[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Notices]
[Pages 70246-70248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28972]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPPT-2010-0681; FRL-8850-6]
Lead Fishing Sinkers; Disposition of TSCA Section 21 Petition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: On August 3, 2010, several groups filed a petition under the
Toxic Substances Control Act (TSCA) section 21 requesting that EPA
prohibit under TSCA section 6(a) the manufacture, processing, and
distribution in commerce of (1) lead bullets and shot; and (2) lead
fishing sinkers. On August 27, 2010, EPA denied the first request due
to a lack of authority to regulate lead in bullets and shot under TSCA.
EPA's decision was based on the exclusion of shells and cartridges from
the definition of ``chemical substance'' in TSCA section 3(2)(B)(v). On
November 4, 2010, EPA denied the second request. This notice explains
EPA's reasons for the denial of the request specific to fishing
sinkers.
FOR FURTHER INFORMATION CONTACT: For technical information contact:
Christina Wadlington, National Program Chemicals Division (7404T),
Office of Pollution Prevention and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001;
telephone number: (202) 566-1859; e-mail address:
[email protected].
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action is directed to the public in general. This action may,
however, be of interest to you if you manufacture, process, import, or
distribute in commerce lead fishing sinkers or lead fishing tackle. If
you have any questions regarding this action, consult the technical
person listed under FOR FURTHER INFORMATION CONTACT.
B. How can I get copies of this document and other related information?
EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPPT-2010-0681. All documents in the
docket are listed in the docket index available at http://www.regulations.gov. Although listed in
[[Page 70247]]
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically at
http://www.regulations.gov, or, if only available in hard copy, at the
OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/
DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation are
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number of the EPA/DC Public Reading Room is
(202) 566-1744, and the telephone number for the OPPT Docket is (202)
566-0280. Docket visitors are required to show photographic
identification, pass through a metal detector, and sign the EPA visitor
log. All visitor bags are processed through an X-ray machine and
subject to search. Visitors will be provided an EPA/DC badge that must
be visible at all times in the building and returned upon departure.
II. Background
A. What is a TSCA section 21 petition?
Under section 21 of TSCA (15 U.S.C. 2620), any person can petition
EPA to initiate a rulemaking proceeding for the issuance, amendment, or
repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA
section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the
facts that are claimed to establish the necessity for the action
requested. EPA is required to grant or deny the petition within 90 days
of its filing. If EPA grants the petition, the Agency must promptly
commence an appropriate proceeding. If EPA denies the petition, the
Agency must publish its reasons for the denial in the Federal Register.
A petitioner may commence a civil action in a U.S. district court to
compel initiation of the requested rulemaking proceeding within 60 days
of either a denial or, if the Agency does not resolve the petition, the
expiration of the 90-day period.
B. What criteria apply to a decision on a TSCA section 21 petition?
Section 21(b)(1) of TSCA requires that the petition ``set forth the
facts which it is claimed establish that it is necessary'' to issue the
rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21
implicitly incorporates the statutory standards that apply to the
requested actions. In addition, TSCA section 21 establishes standards a
court must use to decide whether to order EPA to initiate rulemaking in
the event of a lawsuit filed by the petitioner after denial of a TSCA
section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA
generally relies on the standards in TSCA section 21 and in the
provisions under which actions have been requested to evaluate
petitions.
C. Summary of TSCA Section 21 Petition Received
On August 3, 2010, the Center for Biological Diversity, American
Bird Conservancy, Association of Avian Veterinarian, Project Gutpile
and Public Employees for Environmental Responsibility filed a petition
under TSCA section 21 requesting that EPA prohibit under TSCA section
6(a) the manufacture, processing, and distribution in commerce of (1)
lead bullets and shot; and (2) lead fishing gear. With respect to
fishing gear, petitioners requested a nationwide, uniform ban on the
manufacture, processing, and distribution in commerce of lead for use
in all fishing gear, regardless of size, including sinkers, jigs and
other tackle. (Ref. 1).
D. Summary of the Disposition of the Request With Respect to Lead in
Bullets and Shot
As discussed in the Federal Register of September 24, 2010 (75 FR
58377) (FRL-8847-5), on August 27, 2010, EPA denied the first request
due to a lack of authority to regulate lead in bullets and shot under
TSCA. Today's notice provides EPA's reasons for denying the second
portion of the petition: A request to prohibit under TSCA section
6(a)(2)(A)(i) the manufacture, processing, and distribution in commerce
of lead for use in all fishing gear.
III. Disposition of the Request With Respect to Lead in Fishing Sinkers
On November 4, 2010, EPA denied the request to prohibit under TSCA
section 6(a) the manufacture, processing, and distribution in commerce
of lead fishing gear. EPA denied the request because the petitioners
have not demonstrated that the action requested is necessary to protect
against an unreasonable risk of injury to health or the environment, as
required by TSCA section 21. The petitioners do not provide a
sufficient justification for why a national ban of lead fishing sinkers
and other lead fishing tackle is necessary given the actions being
taken to address the concerns identified in the petition. The
petitioners also have not demonstrated that the action requested--a
uniform national ban of lead for use in all fishing gear--is the least
burdensome alternative to adequately protect against the concerns
identified in the petition, as required by section 6. There are an
increasing number of limitations on the use of lead fishing gear on
some Federal lands, as well as Federal outreach efforts. A number of
states have established regulations that ban or restrict the use of
lead sinkers and have created state education and fishing tackle
exchange programs. The emergence of these programs and activities over
the past decade calls into question whether the broad rulemaking
requested by petitioners would be the least burdensome, adequately
protective approach. EPA notes that the prevalence of non-lead
alternatives in the marketplace continues to increase.
Lead tackle already is prohibited for use in Yellowstone National
Park and at several national wildlife refuges including Patuxent
National Wildlife Refuge in Maryland, Rachel Carson National Wildlife
Refuge in Maine, Rappahanock National Wildlife Refuge in Virginia, Red
Rock Lakes National Wildlife Refuge in Montana, Seney National Wildlife
Refuge in Michigan, and Union Slough National Wildlife Refuge in Iowa.
Since 1999, the National Fish and Wildlife Service has encouraged the
use of non-lead fishing tackle (See ``Let's Get the Lead Out'' at
http://www.fws.gov/contaminants/Documents/leadpoisoning2.pdf). The
National Park Service is also encouraging the use of alternatives to
lead tackle in national parks through an education and outreach
program. This program, which has a goal of eliminating the use of lead
tackle in parks, focuses on the benefits of using lead-free fishing
tackle.
States also have been taking action to ban or limit the use of lead
fishing sinkers or have been working to limit the use of lead fishing
sinkers through outreach and exchange programs. Since 2000, five states
have banned or limited the use of fishing sinkers. Maine, New York, and
Vermont have banned the sale of lead fishing sinkers of less than one-
half ounce. In Massachusetts, the use of all lead sinkers in the
Quabbin and Wachusett Reservoirs, the loons' primary habitat in the
state, is prohibited, and starting in 2012, the use of lead sinkers,
lead weights, and lead fishing jigs of less than one ounce will be
prohibited in all inland waters. In New Hampshire, lead fishing sinkers
and jigs are banned for use in all fresh waters. Additionally, the
Washington Department of Fish and Wildlife is considering whether to
adopt
[[Page 70248]]
restrictions on the use of lead tackle in the state. Other states have
outreach and education and tackle exchange programs.
The comments that EPA has received from states and a state
organization highlight the geographic focus of state controls on lead
fishing tackle. According to the Association of Fish and Wildlife
Agencies, ``the exposure to certain migratory birds (primarily loons,
and to a lesser extent, swans) and related impacts to populations of
those birds is localized, and where impacts have been substantiated to
be significant, state fish and wildlife agencies have acted to regulate
the use of lead sinkers and jigs. In the northeast, five states have
enacted restrictions (e.g., ban in certain bodies of water; ban on
certain weights and sizes) on the use of lead fishing tackle where
studies have identified lead toxicosis as a contributing factor to
declining loon populations. Some states are also offering a fishing
tackle exchange program (non-lead for lead products). States have thus
demonstrated a responsible exercise of their authority to regulate or
restrict lead fishing tackle under circumstances of exposure where it
contributes to decline in loon populations'' (Ref. 2).
Several state fish and game agencies submitted comments (Refs. 3-
5). All support denial of the petition and provide several reasons why
they do not support the actions requested in the petition. These
comments assert that mortality from ingestion of lead fishing tackle is
rare and is primarily limited to some areas of the country, that states
are already working closely with the Fish and Wildlife Service on
education and exchange programs, and that where there have been impacts
on loons and trumpeter swans, states have already taken action. These
states contend that these impacts are best addressed by geographically
targeted actions that the states are undertaking. As noted by these
commenters, states in the northern part of the country, where the
majority of the impacts on loons has been observed, have taken action
to limit or ban the use of lead sinkers or have implemented tackle
exchange programs.
While it is the case, as petitioners noted, that 16 years ago, in
1994, EPA proposed a ban of lead for use in certain smaller-sized
fishing sinkers under TSCA section 6(a)(2)(A), the sweeping alternative
requested by petitioners was not one the Agency, as reflected in its
proposal, found to be appropriate even then. (59 FR 11122, March 9,
1994). The steps that have been taken at the Federal and State levels
since that time make a nationwide ban on all lead fishing gear such as
that sought by petitioners even less appropriate today.
Moreover, the market for fishing gear is changing. While lead
tackle may still constitute the largest percentage of the fishing
sinker market, over the last decade the availability of fishing sinkers
made from other materials has expanded. New non-lead products have
entered the market, and the market share of lead sinkers has decreased.
With improvements in technology, changes in consumer preferences,
state-level restrictions, and increased market competition, the market
for lead fishing sinkers is expected to continue to decrease while the
market for substitutes such as limestone, steel, and tungsten fishing
sinkers is expected to continue to increase (Ref. 6).
In sum, EPA is not persuaded that the action requested by the
petitioners--a sweeping national uniform rule on lead in all fishing
gear--is necessary. The petitioners also have failed to demonstrate
that a national ban on lead fishing gear is the least burdensome
approach to adequately address the risk to the environment addressed in
the petition, as required by TSCA section 6, given the mix of actions
that state agencies and the Federal Government already are taking to
address the impact of lead fishing sinkers on local environments. The
risk described by the petitioners does appear to be more prevalent in
some geographic areas than others, and the trend over the past decade
has been for increasing state and localized activity regarding lead in
fishing gear. For these reasons, EPA denied the petitioners' request
for a national ban on lead in all fishing gear.
V. References
1. American Bird Conservancy, Petition to the Environmental
Protection Agency to Ban Lead Shot, Bullets and Fishing Sinkers
under the Toxic Substances Control Act. August 3, 2010.
2. Association of Fish and Wildlife Agencies. Letter to
Honorable Lisa Jackson, Administrator, United States Environmental
Protection Agency. September 2, 2010.
3. The State of Arizona Game and Fish Department. Letter to Lisa
P. Jackson, Administrator, United States Environmental Protection
Agency. September 14, 2010.
4. Kentucky Department of Fish & Wildlife Resources Tourism, Art
and Heritage Cabinet. Letter to Honorable Lisa Jackson,
Administrator, United States Environmental Protection Agency.
September 15, 2010.
5. Commonwealth of Virginia Department of Game and Inland
Fisheries. Letter to Honorable Lisa Jackson, Administrator, United
States Environmental Protection Agency. September 15, 2010.
6. Background Document--TSCA Sec. 21 Petition; Pb in Fishing
Sinkers and Other Components. October 2010.
List of Subjects
Environmental protection, Bird, Lead, Lead bullets, Lead fishing
sinkers, Lead shot.
Dated: November 4, 2010.
Steve A. Owens,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2010-28972 Filed 11-16-10; 8:45 am]
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