ACT REGULATIONS and artificial emberizing materials (em bers and ash) containing respirable free PART 1145--REGULATION OF PRODUCTS SUBJECT TO OTHER ACTS UNDER THE CONSUMER PRODUCT SAFETY ACT Consumer Patching Compounds and Artifi cial Emberizing Materials (Embers and Ash) Containing Respirable Free-Form . Asbestos 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 AGENCY: Consumer Product Safety source-consuming. Commission. 2. Rulemaking proceedings under the ACTION: Pinal rules. CPSA are governed by provisions of th'e Administrative Procedure Act (5 U.S.C. SUMMARY: The Commission issues final 553), and are informal and nonad- rules determining that it is in the public versarial in nature and thus it would be interest to regulate consumer patching more likely that participation of the pub x compounds and artificial emberizing ma lic, including consumers, would be forth terials (embers and ash) containing res coming in rulemaking proceedings under pirable, free-form asbestos, for the pur the CPSA. - -.. pose of addressing the risk of cancer 3. The Commission believes that civil associated with inhalation of asbestos penalty provisions available under the . fibers, under the Consumer Product CPSA against persons who knowingly Safety Act (CPSA) rather than under violate the CPSA may provide additional ,'the Federal Hazardous Substance Act incentive for compliance under the (FHSA). According to the CPSA, a risk CPSA. The FHSA does not. provide the -'of injury that could be eliminated or . remedy of civil penalties. r reduced to a sufficient extent under the - FHSA may not'be regulated under the Comments CPSA, unless the Commission finds by No comments were received by the . rule that it is in the public interest to Commission which deal directly with the do so. . . ' proposed section 30(d) rule. In com EFFECTIVE DATES: For consumer patching compounds containing respi rable, free-form asbestos, this rule be comes effective on January 16,1978. For artificial emberizing materials (embers and ash) containing respirable free-form asbestos, this rule becomes effective De cember 15,1977. , 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 consumer- oriented interests noted that they would FOR FURTHER INFORMATION CON have preferred regulation under FHSA TACT: because FHSA provides for such re Charles M. Jacobson, Compliance and Enforcement Regulatory Management Division, Consumer Product Safety Commission, Washington, D.C. 20207, 301-492-6400. purchase. As noted in the proposed section 20(d) rule, the Commission is aware that regu lation under CPSA would preclude man dated repurchase of banned hazardous products. However, the CPSA dees not SUPPLEMENTARY INFORMATION: preclude voluntary arrangements for re Background purchase back up the distribution chain. Moreover, the advantages enumerated On July 29, 1977, by publication of a above, particularly, the advantage of notice in the Federal Register (42 FR having a final banning regulation in 38782), the Commission proposed a rule force without having to first provide for under section 30(d) of the Consumer lengthy adjudicatory proceedings, ap Product Safety Act (CPSA) (15 U.S.C. pears to the Commission to be more 2079(d)) as amended, that it is in the beneficial to consumer health and safety public interest to regulate consumer than the refunds consumers would have patching compounds and artificial em under FHSA. In the matter of artificial berizing materials (embers and ash) emberizing materials, repurchase under containing respirable free-form asbestos the FHSA would have meant that many under the CPSA rather than under the persons in the chain of distribution Federal Hazardous Substances Act would have handled these materials (FHSA), (15 U.S.C. 1261-1274). Section rather than disposing of them quickly 30(d) reads: in order to avoid additional exposure. A risk of Injury which 13 associated with a consumer product and which could he eliminated or reduced to a sufficient extent under the Federal Hazardous Substances Act * * * may be regulated under the CPSA 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 emberizing materials con only If the Commission by rule finds that It taining respirable free-form asbestos Is la the public Interest to regulate such risk under the CPSA rather than the FHSA. of injury under [the CPSA.] Therefore, pursuant to section 30(d) of the CPSA, Pub. L. 92-573. 86 Stat. 123lJ as amended, 90 Stat. 510," 15 UjS.cJ 2079(d), the Commission amends Title*. 16, Chapter H, Subchapter B, by adding'! new 1145.4 and 1145.5. ' 1145.4 Consumer patching compounds! 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 If risk of cancer associated with inhalationJ of asbestos fibers from consumer patchr^T ing compounds containing respirable;! free-form asbestos under the Consumer! Product Safety Act (CPSA) rather than.3 under the Federal Hazardous Substances1 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 underl the CPSA for knowing noncompliance. (b) Therefore, * consumer patching! compounds containing respirable free form asbestos are-regulated under CPSATJ 1145.5 Emberizing materials (embers | and ash) containing respirable free-J form asbestos; risk of cancer assojj dated with inhalation of asbestos, fibers. (a) The Commission finds..that it isl in the public interest to regulate the risk| of cancer associated with inhalation off. asbestos fibers from artificial emberizingJS materials (embers and ash) 'containing;* respirable free-form asbestos under theJS Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous m 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 far knowing non compliance. ' " ' (b) Therefore, artificial emberizing 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. (Sec. 30(d). Pub. L. 92-673. 86 Stat. 1231 as amended. 90 Stat. 610 (15 H.S.C. 2079 <d)).) Dated: December 12,1977. "M . Sheldon D. Butts. Assistant Secretary, Consumer Product Safety Commission. (FR Doc.77-36744 Filed 12-12-77:11:32 ami [6355-01] CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZING MATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Establishment As Banned Hazardous Products AGENCY: Consumer Product Safety Commission. .-.3* vP FEDERAL REGISTER, VOL. 42, NO. 241--THURSDAY, DECEMBER 15, 1977 RULES AND REGULATIONS 63355 ACTION: Pinal rules. On July 29, 1977, by publication of a information available to the Commission SUMMARY: 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 emberizing 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 intro duced into commerce' on January 16, 1978, or after that, date. For all other consumer patching compounds contain ing respirable free-form asbestos, no matter when manufactured or initially introduced into commerce, the regulation at section 1304 applies on June 12,1978, and after that date. (2) For artificial emberizing 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. notice in the Federal Register (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 emberizing ma terials containing respirable free-form asbestos under the Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA). Section 30(d) of the CPSA (15 U.S.C. 2079(d)) requires the Commission to make such a finding by rule, before regulating under the CPSA, a risk of in jury which could be reduced or eliminat ed to a sufficient extent under the FHSA. The Commission issues this rule else where in the Federal Register. The data in these proposals are incorporated here in, by reference. Section 9(a) (2) of the CPSA requires that, in addition to providing an oppor tunity for making written submissions, the Commission shall provide interested persons with an opportunity, to make oral presentations of data, views or argu ments relating to proposals to ban. Oral presentations on the bans were heard by the Commission an August 15, 1977. Views on the bans are discussed below under Comments on Proposal. In order to have sufficient time to re view all the responses to the banning proposal, including late responses, on October 4,1977 (42 FR 53970), the Com mission extended until November 28, 1977. "the time in which it must either publish a consumer product safety rule or withdraw the proposals, to ban. This date was further extended until Decem ber 12, 1977, by notice published in the Federal Register on November 29, 1977 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 tom "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 inappropriate to cite a recent case, ("U.SA. v. Aiwconda Co., et al.," Misc! No. 77-0024, (DD.C.) June 15,. 1977) _ which indicates that the presence.of; a product in a help decide consumer environment whether that product, icsaJa-n- "l' . consumer product under the CPSAi,. - * Therefore, the commenter urges "the Commission in its final regulation to de- ,. lete" the paragraph on "Anaconda" case''1' : ', FOR FURTHER INFORMATION CON (42 FR 60752). ' ', _ in order to "avoid the creation of anun-- TACT: - 7; - ' Comments on Proposal _ ' umCa30nche1tdan-r4EtSle9Dnas2fiv-ofM6eirs4ct.i0yJeo0amnC.c,eooWmnbtamtRosihnsesi,gnioCugnltoao,n!tn.os,CruDymo.MmCera.p2Pnli0aar2nog0cde7e-,:-;'..s4twieoOinrnteth,erp_a3drtelhrbesveepiyenrCwe7toissnmpegoenmnrtmsiinsotaghsnniescouonofpnanrrscoeutpAcumoeurseiegvarrueslgsd.wrtoI3e1nu0r5pe,aswp1dar9rdine7t?id7-- SUPPLEMENTARY cREFORMATION: ten- comments which represented 17 necessary conflict * within thereg- -j.; .ulation itself.".- -In response to this comment, the Com-.~''~jG>" mission notes that.the paragraph which. y'z;; cites the case in question is not In the .. proposed regulation but in that part of - the preamble which explainxithe'regu-eo lation. In the preamble,' the Commissionr. " T iTiC BACKGEOUHD-i:^-' --. manufacturers and 2 distributors; 4 fed cited "Anaconda" not in reliance^ on.the C':-;;'.;- eral agencies; 3 public interest groups; case as a basis for regulation but to show `: ; On July 29,' 1977,:t>y publication of a 2 concerned citizens; a supplier of raw how the case interprets thedeflnltion of `&'7ry-. - notice' in. the Federal;Register~(42 FR materials; and a chemical research and consumer product at section 3(a) (l)'of . 38783), .the Commission 'proposed rules to development firm. Among the 10 com the CPSA which reads, - j--.,._ s 7 dedareithat-consiimerrpatching compounds and artificial emberizing materi als (embers and a^h) containing respira- . mentors 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) for sale to a consumer for -- . ble free-form asbes&s^are banned haz-- lie interest groups.- ... ` . use in or around a permanent or temporary..' ,-~i ardous productsilmder -the Consumer - -. The significant issues- raised by the household or residence, a school, in recrea- t'-' Product Safety Acto(CPSA). These rules". oral and written comments are set forth were proposed because the Commission below. . . '. preliminarily determined that an unrea A. .Scope and definition. The proposal 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 50 refer states that consumer patching com pounds are those that are customarily produced or distributed for sale to or for the personal use, consumption or enjoy ment of consumers in or around a house hold or residence, a school, in recreation or otherwise. The Commission considered in the proposal that patching compounds tion, or otherwise, or (ii) for the personal' W.r! ` use, consumption or enjoyment of a con- . - Sumer in or around a permanent, or tempo- .' rary household or residence, a school; in - ' recreation, or otherwise: . . Although courts have not yet reached a definitive decision- on the coverage of the term "consumer product," the Com- mission believes that the statute and legislative history, by themselves, afford sufficient authority for Commission jurisdiction over the defined product and -` " . ' ences cited in the proposal are repeated for application in these- consumer en its use in consumer environments. It ap in this, preamble for-convenience. Num vironments are either distributed for sale pears to the Commissioin that the defini bers 51 and over refer to additional infor 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) . FEDERAL REGISTER, VOL 42, NO. 241--THURSDAY; DECEMBER 15, 1977 63356 RULES AND REGULATIONS -*of 'the XJPSA -and that the "Anaconda" Occupational Safety' and ' Health 'Ad to amend the deflnition:*of '^patching .' -case' underscores the definition. -' ministration of the Department of Labor compound at S 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 ucts. (a) In discussing the proposed defi 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: " 1 - As is indicated herein, any patching ter states that "silica" is a chemical com - ''(c) Only consumer products'axe subjeot compound containing respirable free pound and as 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 are 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 7 .. consumers Is facilitated, it Is subject to the , - ban.-Patching compounds which are labeled cess to in consumer environments or word "silicon" be used to denote that may purchase would be subject to the it is a single element which is present ban. Therefore, such products, although in asbestos. ; " ' '* - 7 - they may be for industrial/commercial | The Commission concurs that'.the. use, are also considered to be consumer '. term "silica" should not be used, but ra products. . = .. v ther it should be "silicates," since asbes " ' ~ as.'marlceted, and sold solely for Industrial r On the subject of regulation of these tos Is a generic term used to describe a .-use In non-consumer environments are not - subject to the ban. In addition to those prod . -~-ucte which can be sold directly to consumers, ' .. thehan applies to patching compounds con- tainlng respirable tree-form asbestos which .f,' Tare used .in residences, schools, hospitals, '' public buildings' or other areas where con- products by OSHA, the Commission notes that section 31 of the CPSA provides that the Commission shall have no authority to regulate any risk of injury associated with a consumer product if such risk could be eliminated or reduced to & suffi number of naturally-occurring hydrated mineral silicates. Therefore, the word "silica" Is deleted from the definition of asbestos in SS 1304.3(b) - and 1305.3(b) .below and the term "hydrated silicates"' is substituted therefor. ' -v*- -5. -*< _ 7:7; sumera,have customary access. - V cient extent by actions taken under the '(b) .A public Interest group takes Is . :" clear from this language that use patching compounds in consumer en i ^."Jwironmants 'determines their status as Occupational Safety and.Health Act of sue with the definition.of asbestos 'used 1970. Under that Act, OSHA has issued _in*the proposal andurges the Commis-' regulations which specify the airborne 'sion to adopt a'definition of asbestos' _ r~ consumer products, whether the patch- concentrations of asbestos fibers to which proposed by OSHA in 1975. The defini ,'ing compounds are applied profession- any employee may be exposed (29 CFR tion of asbestos used In the Commission "Vallyor by.consumers. And, although the 1919.93a). However, OSHA regulations proposal Is based on the definition used fhasardj may be greater for professional apply only to workplaces and not' to by the Bureau ofMines (56)'The com-'; fusers 61 patching compounds because of places where consumers would use the menter believes thatthe OSHA proposed 'i".'-'theifjrei)eated ^exposure, residual dusptroducts themselves. Therefore, . the -definition. could, help resolve- disputes ' ^yvfrom^sandlng .during construction or Commission considers that actlons - to over.the presence or absence of asbestos "7,renovation is also a hazard to consumersregulate this product which can be taken in consumer products. >3?whb'.may not apply the patching com- under the Occupational - Safety. and 7/As the"Eommehter pointed out, several " fe* pounds themsdves (36). ' ' * _ Health Act of 1970, cannot reduce or federal agencies with responsibilities for ' 7:77(6) a manufacturer who supports the eliminate to a sufficient extent the un regulating asbestos" (EPA7EDA,' OSHA,''' 7' 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. Ata recent work _, Stainers: Therefore, although he packages cordingly, the Commission regulates shop, July 18-20, 1977, at The National- l^^a l-gallMi size of patching compound for this product under the CPSA. . Bureau of Standards on asbestos defini Ii'-|-.';sale to consumers and a 6-gallon size for iSfccommercial-industrial use, he believes 7 -'the ban should apply to all sizes. Given "the "availability of patching 3. Type bf patching compound covered by the ban. A manufacturer of caulking, sealing, glazing, adhesive and coating products believes the reputation of his tion and Identification problems, It'was agreed that there should be a uniform - definition of asbestos which would' be : mineralogically correct as well as reflect >, compounds to consumers through most product could be adversely affected by health concerns. However, (here .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 r jt 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 finalized 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 amended on experimental findings associated with fosters or facilitates the product's sale to cover only those 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 is 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 . metat1 indicates that it may be exceed mission notes that the patching com based on mineralogical 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 as 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 asbestiform mineral fibers and their and. Application, "patching compounds menter which are not sanded after nonasbestos 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-consumer 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 nonfibrous 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 I bp OSHA. A manufacturer of dry-wall joint compounds states that the commer pounds containing asbestos which can be inhaled when the product is in dry dimension range that are not asbestos fibers. While the Commission is 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 5r FEDERAt REGISTER, VOl. 42, NO, ?41--THURSDAY, DECEMBER U, 1977 RULES AND REGULATIONS UUtHM. yet enough evidence to base a definition ing asbestos. Whenever a manufacturer finds ing a relatively small inventory. Dis of "asbestos" on fiber morphology. There- out; that^ the finished product contains as- tributors report that they maintain a w,ilAVPe the nro- bestos' the manufacturer will be considered small inventory compared to their sales. " knowingly using a raw material contaln- posed definition should not be changed unless the manufacturer takes in the final rule. As circumstances war- steps to reduce the asbestos to the martmiim rant, the definition could be amended at extent feasible. .. . a later date. 5. Asbestos contamination in patching compounds. Several manufacturers ex pressed concern that all patching com pounds would be subject to the ban rath Therefore, the ban applies only tot consumer patching compounds contain-\ tag intentionally-added respirable free- I form asbestos and will not apply to j products having unavoidable trace er than only those compounds to which amounts. asbestos has been Intentionally added. 6. Artificial emberizing materials-- They point out that asbestos is ubiqui- exemption from ban. A manufacturer of tous in the environment and that traces electric artificial logs and electric flre- of asbestos may be present as a contain- places states that although the Commis- inant to other minerals that are mined gfon proposed to ban only artificial em- ta areas of serpentine rock. One com- berizing materials containing respirable, menter suggests that the Commission free-fonn asbestos, references in the consider permitting patching compounds - media to artificial logs and artificial flre- which contain such naturally occurring places reflect adversely on his business, contaminants. Other commenters -sug- He asks, therefore, that his prod-ucts', gest that a percentage of asbestos con which use an artificial ash bed of vermlc- tamination by weight be permitted. The ulite, be exempted from the ban. lowest percentage suggested by one com- As the commenter noted, the Commis menter Is 1 percent because the En sion ban applies only to emberiztog ma vironmental Protection Agency (EPA) t_e_r_ia__ls__c_o_n_t_a_i_n_in__g respirable free-fonn permits the presence of 1 percent ashes- asbestos and not to any artificial logs or tos by weight in spray-on asbestos in- artificial firepla-c--e-s---w- it-h---w--h--i-c--h--t-h--e--y--m---a--y inflation and fire proofing. be used. Since the banned product is As noted to the proposal, the Commis used with artificial logs, it is understand sion is aware that asbestos is present in able that questions are raised as to dif the environment. Further, the Commis ferent kinds of artificial logs. The Com sion does not wish to ban all consumer_m_i_s_s_io_n__d_o_e_s__n_o__t_b_e_l_ieve It wo_u_ld be _ap- Retailers. have a much slower-moving inventory (51). The Commission considered the pos sible adverse economic impact of a 30day effective date on inventories of man-, ufacturers, distributors and' retailers. The Commission also considered the pos sible adverse effects of exposing con sumers to inhalable asbestos by permit ting the manufacture, distribution and sale to consumers of patching com pounds until 180 days after publication of a ban. It appears to the Commission that early discontinuance of the manu facture of this product would be neces-' sary in order to stop its continuing pro liferation in the market. On the other hand, substantial adverse economic im pacts could result from the freezing^of distributors' and retailers' Inventories'at an early effective date. The Commission concludes therefore that the ban should become effective at two different points in time. For manufacturers, the effec tive date should be close to publication of the rule In order to stop the con tinuing manufacture of the product. For distributors and retailers, the effective date should be delayed to help amelio rate adverse economic impacted;. Therefore, the Commission' declares below at S 1304.4 that consumer patch t- patching compounds in which traces of propriate to exempt from the ban all ing compounds containing respirable asbestos are present as a contaminant electric logs coated with un<d>nffl1d free-form asbestos which have .been] ,,___* .. rather than as an intentionally added substances, or all artificial ash used in manufactured^ or initially'' Introduced I substance. - electric fireplaces, since some of these Into commerce .30 or more' days aftgri The suggestion that the Commission articles could Include the banned prod- publication of this rule are banned permit contamination of 1 percent by uct. However, in order to clarify the mat hazardous-products. This means thaff a weight, however,, appears to be inappro ter for consumers as well as producers, banned hazardous product, having been priate forconsumer patching compounds the Commission adds a statement to manufactured orinitially introduced/a Js because consum-ers- would not be---s-iu_ftf.i-i S 1305.3(d), the definition of emberiztog into commerce, retains its status'as3a'^^;/-f| banned hazardous' product;,* thus,Tits. \* cial logs and artificial ash beds used to subsequent sale, offering for sale; or Sis- C small. lightweight .asbestos fibers,. thus electric-fireplaces which do not contain tribution in commerce;'ls' prohibited. by?f; .presenting a significant exposure to con respirable free-fonn asbestos arenot in any person in the chain' of dist^utlbn^'-^^::' sumers of respirable free-fonn asbestos. cluded in this definition."- la addition;^ the'^ Commission" declareS/^^Q?^ Therefore, the Commissionr declines at B. Effective date. Six commenters 'dis that'all other consumer patchtag'cbm^/'-'i:!.'^'t this- time to- adopt;.a percentage-by cussed the proposed effective date' of the "pounds' containing respirable free-fbrih'/r'f.f. I f weight to define permissible contamina ban'of consumer patching'compounds asbestos, no matter when mahufactmred'$^aS tion. ' ^'.. which.was 30_days after publication.'of or Initially introduced into- commerce;1;/Z' industry experts do not agree as .to the the. final rule. Five manufacturers sug- are banned.hazardous productr;180Torj/ &.. amount of asbestos that might be pres- . gested' a date later than 30"days after more days after publication of' tlfis ent in products without deliberately publication. A public interest group sug '(As stated below In 5 1304.4(g),`of thb~ .; d*i added asbestos. Nor- is there agreement gested that the. effective date be the date rule, initial introduction into commerce}:?/-/^ on the reliability of the.techniques used of publication of the final rule. ' . '' of-thi& product occurs when the/prbduc#^^>&;: to measure low levels, (below 1 percent) - J -r(irOne commenter suggested that the .: is physically shipped" from, a manuf of asbestos by weight. The Commission Commission consider a series of.effective . hirer's facility to a distributor, believes, however, that the:use of ap dates for the ban on consumer patching propriate quality, control measures and compounds: 30 days for manufacturers,- careful'selection of raw.-, materials can 90 for distributors and 180 days for re In summary,' 30.days after publlcafion'* '15' serve to minimize contamination from tailers-^ in order - to clear inventories. of. this rule/ manufacturers will be^prcr-J1 " unintentionally added asbestos (see the Several commenters believe that a 30- hibited from manufacturing or shipping;, Commission's economic impact state day effective date might prove burden the"product to " distributors, ` retailers,^ ment on file at the Office of the Secre some to small manufacturers because of consumers, or to others for application tary). In order, to emphasize that only the inventory problem. . in consumer environments. Further, 180 patching compounds-.with clearly- un The matter -of inventories was con days after publication of this rule,", dis-^,.- avoidable traces of asbestos contamina sidered to the July 29, 1977 proposal to tributors and retailers win be prohibited `S.; tion will be permitted; the Commission ban and further discussed at the public from selling, offering for sale, or distribn defines "Intentionally-added asbestos" meeting of August 15,1977. The concern uttag any of the described-products, .no . at 11304.3(f) of the rule below to mean of those involved to clear their existing matter when" manufactured or. initially':' T asbestos which Is :-; '. - inventories of consumer patching com introduced Into commerce, to distribu-- v; (1) added deliberately as" an ingredient in tended to impart specific characteristics; or pounds containing respirable tree-form asbestos was considered. Information tors, retaUers, consumers or to others for;.-^ application In consumer environments/'^' - (3) contained in the final product as a result available to the Commission indicates . (2) .The public interest grouprecoin-';-'" of knowingly using a raw material contain- that manufacturers are now maintain mends that the effective' date of the ban '" FEDERAL REGISTER, VOL. 42, NO. 241 THURSDAY, DECEMBER 15, 1977 -''i '* * *", . 63358 - .. -. - SRUIES AND REGULATIONS -wf -" 'on. consumer ^patching compounds coa- cancer among'smokers.lt also indicated pational exposure to asbestos as the basis' tainlng respirable free-form asbestos be there was also an increased risk of death . for the Commission proposal. The com the date of publication of the final rule, from other asbestos-related diseases, in . menter believes that portions of the - as it is for artificial emberizing materi cluding asbestosis, among nonsmokers OSHA review of October 1975 ore scien- als. - . (17). Data also suggest that the high risk -tiflcallrinaccurate. ?; --.-.i-isj- . . The Commission proposed that the ef- of mesotheliomas (cancers of the pleura The Commission notes that most of the ' feotive date of'the ban on artificial em and peritoneum) from asbestos exposure information, cm hazards associated with ., berizing materials be the date of publica- appears to be unrelated to smoking (18, inhalation of asbestos is based on occu- ' tion although the Administrative Proce- 8)~ - -- national exposure. It can be said that the - dure Act (5 U.S.C. 553) which governs , (2) A distributor of fireplaces and fire body of scientific literature in the OSHA publication of consumer product safety place equipment doubts there is a hazard proposal has already been subjected to . rules, provides that a rule should be pub associated with emberizing materials be public scrutiny. During preparation of . - Tlished 30 days before its effective date cause the fibers used in emberizing ma the Commission proposal. Commission -/-/unless the Commission finds good cause terials are relatively - large and fibers staff conferred -with OSHA. As a result, . ' to provide otherwise. Unlike patching which would become airborne would be -the Commission proposal deleted refer-, compounds, where exposure to asbestos pulled up the fireplace flue. - ences to studies which OSHA termed.to - fibers is most prevalent during mixing, While It is true that the large asbestos - be of questionable validity. -vj-v- sanding and cleanup operations, al fiber bundles pose little risk of inhalation, -As pointed out in the Commission pro /though the fibers may remain suspended . the fiber bundles release individual fibers posal, there had been only one report of -.-jvjv'Vju . - H-for a considerable duration of time, as- which in turn,"can, break logitudinally .-.consumer exposure to asbestos In-the ivbestos fibers'in emberizing materials can into microscopic fibrils (57)7 Fibers could --scientific literature prior to the proposal. 7: \..7:be'respired as long as such materials are become airborne under normal use, in j;Based on the data from that study;;a .r '-Kf^ln the home because they are alway in. stallation, and handling conditions, as Commission assessment was made of the v .'.?> dry form and ready to be moved about well as from room drafts. Once the fibers '. potential Increased risk of respiratory i vlby ordinary household air'currents. It become airborne, they can remain aus- v.cancer associated with'use of consumer % appeared to'the Commission, therefore, pended over long periods of time, eventu =. patching compounds containing asbestos that these emberizing materials should ally settling out on items of furniture, fibers. - ` ----- ' ^V'^be removed from commerce as quickly as draperies, etc., only to become airborne The Commission also based Its pro^vT'^S possible and that there Is good cause to and available for respiration with, use of _posal on direct and Indirect evidence of '' -v;^have the ban effective cm the date of pub- - these items. As long as the free-form as r asbestos inhalation in non-occupation- plication.-To assist persons who already bestos emberizing material remains loose ally exposed individuals, -including re -thad such'materials in their homes, the on the fireplace floor, there Is a possibil - ports from autopsy findings of asbestos .2;-` - ^Commission, on July 21, 1977, Issued a ity that It could become-airborne and - fibers In lung tissues and from epidemio- "i .777 press release cm the impendingban which -thusrespired.-is>_ ... ' -//v. logical studies. . - Included a Consumer Alert advising con- (3) A manufacturer states that since (5) In assessing the degree and nature .1 ;.fsumers of the dangers associated with Commission data are besed-on occupa .of.the risk'of- injury to consumers from ; .7; i~ these emberizing materials and issuing tional statistics, it is difficult to document patching compounds, -the Commission' -^^Instructions for their safe removal the Commission's view, in the proposal reviewed experimental data and human ' .^^"iBconbrnic advice to the Commission that, 'for many people the major ex experience information. In addition,, on jin/indicates, in addition, that no significant posure to lnhalable asbestos is In the the basis of data byHbhl on exposure to -v"; 7 adverse economic impacts are anticipat- home." . asbestos during-.the use of consumer "ed as a result of the immediate effective While it is true that much of the Com patching compounds (36), the Commis r. ' date for emberizing materials (51). As Is mission data on asbestos-related disease sion's Health Sciences staff calculated an /-^indicated in the foregoing discussion, the are based on occupational statistics, a assesment of-the risk which was de ..-Tv ..economic impact of a 30-day and even risk, assessment was made of consumer scribed in the proposal. The calculations - a 180-day effective date for patching exposure to respirable asbestos to patch -were based on the application of a toeo- 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 ing compounds during mixing, sanding . retical model similar to that described and cleanup operations which estimated by Enterline and Henderson (11). Sev the increased risk of lung cancer from eral highly technical comments were re such exposure in the home. A report of ceived in response to the risk assessment. asbestos in consumer patching com The significant issues raised in these that an earlier effective date should be pounds indicated that significant levels comments are discussed below. promulgated, the Commission declines of respirable free-form asbestos fibers (a) Two commenters questioned the the suggestion of the public interest ware detected in rooms adjacent to that assumption in the risk assessment that group. Therefore, the effective date of the where the actual patching and sanding exposure to asbestos is cumulative over regulation on consumer patching com operations had occurred so that other the lifetime of a person, and whether pounds containing respirable free-form household members could be exposed as intermittent exposure over several years asbestos is 30 days after publication of well as the individual performing the has toe same effect as if toe same ex this rule as to manufacture and initial patching -job (36). In many areas of the posure had taken place In a single year. introduction into commerce and 180 country (nonurban), there appears to be In reviewing toe literature on asbestos - days after publication as to all other a relatively low background level of as exposure, the Commission finds .that as - . units of the defined product no matter bestos (52). Therefore, exposure in the bestos fibers are unlike many chemicals when manufactured or initially intro- home to asbestos fibers released from and other materials which toe body may < duced in commerce. consumer products could represent the metabolize and excrete. Body clearance \ C. Product risks and risk assessment. major exposure. As noted in the proposal. of asbestos fibers Is much less effective. - -* Several commenters discussed the Com Dr. Paul Kotin, Johns-Manvllle, stated They have been found not only to re . mission's risk assessment for patching in a presentation before the Commission, main in the body but to accumulate (55). -.compounds and questioned other aspects June' 9, 1977, that young children are Since toe data tend to show that inter of the hazard. , particularly vulnerable to exposure to mittent exposure can lead to cumulative (1) A-manufacturer suggests that use carcinogens and clearly their major ex buildup of asbestos fibers, it appears to . by the general public or by asbestos posure to inhalable asbestos would be in toe Commission that intermittent ex workers is not hazardous and that the the home. The Commission therefore posure over several years could have toe greatest hazard is to a worker during feels it is essential to minimize, to the same hazardous effect as if the total sanding operations if he also smokes. extent possible, exposure to respirable intermittent exposure had taken place The Commission notes that while data asbestos. within one year. from an epidemiological study of asbes (4) A commenter questions Commis (b) Two commenters Indicated that tos insulation workers indicated there sion reliance on OSHA's proposed toe hazard from applying patching com was an increased risk of death from lung amendment of October 9, 1975 to occu pounds could differ in different circum- FEDERAl REGISTER, VOL 42, NO. 241--THURSDAY, DECEMBER IS, 1977 RULES AND REGULATIONS .63359 stances. They Indicate that persons of mentlons are biologically active under compounds. The sixth is a distributor of differing skills may release different experimental conditions. gas fireplace logs. -' amounts of lnhalable asbestos into the According to correspondence dated , One patching compound manufacturer air. Although these differences occur, a July 26,1977 from Dr. Paul Kotin of the claimed that some firms in that-Indus- consumer would likely release more as Johns-Manville Co. with environmental try will go out of business should the bestos into the air because he or she may consultant Barry Castleman, a Johns- ban be promulgated. As noted below, be less skilled in the process than a pro Manville study is under way to assess the our studies indicate that some small fessional applicator. The Commission potential inhalation hazard of certain 'producers may not have the technical recognizes as these commenters point out naturally-occurring or man-made min capability to reformulate their products that some products have a smaller per eral fibers such as ceramic fibers. Ce satisfactorily or may be unable to Obtain centage of asbestos than those which ramic fibers are a potential substitute for necessary raw materials by the effective were used for exposure data in the Com artificial emberizing materials. date of the ban. Thus, some may cease mission risk assessment. For example, Human exposure data to substitutes production temporarily, until such re one commenter submitted asbestos ex are extremely limited. Occupational ex formulation -is achieved. Some of the posure data from a study he conducted posure data to certain clay mineral fibers large manufacturers have indicated ..a using a compound that contained a which are proposed asbestos substitutes willingness to license their asbestos-free smaller amount of asbestos. Based on are scheduled to be presented at a Sym formulations (or parts of them) to small- this'commented exposure data, another posium on Occupational Exposure to Fi erfirms. -- . . risk assessment was conducted. The re brous and Particulate Dust and their Ex Two commenters discussed potential sults suggest that use of a patching com tension into the Environment, in Decem cost effects of the ban on patching pound containing less asbestos may re ber 1977. These data are expected to in compounds other than those relating to . duce but does not eliminate an excess of dicate the extent of exposure, rather the product itself. One patching com i deaths due to exposure to asbestos in than human experience findings on re pound producer estimated at 60 percent j patching compounds. The range is from sults of such exposure. Data on the re the increased "workload" associated < 1 death per million persons exposed for sults of human exposure to asbestos sub with the professional application of non the projected five years exposure using stitutes will not,- in all likelihood, be asbestos formulations because of differ one model and up to 226 lifetime excess available in the near future. ' ent performance' characteristics. The cancer respiratory deaths per million (1) A commenter suggests that substi Commission has investigated the poten persons exposed during another model tutes. since they would be fibrous, would tial increase in direct labor costs as-_ (53). It should be noted here that while present a risk. .. ' sociated with existing asbestos and non-. asbestos levels may vary, they do not In assessing .asbestos substitutes, data asbestos formulations; it estimates an change the fact that there is no known available to the Commission indicates initial 10 to 25 percent average increase level below which lnhalable asbestos may be considered safe. '. - ' that a number of substances may be used . as a result of switching from the former which are not fibrous such as calcium to the latter. Other costs may accrue to (c) Another commenter says that us ing a' premixed compound reduces the carbonite, clay, resins and mica. For the fibrous clay minerals which may be used professional users of the product should, different- application-tools be needed or /-:;U consumer's' exposure' to asbestos.. The as asbestos substitutes such as wollasto should some jobs have to be redone,to. ` mwsdcosceeuoorufaiassrmm"sresatsiinmmpotitooogonpeenou-.aann'isntshsttthcebdUieaegher^snughis'tanae<thi.molglxhsyTts^poeashcfaoiti7btsebetshemieuroCoxdrrrppusfiioednoocmgy.ugdos-hotmnmunatucrsokieti&lfunedhcfT'fmg/b'laT.iod,naeettOnuht'r'tnoprisehieilenr.eerxecgmfipesomleCoiking'xxi-sosxi-piaubtmniehodsrleegde^^~^lnptstCfAahhrmoiocotdeeetmkadmer,Cilnmitl-soiokotlimiknfmasan- sholacimoinlaooali-finensnls.as,!rsscitbatnboeiluouelhcl,'denslfiiaiaeiysb:viltvsaeeeeaeiptdssrasisboidwwotne.nalhaiesitttNaatreeehoe-xdets.aptoevtthhohennderseradestutthqtekohrebeuntemhl.eioee,rentieswvhnortssaaeoen,-lsz,rnuriauattsiaihhtslcrestdeeakeh., . -. the relatively poor shrink- and- crackresistance of some non-asbestos formu..____ lations.- These, increased- costa are. ex-^ pected to diminish over time a formula tions Improve and as applicators,became.'^^-'-.ijj more accustomed to ush^.nbn-as6estos^gS%'"S formulations...- . One company.which maybe adversely affected " by"the proposed.-banrreports ^fe^-r - CTHding anil:- tnpera-tinng- in -` banning .of. these products atCthis time. -5 that attapulgite, one of -the' prime.subT--.;^:^/ volved would be the'same as for the dry compound.- Consequently,'; the. risk as sessment values would not be signifi cantly, reduced. As'for7 the four-day, - (2) A comment questions a statement ! stttutes for .asbestos in' patdbing-com-'^Silrt in. the proposal that fibrous glass could 'pounds, is in/limited'supply" and thati?S^; be considered a' substitute for chrysotile some small manufacturers may/have^S-SIp _:in emberizing materials. difficulty-.In obtaining-that;ma^aL'-w/C'g: eight-hour.exposure being, too high, an ./-.The .Commission concurs 'with this . Other- industry, sources,': have reported};""' ~ estimate, no data were submitted to sub comment; it is currently unaware of any /this same problem. .The larger patching ` stantiate that contention. As stated in manufacturers or distributors who use or compound producers, who already have the proposal, therefore, it appears to the know of the use of flbrous glass for this asbestos-free formulations on the mar Commission that' although the exposure purpose.- In addition, from a. technical,. ket, " are;-not expected;* to" have*as....... ^ may be highlit is treasonably foresee viewpoint; glass fibers are not similar-hr /much difficulty'in obtaihing'.substitutei$sk.C'r^ able exposure.,s&sfVsfc&v:. - - D. Substitutes, for. asbestos. The July size and shape to chrysotile. Unlike the .'materials.'.'*'-' rod-like glass fibers, chrysotile tends to -Two manufacturers discussed the ban's'Zp-i-Z-'X 29, 1977 'proposal notes that substitutes be curved, or; be of curly fibers or fiber potential adverse effect'on thentility. for asbestos are-already-being used in' bundles,'-comprised-of extremely small- . the product. One expressed a belief tirat^v/ltfi patching compounds. One'of- the most diamatered fibrils. However, glass-fibers - non-asbestos formulations are inferior common substitutes is attapulgite, a fi are similar--at least in shape--to some performance to. asbestos formulations. ' :' brous clay. Other substitutes of a. fibrous of the amphibole asbestos minerals. The Another reinforced that belief, reporting "~'T: * '- nature are wollastonite, kaolin!te, sepio- diameter of most fibrous glass is report that the absence of asbestos formula-. - lite and bentonite. Several comments ex edly greater than 3-5 microns and con tions may prompt workmen to add their- .. . press concern thatmaterials used as sub sidered too large to be respirable. Howr own asbestos to the product to help pre- --, stitutes for asbestos may-also pose haz- - ever, glass fibers are not of uniform di vent cracking when wall joints are cov-Zs ards.- . "s- c.-- -h mensions and a small percentage may be ered: However, the addition of asbestos S The Commission shares this concern. of respirable size. Additional study is ` would be tantamount to manufacture of Substitutes for asbestos have been under consideration for only a short time. Little data are available on which to evaluate the safety of substitute materials. Ex-, perimental findings of Stanton (58) indi needed to assess the pathologic effects of inhaled fibers, including fibrous glass. E. Economic considerations. Six. com menters expressed concern that the ban would have an adverse economic impact the banned product and would thus be - prohibited. It appears that at least some -;, existing non-asbestos formulations may -l* --'-.Pvsi* be less 'desirable, from a performance * cate that many mineral fibers (in addi on the industry. Five of the six are man standpoint, to professional contractors; tion to asbestos) of small respirable di- ufacturers who commented on patching ' most consumer applicators are not ex-, Z.. FEDERM REGISTER, VOL 42, NO. 241--THURSDAY, DECEMBER 15, 197? .$3360 RULES AND REGULATIONS pected to perceive a significant difference containing respirable free-form asbestos CPSA, provides that a -rule should be in the product's performance. . ;;v are banned hazardous products under published 30 days before Its effective date -As'is indicated in the proposal, the section 8 of the Consumer Product unless the Commission provides other Commission is aware that economic im Safety Act. wise for good cause found and published " -'S'jJ pacts'of varying degrees will occur as Scope and application. The rules apply with the ride. ' a result of the ban on inhalable asbestos to the named consumer , products that As described in the discussion above -1;48S| containing ' patching compounds and are customarily produced or distributed on effective date, the Commission is con- ; emberizing materials containing res for sale to or for the personal use, con cemed 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 emberizing 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 economic 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 ~ a 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 -V&kNh 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 cussed - in the Environmental and tomary-access, whether the patching compounds are applied professionally or The Commission finds there is good cause to issue the rule on artificial emberizing .-Economic Assessments now on file in the by consumers. Only consumer products materials effective on the date of pub-VdM-.fa ; Office of the Secretary and were con- are subject to this +- regulation! -sidered by the Commission during this Patching compounds which are con-\ rulemaking process. '* sumer products include those which a| .- , V... Findings.. 1. CPSA Section 8 Section 8 (1) and f'.F.Other comments. (1) Several com- . consumer can purchase: Merely label-1 (2) of the CPSA require that, before is-t';pRSB -menters suggested that the Commission ing a patching compound for industrial | suing a consumer product safety rule '.should Investigate other products ton- use would not exclude such articles from1 declaring a product to be a banned haz .tainlng asbestos in order to'determine the ban. If the sale or use of the ardous product, the Commission must - the existence of possible hazards. product to consumers -is facilitated, find (1) that the product presents an .. . , - In the proposal, the Commission noted it is subject to ^ the ban. -Patching unreasonable risk of injury and (2) that -ithat information on other products con- compounds which are labeled as, mar no feasible, safety standard can'-ade-^lsf staining'inhalable asbestos would con- keted, and sold solely for industrial use quately protect the public from the un tinue to be developed in order to deter- in non-consumer environments are not reasonable 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-inten (a) Unreasonable risk of injury. .The ? "'to develop plans for collecting such in- tionally-added respirable free-form as regulations'are intended to reduce'or, Lformatton. -. ' bestos sold directly to consumers and to . eliminate the unreasonable risk of injury - ."(2)-One commenter suggested that those which "are used in .residences, to the public from cancers such as lung ' . the Commission issue a rule that would prohibit stockpiling of the banned prod schools, hospitals, public buildings or other areas where consumers Have cus cancer and mesothelioma. .The risk "is m associated with asbestos fibers which ucts. -- ~ - - _ ; Section 9(d) <2) of the CPSA provides tomary access. Effective dates. (1) The - ' rule at Part.. are not tightly bound into or encapsu lated.,in the composition of a product. .--S that the Commission may, by notice and 1304 below applies to consumer patching The health lisk^occurs when asbestos comment rulemaking, prohibit a manu . compounds containing respirable free fibers become airborne such as by mix facturer from stockpiling a product for form asbestos that are manufactured or. 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 January Iff, 1978, or after that date. For effect of ordinary household air currents ban on consumer patching compounds all other consumer patching compounds on artificial emberizing materials in covers the manufacture and initial in containing respirable free-form asbestos, fireplaces. Tests show that certain malig troduction of products into commerce? 30 no matter when manufactured or ini nancies are related to asbestiform min days after promulgation; the ban on tially introduced into commerce the rule erals; these can arise 20 or more years artificial emberizing materials covers at Part 1304 applies on June 12, 19781 after occupational exposure. However, products in commerce on the date of and after that date. This means that' also reported are malignancies from in promulgation. Therefore, in practical ef 30 days after publication of this rule, direct, non-occupational exposure. In a fect, there would not be time for manu manufacturers are prohibited from man recent case, the court recognized a study facturers to stockpile; nor would there ufacturing or shipping the product to on asbestos exposure cited by the En be time prior to these effective dates for distributors, retailers, consumers or to vironmental Protection Agency at 40 FR notice and comment rulemaking. others for application in consumer envi 48295, showing "new biological evidence (3) A commenter expressed concern ronments. Further, 180 days after publi supporting the significance of single, that the banned products be kept out cation of this rule, distributors and re short-term exposures * * * One-day in of international commerce. tailers will be prohibited from selling, of halation exposures in animal experi The Commission notes that this com fering for sale or distributing in com ments have produced an increase in the ment is directed not to the proposed rule merce the described products, no matter incidence of mesothelioma." National but to its enforcement. If this matter when manufactured or initially intro Association of Demolition Contractors should become a problem it would be duced into commerce, to distributors, re-, v. Environmental Protection Agency, Civ. considered in the context of enforce tailers, and users. . Nos. 74-1546, 75-2078, D.C. Cir., October I ment. (2) The rule at Part 1305 below applies 13, 1977. ' (4) Several comments suggested edi to artifiical emberising materials (embers The information on which the Com torial changes in the proposal. These and ash) containing respirable free-form mission made the determination of un suggestions were considered and, where asbestos that are in commerce on De reasonable risk consists primarily of appropriate, have been included herein. cember 15,1977, or after that date. This data on exposure of industrial workers Description op the Ban prohibition applies to products In inven to respirable free-form asbestos. Infor tory as well as to those manufactured mation on exposure of the public to in The banned products. Parts 1304 and on or after the effective date. halable asbestos in individual consumer 1305 declare, respectively, that consumer The Administrative Procedure Act (5 products is 'limited. However, as is evi patching compounds and artificial em U.S.C. 553) which governs the matter of dent from the extensive bibliography in berizing materials (embers and ash) effective date for banning rules under the cluded herein there is general scientific FEPERAl REGISTER, VOL. 42, NO. 241--THURSpAY, PECEMBER 1$, 197/ RULES AND REGULATIONS OOOUJ. and medical agreement that there is no known threshold level below which it is safe for people to be exposed to respi rable free-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 IX. Enterllne P., and Henderson, V.: A Model for Extrapolating to Low Levels of Asbestos Exposure. Presented at Conference on Problems of Extrapolating the Besults of Laboratory Animal Data to Men and Extrapolating the Besults from High Dose asbestos in the household from consumer fect on elderly or handicapped persons Level Experiments to Low Dose Level Expo patching compounds and artificial emberizing 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 will result from this regulation. It is in the best interest of the entire public, in'cluding the elderly and handicapped, that these hazards be reduced. 3. CPSA Section 9(c). Section 9(c) of the CPSA requires that prior to promul sure, Plnehurst, N.C. (March 1976). 12. Enterllne, P., DeCoufle, P., and Hender son, V.: Mortality In Belatlon to Occupa tional Exposure In the Asbestos Industry. J. of Occupational Medicine 14 (12): 897-803 (1972). . ' 13. Enticknap, J. B., and Smither, W. J.: posure to inhalable asbestos in the home gating a consumer product safety rule Peritoneal Tumours In AsbestosIs 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 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 Med. 21:20-31 (1964). 14. Environmental Defense Fund: Petition for Action under section 12 of the CPSA against fireplace ashes and Logs Containing Asbestos. Footnote 1. May 12, 1977. - 16. Fletcher, D. C.: A Mortality Study of . Shipyard Workers and Pleural Plaques. Br. J. " embers and ash receive additional doses ucts, or types or classes thereof, subject Ind. Med. 29:142-145 (1972). of asbestos and can be assumed to face to such rule; (3) the need of the public 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 rale 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 16. Greenberg, M., and Davies, A. L.: Mesothelioma Register 19678, Br. J. Ind. Med. 31:91-104 (1974). "1 17. Hammond, E. C., Sellkoff, I. J. and Churg, J.: Neoplasia Among Insulation Workers In the United States with Special Beference to Intra Abdominal Neoplasia. Ann. N.Y. Acad. Scl. 132:619-625 (1965).. . ' cludes that the degree and nature of the verse effects on competition or disruption 18. Hammond, E.C., and Sellkoff, I. J.: Be risk of injury and the probability that or dislocation of manufacturing and the risk will result Jn harm outweighs the other commercial practices consistent rules' effect on the products' utility, cost with the public health and safety; (5) and availability to the consumer. that the rule Is reasonably necessary to (b) No feasible safety standard. The eliminate or reduce an unreasonable risk Commission is not aware of a technically' associated with such product; and (6) latlon of Cigarette Smoking to Bisk of Death of Asbestos Associated Disease Among Insu lation Workers In the United States, pp. 312 317 International Agency for Besearch on Cancer (1973). - 19. Harries. P. G.: Asbestos Hazard In Naval Dockyards. Ann. Occup. Hyg. 11:134-146 feasible procedure for removing the that the promulgation -of the rule Is In (1968). -_ hazards of cancer from respirable free form asbestos in the named products. The Commission believes that, not all patching compounds present an unrea sonable risk of injury to the public, only the public interest (15 HJ3.C, 2058(c)). The findings required by Section 9(c) of the act have been described generally in the preamble and are incorporated in 20. Hasan, Faysal M. et al: The Significance of Asbestos Exposure In' the Diagnosis, of Mesothelioma: A 28 year Experience from a . Major Urban Hospital. Amer. Rev., Reap. Dls. . 116:761-768 (1077). - . . -=... " 21. Huff, J. E, Hammons, A, S.,' Dinger, C. . patching compounds containing respir 1304A and 13.05.5 of the rules below. A., Whltlfield, B. Iu, and Ulrlokson, G, U.: -' able free-form asbestos. The hazard as ,, ' ` sociated with this product is caused by Bibhogkapht . Asbestoe: An Overview. Env. Chemicals . Human and Animal Health 3rd Annual Con-- . 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 - 1.' Anderson. H. A., Lilia, ft., Dunn, S, Flschbeln, A. S. and Sellkoff, I. J.: Household- Contact Asbestos Neoplastic Bisk. Ann. N.Y. Acad. SCI. 271:311-323 (1976). .. , 2. Asbestos Information Assoc.: Informa . ference Proceedings. .. -- ' 22. IARO Working Group on the Evaluation ..7 . of the Carcinogenic. Bisk of Chemicals to , Man. IARC Monographs on the Evaluation of . the Carcinogenic Bisk to Man: Asbestos. Inti - patching compounds.containing respir tion from Representative of the Asbestos In Agency for Beaearcb on Cancer,'1077. ' able free-form asbestos is feasible. ' ternational Association .Conference, Ham-. ,. - 23. Interagency Collaborative Group ''oh .7'7s The product artificial emberizing ma- burg, Germany, 1976, June 27,1877 memo: Environmental Carcinogens, ISth 'Meeting,.'. ' terials for fireplaces; containing respira ble free-form asbestos is used only in dry form. Thus Individual asbestos fibers are never bound together. If the asbestos - 3. Borrow, M., Conston, A,, Llvornese, L, I., NIH. Aug. 14,1976. & - and Schlet, N.: Mesothelioma and Its Asso- '' 24. Jones, H. B., and Grindon, A.: Environ-. v - elation With Asbestos. JAMA (8): 93-87 mental Factors in the Origin of Cancer and - (1967). . " - -V .; . . Estimation of the Possible Hazard to Mam : 4. Canada. Consumer and Corporate Affairs, Fd. Cosmet. Toxicol. 18:251-268 (1975) fibers were coated by another material to Consumer Standards Directorate, Product `' 25. T.llltngton, G. A. et aT: Conjugal Mallgr.;;" bind the fibers, it would no longer be the Safety Branch, Asbestos In Toys and nant Mesothelioma; New Eng. J. Med, 291' - same product and would not give the de Modelling Materials Issue No. 2, June, 1976. (11): 683-584 (Sept. 12, 1974). ... . j; sired decorative' effect. In considering ~ 6. Department- of Labor. Occupational ' 26. McDonald, J. C-^McDonald, A. D,, Gibbs, . 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 'Safety and Health Administration:.Asbestos - Dust Standard. 29 CFR 1910.93a. r . 6. Department of Labor.. Occupational Safety and Health Administration: Occupa. tlonal Exposure to Asbestos. Notice of Pro A. W,,-.. et al: The Health of Chiysotile,; Asbestos Mine and Mill Workers of Quebec.--' .. Arch. Env. Health 28:61 1974.. .r-rri-- 27. McEwen,' J, Flnlayson, A_, Maht A.', and.__.'L-' Gibson, A. A. M.: Mesothelioma In Scotland:'^-.;,' artificial emberizing'materials contain posed Rulemaking. FB Vol, 40, No. 197, pp. Br.Med. J.4:674-578 (1970). .. .. r ti ing respirable free-form asbestos is 47652-57666, (Oct. 9,-1975). ' ' ' ' 28. Mereweather, E-R. A,, and Prlce.C. W.:C . - 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 Safety and Health Administration: Asbestos Dust In the Construction Industry. Pre-limlnary Draft: Technical Feasibility Assess ment. Speckling and Drywall Joint Com . pounds, p. 112. (1977). . . - . ' . the Lungs and Dust Suppression in Asbestos - Industry.. ELM. Stationery Office, London (1930). ' * .. . -, _ 29.- National". Institute for Occupational ... Safety and Health:. 'Criteria for a Recoin- quately protect the public from unrea 8. Edge, J. R'.: Asbestos Belated Disease In mended Standard ... Occupational Exposure sonable risks of injury associated with . Barrow In Furness Env. Bes. 11:244-247 to Asbestos. (1972). . - them. . ' ' (1976). - , SO. Newhouse, M. L.,' and Berry . G.: The _ 2. CPSA Section Sib). Section 9(b) of the CPSA, 15 U.S.C. 2058 (b), as amended, requires the Commission to consider and 9. Elmes, P. C. and Simpson, M. J. C.: Insu lation Workers in Belfast 3. Mortality 1940 66. Br.J. Ind. Med. 28: 226-236 (1971)., 10. England. Health and Safety Exec. Dept, Bisk of Developing Mesothelioma Among'---' Workers In an Asbestos Textile Factory. XVH .. International . Congress on Occupation Health, Bristol, England (1975);' - , take into account in the promulgation of Prices and Consumer Protection. Asbestos 31. Newhouse, M. L,, and Thompson,"!!.: of a rule the special needs of elderly and Labeling Scheme. April 1976. ' Mesothelioma of Pleura and Peritoneum Pol- . .fEDERAl REGISTER, VOl. 42, NO. 241--THURSDAY, DECEMBER 15, 1977 iI l#K?-^63362 ^;.-V- -'. -- ' ' *v, , - 'RULES AND "REGULATIONS - ass^ww Exposure ' to Asbestos In the London Effects of Asbestos. IARO Publication No. 8, trial use in non-consumer environments a^j^fawaAtit. J. Ind. Med. 22:261 (1966). - ; pp. 289-294, Lyon, 1973. - . -4,,J.r are hot subject to the ban. In addition to i 'fo'J-y fc"32- Newhouse, M.: Asbestos In the Work Place and the Community. Ann. Oco. Hyg. 16: ; Conclusion . .'97-107 (1973). Upon considering the published pro 'iu ^ -'Vls'33. Newhouse, M. L., and Berry, G., Pre--'.`-'.; uctlons of Mortality from Mesothelioma Ti?v ' . Tumours In Asbestos Factory Workers. Br. J. $. Tlnd. Med. 33:147-151 (1976). - , ; ':`'>34. Newhouse, M. L., and Berry G.: As- ' posal, the oral and written responses to the proposal and other relevant material, the Commission bans consumer patching compounds and artificial emberizing ma those products which can be gold directly ^Ipl: to consumers, the ban applies to patching ' compounds containing respirable Jree-ySS'T form asbestos which are used in dences, schools, hospitals, public,.build- tags or other areas where consumers v?lU. have customary access. - . - < HF-rbestos' and Laryngeal Carcinoma Lancet. 2: .^Tgewxms).- terials (embers and ash) as set forth below. - ' 'S 1304.2 Purpose. .1 fr':? --'"$<~"35; Nicholson, W. J.: Case Study 1: As>:v&c ./.bestos The TLV Approach. N.T. Acad. Scl. ' ^1^271:.152-169 (1976)., I 36. Rohl, A. N., et al: Exposure to Asbestos I ???-'- (vln the Use of Consumer Spackllng, Patching i yj0lr!S and Taping Compounds. Science 189:551-563 Accordingly, pursuant to provisions of the Consumer Product Safety Act (sections -8 and 9, 86 Stat. 1215-17,- as amended,' 90 -Stat. 506, 15 IJ.S.C. 2057, 2058), new Paris 1304 and 1305 are added The purpose of this rule is to ban con- ' -; sumer patching compounds containing intentionally added respirable, free-form ; asbestos.' These products present an un- * J-.r' reasonable risk of injury due-to Inhala i : ^i;. -'-.5'(Aug. 15,1975). -' to Title . 16, Chapter n, Subchapter B, tion of fibers which increase the risk of Kv'.-. !yT-'37, Selikoff, I. J.: Asbestos and Neoplasia. as follows: - developing cancer, including lung cancer /'-S '"Am. J. Med. 42(4) : 487-496 (1967). j,:.1.. ...-yv.38. Selikoff.T. J., and Hammond, E. C.:DI .-Community Effects of Non-Occupatlonal En.#S^Sylronmental Asbestos-Exposure. Am. J. Pub. PART 1304--BAN OF CONSUMER PATCH ING COMPOUNDS CONTAINING RESPI RABLE FREEFORM ASBESTOS j>--r rm and mesothelioma, diseases which have been demonstrated to be caused by expo sure to asbestos I ^^S|Health:53(9);:1658-rl886 (1968). -'j ^5'^&39sSellkoff.,r. J./Churg, J.; and Hammond, ^^.i.-^sE.-C^The'pccurrence of Asbestosls Among l ^^tS^LcSulaUon Workers in the United States. N.T. ' vS&|i?rAcad.`of' ScL.132:139--155 (1965) i:jg^Si'40..'Sellkoff,'tI.^J.,-.Hammond, E. C,,.and i=^^^.ChurgivJ.:-Asbestos Exposure, Smoking," and ^VS-^Neoplasla:. JAMA 204(2) :106-112 (1968). . JV-Wf,,41. SeUkoff, Hammond, E. C., and ''`fe'^eldman,r-H.:/; Cancer 'Risk of'Insulation, ^g^yorkers'-'In the' United States, pp. 209-216 ^International Agency for Research on cancer x* - - "1^ -Sec. .. : 1304.3 - Definitions, 1304.1 ".(.Scope and 'application.' ' - '.The definitions'in'seetibn'3j&f the ' 13042 '"Purposer . * 13043Definitions.: .1304,4Consumer patching compounds ,, - - banned hazardous products. ~r 1304.5 - Findings. - V: . ... as Consumer Product Safely Act (15 UB.C. ,2052)^apply to this Part 1304.; T_(b) "Asbestos" means a group of min-' eral fibers composed of hydrated sili AuTKoarrT: Sections 8, 9, 86 Stat. <1215 1217, as amended 90 Stat. 506,15 UB.C. 2057, '2058.-.__ss.'W--. . 1304.1 Scope and application. `0, . cates, oxygen, hydrogen, and other ele ments such as sodium, ironrmagnesiuhi, and calcium in diverse combinations and are: - Amoslte, vchrysotile,' 'crocidollte, ' anthophylllte asbestos, 'acttaolite asbes- ,,|^Sgffi42.iSellkoff. -J. J.r Hammond, E. C,, 'and Churg,' '3.:' Carcinogenicity of Amoslte As " S3sJbestos. Arch. Env. Health 25:183-188 (1972). |%il^43.>'SeUkoff... I. 'J.,' Nlcholson, W. J, and g*r*Langer,>A.:'M.r "Asbestos. Air Pollution": fegr;-?Arch.Environ.Health, 25:113, July 1972. ?;Sp:v:;.'44'. Sheers, G.: Effects of Asbestos In Dock- - (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 ; tos, and tremolite asbestos^ (c) "Free-form asbestos" is that,which is not bound, or otherwise "locked-ta" to a product by resins or other bonding ~agente, or which can readily become air borne with any reasonably foreseeable a^lSjyard. Workers. Br. Med. J. 3:674-579 (1968). Stell. P.' M.,-and McGill, T.: Asbestos and Laryngeal Carcinoma. Lancet 2:416-417 fe&r^(i78).-8,....... -- - - - ........ `zp- 46. Stumphlus, J.: Epidemiology of Meso nS' -'t- 'thelloma on Walcheren Island. Br. J. Ind. Med. 28:69-66 (1971). i - }^^--47. Wagner,-J. C., Sleggs, C. A, and Mar I ! 'chand, P.: Diffuse Pleural Mesothelioma and -i-i^Asbestoe Exposure In the North Western Cape - ;Province. Brit, J. Ind. Med. 17:260-271 (1960). 48. Wagner, J. C., et al.: The Effects of the . Inhalation of Asbestos In Rats. Br. d. Cancer, 29: 252-269 (1974). ' 49. Webster, I.: Asbestos and Malignancy. - SA. Med. J. 47:185-171 (1963). 60. Whltwell, F,, and Rawcllffe, R. M.: Dif fuse Malignant Pleural Mesothelioma and Asbestos Exposure. Thorax 26:622 (1971). 61. Kearney, A. T.: Economic Impact As sessment of the Proposed Ban of Asbestos Containing Patching Compounds, October 1977. 52. Rohl, A,, Langer, A., and Sellkoff, I.: under reasonably foreseeable cdhditions. use. -r : : }.'? 7Z"~ of use, are banned hazardous products under sections 8 and 9 of the Consumer ' '-.'(d) '"Patching compoimds" are mix tures- of talc, pigments,'clays, casein, Product Safety Act (CPSA) (15 UJS.C. 2057 -and 2058). This ban applies to ground marble, mica or other similar materials and a binding material such as patching compounds which are (1) used asbestos which are sold in a dry form to cover, seal or mask cracks, joints, holes ready to be mixed with water, or such and similar openings In the trim, walls, combinations in ready-mix paste'form. ceiling, etc. of building interiors, which after drying are sanded to a smooth "(e) "Consumer patching compounds" are those that are customarily produced finish and (2) are produced and dis tributed for sale to or for the personal or distributed for sale to or for the per sonal use, consumption or enjoyment of use, consumption or enjoyment of a con sumer in or around a permanent or consumers in or around a permanent or temporary household or residence, a temporary household or residence, a school, in recreation or otherwise. school, in recreation or otherwise. The Commission considers that patching (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 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. injury; and (3) that no feasible con (f) "Intentionally-added asbestos" is Environmental Asbestos Pollution Related to sumer product safety standard under the asbestos which is (1) added deliberately Use of Quarried Serpentine Rock. Science, V, CPSA would adequately protect the pub as an ingredient intended to impart spe 196, pp. 1319-1322, June 17, 1977. lic from the unreasonable risk of injury cific characteristics; or, (2) contained in . ' 53. Bayard, S.: Memorandum, Risk of Respiratory cancer Due to Low-Level Expo sure to Asbestos from Spackllng and Joint Taping Compounds. June 3, 1977. - 54. Bayard, 8.: Memorandum to File; Re sponses to Comments, October 1977. associated with these products. Tills 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 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 55. Thompson, J. G., Ann. Of N.T. Acad. Sci. ject to this regulation. Patching com sidered as knowingly using a raw mate 132:196-214,1965.- - pounds which are consumer products rial containing asbestos, unless the ' - 56. Dept, of Interior, Bureau of Mines: Selected Silicate Minerals and their Asbestlform Varieties. 1977. 67. Harrington. J. S., et al.: Mineral Fibers: Chemical, Physicochemical and Biological include those which a consumer can pur chase. Merely labeling a patching com pound for industrial use would not ex clude such articles from the ban. If the manufacturer takes steps to reduce the asbestos to the maximum extent feasible. (g) "Initial introduction into com Properties. Adv. Pharmacol. Chemother. sale or use of the product by consumers merce" occurs when the manufacturer 12:291-402,1976. is facilitated, it is subject to the ban. ships a product covered by this regula 58. Stanton, M. D.: Some Etiological Con Patching compounds which are labeled tion from a facility of the manufacturer - stderations of Fiber Carcinogenesis. Biological as, marketed, and sold solely for indus to a distributor, retailer, or user. , FEDERAL REGISTER, VOL. .42, NO. 241--THURS0AY, DECEMBER 15, 1977 RULES AND REGULATIONS 63363 1304.4 Consumer patching compounds posure to inhalable asbestos is in the of asbestos formulations) are affected by '` - ' as banned hazardous products. home. the 10-25 percent increase. The burden 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 commerce, are banned, hazardous products after June 11, 1978. (b) Products, subject to the ban. Con sumer patching compounds as defined in 1034.3 (d), (e), (f) include such prod ucts as drywall spackling 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 30-50 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. 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 newly- constructed 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 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 percent. This is made up primarily of in- creased costs of. raw materials and of -- . -.. . ' '' . 1304.5 Findings. - Many others containing significant levels formulation research and development. . (a) The degree and nature of the risk of asbestos contamination will also be It is expected that the price of many of injury. The Commission finds that the affected by the ban. patching compounds may. rise as a result. risk of injury which this regulation is ' (c) Need of the public for the products Producers, distributors, and retailers of- designed to eliminate or reduce is from and effects of the rule on their utility, patching compounds may also have to cancer, including lung cancer and cost and availability. Patching com incur costs associated with the disposal mesothelioma. In assessing the degree pounds, though used primarily by com of products in inventory. The Commis and nature of the risk of injury mercial construction workers, are also sion estimates that the wholesale value . to consumers, the Commission has used by consumers, and are used for the of manufacturers' and distributors' in reviewed experimental data and hu patching and sealing of cracks and joints man experience information. Hie Com in and around the household and in mission noted that in the scientific other consumer, environments either by literature, there Is general agreement consumers or professional. applicators. that there is no known threshold level The compounds are used to cover areas below which exposure to respirable free on gypsum drywall which might other form asbestos would be considered safe." wise be aesthetically undesirable or Further on the basis of such scientific which might lead to structural damage, 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-., . opinion, it. appears to., the Commission energy loss or lower property value. The tag compounds,, producers of asbestos-^'/;'-.:. , that children are particularly vulnerable "asbestos in these compounds acts as a free, formulations have not yet passed'^T-f ^T'' to carcinogens because of their longer structural reinforcing agent which helps on to purchasers their increased-costs; potential lifetime and their rapid rate to reduce cracking and shrinkage of the . If the increased production costs of as-f V : of growth. In areas of the country where compound over time, and which renders bestos-free formulations can be passed '^--ic asbestos may not be prevalent in the en the compound more pliable or "work on completely as a result of the ban, the^T vironment, the major risk of exposure for able" upon application. , ' ' total annual price effect for the year ' children arid others may occur in the (1) Utility. The elimination of asbestos lowing the issuance of the ban' may-; bev -f -; household. In areas of the country where .from these products may result in the $10-$60 million." The magnitude dfyhls ^eri" - more asbestos fibers are present in the increased use or new development of effect may be reduced significantly , in, environment,_the public is exposed to ad-; substitutes which have, similar proper successive years following the issuance'of r__ ditional risks from.'the* presence of as ties to those of asbestos, or which impart the ban'as producers' development bestos fibers in households' and other similar qualities to the product. In cur are amortized, as raw materials become consumer environments, the Commission ' rent reformulations, asbestos is replaced more widely available; and as price cdm'rvir.-^^ concluded on the basis-of- these factors . by a combination of substances, of which _. petition is strengthened because. that consumer patching'coinpounds con- the most common is attapulgite, a fibrous taining.' respirable " free-form'' asbestos clay.' Some.-non-asbestos formulations present an unreasonable risk'of injury to are reportedly not-'as effective as those .. (3) Availability. The supply, of.asbes->v^:i-,. the public: In addition, a risk assessment containing - asbestos,. in ' controlling tos substitutes,- particularly. attapulgite f was made? For purposes'of this assess shrinkage and cracking over time. The clay and'relatively uricontamtaated talc,, "v" - ment, the'Commission considered the use. workability of some compounds may be for usp in the manufacture-of patching. 1' of patching compounds by the consumer, diminished as well. This may. adversely compounds may-be insufficient to. meet?- -jf.p: for six hours a day four times a year, to.: affect the utility derived from the prod be a high yet" reasonably foreseeable ex uct by -consumers, and by professional posure: The increased risk~of death from contractors until'such time as improved the ban. Furtherfmiany small producers%55g - respiratory cancer induced by this ex-' formulations are developed and available probably lack'the technical capability'V posure-is estimated-'at- betwfeen 10 and to end-users.^^ . reformulate^their products,:and. maynjf^^fr?' 2,000 per million. For flve'years of.ex (2) Cost. Asbestos-free patching com -forced to cease production, at least uhtil'^^Kt'i' posure at' these levels, the risk increases pound formulations may require more formulations of'"satisfactory cost and"' .- ''5!"" geometrically and is-estimated at be time to use. This would tend to Increase performance are developed. This may - tween 1,000 and 12,000 permillion. The the direct labor costs of residential and affect some professional contractors. In . . lower estimate of 10 per million is closer other construction and renovation. The the short run, consumers may be in- -5;;. to the actual risk for.'a one-year ex expected increase is between 10 and 25 directly affected by- delays in drywall - . - posure. Nevertheless, in view of the seri percent. The Commission estimates that 'finishing and building completion.... - "I ousness of the injury and the cumulative, the annual labor cost of drywall finishing . (d) Any means of achieving th"e~ob-. effects' of asbestos' exposure, even this in these consumer environments is on the jective of the ban while minimizing'ad- - .. , minimum figure represents an unaccept order of $1 billion. The use of non verse effects'on competition or disruption V. : - - able risk. The Commission believes' that asbestos patching compound formula or dislocation of manufacturing and oth- reducing exposure to respirable free tions in all applications may increase this er commercial practices consistent with'.-:^:-... form asbestos in the home represents a cost by $50-$125 million, assuming that the public health and safety: The-a'd- substantial decrease in risk to consumers, roughly half the current labor costs (i.e., verse effects of the ban on patching com-' ` ` - since, for many people, the major ex that portion now associated with the use pounds containing asbestos is reduced by-.;;.: FEDERAL REGISTER,.VOL. 42, NO. 241--THURSDAY, DECEMBER IS, 197? A.- - .. 63364 - " RULES . AND REGULATIONS -* \ - limiting 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. *s- .1 ; , -" limiting the scope of 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 V . .effective date, were considered by the . '" Commission. However, none was found : that would cause less disruption or dis- 1305.3 Definitions, .' .(a) The definitions in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052) apply to this Part 1305. - ucts, and effects of the rule on their util ity, cost,, and availability. Artificial fire place emberizing material serves a strictly decorative purpose and does not 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 . commerical practices, consistent with eral fibers composed of hydrated silicates, of its ability to provide heat. A certain - public health and safety. ' . " Conclusion. The Commission finds that this rule, including its effective date is reasonably necessary to eliminate or reduce the unreasonable risk of injury from cancers such as lung cancer and mesothelioma 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 ' oxygen, hydrogen and other elements such as sodium, iron, magnesium and cal cium in diverse combinations and are: Amosite, chrysotile, crocidolite, antho- phyllite asbestos, actinolite asbestos, and tremolite asbestos. ' .(c) "Free-form asbestos" is that which is not bound, woven, or. otherwise "locked-in" to a product by resins or other bonding agents, or those from which fibers can readily become airborne with any reasonably foreseeable use. (d) "Emberizing materials" means an ; . degree of aesthetic ..desirability exists, however, since the product "system" it self (the gas log, ashes, and. embers) is intended to simulate burning wooden logs. Gas logs may be sold with artificial emberizing material attached at the fac tory (the log commonly referred to as being "frosted"), or with the "embers" in a separate kit, often mixed with simu lated "ashes." Virtually all gas logs' are either frosted or packaged with an em berizing .kit;, however, the majority of gas logs produced in 1977 were packaged tion of Jthis rule is in the public interest. asbestos-containing material generally with non-asbestos-containing emberiz packed in an "emberizing" kit to be ing' kits.. The Commission - estimates .-;ui_ "PART 1305--BAN OF ARTIFICIAL EMBER SIZING MATERIALS (ASH AND EMBERS) CONTAINING RESPIRABLE FREE FORM -ASBESTOS Sec. 1305.1 -1305.2 ;i305U 1305.4 , . Scope and application.' ' Purpose. . ~ - J ' Definitions. Artificial fireplace ash and embers as placed under artificial logs in gas-bum-, 'annual sales of artificial gas logs at ap ing fireplace systems or in artificial fire-' proximately 100,000 units. Some 25,000 places for decorative purposes. The prod 30,000 of these would be subject to the uct is also glued to artificial logs, either ban.. Approximately -100,000 gas logs at a factory or by a consumer using an frosted or treated by consumers with as emberizing kit. (Synthetic logs manufac bestos are estimated to be in existence. tured of cellulosic products which are consumed by flames are not included in The Commission believes that the ma jority of gas logs are sold with ember- ' this definition. Electric artificial logs and "izing kits; this gives the consumer a 4.'--`d-banned hazardous products. . 1305.5 ` 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. . \ i'-AuTHoamr: Secs. 8,- 9, 30(d), Pub. L. 89 SM. 573, as amended. Pub. L. 94-284; 88 Stat. free-form asbestos-are not included in this definition.) .- (1) Utility. Manufacturers of artifi cial gas log emberizing material are cur W: 1216-17, as amended, 2057,2068). ... 90 Stat. 506 (16 . U3.C. 1305.4 Artificial fireplace ash and embers as banned hazardous prod rently using four substitutes for asbestos in their products: vermiculite, rock wool, 130S.1 Scope and application. ucts. . mica, and a synthetic fiber. None of the C; ?;' T In this Part 1305 the Consumer Prod uct Safety Commission declares that artificial emberizing materials (ash and embers) containing respirable free-form asbestos generally packaged in an em berizing kit for use in fireplaces, and designed for use in such a manner that 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. 1305.5 Findings. "" four is claimed to be as -aesthetically ef fective as asbestos. Thus, the utility de rived by consumers from some gas-burn ing 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 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) (15 .U.S.C. 2057 and 2058). This ban applies to arti ficial emberizing 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. . (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 emberizing materials in homes. However, it appears that the amount of airborne asbestos in such homes would increase when air cur rents in the home are created by down drafts from a fireplace chimney or other activities that stir air in any room. Since emberizing materials may contain up to 50 percent asbestos, which if not per manently bound into artificial fireplace logs would be in respirable form, the risk izing 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 berizing 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 emberizing 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 minimising adverse effects on competition or disruption or dislocation of manufacturing and other 1305.2 Purpose. - associated with emberizing materials is commercial practices consistent with the The purpose Qf this rule is to ban arti ficial emberizing materials containing respirable free-form asbestos. These products present an unreasonable risk of injury due to inhalation of fibers which increase the risk of developing cancers considerable, especially since it continues to exist 24 hours a day. (b) Products subject to the ban. Arti ficial emberizing materials are decorative simulated ashes or embers, used in cer tain gas-burning fireplace systems, which glow to give the appearance of real burn public health and safety. The Commis sion believes that there will be minimal disruption to the market for artificial emberizing'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 KDERAJ. REGISTER, VOL 42, NO. 241--THURSDAY, DECEMBER 15, 1977 RULES AND REGULATIONS reasonably necessary to eliminate or re duce 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 promul gation of this rule is in the public in terest. Effective Dates: Part 1304 becomes ef fective January 16,1978. Part 1305 becomes effective December 15,1977. Dated: December 12,1977. - Sheldon D. Butts, Assistant Secretary, Consumer. Product Safety Commission. [PR Doc.77-35746 Filed 12-12-77; 11:32 ami t' FEDERAL REGISTER, VOL. 42, NO. 241--THURSDAY, DECEMBER IS, 1977