Many mesothelioma cases today that are filed in Court involving exposure to Joint Compound in the construction trade are fought on the basis that this kind of exposure can not cause mesothelioma. These arguments can not get away from the fact that these products were banned by the Consumer Product Safety Commission in 1977. The substance of the ban as it appears in the federal register appears below.
THURSDAY, DECEMBER 15, 1
PART
.. ~.
= ,
- CONSUMER
PRODUCT SAFETY
COMMISSION
-
– CONSUMER PATCHiNG
COMPOUNDS AND
ARTIFICIAL EMBERIZING
MATERIALS (EMBERS
AND ASH) CONTAINING
RESPIRABLE FREE.fORM
ASBESTOS
KMX 01187
RULES AND ·RE~UlATlONS
the CPSA, Pub. L. 92-513, 86 stat, 1231.
as amended, 90 Stat. 510. 15 U.s.C.
2019(d), the Commission amends Tille
16, Chapter n. Subchapter B. by adding
new §§ 1145.4 and 1145.5.
§ lI4SA ConsuUlcrpaldlingcompo-unfl1l
containing rc:spirahle free-foran aSk
UeSlOS; ri~k of C1l11~r aSllO<:iatcd willi
inhalation of as~to8 fibers.
(a) The Commission finds that it is
in the public mterest to regulate the
risk of cancer associated with inhalation
of asbestos fibers from consumer patching
compounds containing respirable
free-form asbestos under the Consumer
Product Safetl Ad WPM) rather than
under the Federal Hazardous Substances
Act (PHSA} because of the desirability
of avoiding, possibly lengthY resource~
consuming, inefficient ruIemakingproeeed.
ings under the FHSA and because of
the availability of civil penalties under
the CPBA for knowing noncompliance.
(b-) Therefore. consumer patching
compounds containing :reSPIrable free- \
form asbestos a.re regulated Wlder CPSA.
§ 1145.5 Emhcri;r;irig materials (cmhue
,. and ash) fflldaiuillg rellpiJuLie fl:Ceform
asbcsto,; risk of cari£.erUl>~~
d;aicd wish inhalation of a!
ia) TIle Commission llnds.tbat it is
In the public interest to regulate the ri.<>k
of cancer associated with inhalation oJ
asbestos fibers from artJficial embcrlzIng
materials (embers nod ash) containing
resPirable free-foon asbestoo under the
consumer Product Safety Act (CPSA)
rather than under the Pederal HazardoUS
SubstanceI Act (PHSA) because of the
desirnbiHtyof avoiding possibly lengthY,
resourcc-con.utning. inefficient rUlemak~
ing proceedings under the FHSA, and
beca.u….e of the availability of civil pennJtiesunder
thc·CPSA for· knowingn.ofi::
compliance.
(b) Therefore, artificial embeti2ing
materials (embers and a..>h) contaIning
respirable- free-form asbestos are regulated
under the CPSA.
Effectlve dlltes: Section 1146.ibecomes
effectiveJanUary 16. 1978.J~ecUon
114:5S .. bccomes.·.-effective···December····15.
1977.
(sec. 30(d). PUb, L. 92–573, .86 Stat. lZU
as nm~ntled. 00 Sta-t. fila (15 UE.G. 2079
(d~) .)
DR-ted: December 12.1977.
SHELDON D. BUTTS,
Assistant Secretary. COn..Ht11ter
Product Safety Commission.
fFR- Doc.77-35744 ~led 12.-12-77; 11 :82 am)
[635!HJl J
COffSUMER PATCHIHG COMPOUNDS AND
ARTfriCIAL EMBERIZING . MATERiALS
(EMBERS AND ASH) CONTAINING
RESPIRABLE FREE-fORM ASBESTOS
Estabfishment As Banned f:laurdous
products
AGENCY: Consumer Product Safety
Conunisslon.
Also on July 29, 1971, the Conmlisslon
proposed In the F£D-EIHL REGISTER <-42
FR 38783} a- regulation under the CPSA
that would declare as banned hazardous
products, consumer patching compounds
and artificial emberizing materials (embers
and ash> containing respirable freeform
asbestos.
The Commissions reasons in the pro~
po~ed section 30(d> rule for proceeding
under the CPSA rather than the FHSA
are:
L The rulemaking praceedings for
regulation of these products under the
I?HSA ale likely to be lengthy and resource~
consuming.
2. R;ulemaking prOceedings under the
CPSA are governed by prOvisions of the
Administrative Procedure Act{5 U.s.C.
S53), and arc infonnal and nonad~
versarial in nature and thus it would be
m(}reJikely that participation ofthe public,
inclUding consumers, would be forthcoming
in rulemaking proceedings under
the CPSA.
3. The Conml.ission believes that civil
penAlty provisions available under. the
CPSA against persons who knowinglY
violate the CPSA may provideadditjonal
incentive for compliance under the
CPSA. The FHSA does not provide the
remedy of civil penalties.
COMMENTS
No comments were received by the
Commission which deal directly with the
prOPOSed section 30(d} rule. In comments
.on the proposed ban. ,however.
several persons in the marketing chain
commented apprOvIngly on the decision
to regulattl under the CPSA because
CPSA doe::; not:require repurchase of
banned hazardous products by lJl:anufac~
ture:rs, distributors, andretailcrn. On the
oWer hand, several groups of (lonsumer,.
oriented inter~ts nol:oo that they would
havolJreferredrerrulation under FHSA
because FlISA Ptovides, for such repurchase.
As noted in the proposed section 30(d)
rule, the Commission is aware thatregulation
under CPSA would preclude man-da.
ted repurchase of panned hazardous
products. However, theCPSA does unt
preclude voluntary- arrangements for repurchase
back up the distribution chain,
Moreover.····the····advantages·enumernted
above. particularly, the advantage of
having a final bannIng regulation in
forae without having: to first provide for
lengthy adjudicatory proceedings. appears
to the Commission to be more
beneficial to consumer health and snfet:r
than the refunds consumers would have
unde-r- FHSA. In tbe matter of Rltifklal
emberbing tnnterials, repulCha.se under
the :FHsA would have meant that roa.ny
peraons In the chain of distribution
would have handled these materials
rather than disposing of them quickly
in order to avoid additiona.l exposure.
Accordingly, the Comml~sion finds
that for the health and safety of con:
sumers, it is in the public interest to
regulate consumer patching C,ompounds
and artificial emberizing materials -containing
rf_,,>pirable free-form: asbestos
under the CPSA rather- than the FHSA.
Therefo-re, pursuant to- sectio:p 3{Hd) of
63354
[635!HJl ]
litle lG–Commercial Pr~etiees
CHAPTER U-<:ONSUMER PROOUCT
SAFETY COMMISSION
SU6CH_PT£R ~ONSUMER PRODUCT
SAfETY ACT REGULA,nONS
PART 1145-REGUUTtON OF PRODUCTS
SUBJECT TO OTJ1ER ACTS UNDER THE
CONSUMER PRODUCT SAFETY ACT
Consumer Patching Compounds and Artifi·
cial Emberi.dr.g Mate:rials (Embers and
Ash) Containing. Respirable Free-Form
Asbest,os
AGENCY: Consumer Product safety
Commission.
ACTION: Final rules.
SUMMARY:.The Commission issues final
rules detcrmin.Jng that it is lothe.public
inwresttotegti1af;C consumer patching
c01lllJOundsand artitlcial emberizlngmn,~
terfuls (embers a.nd ash) containing res~
pirable. free~form asbestos. for the pUrpose
ot adqressintr the risk of cancer
associated. with inhalation of asbestos
fibers, under .the COnsumer Product
Safety Act (CPSA) rather than und~r
tile Federal Hazardous SUbstance Act
(FIISA). AccordIng to the CPSA, a rIsk
of injury that could be eliminated or
reduced to It sufficient extent under the
FHSA may not be regulated under the
CPSA. unless the CommISsion finds by
rule that it is in the ,public interest to
do so.
EFFECTIVE DATES: Fot constuner
patching compoundS containing- respi~
rabIe, free-fonnasbestos this rlilebe~
comes effective on January 16, 1978. For
artificial emberizfng materials (embers
and ash) conta1ning respirable free~form
asbestos, thls Jule becomes effective De~
cember 15, 1977.
lQRFURTHER,INFORMAIIONCONTACT:
.
Charles M. In.cobtlon. compliance and
Entorcement Regulatory Management
Division, Consumer Product Snfcty
COIIunission. Washfngt,on, D.C. ,20207.
__301-492-ti400.
SUPPLEME!lI:ARY INPORMAI:!ON:
BACKGROUND
OhJtiW29,1977;hy inlbllcatIOno! a
notice in the FEDERAL REGISTER ,(42 FIt
38182), the, commissIon proposed a- rule
under section 30(d> of the ConsumerProduct
SaIety Al)-t (CPSA)
public interest to regulate consumor
pat.cbiug compounds and artificial emOOlizL.
1g materials (embers and ash)
contatning respirable free-form asbestos
under the CPSA rather than under the
,,Federal Hazardous SUbstances Act
(FH.6A), (15 U.S.C. 1261-1210. Section
:W
II consumer- product ll-nd whtch could be
eUmlnated or reduced to lI. sufficient extent
under the Fedetil.l Hnzardous Substa.nces Act
• • • may be regulated Ullder the CPSA
only 1t the ConuntssJon by rute finds that Jt
18 tn tbt! public 1nte-~eGt to regulate sUch risk
or injury under (the OPSA.)
i!
III
~J
i
.,II
f
II
j
FEDERAL REGlSTEll, VOl. (2, NO, 24l_THURSPAY, ·DECEMBER U, 1911 KM-WKII 002150
KMWK 002097
PrOdUCed by KeflY~Mooreto
W&K ON 06125-26102
KMX 01188
fEDERAL REGISTER, VOL 42. NO. 241-1HUr.SDAV; DI;CEMflER 15, 1977
63355
KM.WKII 002151
KMX 01189
information avaUable to the Commission
indicated that most patching COmpounds
for commercial/industrial Use arc dis..
tributed in such ways that consumers
have RCCesS to these products (51) eIther
by purchase or for their use and enjoy~
ment. Therefore. theCornmls:>ion concluded
that these are _consumer products
subject to the CommiSSJons jurisdiction
unless such patching compounds are labeled
as, marketed, and ,sold solely for
industrial use.
1. Palching compounds as consumer
prOducts. (n) SevereI COtnlnenter.s requested.
a clearer definition of consumer
patehJng co.m:POund and n. manufacturer
questioned the boundaries of the term
lconsutner product. The manufacturer
states that the definition otconsumer
patching oompOtindsln the ban has been
improperly broadened to inclUde jurisdiction
over building materials. He believes
that the CPSA permits regulation
only of articles used wltbinthe home,
not. the structure of th~ home itself or
the· integra) parts of the structure. lie
&tates. that sinee consUmers have access
to patching compqunds containlng rr..8-
pirable free-foon asbestos through most
marketing channels; these products canbe
considered consumer prodUCts under
the CPSA. Thus, he believes that it was
fnaopropriate to cJte a recent case,
(U.S.A. v. Anaconda -Co., et aJ..·· Misc.
No. 77-0024, (D.D.C.) June 15, 1977)
which Jndicates that. the presence of a
product In a consumer envlronment can
helP decide whether that product is a
consumer product under the CPSA.
Therefore, the commenter urges ·the
CommissJon in Jts final regulation to delete
the paragra-oo on Anaconda case
.in order to avoid the creation of an unnecessary
conflict • • • withJn the· reg~
ulation ·Jtselt.·
In response to this comment, tile Commission
notes that the paragraph whIch
cites the case in quesUon is: not in the
proposed reJfUlatJon but In tha.t part of
the preamble which exPlains the regulation.
In the preamble. the Commission
cited Anaconda not In reliance on the
case as a basis for regulation but to show
how the cnse interprets the deilnltJon of
consumer.produetat.sootJon3fa)
The term consumer prodUct means llny
artJc1oe, or component pa.rt thereof, produced
or distributed (1) for sate to a (:()DSumer tor
use In or around 8. pemument or tempotl\.t7
household or resIdence. a lIchool. In rettea,..
tJ0n. or otherwise, or (11) lor the personal
use, eonswnptlon or enJoyment ot a eon~
Bunter In or around a pennnnent, or tempornry
household or r€61denoo. a lrohool, tn
recreation,. or otherwise;
Although courts have not Yet reached
a de!ii1JU......e decision on the coverage of
the tenn consumer product, the Commission
believes that the statute and legislative
history, by themselves, afford
sufficient authority for CommJssjon
jurisdiction over the defined product and
its use In consumer e.1vironments. It appears
to the CommlssiQh that the definition
of consumer patching compound in
the proposal falls within section 3 (a) ni
KMWK 002098
RULES AND REGULATIONS
CoMMeNTS ON PROPOSAL
oral views on the proposafwere pre~
sented by 7 persons on August 15, 1977
with 3 representing consumer groups and
4 representing manufacturers. In addition.
the Commission received 30 writ~
ten comments which represented 17
manufacturers and 2 distributors; 4 federal
ag~ncies; 3 publie interest grouPs;
2 concerned eftiZens; a suppUe-r of raw
materials: and tt ehetnj~~re~~arcl.l~
devel()pn1enttlrm~A.niongthe 10 commenters
who expressed support for the
ban were 5 manufacturers ot pa.teh1ng
compounds. 3 federal agencies and 2 pub110
interest groups.
The signjficant issues raised by the
oral and wr:itten comrnentsare set forth
below.
A. Scope and definition. The proposal
states that _consumer patching compounds
are tbosethat are customarily
produced or· distributed fo-r sale·to or for
the personal use, consumption ,or enj:oy~
ment of conswners in or around a household
Or residence, a school. in recreation
or otherwise. The Commission considered
in the proposal thatpatehJng compounds
for application In these consumer €-nvironments
are either distributed for .sale
to consumers or are for the Personal use
or enjoyment of cons~ers. Moreover,
Produced by Kelly~Mooreto
W&K ON 06125-26/02
ACTION: .Final rules. ~_ On July 29. 1977, by publication of a
~ . notice in the-F£DERJ\l, REGlSTElt (42 FR
S~Y; In thlS document ~he Com- 38782). the Commission also proposed 8.
,Jnl.;sJOn de?lares that. the followmg prod~ rule finding that it is in th.e. public innets
containing resplrable free-form as- terest to regulate consumer patching
. bestos. are _banned hazardous products _compounds and artHiclaI eini)erizing maunder
the Consumet Product Safety Act: terJa.ls containing respirable free-form
(1). Consumer patching compOunds used asbestos under the Consumer Product
to Join or repaJr interior wnlIs and ceU- Safety Act (CPSA)ra.ther than under
ings
the process release asbestos fibers that . .
can be tnh~e(D; and (2) artificial em- to mak~ such a finding by ru1.e. before
berlzing materials (embers and ash) used regulatmg under the CPSA.. a rISk of min
firepl es to simulate live embers and jury which could be reduced or el1mlnatash
The Commission issues this ban where in the FEDERAL :t:&CISTER. Tile data
in order to reduce or eliminate the umea-- in these proposals are mcorporated heresonable
risk of!njuryfrom certain types in. by reference. __,__
j. of ncer that may result from lnhallng 1Section 9(a) (2) of the cpsA reQ== asb~Stos tibers releaseddunng. the use of that, in addItIon to· provJdIng an PPpOr-
tb. p. oducts tunity for making written suhmlssions.
esc r. . the Commission shall provide jnwested
E:F:fECIIVE DATES: (l) For consu~er persons with an opportunity to make oral
patching compounds containing re.sPll:a- presentations of data, views or argublefree-
fotm asbestos. the regulation lS- tnents relating to Proposals to ban. Oral
sued below at section 1304, applies to presentations on the bans were heard by
products manufactured or Jnitially intro- the CommJssion an August 15, 1977.
duced into commerce on January 16, Views on the bans are discussed below
1978, or after that date. For all other under Comments on pro-porol.
consumer patching compounds co-ntaJn- In order to have suffieientthne to reJng
respirable free-form ashestos, no View all the responses to the blUUling
matter when manufactured or initially proposal Including late responses, on
introduced into commerce, the regulation October 4. 1977. (42 FR 53970), the Comat
section 1304 aWJlee 00 J,m~ 1~. 1978. mJssion extended until November 28,
me4 c:ftgr that ~Qte (2)-For artificlal em- 1977. the time in which Jt must either
bert:m:ng matenals contalnfng ~esj).ltab}e publish a consumer product safety rule
free-fonn asbestos. the r.cgulatlOn ISsued or withdraw the proposals to ban. This
below at section 1305 applies to products date was further extended until Decemin
commerce on Decembel 15. 1977, o-r ber 12, 1977. by notJce published in the
after that date. FEDERAL RF.CJS.rER -on November 29, 1977
FOR FORTHER INFORMATION CON- (42 FR 60752).
TACT:
Charles M. Jac.0bsoIl,C:o:nsurner :productSafe:
ty- CommissJon, Compliance
and Enforcement Regulatory Management
Division, Washington. D.C. 20207,
301-492-6400.
SUPPLEMENTARY lNFORMATION:
BACKGROUND
On July -29, 1977.· by publieation of a.
llotice in _the FE1)ERAL REGISTER H2:FR
3878~) •..~he_C(}~~~.i()p PtQDoscdrules.to
deClare that consumer pa.tchtng compounds
and artificial ember:tzing materials
(embers and 11Sh,) containing respirable
free-form asbestos, are banned hazardous
Products under the Constnner
Product Safety Act (CPSAJ . These rules
Were proposed because the CommissIon
preliminarily determined that an unreasonable
lisk of injury of certain types of
cancer, such as m.esothelioma. and lung
cancer, :is associated with inhalable asbestos
found in these prodUCts. The in~
formation on which the Commissions
preliminary determination was based is
set forth in the proposal The data 1n
the proposal arelncorporated herein by
reference. The hibliography of 50 references
cited in the proposal are repeated
in this preamble for convenience. Numbers
51 and over refer to additional infor~
ma.tion considered intssuing this rule.
/ ..
~.~
;;- ..
63356 RULES AND REGlATIONS
Occupa.tlonal Safety and Health Ad- to amend -the definition of patching
minist.ratlon ot the Department of Labor compound at § 1304.3(dL
(OSHA) and. since the consumer part 4. Asbr,stos terminology jor both. prod~
of his business is smaH. the ban should ucts. (n.) In discussing the proposed detinot
apply to compounds for cooomercia.l niUnn of asbestos, a wrIter from a
and industrial use. chemical resea.rch and development cen.
As is indicated herem, any patching rer states that silica. is a chemical comcompound
containing respirable free- pound and as a- compound is not a com{
onn asbestos that consumers have a-c- ponent of asbestos. He suggests that the
cess .. to in consumer environments or word silJcon be used todenot.e that
may purchase would be subject -to the it is a single element which is present
ban. Therefore, such products. although in asbestos,-
_they may be for industrial/commercial The Commission concurs that the
use, are also considered to be consumer term silica should not be used. but raproducts.
ther it should be sill:cates.·· since ashes..
On the- subject of regulation of these tos is a generic term used to describe a.
prodUCts by OSHA. the Commission notes number of naturally-occurring hydrated
that E;cction :n of the CPSA provides that minera.l silicateS. Therefore, the word
the Commission shall have no authority silica is deleted from the definition of
to,regulate anY,risk of,injuryassoc1ated ~best<>s ,in,§§,1304.3(b) and ,130S.3(b)
with a consumer prodUct if such risk below and the term hYdrated silicates
could, be eliminated or reduced to.a sum~ is SUbstituted therefor.
ciei1t ext.ent by actions taken under the (b) A public .i:Qterest group takes 15..
OccupatiOnal Safety and Health, Act ot sue with the definitIon of asbestos used
1970. Under- that Act, OSHA has Issued in the proposal and urges the Cornmw·
regulations whkh specify the airborne ston to adopt a. definition ()f asbestos
coneentmtion.s of lUlbe$tos fibers to which· proposed by OSHA in 1975. The definlany
empJo,ree may be exposed (29 CPR tlon pf ·asbestos used ip the CommissIon
1910.93a). However. OSHA regulations proPosal is based on the definition used
apply only to workplaces and not to by the Bureau of Mines <5ln. The com..
places where conSumers would use the menter believes tha.t the OSHA proposed
products themseJves. Therefore, the detlnition could help resolve disputes
C-ommis.ion considers that actions to over the presence or absence of asbestos
regUlate this product which can be taken in consumer products.
under the Occupational Safety and As the commenter pointed out. several
Health Act of 1970. cannot reduce or federal agencies with responsibilities for
eliminate to a sufficient e..xtent the un- regulating asbestos (EPA. FDA. OSH~
reasonable ri1k of injury to consumers CPSC) are working toward a uniform
that is fl,&.1ociated with the product. Ac- definitl-on of asbestos. At a recent workcordingly,
the Commisakou regula.tes .shop. July H~-20. 1971. at the Natlortal
this product under the CPSA. Bureau of Standards on asbestos deflnl-
3--. Type oj- patching compound covered tion and identifiCtltion problems, it waS
by the ban. A manufacturer of caulking. agreed that there should be a unifonn
J>eaUng, {{Iuzing, adhesive and coa.ting definllion of a..<;bestos Which woUld be
prod~ts believes the reputation of his mm_era-Iogically correct as well as reflect
product ··could ·benrlverseiy· affected· by health· ·concems;·· However;··· there· . was
the ban. Although the Commission has de~rlY a lactt ot agreement on a deflni~
stated that the banned l)roduct pre$enki tinn and an interagency agreement on a
a hazard bc~ause it Is mixed, sanded and detlnftion,ha.<;: not yet been reached.
moved about during cleanup operations. The definition which the commenter
the commenter beUeves that the definl- Urges the Commission to ndopt was pro·
tioll of the banned product should 8pe- posed by OSHA on October 19. 1915; it
eifically exclude the above~li:!ted prod- has not yet been :finalized and is subject
ucts because they are de;,;igned to remain to change. The OSHA proposed definifiexiWe
and- -are. therefore. not gener- tion reflects OSHA·s concern for the
a.l1y,sanded.Therefore, the commenter hoo-Ithnspeets:ofasbestosandfsbased
requests- t1l11t the definition be- amended on experimenb:l.lfindJngs associated with
to covet on.b those compounds. which fiber morphology (.size and shape). The
after dn:Ing are required to be or are Bureau of Mines also seeks to encourage
norma.lly sanded to a. smooth finish. unHorm deflrution. Their definition
In response to tills comment. the Com: which was used by the CommissIon ls
mission notes that the patchifik com- . hDsed on mineralogical composition. This
pounds subject to the ban are those that has been adopted in final form by that
contain nsbestos which can be inhnled agency.
AS l\ result of mbdng, sanding- and clenn- The Commission has reviewed much of
up operations. Therefore. patehlngma- the.available data on the characteristics
terials such as those Usted by the com- of asbestiform mineral fibers and their
menter which are not sanded. atter nonasbestos counterparts. From the!>e
npplteation be-causetheyare intended to data. it would appeur that use ot the
remainfiexible. would be _exempt if they proposed OSHA definition could also mare
not available in, dry, ready-to-mix elUde nonftbrous cleavage fragments and
form. The Commission believes Jt Js other partiCUlate 6ubstnnccs. as wen e,G
clear th:lt only comumer patching com- other mineral fibers wIthin the proposed
pounds contninmg- asbestos which can dImension range that are not asbestos:
be inhaled when the product 18 in dry fibers. While t.he Commis..>ion is inter~
form or being sanded are subject to the ested in 9rriving at an unambiguous nuiban
and therefore declines In this case form definition of asbestos. th~re is not
of the CPSA and that the Anaconda
case underscores the defl1lition.
In order to minimize any confusion.
s. new subsection (e) has been added to
~ 1304.1 Scope Nld ApplicaUon. to show
the coverage permitted by the CPSA.
That subsection reads:
(c). Only consumer products are sUbJ*et
to thls _regulation. Ps.-tchtng compounds
whIch arc consumerprodU:Otl;; are those which
lL consumer can purchllSe; Merely 1abeUng
a _patching compound for Industrlal \11m
would not-exclude ·such a.rtiCles from, the
ban. II the sllJe or use- of the product by
C9TISumers ts facllllAted. it I.s sUbJeet to the
ban,Pa,.t.chlng compounds whIch a.relabeled
as, ..tnarkef.ed, and sold solely for Industrial
use In nor.4:onsurner environments are not
sUbJootto tht! ban. lnaddttion to ~ose prodw
ue~ which can-be sold ,direCtly to conSumers,
theban appUestopatchlng-wmpounds contlUni1).
g-resPiTabl€t _l~!orrq :nsbe!>tl:l$wl\lch
are _u~ In residences, _schools. hospItals.
pUbUc bnlldtncs or other 3UaG where consumers
have. eustotllary a.(X:es$.
It is clear from this language ~hat use
of patching compounds in consumer environments
determJnes- their stlll.lU5 as
eonswncr producttl:. ,hetb_er the patching
compounds -&reapplied profession,..
aIly-or-by-c(lll.5un1f~·t8: And, although the
Iulzard may be greater for pro!es..iionaJ
users of patching compounds because of
their· repeated eXpOsure, residual dusl;.
troIn stUldi.1g during constructloo or
renorati(m ts also a. ha.zn.rd to COllsumcrs
who may not apply the patching com-
pounds themseh·es (3S).
(b) Ii. manUfacturer who supports the
ban sta.t-es that he would h3-7e no1iY
of polidng the sale of differ~tgize con.;.
tiJ.iners. Therefore. although he packages
a. I-gallon size of patchtng compound for
sale to conSumers and lL S-gallon size fOl
commercial-industrial use. he believes
the ban should apply to- all :sizes.
Gtven tile avaiIabHlty of pa.tching
compounds-to -cOnsumers -through- moot·
ma.rk;etftlg channels, the Commission
agrees that it would be burdensome for
manufacturers and distributors to a.)Sure
that lo..rge size3 of patching compounds.
which they claim to be industrial prod-
uets. nre not sold to -consumers. More~
over. as noted in the preceding response.
MerelylabelJng a. patching com~d
for non-consumer use would DOt. exclude
sl1e~l…. ilfHc~.Jr:QmJbe .blUi.,Where .&
numufa.ctur-er. di.o;ttibutor or retaner
fosters or faciUtal;ci the products sale
to or use by. Consumers.· tIle product is
considered a consumer product and is
within tht scope of this ban. This oommeht
il1dlcl1t~ that it may be- exceedingly
diffiCUlt to dIfferentiate a patelling
compound that is a consumer·prodUct
from one tlltl-t might. be termed a prod.
uct for industt1aJ. USe ouly. Nevertheless.
as state
and AI>PUcation. pstchtng comwunds
which are labeled as, ninrketed, rmd sold
solely for indus-rna! use in non-co-uslltller
environments are not subject to the
ban.
2. lZegulatfon 01 patching comTJounu.s
by OSHA. A Dlanut:tcturer of dry-wall
joint compounds states that the commercial
and professional market for such
compounds is already regulated by the
Produced by Kelty-Moore to
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lug asbestOS. WhehCver 11 maoufacturer finds Jug n relntJve)y small inventory. DIs·
out that the 1Ul:lshe
askn~wjngly using a rawmaten&l contll.ln~. Retaller.s hn-ve a much slower~mOVfng
Jug asbes1.Q$ unless the .lnanufacturer takes inventory (SI).
steps to reduce the Mbe.stos to. the maxImum The Commission considered the pas.
extent !easlble. t
Therefore. the ban aplilles only to sible adverse economic itnpac of a 30·
consumer patch.ing compounds contaln~ day effective date on Im~tories of man~
in. intentJonaUY.added respirable free~ Ufacturers•. distributors and retailers.
Iy to The COmnUsslon also considered the pos·
form IWbestos and will not app sible adverse effects ot exPosing con:
products having unavoidable trace sum.ers to iuh31able asbestos by permitIlDGlO.
uAntrst.ificial enwerlzing materia-ls- tfng the manufacture. disv.......ibution and
zale to consumers ot patching com~
exemption from ban. A manufa.cturer 01 pounds until IBO days aft.er publication
electric artificial logs and electric tire- of a ban. It e.ppears to the Commission
places states that although the Commis- that early discontinuance of th~ manu..
sion proposed to ban onlY artificial em- facture of this Product would be neces~
beri:2;ing materials conta!ntng respirable. sary in order to stop its continuing pro·
tree-form asbestos, references in tiJe lifera.tIoll. in . the. market. On. the other
media.to B.Ttificlal lpgS alldartificial fire- hand, substantial adverse economic 1m·
places:renect adversely on his business. pacts could result from the freezing ot
He asks. therefore, that hiz products, distI1butors and retailers inventories at
which use an ttrUftciaI ash bed: oJ vennic- an early effective date.· The conunission
uute, be ex:empted trom the ban. concludes therefore that the ban shoUld
As the commenter noted,the Commls- ooeome effective at two ditrerent points
sian ban applies only to embertzlng ma- In titne. For manufacturers. the effec.
terials containtng respirable ftee-form. ttve ·a&tenhould be close to publlCl:t!on
asbestos and not to any a:rtUlc.tal·logs.or of the rule in order to stop the con~
artificial fireplaces with which they may t1nuJng manufacture of the proauct. For
be used. Since the b&nned product is distributors and retailers. the effective
used wlth artificia-llogs. It Jsunderstand~ date shOUld be delayed to help amelio..
able that questioll$ are raised, as to dH~ rate adverse economic impacts.
ferent kinds of artificia·l logs. The Com- Tllere!ore. the Commission declares
mission does not believe it Would be ap~ below at § 1304.4 that conswrter patch~
propriate to exempt from the ban all ing compounds contatnlng respirable
electric logs coated wlthunldentified free-torm asbestos whJch have been
suW>tances, or aU artificial ash used In manufactured or initially introduced
electric fireplaces, since Gome of these int.o commerce 30 or more days after
articles could include the banned prod· 1mblication of this rule are banned
net. nowever, in order to clarify the mat~ hazardous prodUCts. This means that a
ter for consumers as well BSproducers. banned hazardous product. having been
the Commission adds a stn.tement tQ manufactured or initially introduced
§ 1305.3(d}. the defimtlon of emberiz:lng Into commerce. retains .its status as a
materials. which reads. electric artifi· banned htLZ:llldous product:. thus.Jf.s
c:l:a.l logs and artificial ashlJec.lsUSed. in subsequent sale;o1fering for sale. or dis·
electrlcfireplaces whiCh do not contain tributJon in commerce, is prohibited by
respirable free~formasbestos are not 1n~ any person in the chain of distribution.
eluded in this definition: In addition. the Commission declares
B. ERective date. Six commenters dis~ that all other consumer patching com~
cussed the proposed e!fectivc date of the pounds conWning respIrable frce..form
ban of consumer patching compounds asbestos. no matter when lliwutactu.red
which .was 30 days after publication ot or initially introduced into eommere~.
the ftna-l rule. Five manufacturers sug~ are banned hazardous products 160 or
gested a date later than 30 days after more daYs .after publicatJon of this rule.
pubHcation. A pub-He interest gr0uP-~ulr:: (M… statedbe1ow!nf-1304.4(glotthe
ge.sted.that the clfective date be the date rule, initial introduction moo commerce
o{publfcation of the final rule. of thiS product ooeuts when the prciduet
(]) One commenter suggested that the is physically shipped from a m!UlufaeCotnlllission
consider a .5cries of eftectJve turers facility to a distributor, retailer.
dates for the ban on consumer patching CO:lSUmer or to another person for appH~
compounds: 30 days for lnanufacturers, ca.tion in a consumer environment.>
90 for dtstrlbut.ors and ISO d8.ys for re· In summary, 30 days nfter pubUcation
taners in order to clear inventories. of this rule, msnnfaclurern Win -be prPSeveral
com:menters believe that a 30- hiblted from mlUlufn.cturingor &lippfng
dRY effective date tnig11t prove burden· the product to .distributors. retallern.
some to small numufacturen> because of consumers. or to others tor application
the .inventory problem. in consumer environments. Further. ISO
The matter of inventories was con~ days after puJ>licatlon of this rule, dis·
.stdered in the July 29, 1977 proposal to tributors and retaHers wU1 be prohibited
ban and further dwe-ussed at the public from s.ell1ng, offering for sale, or dfstrib..
meeting of August 16. 1977. The concern uting any of the described products, no
of those involved to clear their existing matter when manulactured or in:ltla1ly
inventories of consumer patchJng com- introduced into commerce. to dlstrlbupounds
containing respirable tree-form tors, retailers. consumers or to others for
asbestos. was considered. lnfo.
ma.nufacturer;s are now maintain· mends that the effective date of the ban
yet enoug}) evidence to base Ii defi~lJti011
of asbeStos on fiber morphology. 1 here~
fore, the Commission believes the pro~
posed definition should not be changed
hi the final rule.· As circumstances warra.
nt. the defmltlon could be amended a.t
n later date. .
5. Asbestos contamination in pa-tchmq
compounds. Several manufacturers expresse~
concern that all patching co:*
pounds would be subject to the ban rath~
er than only those compounds to which
asbestos has been intentiona-llY added.
They point out that asbestos is ubiquitous
· in the environment and that traces
of asbestos maY be present as Ii contamhHwt
in other minerals that are mined
In areas of serpentine rock. One commenter
SUggests that the Commission
consider pennitting patching cOJnP\>unds
which cqntainsuchllaturnlJy oceurring
contaminants. other commenters suggest
that a percentage of asbestos contamination
by weight be permitted. The
lowest percentage suggested by one com·
menter 18 1 percent because the Environmenta:
l Protection Agency
tos by weight .in, sprnY:QD asbestos in.·
sulation and fire proofing.
JV; noted :In the proposal. the ComrnJ:;;·
sio-n is aware that asbe~rtos i.s present in
the environment. ~er. the Commis·
stan does not wish to ban all consumer
patching compounds in which traces of
asbestos are present as a contaminant
rather than as an intentionally added
-substance. .
The Suggestion that the CommissIOn
permit oontammation of I percent by
weight. however. appears to be inappro~
prjate for consumer- patching compounds
because Consumers would not be sum·
ciently protected. One percent by weight
could mean a. substantial number of
small Ught,weight asbestos fibers. thllS
presenting:a-significantexpOsure to con·
sumers of respfroble free.fotmasbestos.
Therefore, the Commission declines at
th.ls. time to adopt a., percentage by
weight to define permissible contamina·
tion.
Industry experts do not agree as to the
amount 01 asbestos that might be present
in prodUCts Without deliberatelY
added asbestos. Nor Is there agreement
on the rellabiUtyQ!the techmques use(!
to tneasure low levels (below 1:percent)
. ot asbestoo by weight. The CommissJon
believes, however. that the use of appropriate
quality control measures and
caretul ·selectJon of raw mater1a.ls can
serve to mJnimize contamination from
unintentJona11y added asbestos (see the
Commissions economic impact statement
on tlle at the Office of the Secre·
( tary). In order toemphasl.re t4at o-n1>
~::. patchtng compOlmds with clearly un·
~~, avoidable traces of asbestos contamfnatJon
will be permitted. the CommlssJon
,{i; defines intentionallY-added asbestos
:K at § 1304.3(1) of the rule below to mean
. asbestos which is
~t,~.:.:.·. (1) added. deUberately as an Jngredte.nt fn~-:>
tended to Jmpart :;pecl11c characterIstics; or
(2.) cont&Jned in the final product lIS a rcsult
of MowJngly· US1lJg a raw lnaterial contatn-
RULES AND IlEGUlATIONS 63357
HOl;RAL REGISTER, VOL. 012, NO, 241:ntU~SMY •. OECEMSEJ! 15, 1977 1-,0.
. jt,-~:
.f..
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.if, i
-~ .
-t;
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_oli-.
63358 RUles AND REGVLATfONS
F~OERAt REGISr(:R, -VOL. 42. NO. ;l41-..-THURSDAY, PEC~M&eR 15, 1977
KM-WKII 002154
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pat10naJ exposure to asbeJltos as the basis
tor tho Conuniss1on proposaL The comment.
oc- believes that portlow: of the
OSHA review of October 1975 are scien~
t.fflcaJly 1nacCUfate.
The Commission notes that most ot the
1niormatlon on ha.za.rds assocIated with
inhalation of asbrotos is based on occu~
pa-t·io-nal exposure. It can be said that the
body of sctentlflc l1tern.turo in the OSHA
proposal has already been subjected to
public ,scrutinY. During prepa,rn.t1on ·of
the Commission proposnJ. Conuntssion
staff conferred ,With OSHA. As a. resuItI~
the Commission propos:aJ deleted refer~
ences to Gtud.i.eB wWeb OSHA termed to
ba of Questionable validity.
As pointed out in t~ Commission proPOSal.
there had been only one report of
co,nstun(!reX,Posure __ to _asbestos _in the
scientlficllterature prior to the proposal.
Based on the data- from that study; R
Commission assessment was made of the
p()t.ential increased risk of respiratory
cancer assoo1ated With use of consumer
patching oompoun,ds containtng nsbootos
tlbers.
TheCommisslou nlso based its proposQi
on direct and indIrect evidence of
asbestos inhalation in non-occupntion~
ally exposed Jndlviduals, Including re~
ports from autopsy tlndings of ashes,too
fibers in lung tissues and from c-pldemicr
logical stud1es. .~-~
(5) In assessing the degree nnd nature
of the risk of injUry to consumers from
patching compounds. tile Commission
reviewed experimental data and human
experience information. In addItion. on
the basis at data by RollI on exposure to
asbestos during the liSe of consumer
patching compounds (36), the- CommIssions
Health Sciences staff calculated an
nssesment of the rLsk which was described
in the proposal. The calculations
were based ontheapplfcatlon ora thee:;,;
retlcal model similar to that described
by Enterline and Henderson (11). Sev~
eral highly technical comments were te.
ceived in response to the risk assessment.
The significant issues ra.tsed in these,
comments are discussed below.
(a) Two commenters questioned the
assumption In the risk ossessment that
exposure to asbestoo. is cmnula.tlve over
the-lifetime- -oC--a-person,and -whether
intermittent exposure over several years
has the same effect -as it the .same exposure
had taken place in a single year.
In reviewJng the literature on asbestos
exposure, the Commission finds that asbestos
fibers are unllke many ehemJea,ls
and other mat.erials which the. body may
metabolize and excrete. Body clearance
of asbestos tIbers is much less e1fectlve.
They have been fOWld not only to remain
in the body but to accumulate (55).
SInce the data. tend to show that inter~ mUtent
exposure can lead to cumulative
buildup of asbestos fibers. it appears to
the Commlssion that lntermIttent exposure
over several yurn could have the
same hazarooU3 effect as if the total
intennitt.ent exposure had taken place
within one year.
(b) Two commenters Indicated that
the hazard from applying patching compounds
could differ in dUIerent clrcum-
KMWK 002101
cn..1cer among smokers. Jl; nJso indicated
there was also an increased risk of death
from other asbestos-reInJed diseases, including
asbestosis., among non,mokers
(17). D:l,tn- also suggest that the hlgh risk
of mcsotheliotnBS (cancers of the pleura
and peritoneum} from asbestos exposure
appelUS to be unrela.ted to smoking 08,.
6l.
(2) A distributor of fIrepla.ces and fire-plae-
e equipment; doubts there is Il- hazard
associated with embeiizlng materials beca.
use the fibers used in embeTizlng: materials
arc relatively Is.rge and fibers
which would become alrbonw would be
pulled uP the fireplace fiue.
WhIle it is true that the large asbestos
fiber bWldles pose little risk ofinhalation.
the fiber,bundles release indJvIduaJ fibers
which in _turn. _can _break _loeitu
bew-me airborne under- normaJ use, instana.
tio~ and handling conditIon,<;, a.s
well as from room drafts. Once the fibers
become airborne, they can rcmaln suspended
over long periods.of thne. eventually
sett.ling oub on Jtems of furniture.
draperies. etc.• only to become airborne
and available for resplra.Uon wLth use of
these items. As long- as tJle fn»--fonn as~
bestos emberizing- matertal rcmaJns loose
on the fireplace floor, there is a possibility
that It could become airborne -and
thus respired.
(3) A manufacturer states that since
Commission da.ta arc based on occupa~
tiona! statistics. it 15 dtfficult to document
the Cotr1l1l1BsIons view. .in the proposal
Ulaf;. -for many people the major ex~
posure to inhalable asbestos 15 in the
home
V\,hUe it is true tha.t much of the-Com~
mission data. on nsbestos~rclateddisease
are _based on occupational /iftatistics• .a
rhk assessment was made _of COIlStuner
exposure-to-respirable-asbestos-jp-patch
iug compounds during mixing. sanding
and clc.a.nup operations wllich e.stJmated
the increased list of lung CD.JlCer from
such exposure in the home. A :report of
asbestos in consUmer patching compounds
:Indicated that sign1ficant levels
of respirablo. free-form a....bestoo fibers
were detected in rooms- adjacent- to tha.t
where the actuaJ. patching and sanding
operationsba.doecU!Ted·sothatother
hoUSehold membet:6 could be exposed ns
well a.s the JndiViduaJ performing the
patching Job (36). In many areas of thecountry
(nonurban). there nppenrs- to be
a relatively low background level o-! asb-
txstos (52). Theretore. exposure in the
home to asbestos fibers released from
consumer products C()Uld represent the
major exposure. As noted in the proposal,
Dr. Pn.u1 Kotln, Johns-Manville. stated
in It present8.tIon before Ule Commtsslon.
June 9. 1977, that young chlld..-cn &e
p:trllcula.rly vu)n(,rable to exposure to
earciupgcns and clearly their major ex~
posure to 1nhaJable asbestos would be in
the home. The Conuni,sslon themore
feels it is essential to m1nimize, to the
exlent possible. exposure to respirabie
a.sbestos.
(4) A commenter QuestJons CommissIon
ret!lll1CO on OSHAs proposed
,amendment- of october 9, 1975 to occu~
Produced by Kelly-Moore to
W&K ON 06IZS-26J02
on consumer patching compounds containing
respirable free-form asbestos be
the da.re of publication of the final rule.
as it Is for artificial emberizing materials.
The Commission proposed that the ct.
fective date of the ban on artlficia.l emberlzing
materJals be the date of publication
although the Administrative Procedure
Act (5 U.s.C. 553) which governs
publication of consumer product saiet)
rules. provides tIl,at fl, rule should be published
30 days beforfl its e1Iect1ve da.te
unless the Comtn!ss.lon finds good cause
to providfl otherwise. Unlike patching
,compotmds. where exposure to asbestos
fibers 1s moot prevalent during mixing.
sanding and clea.nup ope-rations, although
Ule fibers may remain suspended
fOfa. considerable dtUafJOll oftlmc.nsbootos
fibe1S In emherizing materials can
be respired as long es such-matedaL.l are
in the home because they a.re alway In
dry form and ready to be moved about
by ordinary household aJr currents. It
appeared to ·the Commission. therefore.
that theseemberlxing materials should
be rem(}ved from commerce as quJckly-as
possible and that there is good cause to
have the ban effective on the date of pub~
licaUon. To assist persons who a.lready
had such materials In their homes. the
Conunlssion, oil JUly 21. 1977, is,5Ue,d a
press release on the impendingban Nhich
included a,Consumer Alelt advising con~
sumenJ o! the dangers associated with
these ember1zing mnterials and issuing
instructions for their safe removal.
Economic advice to the Commission
indicates, In arldition. that no :igniflcant
adverse economic impacts arc nnt:1clpn.t~
ed as a result of the immediate· effective
date for emberlzing materials (51). As is
indicated in the foregoing discussIon, the
economic inipact of aM-day a.nd even
I}.-- -l00~day -effective -date -- tor-- -patching
compounds would be ,significant and
therefore it appears that the economic
impact of an 1rnnH~diate effective da.te
would be more frignifieant. Since no new
infoo:na.tion has been presented to show
t:hat an earlier effectivt;l date should be
promulgated. the Commission declines
the suggestion of the pubUc interest
group. Therefore. the,e:trectlve date ot the
mUlatlon on consumer patching com...
pounds containing respirable free-fonn
Mbestos- is 30 d.ays after publication of
thlsrule as.to manufacture andlnitIal
introduction Into commerce onnd 180
dlt-yS after publication ns to all other
units otthe- defined product no matter
when manuIa.ctured or initially Introduced
in commerce.
C. Product rl$lc$ and risk asses,sment,
several cornmente-rs: discussed the commissions
risk assessment for patching:.
compounds: and questioned other aspects
of the hazard.
(1) A manufacturer suggests that use
by tho general publie or by asbcstoo
workers is not hazardous and that the
grelltest hazard is to a worker durlng
sanding operations it he .also smokes.
The Commission notes that while data
,from nIl epidem1olog-lcal study of asbestos
insulation workers indica-ted there
was an increased risk of death from lung
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fEDERAl REGISTER. VOL 42. NO. 241-t1iURSQAY, DECEM$£R IS, 1911
63359
KMX 01193
KM.WKII 002155
compounds. The sixth is a di<;tributor o(
gas fireplace logs.
One patching compound manufacturer
clamled that some firms in that indus~
try will gO out of business should the
ban be promulgated. As noted below,
our studies Indicate that some smaIl
producers may not have the technIcal
capability to refonnulate their prooucts
satisfac-torilYor may be- unable to obtain
necessary raw materials by the effective
date of the ban. Thus, SOme may cease
production temporarily, untu such re..
formulation isach1eved.. Some of the
large manUfacturers have indicated a
willingness tolieensetheir asbestos-fr.ee
formulations (or parts of them) to sman~
erfirms.
.rwo •eommente-rsdiscussed· potential
cost effects of the ban on patchIng
compounds other than those relating to
the product itself. One ps·khing- compound
producer est.l~ated at 60 percent
the Increased ··worltlosct associated
wH.h the professional appIlcatlon of non;
asbestos: formulations because of ditter~
ent performance characterIstics. !he
Commission has investigated the potential
Increase in direct labor cOsts as.
sociated with existing ashestOO and nonasbestos
fo-rmulatlons; it estimates an
initial 10 to 25 percent average increase
as a result of switching from the fonner
to the latter. Other costs may accrue to
professional users of the product should
different applicationtools be needed or
should some Jobs hav!!, to·oo redone to
the relatively poor sbrink- and crackrc..
«istance of some non-asbestos formulations.
These increased costs are expected
to dlmfnish over tilne a formula_
tions improve and as appl:lcators become
more accustomed to using non-asbestos
formulations.
One -company-which hiay be adversely
affected by the proposed ban reports
that attapulgite. one ot the prLrne substitutes
for asbestos in patching compounds.
Is In limited supply and that
some small manufa.cturers may have
diIDcUlty in obtaining that mater.lal.
Other industry ,.sources .have :reported
- this sam,e probl~m.. l:he larger patching
cotnpound prOducers. who already have
asbestOS~free·fonnulatiollSon·tbe ·mar;
keto are not expected to have as
much dHllculty in obtaining substitute
materials.
Two manUfacturers discussed the bans
potential adverse effect on the utility of
the Product. One expressed a belle! that
non-asbestos formulations are inferior in
perfoml.Unce to asbestos formulations.
Another reinforced that belief, reporting
that the absence of esbestos formula~
tions may prompt workmen to add theIr
own asbestos to tIle product to help prevent
cracking when wall joints are covered.
However, the addition of asbestos
would be tantamount to manufacture of
the banned product and would tthus be
prohibited. It appears that at least some
existing non~a.sbcst-os formulations may
be less desirable. from a performance
standpoint. to professional contractors:,
most consumer applicators are not ex·
KMWK002102
RULES AND REGULATIONS
mentions are bIoIo&kaIlY· active under.
experimental condit.iu1:1S,
According to correspondence dated
July 26, 1977 from Dr, Paul Kotin of the
Jo-hns~ManvJlleCo. with environmental
consultant Barry Castleman, a JohnsManville
study ls- under way to assess the
potential Jnhalatlon hazard of certain
naturally-occuIringor man-made mineraI
fibers sUch as ceramic fibers, Ceramic
fibers are a potential substitute for
a.rtificial embenZing tnateria.1~L
Human exposure data to substitutes
are extremely limited. Occupational exposure
data to certain clay mineral fibers
which are proposed asbestos substitutes
are scheduled to be presented at a Sym..
poslum on Occupational E.xpo.s:ure to p.fbrous
and Particulate Dust and their Ex..
tensIon 1nto·theEnvlro-nment;ln Decem;
her 1977. These data are expec·ted to iod:
Icatethe extent of exposure, rather
than human experience findings on: re..
suJtsof such eXPosure. Data:on the resultS.
orhuman exposure to asbesto,s substitutes
will not. In all likelihood, be
available in the near future.
e1} A commenter suggests that substitutes,
since they would be llbrous, would
present a risk.
In assessing asbestos substitutes, data
avaHable to the Commission indicates
tha,l; a number of substances may be used
which are not fibrous such as calcium
carbonite, clay, resins and mica.. For tile
fibrous clay mJnerals which may.be used
as asbestos substitutes- such as wollastonite.
ka.Olinlte. sepiolite -and bentonite.
the Commission is aware that there is alack.
of ,conclusive data on the ha.zard
potential associated with these minerals,
Additional stUdy Js needed to evaluate
the risk of inheJation exposure to such
GroaIJ mineral fibers, Nevertheless, the
Comrnlssion believest!lat the knOWJ:1 )isk
from inhalable asbestos - requires the
banning of these products at this tJme.
e2} A comment questions a staLement
in the proposal that fibrous glass could
be considered a SUbstitute [Qr chrysotHe
in emberJzing materials.
The Commission concurs w:lth this
comment; it is currently unaware of any
manufacturers or dIstributors who use or
know of the UBe of fi~ro:~s,~l.iss.!(t,ftljjs
·,pUIPose;In-addition. from atechnJcal
Viewpoint, gJass fibers are not similar in
size and shape to chrysotile, Unlike the
rod~like glass fibers, chTYsotile tends to
be curved, or be of curly fibers or fiber
bundles, comprised of extremely smaUdfamal;
ered .tlbrils. However. glass fibers
arc similar-at least in shnpe-t-o some
of the amphIbole asbestos minerals, The
diameter of most fibrous glass is reportedly
greater tlum 3-5 ntlcrons and considered
too lar-ge to be respirable. However,
glass fibers are not of unifonn dimensions
Rnd a sman percentage may be
of respjrable size. Additional stUdy Js
needed to assess the pathologic effects of
inhaJed fibers. inclUding fibrous glass,
E. Economic considerations. Six commenters
expressed concern that the ban
would h ave an adverse economic impact
on the industry. Fjve of the six are lIUUl:U1acturers
who commented on patching
Produced by Kelly-Moore to
W&K ON 06/25·26102
r, stances. They indicate that- persons of
differing skills may reJcnsfr dHfercut
amounts of inhalable asbestos into the
air. Although these dlfferences occur, a
constuner would likely release more asbestos
into the air becllUS¢ he or she may
be less skilled. in the process tha.n a professional
appUcator. The comnussion
recognizes as these eommenters point out
that some products have II smaller pereentage
of asbestos than those which
were used tor exposure data. in the Com
mission risk assessment. For example;
one eommenter submitted asbestos exposure
data from a study he conducted
using a compound that contained a.
smaller 3mount of asbestos. Based on
th1s commente~B exposure data, another
risk n.ss:essment was conducted. Theresults
suggest that USc of a. patching-com ..
:,,;f. pOund confJilning less asbestos may re- 1
·-.~.;.-.:.Iduce but does not eliminate an excess of
,1 ! deaths due to exposure to asbestos in
, , ! patching compounds. r.be range Is from
.,4:i?, 11 death per mllllon person$ exposed for I
.the projeeted tive years exposure using
., ,one model and uP to 226 lifetime excess
: ..~,;: cancer respiratory deaths per milllon
-?~.t.,.:·: persom:eXPQsed:c1~g.another model
, . (53).;rt:,shollld:~~,l1oted h.ere~at,w.hUe
, .{, ~~@:le-\¢:l$:mayVatY. th~3do:not J
:, eho:~ the fact tha-tthere isnokllown
•.•••. .~-.;1 :teV:;~lg~~~:e~nhaIab)e. it#st9s:may
,J.\ (c) Anothercomm:enter says that us·
,~,.~ ing a premixed compound reduces the
# ~ cotlStmlcrs exposure to asbestoo. The
if,,;,: eommenter also thought that the Comm1ssions
estimate of consumer exposure
was too high. The Commissionslisk as·
ses-sment analysIs did take Into consideration
the exposure during the mixing
of a patching compound. While exposure
to asbestos fibers would be negligible
during slight stirring of a prem.ixed
compound ,the exposure, during the
sonding and cleaning operations involved
would be the same as for the dry
compound. ConsequentlY, the risk assessment
values Would not be significantly
reduced. As for the four·day.
eight-hour exposure being too high an
estimate. no data. were submitted to substantiate.
·that contention. As stated in
the proPOSal, therefore, it appears: to the
Col:lllWs$!M,that..althoughtheexposure
may behfgh, it is a reasonably foresee..
able exposure. .
D. Suostftutes for Mbestos: The July
29. 1971 proposal notes that substitutes
Jor asbestos a.re already bejng used in
patchtng compounds. One of the most
conunon substitutes is attapulgite. a fl~
brous clay. Other substitutes of a. fibrous
nature are wollastonite, kaolinite, sepia-·
Ute and bentonite. Several comments ex·
press concern that materials used as sub·
stitutes tor asbestos may also pose haz·
ards.
!he Commission shares thIs concern.
Substitutes for asbestos have been under
eonsiderat1onfor onlY\&- short time. Little
data are available on wbich to eValuate
the safety of substitute mater:lals. Experimental
findings o[ Stanton (58) indicate
that many mineral fibers (in addl
ion to asbestos) of small respirable diCPSA,
provides that a rule should be
pubHshed 30 days before Its effective date
unless tho Commission provides, other- wise
for good cause found and pUblished
with the rule.
As described in the discussion above
on effective daLe, the Commission is concerned
tha.t ordinary household air currents
in homes that ,contain artificial
emberizing materials, can cause continuIng
exposure of consumers to the respirable
free-form asbe:>tos in artificial embers
and ash. It appears: to the Commission,
therefore. tha.t these products
should be removed from commerce as exPeditiously
as pOssible in order to avoid
having additional numbers of consumers
unwittingly purchase these materials.
The Commission finds there i$ good cause
to issue the rule on artificial emberizlng
materialselIectiveontbe date of pub..
llcation.
:FmJ>m:GS
1. CfSA:.Secticn8. Section 8 (l);:,;nd
(.2) ,()tth~.CPSA ,requlre thlit.-befote ·is~
sumg:::a C6nsmner p1oduct-. safety .nile
dec1fLrl1),aP:t:odue~.to be~ bantlJ!4haz- ~
ardo,llS product.tbe Comm1Ssto:n::~ust
tIDc(:Hl thnttbeproduct.presents:/an
U~1J:easollablertsk of in.iuryand(2»)hat
no-:feasible safety standard can ade..
QUiltety protee:~ the publictram the unleas:
onablerlsk of injury assOCiated with
the product.
(a) lJnreasQnable risk oj injuT1/. The
regulatJons are intended to reduce or
eliminate the unreasonable risk of injury
to the public from cancers such as lung
cancer and mesothelioma. The risk is:
- associated With asbestos fibers which
are not tightly bound into or encapsulated
in the composition of a. product.
The health rlsk OCCUrs when asbestos
fiben; become airborne sUehM by nl.l:xing,
sanding. or cleanup operations when
usJngpatching, compounds~ or by the
effect of ordinary household air cUrrents
on artificial emberiiing materials in
firep}l1Ccs. Tests show that certain malIg..
nancies are related toasbestttorm minerals:
the.<;e can arise 20 or marC years
after. occupationnl exposure. However.
also reported are ma-lJgnancles from indirect,.
non~occuP~J;iontiJ eXPOsur~.ln a
recent case,. the court r-ecogriizeda study
on lWbestosexposurecited by the ,En
vlronmental Protection Agency at 40 FR
48295. showing new biological evidence
supporting the significance of single,
Bhort~term. exposures. ..... One-day inw
halation exPOSUres in anjmnI experiments
have produced an increase in the
incidence of ~hell.ama. National
AssodatfDn of Demolition-Contractors
v. E:nvirontnental Protection Agency, elv.
Nos. 74-1545, 75-2078, D.C. Cir.• october
13. 1977.
The information on which the CommissIon
made the determination of un~
reasonable risk consists prima.rily of
data on exposure of industrial workers
to r-espirable tree-form asbestos. Infor~
mation on exPOsure of the public to inhalable
asbestos in individual consumer
products is Umited. HoVrever, as is evident
from tbe extensive bibliograPhY inc1uaedhereinthere
is general scienUfic
RULES AND REGULATIONS
contaiuing respirable fn-e-fonu asbestos
are banned hazardous products under
section 8 of the Consumer Ploduct
Safety Act.
Scope a1Ul application. The rules apply
to the named consumer products that
are customarily produced or distributed
for sale to or for the personal use. ron_
SumptiOD or en,Jo:nnent of consumers in
or arotmd a household or residence, a
school; in recreation or otherwise. In addition
to those products whJchcan be
sold directly to consumers, the ban ap.:
plies to the nlUned consumer products
which are used and enjoyed by cousum~
ers, such as those .used 1fi resipences,
schools, hospitals. public buildings or
other areas where consumers ba.ve eus..
tonuity access, whether the patching
compounds are applied professionally or
by consumers. Only consumer producUi
are subject{ to this regulntion.
Patching compounds, which, are consumer
,products include those, which a
consumer canpurcha.se. Merely )abel~
lng a patching compound for industrial
use would not exclude such a.rticle:; from
the ban. If the- sale or use of the
product to consumers is facilitated.
it is subject to the ban. PatchIng
compounds which are labeled as. marketed,
and sold solely for industrial use
in non~oonsumer environments are not
subject to the ban. The ban applJes to
patching compounds conta.ining intentionally-
added respirable free~ronn asbestos
sold directly to consumers and to
those which are used in residences.
schools. hospitals, public puildings or
other areas where consumers have customary
access.
Effective dates. (1) The rule at Part
1304 below applies to consumer: patching
compounds containing respirable lrceform
asbestos that are manufactured or
tnltiallYintT()duCecl,1nt.o: c0rntll~rce ()fi
January 16. 1978. or after that date. For
all other COllswner pat~ing compounds
cont.aining respirable free-form asbestos,
no -matter when manufactured or initially
introduced Into commerce the rule
at Part 1304. applies on June 12. 1978,
and after that date. This· mean:> that
30 days a,fter publication ot.,this rule,
manufacturers: a.reprohlblted trom-man~
ufacturirig or 6hippJng the product to
distrlbutors,retn11ers;, cODSUDiersotto
others tor. appHeation in consumer environments.
Further, 180 days after pUblication
of this rule. distributors and retailers
will be prohibited from selling, or;.
fering for sale or distl:ibuting in commerce
the described products. no matter
when manufactured or initially intro~
duced into commerce. to distributors, re~
tallers. and users.
(2) The rule at Part lS05below applies
to arttfiical emberisingmaterials (embers
and ash) containing respirable free-form
asbestos that are in commerce on December
16. 1977, or after that date. This
prohibition applfes to products in inventory
M well as to those manufactured
on or after the effective date.
The AdmJn1strative Procedure Act (5
UB.C. 553) which governs the matter of
, effective date for banning rules under tile
63360 /
peeled to perceive t\. significant dlfference
in the products performance.
As is indicated in the prop(JGal. the
CommIssion is a.ware that economJ.c impacts
of \1l.ryjng degrees will occur as
a result of the ban on inhalabJe asbestos
conta.inlng patching compO-imds and
emberlzing tn..!!-terlaL,> containing res·
pirable free~form asbestos. Also.. the
Com.niiss.ion is aware that technology
tor producing asbestoo·free patch1ngeompoundformulattons
is becomJng
more generally Elva.i1able. The economic
hnpact will tend to be reduced over tJme
as non-asbestos formulation technology
becomes more widespread and as existIng
recent formulations are Unproved by
manufacturers:. The nature and extent
of the effects on the .industries ate discussed.
in the Environmental and
Ecollomic Asse.<;smentsnow·onfile in·the
Office of the Secretary and were con..
. sldered by the Com.misslon durfug this
rulemaJdng proccScS. _ .
.P. other-comments. (1) Severn! comO1enters
suggested that -the Commission
should Investigate other products CODtaJnJng
asbestos in order to determJne
the existence of, possible hazards.
In the proposal, tl}e Commission noted
that information on other products eontainJhg
lnhalable asbestos would continue
to be developed in order to determine
whether further regulation is neeessary.
Accordingly, the staff hIlS begun
to develop plans for collecting such infonnation.
(2) One commenter suggested that
the Commlsslon issue a rule that would
prohibit stockpiling of the banned products.
Section IHd) (2) of the CPSA provides
that the Commission may. by notice and
comment ruIemaJctng. prohibit a manufacturer
from srockpilfng a product for
which a consumer .product safety rule
h,ur been promulga.ted. Irl thIS case, the
ban on consumer patching compounds
rovers the manUfacture and initial intraduction
of prodUCts Into commerce 30
days after promulgation; the. ban on
a.rtl:ficiaI embertzJng materials covers
products In commerce on the date of
promulgation. Therefore, in PT3.ctlcal.etfeet.
there would not be time for manufacturers
to stockpile; nor would there
betJmepr!or to these effective dater for
notice and comment rulemaldng.
(3) A conunenter expressed concern
thnt the banned products be kept out
ot international commerce.
The Commission notes that this comment
is directed hot to the proposed rule
but to Its enforcement. If this matter
should become s. problem It would be
considered 1n the context of enforcement.
(4) Several comments suggested edltorial
changes in the proposal. These
suggestions w(xe considered tl;,nd, where
appropriate, have been included herein.
DESCRIPTION OF THE BAN
The banned products. Parts 1304 Rnd
1305 declare, respectively. that consumer
pa.tching compounw and nrtificlal emberizlng
materla.ls (embers and ash)
III
I
fI
JII
I!
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W&K ON 06/25·20/02
KMWK002103
KMX01194 I
KM-WKII 002156
------------------.;...._~-..._--------------_._,_.~,._-..
f.EDERAl RfGlSTElt VOt. 42, NO. 241-THURSP!Y.OECEM5ER 15, 1971
I
63361
KMX 01195
KM-WKII 002157
11. Enterline P.• and Hendcn:on. V.: 1\
Model for Ext,rapolatlng to Low Levels of
Asbestos Exposure. Presented at Conference
on Problems of Extrupoiatlng the Results ()(
Labol1l.tory Anlmsl Data to Men and
Extrapolating-tho Results from HIgh Dot.e
Level Experiments to Low Dose Level Expo~
sure, Plnehur;st, N.C. (March 1976).
12. Entertlne, P., DcCoufte, P., and Hender~
son, V.; Mortll.lIty In Relation to Occupational
Exposure In the Asbestos Industry. J.
of Occupational. MedIcine 14 (J2): 897_903
(1972).
13,::Entlcknap, J. B., andSITllth-er, .W. J.:
PerltouealTumours InA$bestos-fsl:l:_rlt. J. Ind.
Med;.2:li2M1 (HIM).
14. Environmental Defense Fund: PetitIon
for Action under seetlon 12 of the CPSA
against fireplace ashllS rmd Logs Containing
Asbestos. Footnote J. May J2, 1971.
15. Fletcher, D. C.: A Mortality StUdy of
Shipyard Workers and lleuraJ Plaques. Sr. J.
Ind. Med. 29:142-H6(1972)•
J6. Greenberg, M., and Davle::;. A. L.:
MesotheJloffi4 Register 19618, Dr. J. Ind. Med.
31:91-104- (1974).
17: 11l1nunon
w:orlte~$ln.,lbeUnltedStMI:Sl!fit~ SP~3~
R~Jc,rt;nce>to: . Inti/l AbdornlnaI NeoplasIa.
~N.Y. Aead~ Sci. 132:519-5-~,l:li {I955).
18.Rammond, E.G., and Sellkolf, I . .1.: Re}
l\ctlonofCigarette 8mokJng to R.lsk of Death
o/Asbestos AssociAted D1b-eMe Among Insu~
latlon Workers in the Untted states. pp. 312:
117 Inl:ernatJonat Agency for Research on
Cancer (1973).
f9:~Jiarr1(!S~p, G.: Asbestos Ha.zard in Naval
DOQk:1Mds. Ann.. Oct:up. Hyg. 11:134-1:15
(1968).
20. Hase..n, lRysal M. ~t 901: The Signitlea.nce
of Asbe.lltos Exposure In the DlagnoslB of
MesQthellome..: A 2a year EKperlcnt:e nom a
Major Urban Hospital, Amer. JWv. Resp. Dls,
115:161_768 (1971).
21. BUff, J. E., Hll.!llAloJ)s, A. S., Dinger, C.
A., Whltltleld, B. L., and Ullickson, G. U.:
Asbestos: An Overview. Env. OhemJcals
HUm1.n nnd Annum Hetllth 3n{ Annual Con~
terence PToceertlllgs.
22. IARe Worl~lngGroup on the EValuation
of .tbEl~clnogf!nIc.rusk·o!·ChemJ¢.Illsto
Man. lAne Monographs on the Ev!\.luatlQD of
the CiUc,lnogenlc Risk to Man: Asbestos. IntI
Agency for Research on Cnncer, 1917.
23. Interagency Collaborative Group on
Environmental Cercfnogens, 19th MeetIng,
NUL Aug. 14, 1975.
24. .Jones. H. B., and Grlndon. A.: Environmental
Factors In the OrigIn ot Cancel and
Estim.a.tion of the PoisIble Hll:tnrd to Man.
N. COIilnet. Iolr.leol. 18:251-268 (1975).
25.-LI1J1ngton, G. A. et al: ConJugal,Mali_s::uant
MesotheJJoma.New Eng,J. Med.. 291
(Il): 583-584 (Sept. 12. 1974).
26. McDonald, J. C.• McDonald, A. D., Glbbs,
A. W., et al: The Health of OhrysotJle
Asbestos MIne and Mill Workers of Quebec.
Arch. Env. Health 28:6J 1971:.
27. M:cEw lnln;yson, A., Ma&r;.A., aud
Giboob,A,A.Af:~;:M~tbelIomain Scotland.
Bl.Med, S.i:6ToJ.,.:li.78 (1970).
211_M2n.weathcr, E. .n. .1\., and PrIce. C. W.:
!triport on the EfiMt.l of Asbestos Dust on
the: Lung$ and Dust Supprewon In Asbestos
In:C1ustry. HoM. StatIonery alDOl:!, LondOn
(l~ao:}.
2tl. NntJonnl Institute (or OccupntloneJ
Btl.fet.y nnd Health: Clltcrta. for 1\ Recommended
Standnrd ... Occupational Exposnre
to Asbestos. (1972).
. 30-. NeWhouse, M. L., and Berry G.: The
Risk of Developing MesothellomR. Among
WOrk(!TS In an Asbestos Textile Factory. XVII
International COngress on Occupa.tion
HeAlth, Bristol, England (1975).
3:kNt:whouse, M~ L., ll.OdThomps,otl, If.:
MesotheUomaOfPleuttl:&nd Peritoneum Fol-
KMWK002104
RULES AND REGULATIONS
handicapped persons to determine the
extent to which sllch persons may be
adversely affected by such rule. The
CommissJon has consid ered these needs
and has determined -tha.t no adverse ef~
feet on elderly or· handicapped persons wm result from this regulation. It is m
the best interest of the entire publie, in-
eluding 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~
gating a consumer product safety rule
the Commission shall comider 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 conswner prod~
uets, or types. or classes .ther~f, subject
t() suCh rule; (3) the need of the pUblic
for the consumer products subject to
such rule. and the probable effect of
such rule upon the utiUty, cost, qr avtl.ll~
ablllty of such ProdUCts to ·meet SUch
need; (4) any means. of achieving the
effect of the order while fuinhnl.zing ad~
verse efiects on competiLion or disruption
or dislocation- of manufacturing and
other commercial practicC$ consistent
with the pUblic health and safety; (5)
that the rule is rea.sonablynecessary to
eHminate or reduce an unr.ea.sonable risk
associated wIth such product; and (6)
that the promulgation -of the rule is in
the pUblic interest (15 U.S.C. 2058(c».
The findingS required by Sect1o-n 9(c)
of the act have been describedgenera.lly
in t.he preamble and are incorporated in
U 1304.5 and 13.05.5 of the rules below.
L Anderson, H. A., Lilts. R., Daum, S.,
FischbeJn, A. 8. and Sellko1T,l•.J.: Household~
COntact Asbestos Neoplastic Risk. Ann. N.Y.
AcM..· Set,· 2l1 :311-+323·(J976).
2. Asbestos. Informa.tion Assoc.: Information
from Representative Of ,tb~ Asbestos In~
terua.t_Ionat .As5oc1&tlon Conference, Hamburg,
Germany, 1976, June 27,1977 memo.
3.I}_()tt0:W:o,:Mi,:(J;ot1$tQl1-,A. Llvor-uese,_ L; I.,
and5chkt,.,N;: :Mesuth,e110:~.!lcdltSl1sS.o.
eJ~ttnn With· Asbtstots.JAMA(8): 93-97
(1967),
4. Canad4. COnsumer anti corpcia.te AJfalrs.
Consumer Standards Directorate, -,ProdUct
Safety Bra.neli. Asbes:t
6. Depa.rtment of LabOr. Occupetiona1
satety And Health Admlnlstratkm: Asbestos
Dust Standard. 29 CFR. 1910.934.
6. Department ot Labor. O<:cupationll.l
Safety fond Health AdmtnfsttIJ.tlon: OCcupational
Exposure to Asbestos. NotIce of Pro~
posed Rulema.klng. FR Vol. 40, No. 197, PP.
{7652..,-5766S, (Oet. D, 1975).
7. Department of Labor. OceupatlnnaJ
Safety lUld Health A4mlnlstratlon: Asbestos
Pullt In the ConstrucUOn Industry. Preumlnuy
Dmit: Tec.hnleal FeasIbility Az;sc5$~
ment. spackling and DryWall JoInt Compoundll,
p, 112.(1077).
8. Edge, J. R.: Asbestos Reluted DJ.sease In
BarTow In Furness Env, Res. 11 :244--247
(1976).
9:. mmes,p. C. and-Simpson, M. J. C~: Insulat1onWork~
tnBelfast 3. Mortality 1,9\1<065.
l:lr,J;Iild,. Med. :i8: 226-236 (1911).
10. England. Hea,lth and Sllfety Exec. Dept.
of PrlCef; and Consumer Protection. Asbestos
Labellog: Scheme. Aprll 197fl.
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~nd.rnedieal.·agwemelit..< that there :Is.,no
known_ thresho1d:Je:vel:b~ow<-whichit-issa1:
c. for peop,l~:J(}b:e~POseq:-to-T~spi;.,
rnble free;.,fonn asbestos.
As noted in the propo.ial. inhalllble
asbestos in the hOllsehold from consumer
patching compounds and artificial emberizing
materials presents a great risk
due to the presence in the household of
persOlls. such as children. who may be
particularly vulnerable to carcinogens.
Beta-use of the long latencY period. exposure
to inhalable asbestos in the hqme
can be Ufe shortening for children. The
Commission notes that consumers nre
exposed to asbestos from sources other
than the banned products. However, con~
sumerswho are exPosed to asbestos fibers
from patching compounds and artificlal
embers and ash receive additional doses
of1iSbestos andean, be assumed to face
a greater risk than persons not 50 ex~
posed, and a greaterCumUlative risk than
if no asbestos were pr-€sent in the general
environment. -
In determining that the risk of cancers
is unreasonable. the Commission con~
eludes that the degree and nature of the,
risk of iniury and the probabiHty that
the risk will result in harm outweighs the
rules effe{:t on the products utility. cost
and Qvailnbillty to the consumer.
Commission is not awnre()f It teehilieal1y
feasIble. procedure forremovlt;lg:tl:1e
hazards ofooncer froznresIJ1ralllefI;ee~
fonn asbestos in the named products.
The CommissIon belleves that not aU
patchIng oompounds present an unrea~
sonable risk of injury to the public, only
patchIng compounds contaIning resp1r~
able free-form asbestos. The hazard as~
socJated With this product is caused by
the fre~ form in which the asbestosfl.ppears;:;,:
4>:S4ie:1eye!of e,~p()su~:::~:~~~~
!ptm :asbestoS.ls>m~~>_~()Wtl-;<~P:i:f:(1le,
jt·do@.··notappear-_::~t:.a.&~tl-4A:ld::fot
p<:t:tching compoundscontaiid.pgrespir:able
!lee~f{)rm ttsbestos isfea,.s:fble.
·The product artificipl emberiZlng materials
for fireplaces, contRining resplra
·bIe free-form asbestos is used only in dry
form. Thus individual asbestos fibers are
never bound :together. If the asbestos
fibers were coated by another material to
bind the .fibers, it Would no longer be the
saroeproduet..and wouklnotgive the de;;;.
sired cieconl;tiv:e. ,fi1!ect;:_ln C@Sfdering
the dry character of the prOduetfl,1ld:the
faet that a safe leVelo!~P9Su:r~to:r~~
pira,l;)le free..tonn: asbestOs ts·not·ktiOwn~
It does not appear that a standard for
artificial emberixing materials contaIning
respirable free-form asbestos is
fe~ble.
The COilunlssion believes tl1l,l.t no
sta.ndard can render the defined products
non-hazardous nnd concludes tllflt
only b-nntrlng. thescPfoducts cannde
quately protect (he puhjJc f:romUhrea~
sonable risks of injuryassociated With
them.
2. CPSA Section 9(b). Section 9tb) of
- the CPSA, 15 U.S.C. 20SS(b), as amended,
requJres the Commission to consider and
take into account in the promulgation
of a rUle the special needs of elderly and
63362 RULES AND REGULATIONS
F~DEr.A~ REGISTER, VOl. 42, NO. 241-THU£SDAr. D-ECEMbER IS, 1971
I
KM·WKII 002158
KMX 01196
trial use in non-oonsumer environments
are not subject to the ban. In addition to
those products which can be sold directly
to consumers, the ban applies to patching
compounds containing respirable· free~
form asbestos which are used in residences.
Schools, hospitals, public buildings
or other areas where collttuners
have customary access.
§ 1304.2 Purpose.
The purpose of this rule is to ban COllsumer
patching compounds. contaIning
intentionally added. respira.ble. free,.form
asbestos. These products present an unreasonable
risk of injury due to inhalation
of fibers which increase tlhe risk of
developing. cancer, including )Uf);g cancer
and mesothelioma. diseases which have
been demonstrated to be caused by exposure
toasbestosfibers~
§ 1304..3 Dc6nil-iona.
(a) The definitions in section 3- of the
Consumer Product Safety Act U5 U.s.C.
2052) apply to this Part 1304.
(b) Asbestos means a group of minw
era.l fibers composed of hydrated- sllica~,
s, oxygen,· hYdlogen. and other ele-
ments such as sodium. iron. magnesium.
and calcium in dlverse combinations and
are: Amosite, chrysotlle, crocidollte.
anthophyllite asbestos, actinolite asbestos.
and tremolite asbestos.
to 3 product by resins or other bondIng
agents. or which can.readily become ~irborne
with any reasonably foreseeable
use,
!d) Patching compounds are mixtures
of talc. pigments. clays. casein.
ground marble, mica or other similar
muterials and It binding material such as
~asbest(),S which are sold in a dry fonn
ready ta be:.ti1ixed with water. or such
Combinations inready,;,mfxpaste form.
(c) Consumer patching compounds
are those thatare customarilY produced
or distributed for sale to or for the Personal
use, consumption or enjoyment of
consumers in or around a permanent or
temporary hou5{hold or residence, a
school. hi: recreation or otherwise. The
Commission considers that patcWri:g
compounds for application in these conw
suxner...environmen-tsa.re··,either··dilitributCd
tor sale, to or are for the ])ersollii!
usn or enjoyment of consumers.
(f) lntentIonally,.added asbestoo is
asbestos which is (1) added deliberately
as an ingredient intended to impart sPecJfic
characterfutics; or. (2) contained in
the flnal.product as the result of knowingly
using n- raw material contaihing
asbestos. Whenever a manufacturer finds
out that the tin.ished product contains
asbestos. the manufacturer will be considered
as knowingly· using a raw mate.w
rial containing asbestos. unless the
manufneturer takes steps to reduce the
asbestos to the maximum extept
feasIble.
(g) Initial introduction into commerce
occurs when the manufacturer
ships a product covered by this regula~
tion from a facility of the manUfacturer
to a distributor, retailer,or ~er.
KMWK 002105
Scope a-nd application.
Purpose,
Definitions.
COnsumer pa.tohl.Og cooopounde as
banned hllZllTdoUfi products..
Plndlngs.
Bffneta of A8be-stos, lAne lubUcntlon No.8.
pp. 2BG-294.Lyon. 11113.
CONCLUSION
Upon considering the pu.hlished proposoJ.
the oral and written responses to
the proposal and other relevant material,
the Commission bans consumer patching
compounds and artificia.l emberizlng maw
terials (embers and a.<;h) as set forth
below.
Accordingly, pursuant to- provisions
of the Consumer Product SUfety Act
(sootions 8 and 9,·86 sta.t. 1215-17. as
amended, 90 stat. 506. 15 U.s.C. 2057.
2058). new Parts 1304 and 1305n.re added
to Title 16, Cfuipter n. SubChapter B,
as follows:
PART 1304-BAN OF CONSUMER PATCH~
ING COMPOUNDS CONTAINING RESPIRABLEFREEFORM
ASBESTOS
Sec,
130U
1:lfJ42
1304.3
1304.4
1304.6
At1THOnITT: Sections 8. 9.86 stat. 121.51217.
llS amended 90 stat. 606. 16 U.s.b. 2057.
2068.
Produced by KelJy-Moore to
W&K ON 06/25-2GI02
lov.:Ing Exposure to Asb(!st,o~ 1n the London
Arc,~.,P~~~.>1:. Inti· Mea., 22-;!61 (196ti-}.
32:. NewhoUSe, M.: Asbestos In the Work
Place nod the Commumty;Ann, Oec. Ryg. 15:
97-107 (lGf3).
33. Newboul;~. M, L., and Berry, 0., Predictions
of MortaHty from, McsotheHom:>.
Tumours In Al.ibooros Factory Workers. Dr. J.
Imt Med. 33:147-161 (1976).
34.. Newhouse. M. L~ fiod Berry G.: Asbestos
and Laryngeal Carcinoma Lancet. 2:
615 (1973).
35. Nicholson, W. J.: Case StudY 1: As;bestos
The TLV Approach. N,Y. Acnd. Sel.
271: 152-169 (1976).
36. Robl, A. N.,. et nl: EKposnre to Asbestos
In the Usa 01 Consumer Spackling, PatchIng
nnd Tnplng CotnpoU1\tls. Science 189:651-553
(Aug. 15. 1975).
37~ sell1r:o,tt. IfJ.;.:,f\:~1,1~~g~::~4:N:e«pl!l:Stt..
:Att,t,:3;_,~e¢,42{;4:) -:>:RJ7–4!)6 -(19G1);
36. SeIl.li:4>tr, I,.J:..,,~¢:~J.llAl.,C1Jll:1.:KC;:::Xn
(J()lllT!1,tI~~~r:El.fec:tt<,tJ;t,~?~;
v1J:on:m:~~,t4J:A:s~tq$: :!l:X:P9s11~l! 
\i!:i:.::,~~, :,P:ub.
H¢!l1~ti:6S:(:pr:16~1S$6:U9~t~:,
~.::~en~offt:~~:J.: qh:~f:J.:-:R~4-:~~~~,
K:0,;,::::Ylie-:Q:c:C-Vrtet1ee: ~1:: A$,Ql!~W$)ii ,A;.thong
Il:i,Sulittb:ui;:W6~ker& til;:f,b.-e,Wil:t¥d:/iltate&:.:}i.Y,
Actl:d:;:6r::Sct;:-I32:lS9~J;It$::{~,g;qs~,; ,::: ,,>:,:
4.0,:: ,t3el~<»f;;: ,J: ::3.-:;:,:It;~~!J:l?;ndy::~,:: :ct••::alld
Clltlt~.:;J:: MlJeI>tWi:1!i~PQ1;:ute;: :$l.Jl0ldU&, ,a.nd
Nl!tiplMte;;:J~::2:04{2,):::1Oe;…U:2: ,(:l&6{if,
41. SeUkoff. I: J.;Harhmolid; E. C., (lud
&ldmlUl. H.: Cancer Risk of Iilstllls~10;
Workers In tho Untted 8tntes. pp. 209-216
InwrnatJOnal Agency for ResePorCh on cn.ncel
(lG73}, § 1304-.1 Scope lind application.
42. SeU!to!f, I. J., Hammond, E. C.. and (a) In this Part 1304 the Consumer
Churg, .1.: CArdnogenlcity of AmOlfita As·
bestos. Arch. Env. Uea-Jth 25: 183-186 (W72). Product Safety Commission declares that
43. Sc-llkoff, r. J., Nk:boI90n, W. .1-•• and consumer patching cOO1JX)unds cootaInLanger.
A. M.; Asbestos AIr Pollution; ing intentionally-added respirable treeA,
rch, Environ. Henltb, 26:113. juJy 1912. form asbestos in such a manner tha.t the
4.4,Sb,~ers,a.>Efft.et;.s:,Of:;As,~Btos,lf!.:~Ck- asbestos fibers can become airbOrne
yard WorJteti:.:Br.MCi.i.J: 3-:57~i9(lDGeJ. under reasonably foreseeable conditions
46-. Stall. P. M.. and MeGill, T.: Aahest:fJs of use, are banned hazardous products
and Lfl.tyngeal Carcinornll.. Lnncet 2:416-i17 under sections 8 n.nd 9 of the Consumer
(1978),
46;:&tulD,phl\I$.J.::EpJde-.iWQlogyOfMe,<;o- Product Safety Act (CPSA) <15 U.s.C,
tJW~l,O~\t(pn:Wl)tcb:eren-__ rSh;rid~:Br;·J.lnd. 2057· and 20:i8). This ban appUes to
MciL<28,:-lf9:•.66 (Inll). patch1ng- compounds which Qre (l) used
47. wagnet;J;:q~;S1eggs,c .. A.• liM Mnr- t() cctvc-r. sea.l0r,~ask,<;rac}{s.j(litlts,llol~
eba:nd;,:p;::I)lfttm!:,P-le-Uttil·Mesothelloii:i:Silbd and similaropen~-lnthe trim. walls.
A8bentosEltposure in- the NO,r\;b~~c~n,qa.pe celling. etc, of building interiors. which
Plolnce;,:arlt.J:lntl.Med;,17:2(;O~271:(lP6Q:), after drying are sanded to 8. smooth
46. Wngner-, J. C., et aL: The EtIccts of the finish and en nrc hrod-cd .d dIS•
Inha.latlon of AsbestOB in nata. Dr. d. Cancer. ... .Y u... QoU
2~: 252-269 (1914). tributed for sa.le toor for the personal
4I~~, Vf~b-stl.l;r.,::I;,f!.Sbe:~tosand MnU&ll$ncy. use. consumption or enjoyment of·8. cons:.
A.Med.J.41:1~111Ofl63,). stnner in or n.round· Ii. pelmanent or
60-. W:l1!1iWI.!;J,l.F; ~1l1,l:~W:C1ltIe,);~1A:.,:Dll,. temporary household or residence. a
t\ioo;:-Mti.:1ignll.ntPl:eutat:MeSO,*I~nwil.,AUI1 school. in recreation or otherwise.
A.sb~,~~W~u,r(!/1hotAk2~;622:(19Tr); (D) The Commission. has found, that
6J:tri~ilnrt~fAi:·~g~~~~!i-%~teS~; (1) thesepatehingrotnPOuudSarebejng
Containing Patching Compounds, Qetober or will be distributed in commerce; (2)
Hm. . tlhat they present an unreasonable risk of
52. Robl; h., Langer, A.• and Sellkotr. I.: injury; and (3) that no feasible conEnvIronmental
Asbestos Pollution Related to sumer Product safety standard under the
Usc- of Quarried Serpentine Rock. Sclenee-, V. CPSA would a.dequa.tely protect the publo-
a, pp. 1319-1322, June- 17~ 1977. lie from the unreasonable risk of injury
53. Bnyard, S.: Memorandum, Risk at I ted j
ResplrRtory Cancer Due to Low-Level Expo- nssoc a w th these products. ThJs rule
$urc to Il..sbestos from SpacJtllng and Joint applies to the banned hazardous products
Taping Compounds. June 3. 1977. defined in section 1304.3 and described
54. Bayarcl, 5.: Mcmorundum to File; Re- further in section 1304.4. .
sponses to Conunentll, October 1977. (c) Only ec:msumer products are sub-
66:. Tb0tljP5P:l4 J~O~~.:Q!N;.Y.:A¢M.Scl. ject to this regulation. Patching com-
132;1:96:iH~HIair pounds which are consumer products
M. Dept. ortnttcrlor. BureAU of Mines: Se- . include those which a.- consumer can purlected
S1l1Ctl.te Mlnemls and theIr AsbesU,. chase. Me-rely labeling a patehlng com.
form Var1etles. 19-77.
57. Harr1IlRton. J. S.• et 1>1.: MJnera1 Flbern: pound for industrial use would not exCbemlcAI.
PhyslcochemICQI IHld Diolog1elll elude such articles from the ban. If the
Propertles. Adv. Phllrmacol. Chemother. sale or use of the product by consumers
12:291–402.1975. is facilitated. it is subject to the ban.
58. Stanton. M. D.: Some Etiological Con- Patching compounds which are labeled
slderll.tlons 0.1 FIber Carcltlogcnesls. B1ologlcal as. marketed:. and sold solely for indus,.
i
j
III
III i
—-_ .._.—-_….._.__._—-~——–_ ……-
FEDf.:Ml REGfSTER. VOL. 42, NO. 241-THURSDAY. DECEMBER 15, 1977 I KM-WKII 002159
KMX 01197
63363
of nsbesLos formulntion..<;) arc affected by
the 10-25 percent increase. The burden
of this cost is expected to fall directly
on owners of existing homes who may
engage in some renovation, aDd on purchasers
of newly-renovated or llewly.
constructed homes. These incrcascil costs
are expected to dimInish over time as
formulations improve and as applicators
become more accustomed to using nonasbe-.
stos formulations. The use of asbestos
substitutes may also lead to cost increasco..
5 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 increased
costs of raw materials and of
Cannulation research and .devej{lpli)ent.
It: isexpec:ted that the price of many
patching compounds may rise as a result.
Producers, distributors, and retailers of
Patching compounds may also have to
incur costs associated with the disposal
of products in inventory. TIle Conunis~
slon estimates that the .whole,saJe value
of mlurufacturers· and distrIbutors inventories
at· the··time the ban becomes
effective will be approxlJnately $15 mil~
lion. Tllese costs may be reflected in the
prJces cha.rged for asbestos~freepatchiUgcompound
formulations, and in the
prices Mother drywall and paint prod...
nets. It appears that, because of competitive
pressure from asbestoo~containing
compounds. producers of asbestos~
free formulations. have not Yet passed
on to purchasers their increased costs.
If the Increased production costs of as~
bestos-free formulations can be passed
on completely as a. result of the ban. the
total a.nnual price effect for the year fol:..
lowing the issuance of the ban may be
$10-$60 million. The magnitude of this
effect may.bt: .. reducedsi@1:fiCai1tJY.in
successive years following the issuance oJ
the ban as producers development costs
e.re amortized, as raw materials become
more widely ava,ilable, and as pr1ce competition
is sf.rengthened because of market
pressure and economies of scale as~_
sociated with productIon. .
(3) AvaiIabitity. The sUPPlY of asbestos
substitutes, particularly attapulgite
claY and relatively uncontaminated talc,
for ..\lSe.. in the manufacture ofplltchmg
cOltlPounds· may be insufficient to meet
the short:rilD demand which is exPected
to be stimulated by the promulga:{;jon of
the ban. Further, many .small producers
probably lack the technical cnpabUity to
reformulate their prodUCts, and may be
forced l;o cease production, at least untH
formulations of satisfactory cost and
performance are developed, This may
affect some professional contractors. In
the short run, consumers m.ay be indirectly
aifected by delaYs in dryWall
flnIshing and building completion.
fd) Any means, oj achieving the objective
Qj the ban While minimizing ad~
verse effeds on competition or disruption
or dislocation oj manufacturing and other
commercial practices consistent with
the public health artd safety. The adverse
effects of the ban on patching compounds
containing asbestos is reduced b!
KMWK002106
Produced by Ketly-Moore to
W&K ON 0612S.26102
posure to jnha-Iable asbestos is in tile
home.
§l034.3 (d), (e). (f) include such products
as drywall spn.ckling compounds and
ta.pe Joint cnmpounds
The Commission estImates annual shipments
of patchIng compounds subject. to
the ban at approximately 30.;..50 million
enits, or individual packa.ges, of various
sizes from 0.5 to 25 pounds
sian bcliews that about half the patching
compounds sold in 1977, and intended
for sale to or use or enjoyment b-y consumers;
were fonnulated With asbestos.
Mani- others contaJn1ng significant levels
ofasbestQ.s ..contamina.tionwtU ·a.lst .be
affected by the ban.
(c) Need 0/ the public for the products
and. etJects oj the rule on their utility,
cost and availability. PatchJng com~
pounds, though used ptimartly by com~
mercial construction workers, are also
used by consumers, and are used tor the
patching and sea-bng of cracks and joints
in and aroun.d the household and in
other consumer environments either by
cOhSumers or professional apPlicators.
The compounds are used to cover areas
on gypsum drywall whJch might otherWise
be aesthetically undeslmble or
which might lead to structural damage.
energy lozs or lower property value. The
asbestos in these C().mpounds acts as a.
structural reinforcing agent which helps
to reduce cracldilg and shrJnkage of the
compound over time, and which renders
the compound more pliable or workable
upon application.
(1) Utility. The elimination Of asbestos
from these products may result in the
jncreased use or new development of
sllbstltuteswhich have similar proper;;,.
tJes U;l those of asbestos. or whJch imPart
similar quaHties to the product. In current
refonnuJations. asbestos Is replaced
by a combination of SUbstances, of Which
the most common is attapulgJte,llfibrolJS
clay. Some non-asbestOs formulations
are reportedly not as effeetJve as those
containing asbestos in controlling
shrinkage nnd cracking over time. The
wo-rkJlb~ty.,0.£ ,:i9:lll~PQWpounds. maybe
difiilliiShed .as wen, Ih1a.J:rta.Y adverselY
a.ffect the utility der.lved from the prod~
uct by consumers. and by professional
contractors until such t1lne as improved
formulations aredeveJ:o}led and a.vaIlable
to end-users.
(2) Cost. Asbestos~frC€ patching compound
fonnulat1ons mas requIre more
tlme to use. This would tend to Increase
the direct Jabor cost.s of resident1aJ a.nd
other construction and renovation. I1le
expected increase is between 10 and 2S
percent. The CommissIon estimates that
the annual Jabor cost of dryWall finlshing
in these consumer enVironments is on the
order of $1 billion. The use of nonasbestos
patching compound fonnula;
Mons in aU applications may incre3Se this
cost by $50-$125 million, assuming that
roughly half the current labor costs (I.e.,
that portion now associated With the use
RULES AND REGULATIONS
§ 1304·,4- f:oll~Unwt ltdlill::: rUIHIJ(llUlIl…
P!l luulIHd hllZ.·lll!flU.~ prm}u\·\s.
On the basis that airborne asbestos
fibers present the hazards of cancer, in~
eluding lung cancer and mesothelioma
to the pubnc, consumer- pal.chjng compounds
containing Int.clltion/l.lly~added,
respirable fr~-iorm asbestos, which
have been manufactured or initially int.
roduced into commerce after January
16. 1978, are banned hazardous products.
In addition, all other consumer patching
compounds containing intcntionallyodded,
respirable free-form asbestos, no
matter when manufactured or illHJally
int.roduced into commerce, are banned
hazardous products alter June 11. 1978.
§ 1304.5 Findings.
(a) The degreea1tdnalure 0/ theri.sk
0/ inJury. TIle CommIssion finds tha.t the
risk of injury which this regulaf..ion is
designed to elimfn.ate or reduce Is from
cancer, including lung cancer and
mesothelioma. In n.r.ses5ing. the- degree
and nature of the risk of injury
to consumers, the Commission has
reviewed experimental data and human
experience information. The Com~
mission noted that in the scientific
literature, there is general agreement
that there .is no l;:;nownthreshold level
below which exposure to respirable freeform
asbestos wOUld be considered safe.
Further on the basis of such scientific
opinion, U appears -to the Commission
that children are particularly vulnera,ble
to carcinogens because of their longer
potential Ilfetime and their rapid rate
of growth. In areas of the countrY where
asbestos ma.y not be prevalent in the en~
vironment. the major risk of exposure for
children and others may occur in the
household. In areas of the country where
morc asbestos fibers· are present in the
environntcnt, theptlbHc iseJCPQ:;cd to ad
ditional risks ·from the presence of asbestos
fibers in households and other
consumer environments, the Commission
concluded on the basis of these factors
that consumer pate-hing compounds containing
respirable free-f-onn asbestos
present an unreasonable risk of injury to
the public. In addition. a risk assessment
was made. For purposes of this nsse:;s~
ment, the Commission considered the use
ofpatching.eo1l1Pounds·bytlle·cousutner.
for six hours a day four times a year. to
be n high yet reasonably foreseeable exposure.
The increased risk of death from
respiratory cancer Jnduced by this exposure
is estimated at between· 10 a.nd
2.000 per million. For five years (}f ex~
posure at these levels, the risk increases
geometrically and is estimated at between
l,aoo and 12,(}fH) per million. Tlle
lower estimate of 1() per million is closer
to the actual risk for a one-year exposure.
Nevertheless, In view of the seriousness
of the injury a.nd the cumulative
effects of a,<;bestos exposure. even this
minimum figure represent.<; an unacc.eptable
risk. The Commission believes that
reducing exposure to resPira.ble freeform
asbestos in the home represents a
substantial decrease in risk to consumers,
since, for Jnany people, the m.ajor ex63364
RULES AND REGULATIONS
II
I
limiting the ban to intentionallY added
asbestos. Other alternatives sucll as
lim..iting· the scope of the ban onlY to
products· purchased and used by con~
sumers or to issuing- a ban with a later
effeetive date~ were considered by the
Commission. However, none WM found
that would cause less disruption or dis,,:
location of manufacturing and ot!!ef
commetical practices. consi;;tent with
public health and safety.
conclusion. The commission finds
that this rule. including its effecthe da.te
is reasonably necessary to eliminate or
reduce the unreasonable risk ot injury
from cancers such as lung cancer lltld
fil€OOthcUoma that areassoclated with
the banned products described herein.
that no teasJblecDl1sumer J)Toduets.atety
standard -under the Consumer Product
Safety Act can adequately protect the
publlc from thIsri:sk. and· that promulgation
of this-rule is in the public interest.
PART 1305-BAN OF ARTIFICIAL EMBER·
IZING MATERIALS (ASH AND EMBERS)
CONTAINING RESPJRABLE FREE~FORM
ASBESTOS
Boo.
1305.1 S<;opc and a.ppl1ca.tlon.
1305.2 Purpose.
1306.3 nct1nltlons.
1305.4 ArtUictal fire-pla.ce Il.sh Rud embers as
banned hwz;ardous products.
1305.5 Findings.
AUTHOlUTY: se.cs. 8. 9, 30{d), Pub. L. 69573.
as amended. Pub. L. 94--284; 86 Stat.
1215-17. as aJ.nended. 90 Stat. 505 (15 U.s.C.
2057.205!l).
§ 1305.1 Scope_ and e-pplicn1i,m.
In this Part 1305 the Consumer Product
Safety Commission declares that
artificial emberlzing materials (ash and
{lntbe:rsl cctnta1ning respirilble jree~form
Mbestos generally packaged in an emberizing
ldt· for use in fireplaces, and
designed for use In such a manner thatthe
asbestos fibers can become airborne
under reasonably foteseeable conditions
of .use e.re banned hazardoUs products
under sections Band 9 of the Consumer
Product Safety Act (CPSA) (15 U.S.C.
2()57 and 2058). This ban applies to arf;I~
fiCinI emberiz1n~ mate:rials .. avaJla~le, .~~
separatekits,o:r with art-mcial ftieplace
logs for use in fireplaces and s,Prlnkled
or coated by consumers on the fiTt-ificial
.--logs to sirilulate 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 sprinltJed on and
under artificial Jogs to simulate bunting
and glow1ng ashes also come within the
scope of this ban.
§ 1305.2 Purpose.
The purpose of this rule is to ban_artificial
emberlzing materials containing
respirable free-form asbestos. These
products present an unreasonable risk of
injury due to inhalation of fiben; wJl1ch
increase the risk of developing cancers
such as lung cancer and mesothelloma.
disease>:; which have betH demonstrated
to be caused by exposure to asl:?estos
fibers.
§ 1305.3 Dcfiniliouf<.
(a) The definitions in section :1 of the
Consumer Product- Safety Act US U.RC.
2052) apply to tIllS Part 1365.
(b) Asbestoo·, means a group of min~
eral fibers compooed of hydrated silicates.
oxygen. hydrogen and other elements
such as sodium, Iron, magnesium and calcium:
in diverse combinations and are:
Amosite. Chrysotile, crocidolite, antho·
phyllite asbestos. actinolite asbestos, and
tremoute asbestos.
(c) Free-form nsbe,.ltos is that which
is not bound, woven, or otherwise
locked-Jn to a product by resins or
other. bonding. agents. or those from
which fibers can readily become airborne
with any reasonably foreseeable use-.
(dJ lI!.:tnber.i.ztpg me.tel1nJ.s means an
asbestos-containing material generallY
pac}ced in lU1 emberizillg kit to- be
placed under artificial logs in gas,,:,bum~
ing fireplace sYstems .or in artificial fire
places f6r dee-o-rative purposes. theproduet
f;s also glued to artificial logs, either
at a factory or by a. COilst.,Uller, using an
emberlzing kit. (Synthe:tic logs mant,.tfactured
of cellulosIc products which a.re
consumed by flames are hot inclUded. in
this dci1nit1on. Electric artificIal logs and
art1flcial ash beds used in electrIc fireplaces,
which do not contain respira.ble
free-tonn asbestos are not included in
this definitiOll.)
§ 130504 AnHidnl llt(phu::( llsh AOII
cmbNti Il~ bllnned hn:ratrdOU5 pnxl·
Ilct~.
On the basis that u-irborne asbestos
fibers pre.ent the haz2.-rds of cancer such
as lung cancer and mesothelioUla to .the
ptzblic,artificill-lflrepJltCe ushnndember.s
containing respIrable free-form asbestos
are banned h:azardous products.
§ 1305.5 Findings.
, (a) The degree an-d nature of the risk
of injury. The Ccntmlission finds that the
ritk of injUlY which this regulation is
designed to eliminate or reduce Is from
cancer, includingfung ca.ncer and _nlesothelioJna.
Measurements are not avallable
,of·then-mountsof aSbesrosin theair
from Mbestos-containing emberiZing
materials in homes. However, it appears
that the amount of aJrbome asbestos in
such homes would increase when air currents
in the home are created by downdi1tfts
from a n-replaee chimney or other
actIvities that stir air in any room. Since
embermng materials may conta.in up to
50 percent as~tos, which U not Permanently
bound into artificial fireplace
logs Would bem respirable form, the risk
associated with emberizJng materials: is
considerable. especially since it continues
to exist 24 hours n. day.
(b) Products subject to the ban. Artificial
embetiziug ma.terials are decorative
simulated nshes or embers, used in certain
gas-burning fireplace systems, which
gloW to give the appearance of real huming
embers. The material is sprinkled on
cr glued to gas logs, or sprinkled on fireplace
floors.
(c) Need of the plt-blic for the PToduetsand
effects of the ru.le on their utilitV.
cost. and availabilitll. Artfficial fire-place
elnbenzing matetial scrvr.$ a
strictly decorative purpose and does not
materially affect the actual per[onnance
of the fireplace gas system in terms
of its abilIty to provide heat. A ceita-tn
degree of aesthetic _desirability exists,
however. since the product s}$~m it.
self
logs. Gas logs may be sold with artificIal
emberJzing JDate.Iial attached at ttle factOry
(the log commonly referred to as
being lroslcd). or with the embers
in a separate kit. often mixed with siumlated
·n.lhes~ VirtuallY all Irns logs ·afe
either frosted or packaged with an emberizing
kit: .hQ\Vever~- the nul}ority of
gas logs produced in 1977 were packaged
with llon-asbestos~contalning emberlziug
kits. The· -Commission estimates
annual sales of a.rtificial gas logs at, approximatelY
100.000 units. SOme ::?5,OOO30.000
of these ,,,,.ould be subject to the
ban: APproxima.tely lDO,OOO gas logs
fro.sted or treated by con5um~rswith Mbestos
are estimated to be in existence.
TIle Commission believes that the majority
of gas logs are sold with emberbJng
kits; this gives the consumer itchoice
as to whether or not to use the
artificial embers and ashes.
(1) Utilit1/. Manufacturers of at;tificia)
gas log emberlzing materIal are currently-
using four substitutes for asbestos
in their prodUcts: vermiculite, rock wool.
mIca, and a syntl1-~t.ic fiber. None of the
four is clnlmed to be as aesthet-icn!1y effective
as asbestos, Thus. the utility derived
by consulllern from some gas-bun~ing
fireplace sy,stenlS .lns,ybe.adver.s:clY
affected.
nn Cost. No effect on the overall price
level orgas logs is antfcipll(;ed as a result
of the ban. TIle nverage price of ember;
izmg kits may rise someWhat; the Comm.
ission estimates the toW· price effect
of the ban -on consumers at under
$25.000.
(3) Availability. The Commission bt!lieves
that an producers of artIficial ember:
iziitgrnaterialwiUh~le,ethn:inated
asbestos from their prodqcts by the time
tbe ban becomes effective. No significant
impact on the availability of asbestos
substitutes to prodUcers nor on the avail,
ability of gas logs or emberfzing kits to
retail dealers and consumers is eXPected
as it result of the ban.
(dl An.y means 0/ achieving the objective
of the ban while minimizinp ad-verse
effects on competition or disruption or
dislocation 0/ manufacturing and other
commercial practices consistent with the
public health and salety. The Commis..
sian believe; that there will be minimal
dlsruption to the -market for artillcio.l
emberiZillg rnateria.ls as a. consequence
of the ban and that no further reduction
in a.dverse effects is feasible.
Conclusion. The Commission finds that
this rule. including its effective date. is
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RULES AND REGIJtATlONS
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 Of} feasible consumer product safety
standard under the Consumer Product
Safety Aet: can adequately pro-tect the
publiC from this ri..<;k, and that promulgation
of this rule ts in thepubllc interest.
EffectiVe. Dates: Part 1304 becomes et~
f~ctiveJanuary 16, 1978.
Part 1305 becomes effective December
15.1977.
Dated: December 12, 1977.
Sutwmti D. BUTTS.
Assistant Secretary. Consumer
Product Safety Commi.>siou.
IFR Dotl.77-35-74611led 12-12–77;11:32 am
63365
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