[Federal Register Volume 59, Number 46 (Wednesday, March 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5298]
[[Page Unknown]]
[Federal Register: March 9, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 745
Lead Fishing Sinkers; Response to Citizens' Petition and Proposed Ban;
Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62134; FRL-4643-3]
RIN 2070-AC21
Lead Fishing Sinkers; Response to Citizens' Petition and Proposed
Ban
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On October 20, 1992, the Environmental Defense Fund (EDF),
Federation of Fly Fishers, Trumpeter Swan Society, and North American
Loon Fund petitioned EPA under section 21 of the Toxic Substances
Control Act (TSCA), and the Administrative Procedure Act (APA), to
initiate rulemaking proceedings under section 6 of TSCA to require that
the sale of lead fishing sinkers be accompanied by an appropriate label
or notice warning that such products are toxic to wildlife. EPA granted
the petition; however, the Agency believes that a labeling provision
would not adequately address the risk of injury to waterfowl and other
birds (waterbirds), from ingestion of lead fishing sinkers. In
addition, EPA also believes that zinc fishing sinkers adversely affect
waterbirds, and can cause mortality. Therefore, EPA is proposing this
rule under section 6(a) of TSCA to prohibit the manufacturing,
processing, and distribution in commerce in the United States, of
certain smaller size fishing sinkers containing lead and zinc, and
mixed with other substances, including those made of brass. The Agency
also requests that persons with information relevant to the issues
outlined in this document submit that information to EPA.
DATES: Written comments in response to this proposed rule must be
received by May 9, 1994. If persons request time for oral comment, EPA
will hold an informal hearing in Washington, DC. The exact date, time,
and location of the hearing, if held, will be announced in the Federal
Register. For further information regarding the hearing, see Unit XV.
of this preamble.
ADDRESSES: Comments should be submitted in triplicate to: TSCA Docket
Receipt (7407), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, Rm. E-G99, 401 M St., SW., Washington,
DC 20460, Attention: Docket No. 62134. For information regarding the
submission of comments containing information claimed as confidential
business information (CBI), see Unit XIV. of this preamble.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Rm. E-545, 401 M St., SW., Washington, DC 20460,
Telephone: (202) 554-1404, TDD: 202-554-0551.
SUPPLEMENTARY INFORMATION:
I. Authority
If EPA determines that there is a reasonable basis to conclude that
the manufacture, processing, distribution in commerce, use, or disposal
of a chemical substance or mixture of chemical substances, or that any
combination of such activities, presents or will present an
unreasonable risk of injury to human health or the environment, section
6(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605(a),
authorizes EPA to apply one or more of the following requirements to
such substance or mixture to the extent necessary to protect against
the risk: (1) Prohibit or limit the amount of a chemical substance or
mixture manufactured, processed, or distributed in commerce; (2)
prohibit or limit the amount of chemical substance or mixture
manufactured, processed, or distributed in commerce for particular uses
or at particular concentration levels; (3) require labeling or warning
rules; (4) require manufacturers and processors to make and retain
records of the process used to manufacture or process a chemical
substance or mixture, and to conduct tests to monitor compliance with
regulatory requirements; (5) prohibit or otherwise regulate any manner
or method of commercial use; (6) prohibit or otherwise regulate any
manner or method of disposal of such substance or mixture or articles
containing such substance or mixture; (7) require that manufacturers
notify the public of unreasonable risk associated with a chemical
substance or mixture, and to replace or repurchase the product. Section
6 of TSCA requires EPA to apply the least burdensome requirements to
protect adequately against the risk. Section 6(a)(2)(A) of TSCA,
prohibiting the manufacturing, processing, or distribution in commerce
of a chemical substance or mixture for a particular use or at a
particular concentration level, provides EPA the authority to issue
this proposed rule. Section 8(a)(1) of TSCA gives EPA authority to
require persons who manufacture or process chemical substances and
mixtures to maintain records for manufacturing purposes, including
records necessary for effective enforcement of TSCA requirements.
Section 12(a) of TSCA exempts from regulation under the Act any
chemical substance, mixture, or article containing a chemical substance
or mixture that is manufactured, processed, or distributed in commerce
solely for export and bears or is enclosed in a container bearing a
stamp or label stating that is intended for export. However, this
exemption does not apply to any of the situations enumerated in TSCA
section 12(b), nor to any recordkeeping requirements promulgated
pursuant to TSCA section 8.
Section 12(b) of TSCA requires that any person who exports or
intends to export a chemical substance or mixture for which a rule has
been proposed or promulgated under section 6 must notify EPA of such
exportation or intent to export.
II. Background
A. TSCA Section 21
Any person may petition EPA under section 21(a) of TSCA to initiate
proceedings for the issuance, amendment, or repeal of a rule or order
under section 4, 5, 6, or 8 of TSCA. As required by section 21(b), the
petition must set forth the facts which the petitioner claims establish
that it is necessary for the Agency to issue, amend, or repeal a rule
or order under those sections of TSCA. Section 21(b) also directs EPA
to decide either to grant or deny the petition within 90 days after a
petition is filed. If EPA denies a petition, the Agency must publish
the reasons for the denial in the Federal Register. If the Agency
grants the petition, EPA must promptly commence an appropriate
proceeding in accordance with section 4, 5, 6, or 8 of TSCA.
B. Petition Claims and Request
EPA received a petition under TSCA section 21 and the APA on
October 20, 1992, from the EDF, Federation of Fly Fishers, Trumpeter
Swan Society, and North American Loon Fund requesting EPA to initiate
rulemaking proceedings under section 6 of TSCA to require that the sale
of lead fishing sinkers be accompanied by an appropriate label or
notice warning that such products are toxic to wildlife (Ref. 5). The
petition claims that trumpeter swans and common loons are dying from
ingestion of lead fishing sinkers. The petition did not specify the
particular type, shape, or size of lead fishing sinkers that are the
source of the problem, therefore requiring a label or warning notice.
The petitioners also submitted a letter to the Agency on December 10,
1992, which reported that a Mississippi Sandhill Crane was discovered
dead on the Mississippi Sandhill Crane National Wildlife Refuge in
1992, and a flat, well-worn object was recovered from its gizzard (Ref.
6). The letter also stated that a necropsy of the bird revealed a lead
concentration of 69 parts per million (ppm) (wet weight) in the liver,
and in response to an inquiry to the Fish and Wildlife Service (FWS)
about the nature of that object, EDF was advised that it was a lead
fishing sinker (Ref. 6).
C. Summary of Studies Cited in Petition
The petition cited a number of studies which reported mortality in
trumpeter swans, mute swans, and common loons due to ingestion of lead
fishing sinkers. The petitioners also cited a recent bulletin from the
FWS reporting that an immature Mississippi sandhill crane died from
lead poisoning (Ref. 19).
1. Common loons (Gavia immer). A 2.5 year study of mortalities of
common loons in New England found that lead toxicity from ingested
fishing sinkers was the most common cause of death in adult breeding
birds (Ref. 13). The study reported that 64 percent of adult common
loons (Gavia immer) received for analysis from New Hampshire, and 44
percent of adults received from Maine, had ingested fishing sinkers.
Thirty-one adults were examined, and of these, 16 (52 percent) were
shown to have died from lead poisoning. The authors of the study
concluded that due to adverse effects on breeding adults, lead
poisoning may be an important factor in limiting loon populations in
some areas.
Levels of lead found in the blood of loons that had ingested
sinkers averaged 1.4 ppm. The study indicated that scientists consider
0.35 to 0.60 ppm lead in the blood to be indicative of lead poisoning
in many species. Levels of lead in the livers of 4 loons that had lead
sinkers in their gizzards ranged from 5.03 to 18.0 ppm, while levels in
10 loons that did not have fishing sinkers in their gizzards ranged
from <0.05 to 0.11 ppm. The study also states that 5 or 6 ppm in the
liver is considered a toxic level in waterbirds. Toxic effects of lead
to loons were found to be similar to those seen in other waterbirds.
Lead poisoning was diagnosed as the cause of death in 7.3 percent
of common loons necropsied (total of 7 adult loons) in a Minnesota
study (Ref. 4). Five of the seven lead poisoned birds contained lead
sinkers. Lead concentrations in the liver of the loons ranged from 7.12
to 35 ppm, wet weight. Although the incidence of lead sinkers was low
in all necropsied birds, it is relatively high in relation to those
birds found to have died from lead poisoning. In addition, only those
birds whose body condition during necropsy indicated potential lead
poisoning were actually analyzed for lead. Therefore, the incidence of
lead poisoning in the study could be an underestimate of the actual
number of loons exposed to lead sinkers and suffering from lead
poisoning in Minnesota.
The petitioners also cited a case report involving three common
loons found dead in New Hampshire, Wisconsin, and Maine that were
submitted to a wildlife health laboratory for necropsy (Ref. 12). Two
adult loons died of lead poisoning (lead liver levels were 20.6 ppm and
46.1 ppm), and a lead fishing sinker was found in each bird. One of
these loons had ingested an oval shaped lead fishing sinker which
measured 5 mm by 4 mm (or roughly 1/5 inch) in size. The third loon had
a lead liver level of 38.52 ppm and three fragments of a fishing line
were found in the loon's stomach.
Results from necropsies conducted on 222 common loon carcasses from
18 States submitted to the National Wildlife Health Research Center
from 1975 through 1991 were also cited in the petition received by EPA
(Ref. 10). Lead poisoning was responsible for 14 (6 percent) common
loon deaths. Eleven of these birds had fishing sinkers in their
gizzards (Ref. 17). Post mortem examinations, or necropsies performed
on the loons that died from lead poisoning indicated that although the
lead sinkers differed in shape and length, the largest reported
diameter was 7 mm, or approximately 1/4 inch (Ref. 17). These data also
revealed that two common loons ingested what appeared to be lead jigs
(weighted hooks used for fishing).
While not listed as a threatened or endangered species under the
Federal Endangered Species Act (ESA), 16 U.S.C. 1531, common loons are
listed as an endangered or threatened species in some New England
States (Ref. 5).
2. Trumpeter swans (Cygnus buccinator). Mortality due to lead
poisoning was investigated for 72 trumpeter swans found dead in 7
western States (Ref. 2). Ingestion of lead pellets or fishing sinkers
accounted for approximately 20 percent of the known deaths in Idaho,
Montana, and Wyoming, and nearly 50 percent in western Washington. The
maximum lead concentration in livers of swans found dead was 37 ppm
(wet weight). Concentrations of 3 to 4 ppm expressed as wet weight in
livers was considered by various researchers to be toxic to birds. Four
swans were diagnosed to have signs of lead poisoning due to ingestion
of fishing weights. The four birds ingested a total of eight lead
fishing sinkers. The study postulated that trumpeter swans are
particularly susceptible to lead poisoning because they feed by digging
up large amounts of bottom sediments of streams and lakes, and
ingesting large amounts of plant material in this manner.
3. Mute swans (Cygnus olor). Two studies were cited that examine
mortality in mute swans, a species introduced into the Unites States
that is similar to trumpeter swans. In the first study, lead fishing
weights were found (an average of 11 per bird, one bird contained 43)
in the gizzards of 16 out of 18 (88 percent) mute swans found dead or
dying along the Trent River in England (Ref. 16). The mean
concentration of lead in the kidney of these swans was 1,734 ppm dry
weight. The area along the river where they fed was heavily
contaminated with lead fishing split shot.
Mute swans were also examined along the Thames River in another
study (Ref. 1). Out of 94 dead swans examined, 57 percent, or 53 were
shown to have died from ingesting fishing weights. The average number
of lead sinkers found in the gizzards of these swans was seven. The
median lead level in the liver of these swans was 105 ppm dry weight
and 908 ppm dry weight in the kidney.
4. Mississippi sandhill crane (Grus canadensis pulla). The
petitioners also submitted a FWS technical bulletin which reported that
a Mississippi sandhill crane, a Federally endangered species, was found
dead on the Mississippi Sandhill Crane National Wildlife Refuge in 1992
due to lead poisoning (Ref. 19). The lead concentration in the crane's
liver was 69.41 ppm wet weight (Ref. 18). The object found in the
gizzard resembled lead, was triangular in shape although flattened, and
approximately 8 by 10 mm, or approximately 1/2 inch in size (Ref. 18).
Although a definitive identification of the object was not made, based
on the size and shape of the object, the bird may have ingested a lead
fishing sinker.
D. Summary of EPA Response to Petition and EDF Lawsuit
EPA granted the petition on January 14, 1993 (Ref. 22). After
reviewing the petition, the accompanying studies, and other information
gathered by EPA, the Agency preliminarily determined that certain lead
fishing sinkers present an unreasonable risk of injury to waterbirds,
and that rulemaking under section 6(a) of TSCA to ban the manufacture,
processing, and distribution in commerce of certain lead sinkers would
be necessary to protect against that risk. EPA informed EDF by letter
on March 11, 1993, that it was planning to issue a proposed rule to
address these concerns (Ref. 23).
Despite EPA's expressed intent to issue a proposed rule to address
the risks posed by certain lead fishing sinkers, including regulatory
options more stringent than the labeling requested in the petition, EDF
sued EPA on March 15, 1993, in the U.S. District Court for the District
of Columbia, alleging EPA's failure to promptly publish a notice of
proposed rulemaking under section 6 of TSCA (Ref. 8).
EPA subsequently informed EDF that, as an outgrowth of developing
the proposed rule, EPA's preliminary analysis indicated that not only
were lead fishing sinkers toxic to waterbirds, but that sinkers made of
some other materials likely to be used as substitutes for lead in
sinkers might also present unreasonable risks to waterbirds (Ref. 24).
EPA also indicated that to analyze these other risks adequately, the
schedule for proposal would be delayed until January 1994.
Based on EPA's commitment to utilize its best efforts to issue a
proposed rule by January 14, 1994, to ban lead in certain fishing
sinkers, EPA and EDF filed a joint motion for continuance with the U.S.
District Court, requesting suspension of all legal proceedings until
late January 1994 (Ref. 9). The court granted this motion and ordered
the parties to submit a joint status report to the court by January 21,
1994 (Ref. 20).
In accordance with EPA's regulations for issuing a regulation under
section 6 of TSCA, 40 CFR part 750, EPA is now proposing this rule
under section 6(a) of TSCA to address unreasonable risk of injury to
waterbirds (such as the trumpeter swan, common loon, and sandhill
crane). This rule as proposed would prohibit the manufacture (including
import), processing, and distribution in commerce of certain size lead-
and zinc-containing fishing sinkers for use in the United States. The
manufacture, processing, and distribution in commerce of these lead-
and zinc-containing fishing sinkers solely for export would not be
prohibited.
In granting the petition, EPA agreed to examine the appropriateness
and feasibility of a TSCA section 6(a)(3) labeling requirement
requested by the petitioners. However, EPA believes that a labeling
provision would not adequately reduce the unreasonable risk of injury
from lead- and zinc-containing fishing sinkers to waterbirds. EPA
believes that a label would not result in a sufficient decline in
consumer purchases of lead- or zinc-containing fishing sinkers such
that waterbirds would be adequately protected. EPA also believes that
since fishing sinkers typically become deposited in the environment
accidentally, (i.e., even when carefully handling or using fishing
sinkers, they may be accidentally lost or discarded into the
environment), labels would have little affect on how sinkers are used
in practice and would not significantly affect the environmental risks
of using sinkers.
EPA also considered a number of other regulatory options, however,
the Agency does not believe those options would adequately reduce the
unreasonable risk of injury to waterbirds. A further discussion of all
options considered, including EPA's determination why labeling would be
minimally effective in this case, can be found in Unit VI. of this
preamble.
If EPA finds that a final TSCA section 6 rule is warranted after
evaluation of the public comments received, the Agency will use its
best effort to promulgate such a regulation within 3 years of this
proposed rule.
E. Summary of EPA's Analysis and Proposed Rule
EPA based this proposed regulatory action on a number of factors
such as the scientific evidence regarding the toxicity of lead and
zinc, exposure to fishing sinkers, the economic consequences of the
rule as proposed, and availability of substitutes. These factors are
discussed further in Units III., IV., and V. of this preamble.
Extremely low amounts of lead and zinc adversely affect waterbirds.
Lead causes damage to the liver, kidney and central nervous system, and
adversely affects reproduction and growth in waterbirds. Zinc is also
toxic to waterbirds and can damage the central nervous system.
Studies have shown that exposure to both lead and zinc can cause
death in waterbirds. Ingestion of a small sinker can result in the
death of a waterbird. Various species have died from ingestion of lead
fishing sinkers such as sandhill cranes, trumpeter, mute, and tundra
swans, and common loons found in different areas of the United States.
Waterbirds may ingest fishing sinkers for a number of reasons.
Small sinkers (1 inch and under) may appear most like pieces of grit
necessary to break down food, or as food items such as seeds which
waterbirds ingest. Waterbirds such as swans may ingest sinkers as they
sift through sediments, and loons may ingest sinkers when eating fish
with attached fishing tackle, or pick up sinkers from the bottom of
waterbodies. Lead fishing sinkers up to and including 1 inch have been
found in the gizzards, or digestive tracts of waterbirds. Studies have
reported cases of sinkers ingestion in birds found in different parts
of the United States.
EPA does not believe that the use of lead- and zinc-containing
sinkers is essential. Several available or commercially viable
substitutes for lead and zinc sinkers exist which are less toxic to
waterbirds (e.g., bismuth, tin, antimony, steel, and tungsten). The
economic impact (purchase price of sinkers) of the proposed regulation
on consumers is estimated to be less than $4.00 for the average angler
per year. This is minimal in comparison to other fishing expenditures
such as rods, reels, licenses, etc.
The benefit of the proposed rule is measured in terms of number of
sinkers removed from the market or reduced for exposure to waterbirds.
Each sinker which does not enter the environment reduces the number of
sinkers available for ingestion and potential waterbird mortality or
death. The rule as proposed would prevent an estimated 450 million
lead- and zinc-containing fishing sinkers from being produced each
year, and potentially from entering the environment.
Not only would the proposed rule serve to reduce risks posed to
waterbirds, but it would also assist in reducing human health risk to
home manufacturers of lead fishing sinkers. While EPA has not analyzed
the risks to human health due to the manufacture of lead fishing
sinkers at home, the health effects of lead are well documented. Lead
can cause learning disabilities in children, miscarriages, and may
contribute to hypertension or high blood pressure. Persons who make
lead sinkers at home may receive harmful exposures during the melting
and pouring of lead through the inhalation of dust or vapors.
III. Regulatory Assessment
A. Lead
Lead is a soft, bluish metallic element mined from rock and found
naturally all over the world. Its malleability, low melting point, ease
of processing, abundance, low cost, density, and durability give lead
good functional value. Accordingly, it has been used to manufacture, or
as an ingredient in many different products including paint, gasoline,
batteries, solder, and radiation shielding.
Lead affects nearly every system of the human body. While it is
harmful to individuals of all ages, lead exposure is especially
detrimental to children, fetuses, and women of childbearing age. Lead
enters the bloodstream and may cause lead poisoning, a disease which
can cause learning disabilities, interfere with growth, cause permanent
hearing and visual impairment, and cause other damage to the brain and
nervous system in children. In large doses, lead can cause blindness,
brain damage, convulsions, and even death. Lead exposure before or
during pregnancy can affect fetal development and can cause
miscarriages. In adult males, lead exposure may contribute to
hypertension and infertility. Both adults and children can receive
harmful exposures to lead by inhaling the fine dust or vapors produced
when sinkers are made at home.
As indicated in Unit II. of this preamble, lead exposure may
produce harmful effects and even death in wildlife as well. Lead
adversely affects the function and structure of the kidney, central
nervous system, bones, and production and development of blood cells in
waterbirds. Exposure to lead can cause lead poisoning in waterbirds,
producing convulsions, coma, and death. Waterbirds may be directly
exposed to lead through ingestion of lead fishing sinkers.
B. Use, Production, and Distribution of Lead Sinkers
Lead is also used to manufacture fishing sinkers. Sinkers are used
to assist in casting, and to carry the fishing line with attached lures
and hooks to a certain depth in the water. There are no universal sizes
or shapes of lead fishing sinkers due to differences in the type of
fish being sought, the equipment being used, and the environmental
conditions. However, all sinkers are attached in some manner to the
fishing line, and provide weight so that the hook, bait, or lure is
below the surface of the water.
The sinkers which may be lost or discarded in aquatic (freshwater)
or terrestrial habitats vary in shape and range in weight from 1/100 of
an ounce, to 8 ounces, and in size from under 1/16 inch up to 3 inches.
They may be round split shot, or triangular, egg, cone, tear-drop, or
elongated oval shapes. The Agency's examination focused on the types of
sinkers used for freshwater fishing, which include: (1) Split shot, (2)
worm weights, (3) egg sinkers, (4) bass casting, (5) pyramid sinkers,
(6) rubber core, (7) pinch grip, and (8) slip shot.
EPA's evaluation also focused on sinkers under 2 inches in length
or width regardless of weight. This size was chosen because the Agency
believes this size sinker would be the largest readily ingested by
waterbirds, and commonly available in the environment. It is estimated
that approximately 2,500 metric tons of lead, zinc, and brass sinkers
(over 98 percent of the volume represented by lead), an estimated 480
million sinkers, are manufactured each year in the United States
(Support Document 2).
Split shot sinkers, a round sinker with a slice through a small
portion of it, are estimated to account for almost half of the total
lead sinker market in terms of numbers of sinkers. Fishing line is
placed into this sliced area and then the sinker is ``pinched'' onto
the line. The majority of lead sinkers produced are equal to or less
than 1 inch in any dimension.
Fewer than 10 major manufacturing companies account for most of the
domestic production of lead fishing sinkers. Production by individuals
at home (home manufacturers) is estimated to be substantial. Home
manufacturers buy lead ingots, which are available at retail stores or
through catalogues, melt the lead, and then pour it into molds. Home
manufacturers either use these sinkers for their personal use, or they
sell these lead sinkers within the local area to other persons, or
retailers, such as fishing tackle stores (Support Document 2). Home
manufacture for sale is referred to as the ``cottage industry'' in this
proposed rule. The majority of home manufacturers produce non-split
shot fishing sinkers. It is estimated that between .8 and 1.6 million
anglers may produce their own lead sinkers.
Lead fishing sinkers are imported into the United States in small
volumes. The amount of lead fishing sinkers exported each year is also
minimal.
Lead fishing sinkers are distributed from manufacturing companies
to large retail establishments directly, or are furnished to a
distributor who then supplies sinkers to smaller retailers.
Distributors range from individuals to national distribution
operations. A significant amount of lead fishing sinkers is also
supplied directly to mail-order companies for purchase by individuals
through a catalogue. It is estimated that there are currently 31
million freshwater anglers nationwide.
C. EPA's Concerns
The studies cited by the petitioners are supported by other studies
in showing that lead fishing sinkers have been ingested by a number of
different species of waterbirds in various parts of the country, and
have caused mortality of those birds. This is not a localized
occurrence, nor has only one type of lead sinker been ingested.
However, no matter the specific type of sinker, lead is toxic and
produces adverse effects in avian species.
EPA recognizes that United States waterbird populations migrate to
other countries and can potentially ingest fishing sinkers that are
exported from the United States. Although EPA is concerned about
adverse effects exported sinkers may have on migratory waterbirds, EPA
does not at this time have information indicating that use of exported
fishing sinkers poses an unreasonable risk to waterbird populations in
the United States. Therefore, EPA is not taking action at this time to
prohibit the export of lead- or zinc-containing fishing sinkers.
EPA is required under TSCA section 6 to examine substitutes when
exploring regulatory actions concerning chemical substances or
mixtures. In the course of its analysis, the Agency discovered that
some substitute materials for lead fishing sinkers could also pose an
unreasonable risk of injury to waterbirds. There is evidence that zinc,
a material presently used in fishing sinkers, can cause waterbird
mortality based on a study involving mallards (Support Document 1).
Brass contains a notable amount of lead and zinc (as much as 8 and 20
percent by weight respectively), as well as copper, aluminum, and
antimony. Due to the low concentrations at which lead and zinc produce
toxic effects in waterbirds, EPA believes that brass fishing sinkers
could also present an unreasonable risk of injury to waterbirds. EPA is
concerned that unless the Agency takes action to address these other
fishing sinkers (e.g., zinc and brass), the rule would not reduce risk
sufficiently. Therefore, the Agency is proposing restrictions on all
sinkers containing lead and zinc of a size that are ingestible by
waterbirds, as a necessary measure to prevent future exposures and
mortality to those species.
EPA is also concerned about potential human exposures resulting
from the home manufacture of lead fishing sinkers. While the Agency has
not characterized or determined the extent of human exposure, EPA is
aware that individuals and their family members may be exposed to
potentially harmful airborne lead particles or vapors while pouring
lead into lead fishing sinker molds. As discussed previously in this
unit, lead can cause learning disabilities, impaired hearing, and
behavioral changes in children, and hypertension and miscarriages in
adults. EPA is concerned about exposures to lead, particularly lead
poisoning in young children, and in conjunction with other Federal
Agencies, has established a National Lead Information Center. For more
information, persons may call 1-800-LEADFYI (532-3394).
This proposed rule, if implemented, may also reduce potential human
exposures. As proposed, EPA's rule would prohibit the manufacture of
lead fishing sinkers by persons at home (home manufacturers and the
cottage industry). These parties are included in the provisions of the
rule because of the potential for human exposure, and because EPA
believes that a lead sinker, whether manufactured at home or by a large
manufacturer, presents unreasonable risks to waterbirds when discarded
in the environment. The rule as proposed, would also prohibit the
production of fishing sinkers by individuals who purchase lead shot
(ammunition), and cut a groove in the shot creating a split shot
fishing sinker. This activity would be considered processing for the
purposes of the rule.
D. Hazard to Waterbirds
For more detailed discussion of the studies reviewed by EPA and
utilized in the discussion presented in Units III.D. and III.E. of this
preamble, see Support Document 1 (``Ecological Hazard and Exposure
Assessment of Lead Fishing Weights to Birds''). Although zinc-
containing and brass fishing sinkers are subject to the provisions of
this proposed rule, they are presented here as substitutes for lead
sinkers due to the manner in which EPA conducted its analysis. EPA's
investigation examined the toxicity of substitutes and compared their
toxicity to lead. Those substitutes found to be toxic (i.e., zinc and
brass) are also subject to this proposed regulatory action.
1. Summary. EPA's evaluation primarily focused on routes of
exposure involving direct ingestion of fishing sinkers by waterbirds,
but also considered uptake (not ingestion) and toxicity of metals
contained in fishing sinkers to birds and aquatic organisms in
laboratory studies. EPA also examined the toxicity of lead and other
sinker materials to mammalian species (rats and mice) to determine if
there were additional risks to other organisms in the environment.
Based on the conclusions of EPA's analysis which examined existing
studies and laboratory data, zinc, and brass (with and without lead)
could potentially result in greater toxicity to aquatic organisms
(fish, invertebrates and algae) than lead. Copper is also toxic to
aquatic organisms, however, copper metal may be less bioavailable in
the environment because it can easily bind with materials such as
sediment or organic particulate matter which would serve to mitigate
copper's toxicity to aquatic organisms. The toxicity of lead and zinc
to aquatic organisms in freshwater may also be mitigated to some
degree, although to a lesser extent than copper. Available studies
indicate that other substances used in fishing sinkers (i.e., bismuth,
tin, tungsten, steel, and antimony) are less toxic to aquatic organisms
than lead.
In comparing toxicities to avian species (mainly mallard ducks),
zinc, brass, tin, copper, bismuth, tungsten, steel, and antimony, would
be less toxic than lead. However, zinc is toxic at very low levels, and
has been shown to produce zinc intoxication, and mortality of
waterbirds (mallards).
With regard to toxicity to mammals (rats and mice), bismuth,
tungsten, steel, and tin are less toxic than lead, while zinc,
antimony, copper, and brass, are more toxic to mammals than lead.
EPA believes that polypropylene, terpene resin putty, and iron
(also potential sinker substitutes) are less toxic than lead to
aquatic, avian, and mammalian species.
2. Toxicity of lead. Lead causes adverse effects to birds through a
variety of aquatic and terrestrial pathways. Lead is neither beneficial
nor essential to animals, and studies commonly show its metabolic
effects on birds to be adverse. The metal may cause several sublethal
effects such as adversely modifying the function and structure of
kidney, bone, the central nervous system, and the production and
development of blood cells. It produces adverse behavioral,
biochemical, histopathological, neuropsychological, fetotoxic,
teratogenic, and reproductive effects. Ingested lead can impair
antibody production and lower numbers of white blood cells and spleen
plaque-forming cells in mallards. Severe damage to the central nervous
system results in stupor, convulsions, coma, and death. Other signs of
lead poisoning include loss of appetite (and resulting weight loss),
lethargy, weakness, emaciation, drooped wings, green liquid feces,
impaired locomotion and an inability to fly, and impaired balance and
depth perception. Fat deposits in the body are eventually exhausted,
and there is a marked atrophy of the bird's pectoral muscles. There is
a definite progression of symptoms after sinkers are ingested, ending
in most cases in death.
After ingestion, lead sinkers are reduced in size and shape by
dissolution in the acidic environment of the digestive system such as
the stomach, as well as the physical grinding in the gizzard. Soluble
toxic salts are formed that are absorbed into the circulatory system
causing toxicosis, neurological, and behavioral changes, and eventual
death. Once lead passes through the gut it binds to red blood cells. It
is stored in bones and soft tissues, and is excreted in the bile to the
small intestine and feces. Dietary deficiencies in calcium, iron, zinc,
copper, vitamin E, thiamin, phosphorus, magnesium, fat, protein,
minerals, and ascorbic acid or diets low in these components, may
increase absorption of lead, and thus, its toxic effects.
The level of lead in the blood of waterbirds considered toxic by
most researchers is 0.5 ppm, and toxic symptoms may begin to appear at
0.2 ppm lead. The level of lead in the liver that is considered to be
lethal to waterbirds is 5.0 ppm or more (3 to 4 micrograms per gram
(ug/G) expressed as wet weight, or 10 to 14 ug/G expressed as dry
weight).
For some sensitive species of birds, survival was reportedly
reduced at lead doses of 75 to 150 ppm body weight; reproduction was
affected at dietary levels of 50 ppm. Sublethal signs of lead poisoning
were present at doses of 7.5 ppm body weight. Mortality in waterbirds
is usually caused at dose concentrations of 20 to 40 ppm of lead in
experimental studies, and lethal levels range from doses of 5 to 80 ppm
of lead. In 1 study, 16 mallard ducks (11 males and 5 females) received
2 number 4 lead shot. This dose resulted in mean lead levels in the
liver of 32.16 ppm (wet weight) in the males, and 13.85 ppm (wet
weight) in the females, and blood lead levels of 3.47 ppm in the males,
and 4.15 ppm in the females. Thus, ingesting only two lead shot can
result in blood and liver levels considerably higher than those
reported to be lethal.
EPA examined lead shot in its analysis because there is a
substantial body of information concerning this form of lead (fate,
transport, and distribution in the environment), and its toxicity may
be similar in some cases to those for lead fishing sinkers. Younger
birds and waterfowl are more susceptible to lead from shot or sinkers
than older animals. A single shot or two swallowed with food or taken
up as grit in the gizzard of birds may introduce enough lead into the
bloodstream to be fatal. Based on this information, EPA scientists
believe that a single fishing sinker which is usually larger and
typically contains much more lead than a single shot, could be fatal to
waterbirds. Death of waterbirds follows exposure to lethal amounts of
lead by an average of 2 to 3 weeks. During this time, affected birds
become less mobile, are limited in their ability to forage for food and
seek cover, tend to avoid other birds, and, as a result, become
increasingly susceptible to predators, adverse climate changes, and
other causes of mortality.
It is very difficult to derive a dose-response relationship for
lead fishing sinkers. No studies were found in which increasing doses
of lead were given to laboratory bird species that would enable a
concentration-response curve to be derived. EPA believes that it is
difficult to determine such a dose-response level due to a number of
factors, such as species, age, size, sex of the bird, diet habits, and
time of year. However, based on available studies, and the similarity
between lead fishing sinkers and lead shot, EPA believes that ingestion
of the smallest lead fishing sinker (1/100th of an ounce) is sufficient
to cause adverse, and even lethal effects in waterbirds.
3. Toxicity of substitutes. To determine the effect of lead fishing
sinker substitutes on the environment, EPA evaluated their toxicity to
terrestrial (rats, mice, and ducks) and aquatic organisms (fish,
oysters, crustaceans, clams, worms, insects, and algae) using available
studies. However, EPA believes avian species are most likely to be
directly exposed to fishing sinkers (by ingestion) and therefore become
adversely affected.
The possible substitute metals examined in available studies, as
individual metals or in combination with other metals, which were
compared to lead were steel, zinc, tungsten, tin (inorganic form),
antimony, copper, bismuth, brass without lead (zinc/copper, assumed to
be a 50/50 alloy), and brass with lead (zinc/copper/lead in a 12
percent/80 percent/8 percent alloy). No avian toxicity information was
discovered for tungsten, information on the toxicity of bismuth to
avian and aquatic species was not found, and no mammalian or aquatic
toxicity information was found for steel. No aquatic, avian, or
mammalian toxicity information was found for other substitutes such as
polypropylene, and terpene resin putty, and no toxicity information for
aquatic or avian species on iron was found.
The hazards of these substitutes, based on available data, to
aquatic invertebrates, fish, and algae, and to birds and mammals were
compared with lead, to determine if they were any more or less toxic
than lead. The Agency did not evaluate the direct ingestion of sinkers
by fish or other aquatic organisms, which is assumed to be low in
frequency. Measured endpoints in the aquatic toxicity analysis were
lethality or death (acute exposure), reduction in cell numbers (algal
tests), and changes in reproduction/growth (chronic exposure). Measured
endpoints in the terrestrial tests were lethality (LD50), changes
in reproduction, the lowest published toxic dose, and the lowest
published lethal dose. These laboratory effects were extrapolated to
what could occur in the environment were these substitutes to be used
in place of lead.
a. Substitutes subject to regulatory action.--i. Zinc. Zinc is more
toxic to aquatic organisms (fish and crustaceans) than lead, may be
bioconcentrated by invertebrates (insects and oysters) and algae, and
may be more bioavailable to aquatic organisms. EPA believes that
environmental conditions could mitigate the toxicity of zinc to a
certain extent in freshwaters to aquatic organisms because it is more
soluble than lead.
Zinc is toxic to mammals (rats and mice) and avian species. In one
study, 15 mallard ducks were dosed with 8 number 6 zinc shot. Three of
the dosed ducks died within 30 days, with an average time to death of
20 days. Weight loss, also a symptom of lead poisoning, was associated
with zinc ingestion. Two of the 3 mallards that died, and 10 of the 12
surviving mallards developed evidence of zinc intoxication before the
end of 30 days. These signs began with stumbling while walking, and
progressed to an inability to run, a complete loss of muscular control
of the legs, loss of the ability to move wings normally, and spasmodic
movement of wings. Birds showing signs of zinc intoxication would, as
with lead intoxication, be more susceptible to predation.
ii. Brass. It is problematic to determine the aquatic and
terrestrial toxicities of brass with and without lead, because of the
difficulty of apportioning the toxic contribution of each metal (zinc,
copper, and lead) to the overall ``total toxicity'' of each alloy. Each
metal may not contribute equally to the total toxicity of the alloy and
the total toxicity may not be an average of the individual metal
toxicities. Total toxicity of the alloy can be less than the sum of the
parts, or more than additive (i.e., synergistic). Mixtures of zinc and
copper are generally more-than-additive in aquatic toxicity to a number
of different freshwater and marine fish and invertebrates. There is
some evidence that zinc and lead mixtures may also be more-than-
additive to some marine invertebrates. In addition, the alloys may vary
in the percentage of a particular metal present. Also, the individual
metals may leach into aquatic environments and at different rates.
The aquatic toxicity and fate of a brass dust consisting of copper,
zinc, and lead (as an impurity) was studied. Daphnid crustaceans that
were tested died, and the growth of algae was adversely affected after
exposure to brass dust in a laboratory study. The brass mixes with and
without lead was more toxic to aquatic organisms than lead alone
assuming that each metal contributed to the total toxicity of the
alloy, based on the percentage of each metal in the alloy. Brass with
and without lead was calculated to be more toxic to mammals (rats and
mice) than lead alone.
Even though the toxicity of brass to waterbirds has not been
tested, based on the toxicity of lead and zinc, brass with and without
lead would also be very toxic to waterbirds.
b. Substitutes not subject to regulatory action.--i. Steel. No
adverse toxicological effects (mortality) from steel have been
indicated as a result of a research program conducted by the FWS to
replace lead shot with steel shot, which examined relative toxicity to
ducks of five proposed substitute shot metals. Fifteen mallards were
dosed with eight number 6 teflon-coated steel shot. No mortalities or
significant body weight losses were reported over the 30-day study
period. In contrast, all 15 mallards dosed with 8 number 6 lead shot
died within 15 days, and an average 22 percent of their body weight was
lost. No information was found regarding the toxicity of steel to
aquatic and mammalian organisms. However, EPA believes that steel would
have low potential toxicity to those species.
ii. Tin. Tin, in the inorganic form, is generally much less toxic
to aquatic organisms (crustaceans and fish) than lead because of its
low solubility, poor absorption, low uptake rate, and rapid excretion.
Based only on limited information, it appears that tin is also much
less toxic to waterbirds (mallards) and mammals than lead. No mortality
was reported, over 30 days, in mallards exposed to 8 number 6 tin shot.
Body weight losses in treated birds were not significantly different
from control birds.
iii. Antimony. Laboratory studies indicate that antimony is less
toxic to aquatic organisms such as fish, crustaceans, worms, and algae
than lead. Even though antimony is not considered to be persistent, it
bioaccumulates in invertebrates, but not in fish. Laboratory data
indicate that antimony is more toxic to mammals (rats and mice) than
lead. No information was found which indicates that antimony is toxic
to avian species.
iv. Copper. Laboratory studies indicate that copper is more toxic
to aquatic organisms, such as fish, crustaceans, and algae than lead.
However, the Agency believes that copper may act differently in the
environment than in laboratory studies due to the physical and chemical
nature of the aquatic ecosystem. EPA believes that environmental
conditions in freshwaters where substitute fishing sinkers would likely
be used, would mitigate the toxicity of copper metal (as cupric ions)
to aquatic organisms. Copper chemistry, availability, and mobility in
surface waters is complex, but the cupric ion has been found to be
highly reactive to many inorganic and organic constituents of natural
waters, and the proportion of copper present as the free cupric ion is
generally low. For example, moderate to strong complexes and
precipitates of carbonates, phosphates, amino acids, and humates are
formed. Cupric ions are readily absorbed onto surfaces of suspended
solids. These inorganic and organic copper and precipitates are
generally less toxic than free cupric ions and tend to reduce the total
toxicity of copper.
Toxicity of copper to avian species such as mallards is less than
lead. In 1 study where 24 mallards were dosed with 8 number 6 copper
shot, 1 death occurred after 41 days, but the authors concluded that
this death could not be attributed to the copper pellet. Metallic
copper was also viewed as non-toxic to mammals in this study. However,
studies indicate that many copper salts are highly toxic to mammals,
and copper is more toxic to mammals than lead.
v. Bismuth. No aquatic toxicity or avian toxicity studies were
found regarding bismuth. EPA has no information to indicate that
bismuth is toxic to avian species. However, information on the toxicity
of bismuth to mammals (rats and mice) is available. The lethal dose of
bismuth (chloride oxide salt) to 50 percent of rats tested is much
higher than that for lead.
vi. Tungsten. Tungsten was found to have low toxicity to aquatic
organisms (crustaceans and algae). EPA found no information which
indicates that tungsten is toxic to avian species. The toxicity of
tungsten to aquatic organisms (daphnids and algae), and mammals (rats)
is less than lead based on laboratory studies.
vii. Iron. No aquatic, or avian toxicity information or studies
could be found for iron. EPA found no information which indicates that
tungsten is toxic to aquatic organisms or avian species. The toxicity
of iron chloride and iron sulfate to mammals (rat) was examined. Both
forms of iron exhibited low toxicity to rats based on lethal
(LD50) and lowest toxic dose data.
viii. Terpene resin putty. No aquatic, avian, or mammalian toxicity
information or studies could be found for terpene. EPA found no
information which indicates that terpene resin putty is toxic to avian
species. However, terpene resin putty contains approximately 92 percent
tungsten. Based on the low toxicity of tungsten to aquatic and
mammalian, EPA believes that terpene resin putty may also present a low
potential toxicity to these species.
ix. Polypropylene. No aquatic, avian or mammalian toxicity
information or studies could be found for polypropylene. Polypropylene
is a polymer and has a high molecular weight. EPA believes that this
property would mitigate the transport of polypropylene through
biological membranes, tissues, and cells of the gizzard or gut of avian
species. Therefore, the polypropylene would not be absorbed and
bioaccumulated by organisms such as waterbirds, but rather would be
excreted after passage through the digestive system. EPA believes that
polypropylene would present a low potential toxicity to avian, aquatic,
and mammalian species.
E. Exposure
1. Summary. Fishing sinkers are used throughout the United States,
easily lost or discarded into the environment and, therefore, are
available for exposure to waterbirds. Sinkers may be found in areas
fished, such as along shorelines, embankments, rock barriers, and
piers. Sinkers may be lost in aquatic habitats if the hook or line gets
tangled in weeds or other obstructions, and when the line breaks,
sinkers may still be attached or fall off the line. Sinkers may also be
lost or discarded in terrestrial habitats if dropped by anglers. Any
sinker discarded in these areas could easily be ingested by waterbirds
feeding on seeds or other vegetative matter.
For example, a recent study involving a lake dredging project that
focused on lead shot in upstate New York, reported that for a period of
5 months in 1990, the average number of fishing weights extracted from
the lake's sediment during dredging was 4.2 per day. The lake is
approximately 60 acres in size and 125 cubic meters of sediment were
dredged each day.
An area along the river Trent in England, where one of the studies
took place that examined lead fishing sinker ingestion by mute swans,
was heavily fished and contaminated with lead sinkers. Over a 100 meter
stretch near the river, 1,100 lead split shot sinkers were collected by
2 persons in 1 hour.
Another study which examined deposition of lead split shot by
anglers in South Wales and in England reported that a range of 5 to 300
sinkers per square meter were found in the water along the shoreline,
and along the bank of several small ponds and lakes. The authors
calculated that each person fishing dropped 4 to 7 sinkers per visit to
the waterbody. While this area in Great Britain may experience heavy
fishing pressure, it further demonstrates that sinkers enter the
environment, and can be available for exposure to waterbirds.
Sinkers may be accidentally dropped along the shoreline, or can be
caught on items in the water, such as waterside or submerged branches
and vegetation. Waterbirds may intentionally pick them up, mistaking
them for seeds, or to use them as grit (materials birds use to aid in
digestion such as small pebbles), or may inadvertently ingest them
along with food such as discarded bait fish with a line and sinker
attached. It is necessary for birds to pick up and use grit to grind up
food items because birds lack teeth.
Fishing sinkers discarded in shallow areas of aquatic habitats are
readily available for ingestion by waterbirds for perhaps several
years. Lead sinkers persist in the environment and may not completely
degrade for a period of at least 100 to 300 years. Zinc and brass
sinkers would also remain in the environment for many years.
Natural deposition and sedimentation processes operate to
eventually cover the discarded sinkers with detritus and sediments.
However, activities such as boating or dredging may disturb sediments
and uncover discarded sinkers. Also, receding water levels due to
drought, tidal effects, natural subsidence, or intentional drawdowns
would make sinkers readily available.
The size of the waterbird, especially the size of the gizzard or
esophagus may determine the size of the fishing sinker that can
potentially be swallowed.
EPA believes that larger birds such as sandhill cranes could
swallow sinkers which are 2 inches in diameter, however, smaller
sinkers (1 inch and under) would be more readily ingested by most
species. The Agency believes that sinkers 1 inch or less more closely
resemble food sources or pieces of grit.
Limited data are available regarding the size of fishing sinkers
ingested by waterbirds. While sinkers approximately 1/4 inch (7 mm) in
diameter have been found in the gizzard of common loons, EPA believes
that these sinkers were probably larger when initially ingested. This
is because sinkers are eroded in the gizzard by the mechanical grinding
of the sinker with other materials such as grit, and chemically by
acidic substances present in the gizzard or digestive tract. As the
sinker is broken down and the metal materials are rubbed from the
sinker surface, lead, zinc, or other metals are released into the
bloodstream, tissues, and organs of the bird. Even if a fishing sinker
is excreted from a bird after it has been ground down to a small size,
the lead already absorbed into the tissue of the bird could still cause
adverse effects and death.
A scientist who has studied lead poisoning in common loons has
found lead sinkers up to, and including 1 inch in length in the gizzard
of common loons which died from lead poisoning. These particular
sinkers ingested appear to be worm weights, egg sinkers, and bass
casting sinkers. Lead jigs were also found in these common loons.
The frequency of ingestion of sinkers may differ between species,
geographic region, and time of year. Data are not currently available
to determine to what extent ingestion of lead or other fishing sinkers
is incidental, accidental, or selected.
The number of lead- or zinc-containing sinkers that waterbirds are
likely to ingest cannot be quantified. There are differences among
species of waterbirds, variations in feeding, mating, and migration
behavior, as well as in other factors such as age and sex of the bird
that can affect ingestion. In addition, accurate estimates of this sort
would depend on a number of conditions such as the extent of fishing in
a certain area, number of sinkers and waterbirds present in the area,
and many factors relating to bird behavior.
Due to all these factors, a model is not available to predict the
probability of ingestion of fishing sinkers by waterbirds or the extent
of the exposure to birds over a specific time period (number of
waterbirds at risk or number of fishing sinkers available for
ingestion). In addition, an accurate number of waterbirds that could
receive a lethal dose of lead or zinc from fishing sinkers, or the
probability of consuming a lethal dose, cannot be estimated.
Areas subject to fishing each year will continue to pose a threat
of sinker ingestion to waterbirds occurring or returning to migrate in
that area. However, whether accidental or intentional, ingestion of
sinkers does occur and is assumed to be proportional to availability.
Therefore, as the number of lead- and zinc-containing fishing sinkers
entering the environment increases, so does the probability of
ingestion by waterbirds.
2. Feeding habits. Numerous species of waterbirds may intentionally
or inadvertently ingest fishing sinkers during feeding. While it is not
certain why waterbirds ingest small sinkers, perhaps it is due to a
similarity in size and shape to grain, seeds or roots of some plants,
or invertebrates, or they appear like pebbles or grit which aid in
digestion. Waterbirds may also ingest sinkers when preying on fish
still hooked to a broken line with a sinker attached.
Studies have documented ingestion of lead fishing sinkers by common
loons, trumpeter swans, and mute swans. However, based on their feeding
habits, and where they forage for food (locations where people fish),
many other species could easily ingest lead- or zinc-containing
sinkers, and could also be affected.
Loons can dive to a fairly substantial depth (up to approximately
30 feet) to capture fish, and may inadvertently ingest sinkers when
eating fish with tackle still attached. Loons may also intentionally
pick up sinkers for use as grit.
Cranes and herons wade in the shallow areas of inland and coastal
aquatic habitats searching for prey. Both species dig into the sediment
with their bills to extract food. They consume fish, crustaceans, and
other benthic invertebrates, amphibians, insects, and vegetation
(including grains), and may incidently ingest lead fishing sinkers.
Bay diving ducks (e.g., canvasbacks) and grebes, feed on aquatic
insects, fish, crustaceans, other invertebrates, and aquatic plants
found on the bottoms of aquatic habitats.
Geese, ducks, and swans eat aquatic vegetation, plant shoots or
roots, seeds, bulbs, insects, small mammals, roots, berries, and nuts.
Often they feed along shorelines and may be readily exposed to
discarded or lost fishing sinkers. Swans frequently pull vegetation off
the bottom sediments. These species can easily ingest fishing sinkers
during feeding as they forage or sift through sediment on lake, pond,
or river bottoms.
Raptors and scavengers such as hawks, osprey, and vultures consume
fish, small mammals, birds, and crustaceans. Monofilament line and
attached sinker weights hooked to bait such as worms or fish could also
be easily ingested by other fish or fish-eating predators.
3. Affected species. EPA believes that over 75 individual species
are potentially at risk from exposure to lead- and zinc-containing
fishing sinkers based on their feeding habits and sources of food.
These species fall into a number of groups such as surface feeding
ducks, bay diving ducks, loons and grebes, sea ducks, cranes and their
allies, geese and tree ducks, swans, herons and their allies, raptors
and scavengers.
During the course of EPA's analysis, additional reports were found
which document the ingestion of lead fishing sinkers and lead poisoning
in sandhill cranes (not the endangered Mississippi sandhill crane),
common loons, mute swans, and tundra swans.
Two wild sandhill cranes (Grus canadensis) found dying were
submitted to the National Wildlife Health Research Laboratory for
diagnosis (Ref. 26). One female sandhill crane, that died from lead
poisoning shortly after capture, was found in Nebraska and contained a
portion of a lead fishing sinker in its gizzard. The lead level (wet
weight) in the crane's liver and kidney were 23 ppm and 29.8 ppm,
respectively. Another female sandhill crane which was weakened and
unable to fly was found in the Aransas National Wildlife Refuge in
Texas. A portion of a lead fishing sinker was found in the gizzard, and
lead poisoning was determined to be the cause of the moribund condition
of the bird. The lead level (dry weight) in the kidney was 113.4 ppm
and 258.8 ppm in the liver.
Tufts University Wildlife Clinic examined (necropsied) 21 adult
common loons found dead or moribund in New England States from 1991 -
1993 (Ref. 30). Fourteen common loons had ingested either a lead
fishing sinker, lead worm weight, or lead jig. Nine of these 14 loons
died from lead poisoning; 5 were suspected of dying from lead poisoning
(they showed necropsy and histopathologic lesions consistent with lead
poisoning). Toxicological analysis of the 9 birds confirmed with lead
poisoning had lead liver levels ranging from 6.05 ppm to 13 ppm. The
lead sinkers, lead jigs, and lead worm weight that the loons had
ingested were also examined (weighted and measured). These lead objects
ranged in length from 0.27 to 1 inch; from 0.21 to 0.49 inches in
width; and in weight from 1.5 grams to 16.5 grams.
Necropsy data from the Rose Lake Wildlife Research Center in East
Lansing, Michigan report that from 1988 to 1993: (1) Out of 55 common
loons examined, 3 died from lead poisoning due to lead fishing sinkers,
(2) 5 out of 60 mute swans examined, ingested lead fishing sinkers and
died from lead poisoning, and (3), 1 tundra swan (Cygnus columbianus)
died from lead poisoning due to the ingestion of a lead fishing sinker
(Ref. 15). Lead concentrations in the liver and kidney of the common
loons ingesting fishing sinkers ranged from 6 to 13 ppm and 28 to 46
ppm respectively. The data also indicated that 12 common loons ingested
what appeared to be lead jigs, which are weighted hooks. The lead
levels in the liver of these loons ranged from 11.7 to 98.2 ppm in the
liver and 18.1 to 124 ppm in the kidney.
Data from the New York State Wildlife Resources Center in Delmar,
New York reported that seven common loons, and one mute swan
necropsied, died from lead poisoning due to ingestion of lead fishing
sinkers (Ref. 29). The common loon mortalities were as follows: (1) one
common loon located along Lake Ontario in 1983, and later died, had a
lead level in the liver of 9.3 ppm; a worn lead fishing sinker weighing
approximately 2 grams was found in the stomach, (2) one debilitated
common loon that died shortly after it was found in 1986 at Long Lake,
had ingested a worn elongated split shot fishing sinker; the lead
concentration in the liver was 41.2 ppm wet weight, (3) two common
loons that died in 1989, each with a worn lead fishing sinker in their
gizzards, had lead liver levels of 26.4 ppm, and 30 ppm, (4) one common
loon with a lead liver level of 9.8 ppm also died in 1989, and had
ingested a lead fishing sinker, (5) a ``large'' split shot lead fishing
sinker was found in a common loon that died in 1982 (2 assays were
conducted indicating that lead liver levels were 21 and 23 ppm), and
(6) one loon found dead on Kueka Lake had ingested an egg-shaped sinker
approximately 8 mm in diameter; the lead liver level was 15.5 ppm. The
New York State Wildlife Resources Center also reported that a female
mute swan that had ingested a teardrop-shaped lead fishing sinker died
from lead poisoning in 1986.
A male whistling swan (also referred to as the tundra swan, Cygnus
columbianus) was found sick and extremely emaciated along the banks of
a creek in Maryland (Ref. 11). It was brought to the Patuxent Wildlife
Center for autopsy where it was found that the bird was lead poisoned.
The swan had ingested a lead sinker contained in the gizzard. The level
of lead found (on a wet weight basis) in the blood, liver, and kidney
was 830 ppm, 40 ppm, and 2,440 ppm respectively. The study authors
surmised that the very high levels of lead reflected a high level of
lead absorbed from the ingested sinker.
Any endangered or threatened waterbirds, such as the Mississippi
Sandhill Crane (See Unit II.C.4. of this preamble) that feed in areas
with discarded or lost fishing sinkers may potentially ingest lethal
quantities of lead or zinc. Each individual is important to the
continued survival of an endangered or threatened species, and
therefore, impacts on even single individuals are of special concern.
Other listed endangered species, such as the whooping crane (Grus
americana), wood stork (Mycteria american), Aleutian canada goose
(Branta canadensis leucopareia), peregrine falcon (Falco peregrinus
peregrinus), and possibly the bald eagle (Haliaeetus leucocephalus),
may directly or indirectly ingest fishing sinkers.
4. Species ranges. Ranges of these potentially exposed waterbirds,
as well as avian predators and scavengers include areas throughout the
United States with suitable aquatic habitats for feeding and breeding
activities. In some cases, these ranges correspond to areas subject to
moderate to heavy use by fishermen (e.g., northwest, midwest,
southeast, upper north central, and northeast U.S.). The range of a
species often is complex and large and it can consist of a summer or
breeding range, a winter range, and geographic areas where the species
occurs throughout the year. Often portions of these three areas
geographically overlap. The breeding ranges of the species with
reported mortalities (common loon, trumpeter swan, mute swan, tundra
swan, and sandhill crane) due to ingestion of lead fishing sinkers, the
ranges of other potentially affected species discussed above, and the
areas fished essentially cover the entire United States.
Bay diving ducks and mergansers are generally found throughout the
United States during the year. Loons and grebes occur across the upper
midwest, northeast, west coast, and Alaska. Surface feeding ducks,
depending on the species, occur throughout the United States. Cranes,
herons, and their allies, generally occur throughout the United States
and along coastal areas. Sea ducks are commonly found along the United
States coast. Geese and tree ducks are distributed along the west
coast, northeast and Gulf coast. Swans are found in many areas of the
United States including the northeast, upper midwest, west coast, Rocky
Mountains, and Alaska. The distribution of raptors and scavengers is
widespread throughout the United States.
5. Population effects. EPA recognizes that population effects
cannot be measured accurately in this case, because of the many species
that may be adversely impacted, and other complex variables involved.
It is difficult to separate out the precise degree of the hazard posed
by fishing sinkers to waterbird populations as opposed to that from
natural or other man-made sources of population mortality and
variability, or that caused by normal environmental change (e.g.,
drought, increased predation). Many waterbird populations have been
decreasing progressively over the past several years and decades
because of increased hunting and a decline in suitable nesting habitats
(e.g., the net loss of 2.6 million acres of wetlands in the United
States from the mid-1970's to the mid-1980's).
It is difficult to see the full effect on populations, as there
have not been large reported die-offs due to ingestion of fishing
sinkers. While the available studies may appear to indicate that a
small number of common loons, trumpeter swans, mute swans, tundra
swans, and sandhill cranes have died due to ingestion of lead fishing
sinkers, EPA believes that the potential magnitude of the risk to
waterbirds is greater than the number of known deaths indicates.
Species with similar feeding habits in similar ecosystems such as those
previously discussed (Unit III.E.2 of this preamble), are likely to
also be at risk, although no deaths due to ingestion of fishing sinkers
have been reported.
The potential risks to waterbird populations may not be fully
reflected in the available data due to a number of factors. Birds that
are seriously ill from ingesting lead- or zinc-containing sinkers may
seek the cover of vegetation and are difficult to locate when they die.
Common loons and trumpeter swans do not flock together and
consequently, when individual birds seek cover they are often
overlooked. Because they are susceptible to predation, most of the ill
or dead birds may quickly disappear as they become meals for predators
such as mink, weasels, raccoons, fox, coyotes, eagles, hawks, and owls.
This complicates the ability to determine the magnitude of adverse
effects to waterbirds due to sinker ingestion. Therefore, EPA believes
that the true number of waterbird deaths is considerably larger than
those that have been observed and reported. Even if a known number of
carcasses are deliberately ``planted'' in known locations, it is
difficult to locate all of them at a later time.
For example, in a study conducted in northwestern Missouri, 62
percent of 90 planted carcasses disappeared after only 4 days. In Texas
coastal marshes, 89 percent of 47 carcasses had disappeared in 8 days.
In a refuge in Missouri, 25 percent of ``planted'' carcasses were not
located when the areas were searched. If the number of dead and lead-
or zinc-affected waterbirds do not exceed the ability of predators to
consume them, few carcasses will be present. Carcasses would become
more evident when birds die in greater numbers, or if the number of
predators decreased.
EPA also recognizes that naturally occurring populations of
waterbirds do not exist in isolation. The health of one population is
often dependent upon other populations within a natural community. As
such, lead- and zinc-containing fishing sinkers may cause direct
adverse effects on one population, but may also produce indirect
effects, such as perturbations on food webs in ecosystems. For example,
these perturbations could include disruptions in the predatory/prey and
competition relationships between individuals in interacting
populations within a community.
However, EPA did examine how fishing sinkers may affect individuals
within a population. The number of individuals within the trumpeter
swan, common loon, and Mississippi sandhill crane populations are as
follows. Trumpeter swan populations are estimated to be approximately
13,000 in Alaska, 1,700 in the Rocky Mountain area, and 300 in the
interior portion of the United States. Common loon populations are
estimated to be 34,000 in Alaska and 47,000 in the rest of the United
States. The population of the Mississippi sandhill crane, found on and
near the Mississippi Sandhill Crane National Wildlife Refuge in Jackson
County, Mississippi, is estimated to be 142 individuals.
Although the total population of trumpeter swans or common loons
may appear large and geographically dispersed, it can consist of
relatively small local breeding populations. The loss of a few members
of these local populations may be of great consequence. For example,
the common loon population in 4 New England States (Maine, New
Hampshire, Vermont, and Connecticut) is estimated to be approximately
4,374 individuals; however, Vermont has only about 16 nesting pairs or
32 individuals. As mentioned previously (Unit II.C.1. of this
preamble), common loons are listed as an endangered or threatened
species in some New England States (Ref. 5).
If only a few of these loons die from poisoning due to ingestion of
a lead- or zinc-containing fishing sinker, there will be fewer birds to
reproduce, and less future offspring. This is of particular concern
regarding endangered species where both the total and local populations
are low, and the loss of an individual is very significant. Therefore,
deaths of individual birds may in turn impact the total population of
avian species. However, direct effects may only be seen concerning
individuals, or local breeding populations. Regardless of the
difficulty in fully determining the impacts on waterbird populations,
lead- and zinc-containing fishing sinkers remain as one source of
unnecessary adverse pressure on already stressed populations. This is
especially true if local breeding populations, made up of individuals,
have to cope with other adversities such as loss of habitat. In
addition, fishing sinker ingestion may result in toxic effects, thereby
significantly reducing or eliminating the opportunity for reproductive
effects to occur.
Although the effects of lead- and zinc-containing fishing sinkers
on waterbird populations are impacts of concern, EPA does not believe
it is necessary to demonstrate population effects before taking
regulatory action (Ref. 3). Since most endangered species have very low
population numbers, concern would be high if even one individual was
adversely affected or died as a result of lead or zinc ingestion. By
the time such effects were conclusively shown, it might be too late to
mitigate any adverse effects to these species. In fact, the Mississippi
sandhill crane, a Federally endangered species, is in danger of
extinction due to a number of factors such as loss of habitat, human
predation, and presence of other toxins in the environment.
EPA has previously implemented regulatory programs that protect
birds without estimating population effects. The Agency took action to
phase out most uses of granular carbofuran, an agricultural insecticide
and nematicide (Ref. 27), and to cancel certain registrations of the
pesticide diazinon, based solely on concerns about acute risks posed to
birds (Ref. 28).
F. Risk Characterization
EPA believes that lead- and zinc-containing fishing sinkers pose an
unreasonable risk to waterbirds for the following reasons.
Fishing sinkers are used and can be found in ponds, lakes, and
streams, and along the shores and banks of these aquatic habitats
throughout the United States. They are available for ingestion by
waterbirds. The actual number of sinkers located in the environment
cannot be quantified; however, approximately 477 million lead, zinc,
and brass sinkers are sold each year in the United States. As more
sinkers are discarded or lost in the environment each year, more will
be potentially available to waterbirds, and additional waterbird deaths
may occur. Based on the toxicity of lead and zinc, one fishing sinker
can be sufficient to cause mortality in waterbirds.
As previously discussed, the actual number of waterbirds that will
likely ingest fishing sinkers, and the definite number of fishing
sinkers ingested by each waterbird, cannot be estimated. However, the
true number of deaths may be higher than the number of documented cases
due to: (1) The lack of a national incident reporting system (in
addition, the studies and research conducted specifically to assess the
ingestion of fishing sinkers are small in number), (2) the difficulty
of locating carcasses in the field, and (3) limited resources and staff
to conduct necropsies.
Ingestion of lead fishing sinkers by waterbirds has been
documented. There is clear evidence that ingestion of lead fishing
sinkers has resulted in toxic and often fatal effects to avian species
such as common loons, trumpeter, mute, and tundra swans, and sandhill
cranes.
The size of lead fishing sinkers which have been ingested by
waterbirds has been documented. Sinkers up to and including one inch in
size have been found in common loons.
Research has also demonstrated that zinc is toxic, and zinc pellets
have produced mortality when ingested by waterbirds such as mallards.
Therefore, ingestion of zinc fishing sinkers may also pose risks to
waterbirds.
Other avian species that have similar feeding habits and breed or
migrate in areas containing lead- or zinc-containing fishing sinkers
are at risk.
IV. Provisions of the Proposed Rule and Rationale
The rule would impose a ban on all manufacture, import, and
processing of fishing sinkers containing any lead or zinc and which are
1 inch or less in any dimension for use in the United States 1 year
after promulgation of the final rule. The distribution in commerce of
such fishing sinkers would be prohibited 2 years after promulgation of
the final rule. The rule would not prohibit the manufacture and
processing of lead and zinc-containing fishing sinkers 1 inch or less
in any dimension solely for export. Manufacturers and processors of
those sinkers for export would be required to maintain records
regarding the production, inventory, and shipment of those sinkers.
This would allow EPA to track the distribution of regulated sinkers,
and effectively enforce the rule.
EPA is proposing to prohibit the manufacture, processing, and
distribution in commerce of any lead- or zinc-containing fishing sinker
because EPA believes they pose an unreasonable risk of injury to avian
species such as waterbirds. Extremely small amounts of lead and zinc
(at the ppm level) adversely affect waterbirds, and ingestion of even
one fishing sinker can result in their death. If fishing sinkers were
allowed to contain a small amount of lead or zinc, although a trace
amount may not produce toxic effects, the cumulative impacts due to
ingestion of more than one sinker could result in mortality. In
addition, lead- and zinc-containing fishing sinkers are very persistent
in the environment and can be accessible for ingestion by waterbirds
for a number of years. Therefore, EPA is proposing to regulate the
production and sale of fishing sinkers containing any amount of lead or
zinc.
EPA's economic analysis indicates that there are several available
or commercially viable substitutes for lead- or zinc-containing fishing
sinkers. This analysis, discussed further in Unit V. of this preamble,
indicates that the average increase in annual costs to each individual
person who fishes from this proposal would be substantially less than
$4.00 per year. EPA believes the scientific evidence demonstrating the
severe adverse effects to waterbirds from the ingestion of lead- and
zinc-containing fishing sinkers, the economic, social, and
environmental value of these birds, and the low costs and availability
of substitutes for these sinkers, outweigh any costs that would result
from imposition of the proposed regulation. Therefore, EPA believes the
continued manufacturing, processing, and distribution in commerce of
small size lead- and zinc-containing fishing sinkers presents an
unreasonable risk of injury to the environment.
EPA does not believe that the use of lead- and zinc-containing
fishing sinkers is essential. Substitutes which the Agency determined
were less toxic to waterbirds are available, albeit at a somewhat
higher cost. These substitutes include tin, copper, antimony, bismuth,
steel, tungsten, and terpene resin putty. EPA believes these
substitutes for lead- and zinc-containing fishing sinkers would perform
as well as lead or zinc.
This ban, as proposed, would greatly eliminate future entry of
these fishing sinkers into the environment, and therefore limit the
number of lead- and zinc-containing fishing sinkers available for
exposure. EPA believes this would ensure that any unreasonable risk
posed to waterbirds would be adequately reduced.
EPA is proposing to regulate all sinkers 1 inch or less in any
dimension because those size sinkers resemble pieces of grit or small
food items such as seeds which waterbirds may ingest. The majority of
sinkers most likely to be used for recreational fishing are also 1 inch
and less in size.
The Agency evaluated banning different types of sinkers 1 inch or
less in size (split shot and non-split shot). While a ban on split shot
type sinkers is the most economical option in terms of cost per sinker,
it would only account for 68 percent of the sinkers 1 inch or less on
the market. Therefore, an additional 32 percent of sinkers 1 inch or
less, or approximately 152 million sinkers, would still be manufactured
per year and potentially available for exposure to waterbirds. EPA
believes that it is important to capture this significant market
segment because regardless of type, sinkers 1 inch or less pose a risk
to waterbirds. In addition, the majority of home manufacturers produce
non-split shot sinkers. Therefore, the prohibition on all sinkers 1
inch or less in any dimension would assist in reducing human health
risks as well.
It is estimated that the proposed ban would prevent over 450
million lead- and zinc-containing fishing sinkers 1 inch or less from
being produced each year, and potentially from entering the
environment.
The provisions of this proposed rule concerning the ban on
manufacturing and processing would become effective 1 year after
promulgation of the final rule. EPA chose a 1-year delay, rather than
an immediate ban which the Agency believed to be too burdensome on
industry, to enable manufacturers of lead- and zinc-containing fishing
sinkers time to retool their equipment to produce other types of
sinkers.
The proposal, if implemented, would also prohibit the distribution
in commerce of lead- or zinc-containing fishing sinkers, and that have
any dimension less than or equal to 1 inch, by any person effective 2
years after promulgation of the final rule. The sale of these types and
sizes of fishing sinkers in the United States by any person, including
retail stores or catalogues, would not be allowed. The Agency believes
restrictions on the distribution in commerce are necessary to eliminate
the continued availability and usage of lead- and zinc-containing
fishing sinkers less then or equal to 1 inch in size.
The prohibition on the distribution in commerce of lead and zinc-
containing sinkers would become effective 2 years after promulgation of
the final rule, in order to allow an adequate interval for distributors
to sell their remaining inventory of those sinkers. Although EPA
evaluated options which would further delay the regulatory requirements
(ban the manufacture, processing, and distribution after 3 or 5 years),
the Agency does not believe that these options would be justified in
light of the continued and increasing risk to waterbirds. If EPA
further delayed the ban, a potentially large number of lead- and zinc-
containing fishing sinkers could enter the environment.
EPA evaluated a number of options before choosing to prohibit the
manufacture, processing, and distribution in commerce of lead- and
zinc-containing fishing sinkers 1 inch or less in any dimension. While
the other options, discussed further in Unit VI. of this preamble,
would restrict a segment of the fishing sinkers available for exposure
to waterbirds, the Agency does not believe that these other options
would adequately reduce the availability of sinkers for exposure or
adequately reduce the unreasonable risk to waterbirds. To adequately
reduce this risk, EPA believes a ban on the manufacture, processing,
and distribution of lead- and zinc-containing sinkers 1 inch or less in
any dimension is necessary. EPA also evaluated the option of a
comprehensive ban on all fishing sinkers. While a comprehensive ban on
all lead- and zinc-containing sinkers would accomplish the greatest
degree of risk reduction, EPA did not select that option because the
burden placed on society associated with that option would be too
severe. Therefore EPA chose a limited ban targeting those sinkers which
EPA believes pose the greatest harm to waterbirds.
The rule, as proposed would not prevent individuals from engaging
in fishing or from using sinkers, but rather would prohibit the
manufacture, processing and distribution of fishing sinkers of a
certain type and size to prevent unreasonable risk of injury to
waterbirds.
This rule would not prohibit the use of fishing sinkers containing
lead and zinc by any person. TSCA section 6 (a)(5) authorizes EPA to
prohibit or otherwise regulate any manner or method of commercial use
of a substance or mixture. Because the fishing sinkers at issue are
those used in recreational fishing, EPA's proposal would not extend to
the recreational use of these fishing sinkers.
The total cost of the proposed regulation for consumers is $71.6
million over 10 years. The cost to persons who fish is minimal (average
2 cents per fishing day).
V. Economic Impacts
All references and background information reviewed in this Unit of
the preamble are found in the ``Regulatory Impact Analysis of Options
for Regulating Lead and Other Toxic Fishing Sinkers,'' referred to in
this proposal as Support Document 2. EPA concentrated its analysis on
lead fishing sinkers as they account for the majority of sinkers
presently on the market. There is a small volume of brass sinkers
currently produced domestically, and a very small volume of zinc
sinkers which are imported. EPA estimates that approximately 477
million split shot and non-split shot lead, zinc, and brass sinkers are
sold each year and used for freshwater fishing.
A. Availability, Application, and Cost of Substitutes
1. Summary. EPA has investigated a number of possible substitute
materials for lead fishing sinkers. The substitutes considered suitable
for lead fishing sinkers, are also appropriate for zinc and brass
fishing sinkers. Substitutes were evaluated on the basis of
availability, application, and cost, in addition to toxicity relative
to lead and zinc (as detailed in Unit III.D. of this preamble).
Availability refers to the current market for sinkers made of the
various types of materials, while application refers to the sinker
types that could be manufactured from a particular material. EPA is
aware that there may be other substitutes which are being developed,
but are not yet on the market, and others which may only be available
locally such as glass and ceramic. The Agency has not analyzed these
substitutes in detail, mainly because there is a lack of information
regarding them.
As evaluated by the Agency, the costs of substitutes include raw
materials, energy, operations and maintenance, capital, and conversion
costs. These costs, along with toxicity considerations, were used to
estimate the market share of various substitutes which would result
following implementation of the proposed regulatory option.
The identified substitutes for split shot sinkers are different
from those identified for non-split shot sinkers. Substitutes for lead
split shot need to be malleable and have a soft edge so that fishing
lines are not damaged when substitute weights are crimped or squeezed
onto the line. The same considerations are not important for larger
weights (i.e., non-split shot) that are tied onto the line. Hence, the
list of feasible substitutes is different for the split shot segment of
the market than it is for non-split shot sinkers.
Substitutes for lead fishing sinkers, which are identified as being
currently commercially available and are subject to this proposed rule
are zinc, and brass. Other potential substitute materials which are not
subject to this proposal are: (1) Tin, (2) tin/antimony, (3) bismuth,
(4) terpene resin putty, (5) copper, (6) stainless steel, and (7)
polypropylene tungsten composite.
Finally, the suitability of lead jigs as a substitute was examined.
While a jig basically accomplishes the same objective as a fishing
sinker, the Agency does not believe they are viable substitutes for
lead or zinc sinkers. Generally, jigs are used as artificial lures
which require the angler to manipulate it such that it appears life-
like. Sinkers are generally used with live bait and do not require such
handling. Accordingly, it is estimated that lead jigs would substitute
for less than 1 percent of lead fishing sinkers currently in use.
Several of the substitutes are described below.
2. Substitutes subject to regulatory action.--i. Zinc. Zinc fishing
sinkers under 1 inch are not currently manufactured in the United
States. Non-split shot sinkers such as worm weights are presently
imported for use. EPA does not believe that zinc sinkers are produced
at home. Zinc is more expensive than lead, and could replace lead for a
few product forms such as worm weights.
Disadvantages of zinc relative to lead are that it is more
expensive, is more difficult to manufacture, can damage the
manufacturing equipment, and has a harder edge, and therefore may
damage the fishing line. Also, zinc has a lower density, and is not as
soft and easy to work with as lead.
ii. Brass. Brass sinkers are currently available in the United
States for purchase, and are slightly more expensive than comparable
lead sinkers. Primarily non-split shot brass sinkers such as those used
for bass casting are produced in the United States. EPA does not
believe that brass sinkers are produced at home. Brass sinkers can be
plated with silver, zinc, or with zinc plus black chromate.
One disadvantage of brass is that it cannot be crimped onto the
line as easily as lead shot because of the hardness of brass. It is
therefore considered too hard for use as split shot, and mechanical
crimping methods such as rubber appendages must be used. Also, brass
may contain 7 to 8 percent lead, and 5 to 20 percent zinc. Furthermore,
brass is less dense than lead and has a higher melting point than lead
and other substitutes, making processing more difficult.
3. Substitutes not subject to regulatory action.--i. Tin. Tin,
although less dense than lead, is suitable for use as split shot due in
part to its softness. Tin split shot is currently available in the same
weights as lead split shot. It appears that tin sinkers are easier to
affix to the line than are lead sinkers. The tin shot is opened with
the thumbnail, but has no ears for release, as does removable lead
shot. Raw material costs for tin are approximately 10 times the cost of
lead. Because of this higher cost, tin is not considered practical for
use in sinkers other than split shot.
The main disadvantage of tin sinkers is that they are less dense
than lead sinkers, resulting in roughly a 50 percent increase in
material to achieve the same effect as for typical split shot. Also,
although tin is soft, it requires greater precision methods to
manufacture so that it will not damage the fishing line. Tin sinkers
could be produced by home manufacturers; however, the relatively high
cost of tin would likely discourage this activity, and home-
manufactured tin split shot could cause line damage due to the
relatively hard edge.
ii. Bismuth. Sinkers that are 99.99 percent bismuth are
manufactured and distributed to retail stores. Five types of bismuth
sinkers have been identified including bell sinkers, bass casting
(swivel) sinkers, walking sinkers, egg sinkers, and worm weights.
Bismuth sinkers generally costs approximately twice as much as
comparable lead sinkers. Bismuth sinkers could be manufactured at home,
using a lead sinker mold. However, if home-manufacturers were to use
bismuth, the resulting sinkers would be considerably more expensive
than lead sinkers and hence, probably would not be purchased by
retailers.
The advantages of using bismuth rather than lead, zinc, or brass
include its slightly lower melting point, which means that it requires
slightly less energy to manufacture than lead. The melting point of
bismuth is also lower than the melting points of the possible
substitutes copper and steel. Furthermore, the density of bismuth is
high relative to other substitute materials like tin and copper.
Bismuth can be used to replace all lead, zinc, and brass sinker
types except split shot. Bismuth cannot effectively replace lead for
split shot because of its brittleness, which results in breakage when
it is crimped onto the line. The small density difference compared to
lead is overcome by making the sinker slightly larger.
iii. Terpene resin putties. A putty of terpene resins containing 92
percent tungsten by weight is currently manufactured. It has
approximately 80 percent of the density of lead. The product is sold
wholesale to retail outlets and distributors.
Terpene resin putty is approximately three to four times as
expensive as lead split shot. Although the putty is more expensive than
lead shot, in the fly fishing market, the only market into which it
currently is marketed, this higher cost of the putty is insignificant
compared to the high costs of other fly fishing equipment (e.g., a
person fly fishing may purchase 100 flies at $1.20 each for one fishing
trip). The product is not, however, an economically viable choice for
most types of fishing that require weights larger than split shot.
Terpene resin putty currently is marketed only for fly fishing,
although it can substitute for all sizes of split shot and most sinker
sizes. The putty is not suitable for use as a heavy weight since it
cannot be tied onto the line. However, like removable split shot, the
putty can be reused many times. The major disadvantage of putty
relative to lead is its higher cost.
iv. Steel and copper. Steel and copper theoretically could also be
used as substitutes for lead, zinc, or brass fishing weights. However,
for various reasons these substitute materials are not considered as
practical alternatives at this time. Steel rusts unless expensive non-
corrosive alloys are used. Steel generally costs more and is less dense
than lead. Furthermore, steel products usually have very high melting
points and are hard, making these materials impractical for manufacture
with traditional technologies. Steel could not be injection molded; it
could be stamped, but only with very heavy equipment. Typically,
forging and foundry operations are required for processing steel into
shapes. Copper has a density of approximately 79 percent of lead and a
melting point greater than lead, zinc and brass. These factors may make
copper unsuitable for use as a substitute for lead in fishing sinkers.
v. Polypropylene, iron, and tungsten mixtures. One company is
currently developing an iron and tungsten impregnated polypropylene
mixture that can be molded into fishing sinkers of the same size,
shape, and dimensions as lead fishing sinkers. These weights have the
same ``look'' as lead fishing weights, although they have roughly 50
percent of the specific gravity of lead. Raw material costs are
estimated at $1.50 to $1.75 per pound or approximately five times
greater than lead.
B. Cost of Proposed Rule
The Agency developed estimates of the cost of the proposed
regulatory option. The analysis, presented in Support Document 2,
details the costs, methodology, and results for the proposed rule and
for several additional regulatory alternatives.
In general, the approach of the cost analysis is to utilize a
stepped demand function to depict demand for fishing sinkers and to
estimate changes in consumer surplus resulting from various regulatory
options. This type of function is appropriate where many substitutes
are available and performance differences among the substitutes are not
significant. The estimation of these functions incorporates basic
information on the substitutes for lead- and zinc-containing sinkers
and estimated market shares of the substitutes.
Stepped demand functions depict consumers as ceasing to demand
certain quantities of a product when the cost of the product exceeds
the cost of a comparable substitute. Therefore, there will be no
reduction in the quantity demanded in the event of a price rise, unless
the price rises sufficiently to be above the price of the next
substitute. The cost of each substitute provides the height of each
step, and the market share of substitutes provide the width. Demand is
assumed to be relatively constant over the 10-year period--1993 to
2002.
While market shares are determined by a combination of toxicity and
cost concerns to sensitivity analyses are performed, in the first
market share is based predominately on cost concerns and, in the
second, market share is based predominately on toxicity concerns. The
base case market shares under the proposed regulatory option for non-
split shot are estimated to be: Polypropylene-55 percent, bismuth-5
percent, tin-35 percent, steel-2 percent, and tin/antimony alloy-3
percent. The estimated base case market shares for split shot are: Tin-
90 percent, tin/antimony alloy-2 percent, and terpene resin putty-8
percent. The supply of lead sinkers is assumed to be perfectly elastic
in the long run, therefore, no producer surplus exists in these
markets. Thus, most of the cost of the regulation will be borne in the
long run entirely by consumers of these goods.
The present value social cost of the proposed regulatory option is
estimated to be $75.9 million discounted at 7 percent. The total costs
over the 10-year period apportioned to consumers is estimated to be
$71.6 million discounted at 7 percent. This implies a cost of about
$9.6 million per year for the 31 million freshwater anglers that
participate in freshwater fishing annually or only 2 cents per fishing
day (average fishing days per individual per year are equal to 14).
This does not mean to suggest however, that the increase in the
purchase price of sinkers is 2 cents. EPA has estimated that the cost
impact of the final rule per average angler would be approximately 31
cents per year. However, this figure does not include the markups
associated with retail process. The purchase price paid for sinkers by
the average angler could be $1.50 to $3.50 per year, or 10 to 25 cents
per day of fishing. In any case, the increased price in fishing sinkers
is relatively minimal in comparison to the total cost incurred by
anglers for other expenditures such as fishing rods, reels, and other
tackle, licenses, fishing trips, and boats.
C. Benefits of Proposal
Conducting a benefits analysis is complicated by a number of
factors. First, the large number of bird species potentially at risk,
the paucity of available data on local bird populations, deaths from
all causes, and on deaths from lead- or zinc-containing sinker
ingestion make it difficult to estimate current exposures and effects.
Second, it is difficult to estimate the probability that a lost lead-
or zinc-containing sinker will be picked up by an individual bird.
Last, the accumulation of lead in the environment based on historical
fishing, together with uncertainties about its continued availability
to migratory waterbirds, creates problems for estimating the potential
effectiveness of alternative regulatory options in reducing exposure
and observed effects. Because of these difficulties, the approach taken
in the benefits analysis is to illustrate the potential routes of
exposure and describe the circumstances that suggest that significant
numbers of waterbirds are potentially at risk.
The benefits are presented in terms of number of sinkers removed
from the market. As indicated in Unit III.D. of this preamble, one
lead- or zinc-containing sinker can generally lead to mortality.
Following this assumption, this analysis provides estimates of the
number of these ``toxic'' sinkers removed from the marketplace as a
result of a regulatory option. This information provides an indication
of the potential for a regulatory option to reduce exposure and risk to
birds. While this approach cannot definitively describe absolute risk
reduction, it is an effective means of comparing regulatory options.
For the regulatory options that EPA considered, the estimated
number of ``toxic'' sinkers entering the environment which would be
avoided over a 10-year period ranged from near zero to near 4.8
billion. The number of sinkers in the environment avoided over 10 years
resulting from the regulatory option proposed in this rule, a ban on
the manufacture, processing, and distribution in commerce, is
approximately 4.2 billion fishing sinkers or 470 million sinkers per
year. This estimate assumes that the regulation is effective in
reducing the home manufacture of lead fishing sinkers. Therefore, this
estimate represents a decrease in the number of lead sinkers alone of
89 percent. The remainder of lead, zinc, and brass sinkers left on the
market will consist of sinkers greater than 1 inch in size.
EPA also reviewed relevant economic valuation literature for the
variety and range of values associated with the loss of birds. The
range of values which is developed in the analysis is used to produce
an estimate analogous to a break-even estimate of the number of birds
required to generate positive net benefits from the regulatory option.
This range is based solely on the relative costs of each of the options
and does not address the effectiveness or cost-effectiveness of any
given option in terms of risk reduction.
Birds have value to society for a variety of reasons. Values
include those from: bird watching; as part of and essential to the
health of the ecosystem, its structure or function; biodiversity value;
aesthetic environment for hikers, campers, anglers, and nature walkers
in national and state parks and other natural environments; potential
future genetic or medical value; and game for hunting.
For example, approximately 58 million persons engaged in non-
consumptive, non-residential recreation involving various forms of
wildlife including birds. Recreational benefits or expenditure
associated with birds including birdwatching, photography, and feeding
is estimated to be $18.1 billion, or approximately $310 per spender.
Other non-consumptive recreational benefits have examined endangered
species such as the whooping crane. A valuation study found that
persons were willing to pay $21 to $149 per year for a refuge that
would help protect the crane which they could visit.
Because environmental benefits are usually not traded as market
goods and services, estimating values for these benefits is difficult.
However, economists have developed approaches with which to estimate
these values.
Previously conducted valuation studies on birds are used in this
analysis to produce an estimate of the number of non-endangered birds
for which the regulatory costs would equal the value of birds for
purposes of comparing regulatory options. This is similar in concept to
a break-even point. Valuation studies which have been used focus
primarily on use value and, thus, do not account for values which
society places on endangered species, such as the Mississippi Sandhill
Crane, which may be positively affected by the regulation. In addition,
the estimates do not account for the value of risk reduction to human
health which will occur as a result of the regulatory requirements.
Thus, any ranges calculated can help to indicate the potential number
of birds that would have to be saved to provide net benefits solely on
the basis of benefits to non-threatened or non-endangered birds. The
range offers useful guidance in comparing regulatory options, but does
not measure absolute benefits or risk reduction.
To calculate the range, the costs of the selected regulatory option
were divided by the estimated range of values for non-threatened or
non-endangered birds. The results of EPA's analysis indicate that a
likely breakeven range is equal to 367,000 to 3.4 million non-
threatened or non-endangered birds. While not trivial, the upper bound
of this estimate, 3.4 million birds, represents only 5 percent of the
estimated fall population of game birds, which embody only a portion of
the potentially affected species. Additionally, if as few as one
percent of the sinkers removed from the market each year caused
waterbird deaths, approximately 4.7 million birds could potentially be
saved as a result of the regulation, well in excess of the high end of
the estimated breakeven range.
While reductions in risk to human health and endangered species
have not been quantified, they cannot be ignored. Because the proposed
regulation encompasses home manufacture, human health benefits are
expected because exposure to lead fumes and dust during the home
manufacturing process are expected to be eliminated. Finally, several
endangered species are potentially at risk from smaller lead- and zinc-
containing sinkers. The values for these birds have not been accounted
for, yet evidence suggests that society does place a high value on
endangered species. For instance, in 1991, an estimated $1.37 million
was spent on preservation efforts for the Mississippi Sandhill Crane
alone. While not necessarily a measure of the social value of
individuals of this species, it does suggest that these values are
real.
D. Cost-effectiveness
The Agency also compared the costs of various regulatory options
relative to the benefits achieved by each option. For this analysis,
cost-effectiveness was evaluated as cost per 1,000 ``toxic'' or lead-
and zinc-containing sinkers removed from the market. This type of
analysis can be useful in two ways: (1) For regulatory options yielding
similar quantified benefits, it can assist EPA in identifying the most
cost-effective options, and (2) for regulatory options yielding
dissimilar or quantified and non-quantifiable benefits (as in this
analysis), it can assist EPA in identifying the incremental increase in
cost per unit increase in quantifiable benefits. This analysis shows
that a ban solely of split shot would have the lowest cost per 1,000
sinkers avoided. EPA is not proposing a ban on split shot alone because
such a ban, on an annual basis, would address only 68 percent of lead
sinkers 1 inch or less in size. EPA believes this option would be an
inadequate response to the risks posed to waterbirds. The proposed
option, however, increases benefits to include 100 percent of fishing
sinkers 1 inch or less on an annual basis, at a still reasonable cost.
In addition, the proposed option offers benefits to human health which
would not accrue under a ban solely on split shot. EPA is not proposing
a ban on fishing sinkers over 1 inch in any dimension, or an immediate
ban of sinkers, in part, because this analysis showed that the
incremental costs were high relative to the benefits achieved.
VI. Other Options Considered
A. Summary
In granting the petition, EPA agreed to examine labeling as one
course of action. However, EPA also considered a number of other
regulatory options such as: (1) A comprehensive ban on all sizes and
types of lead- and zinc-containing fishing sinkers; (2) a geographic
ban on lead- and zinc-containing fishing sinkers; (3) a prohibition on
the manufacture, processing, and distribution in commerce of lead- and
zinc-containing fishing sinkers under 2 inches in size; (4) a
prohibition on the manufacture, processing, and distribution in
commerce of lead and zinc-containing split shot fishing sinkers; (5) a
prohibition or limitation on the amount of lead and zinc allowable in a
fishing sinker; and (6) the use of an economic incentive or fee on the
sale of lead- and zinc-containing fishing sinkers. These options are
not mutually exclusive, and could be proposed in conjunction with one
another. Although EPA did examine a combination of some options (e.g.,
labeling and ban), the Agency evaluated each individual option's
ability to reduce the number of sinkers available for exposure to
waterbirds. After consideration of the options and the available
information, EPA believes that the proposal to prohibit the
manufacture, processing, and distribution in commerce of smaller
fishing sinkers that contain lead and zinc is the least burdensome
means to adequately address the unreasonable risk of injury posed by
fishing sinkers to waterbirds.
B. Labeling
The petitioners' section 21 petition requested that the Agency
require a label on lead fishing sinker packaging. However, the petition
also stated that depending upon the ``efficacy of the action requested
of EPA today, it may at some point in the future be necessary for EPA
to restrict further the manufacture, distribution, and sale of lead
fishing sinkers under TSCA'' (Ref. 5).
A proposal to label could include the following: (1) Placing a
label or warning notice on lead- and zinc-containing fishing sinker
packaging stating that the product is toxic to waterbirds; (2) for
sinkers sold in bulk, requiring retailers to post a sign with similar
language; and (3) requiring catalogues selling fishing sinkers to
contain language regarding the toxicity of the sinkers. This label
could be placed on fishing sinkers manufactured and sold for use in the
United States, and well as those for export. The goal of such a label
would be to modify consumer behavior and cause anglers to purchase less
toxic sinkers.
Labels generally provide consumers with information indicating how
to use a product safely. However, in this case, labeling would have
little effect on the quantity of toxic sinkers lost in the environment,
regardless of how careful anglers are. One ingested lead- or zinc-
containing sinker can be enough to cause death to a waterbird.
Additionally, labels provide consumers with information regarding
the risks associated with the product. The Agency has reviewed studies
regarding factors affecting labeling effectiveness and concludes that
consumers generally respond more readily to labels which state or
suggest that an immediate and significant personal risk is associated
with that product (Ref 31). In situations where the product would not
pose such a risk (as is the case with anglers purchasing and using
fishing sinkers), studies indicate that a label is often less effective
in changing consumer response (Ref 31). Therefore, it is questionable
whether a label would be effective in causing consumers to purchase
other types of fishing sinkers.
EPA examined various rates of consumer response to a labeling
provision in order to assess the impacts of such an option. The
response rates evaluated include, 0, 5, and 10 percent, where a 0
percent response rate indicates that there would be no change in
consumer purchasing behavior. EPA estimates that at a 5 percent
response rate, approximately 22 million lead- and zinc-containing
sinkers annually would not be purchased, and approximately 45 million
sinkers annually would not be purchased at a response rate of 10
percent. In comparison, the proposed option, a ban on the manufacture,
processing, and distribution in commerce of lead- and zinc-containing
fishing sinkers, would result in removing over 450 million sinkers from
the market on an annual basis, preventing them from entering the
environment and becoming available for ingestion by waterbirds.
The Agency believes that labeling would not significantly affect
the number of toxic sinkers lost in the environment and would only
minimally affect consumer purchasing behavior. Therefore, the Agency
believes that labeling would not adequately reduce any unreasonable
risks of injury to waterbirds.
C. Comprehensive Ban, No Size Limit
This option would prohibit the manufacture, processing, and
distribution in commerce of all types and sizes of lead- and zinc-
containing fishing sinkers. This would guarantee the future elimination
of all sizes and types of these sinkers in the environment. EPA
believes this option would be unduly burdensome and would unnecessarily
place restrictions on the types of sinkers that are not readily
ingested by waterbirds, and, therefore do not pose a significant risk
to those species. The Agency believes that there are less costly
options which would effectively reduce the number of sinkers available
for exposure to waterbirds. Therefore, EPA rejected this option.
D. Geographic Ban
EPA also considered a geographic ban to restrict the sale of lead-
and zinc-containing fishing sinkers in certain areas such as those with
freshwater habitats (e.g., near lakes, ponds, or rivers), or in
habitats of affected species (see Unit III.E.3. of this preamble). The
Agency rejected this option because these areas would essentially
include the entire United States, and would be very difficult to
enforce. In addition, waterbirds are migratory and could easily ingest
sinkers in areas where the sale of these fishing sinkers was not
prohibited. Anglers are also mobile, and could buy the sinkers in one
location, and use them in another area where their sale is prohibited,
thus defeating the purpose of the prohibition. For these reasons, EPA
rejected this option.
E. Ban on Sinkers 2 Inches or Less in Size
EPA considered prohibiting the manufacture, processing, and
distribution in commerce of lead- and zinc-containing fishing sinkers
which were 2 inches and less in any dimension. EPA believes 2 inches is
a diameter to which larger species, such as sandhill cranes, can expand
their esophagus to swallow food or other items. However, after further
consideration, although larger birds are physically capable of
swallowing sinkers greater than 1 inch, EPA believes that most
waterbirds would not likely ingest sinkers of that size. Moreover, the
majority of sinkers over 1 inch in any dimension are used for fishing
in the ocean, and would not be readily available for exposure to
waterbirds. This option is less cost effective than the proposed option
in terms of removing lead- and zinc-containing fishing sinkers from the
market. This generally occurs because the number of total sinkers
between 1 and 2 inches is small compared with the cost of regulating
them. For these reasons, EPA rejected regulating sinkers over 1 inch
and less than 2 inches in any dimension.
F. Ban on Split Shot Sinkers Only
EPA examined placing restrictions on the type of lead- and zinc-
containing fishing sinkers which could be produced or sold.
Specifically, EPA considered limiting split shot type sinkers because
they constitute a significant market segment of the types of lead- and
zinc-containing sinkers currently produced. However, while prohibiting
the manufacture, processing, and distribution in commerce of these type
sinkers would capture a large portion of sinkers available for
exposure, EPA believes that regardless of shape, sinkers 1 inch or less
in any dimension pose the same risk to waterbirds. As discussed earlier
in this preamble, both split shot and non-split shot sinkers have been
found in waterbirds that have died from lead poisoning. A ban solely on
split shot would not adequately reduce the number of sinkers deposited
in the environment.
In addition, EPA believes that the majority of the home
manufacturers produce non-split shot fishing sinkers. An option to only
restrict split shot sinkers would not reduce any human health risks
associated with the home manufacture of non-split shot. For these
reasons, EPA rejected this option.
G. Regulation of Lead and Zinc Content in Sinkers
EPA also examined regulating lead and zinc content by weight, or by
percentage of lead and zinc present in each sinker. A specific weight
or percentage limit would not effectively address the low level of lead
or zinc which when ingested by waterbirds could result in a lethal dose
(parts per million range). It may not be feasible to measure accurately
such a small amount of lead or zinc, making it troublesome for industry
to comply with the option, and difficult for the government to enforce
adequately. EPA has therefore rejected this option.
H. Economic Incentive
The Agency considered placing a fee on the sale of lead- and zinc-
containing fishing sinkers. While this option would encourage
manufacturers, the cottage industry, or consumers to switch to
substitutes, it is difficult to predict the risk reduction that would
result from a given fee. In addition, home manufacturers would not be
subject to a fee unless they sold the sinkers. As such, the quantity of
sinkers manufactured at home would not be expected to decrease as a
direct result of the fee (in fact it may increase as consumers attempt
to avoid the fee on purchased sinkers) possibly undermining the
intended change expected from the fee. For these reasons, EPA rejected
this option.
VII. Other Federal Statutes
A. Endangered Species Act
The Endangered Species Act (16 U.S.C. 1531 to 1544) was enacted to
protect and preserve plants and animals that have been designated by
the Secretary of the Interior as endangered or threatened. The
Mississippi sandhill crane is listed as an endangered species under 50
CFR 17.11. EPA has an obligation to conserve the Mississippi sandhill
crane, and to consult with the Secretary of the Interior (through the
FWS) to insure the action specified in this proposal is not likely to
jeopardize the continued existence of the crane, or other endangered
species, or result in the destruction or adverse modification of their
habitats.
While this proposal is intended to protect and preserve all
waterbirds, the Agency is especially concerned about the continued
existence of the endangered Mississippi sandhill crane, and potential
risk posed to other endangered and threatened species by lead- and
zinc-containing fishing sinkers. Other endangered species such as the
whooping crane, Aleutian canada goose, peregrine falcon, and possibly
the bald eagle could also benefit from this rule as proposed. A
prohibition on the manufacture and sale of lead- and zinc-containing
fishing sinkers would prevent future exposures and risks to these
cranes and other endangered or threatened species. Although there has
only been one reported death of a Mississippi sandhill crane due to
lead poisoning, possibly from a lead fishing sinker, the Agency is
concerned about each individual of an endangered species, and its
importance to the continued survival of the species.
EPA has conferred with the FWS during the development of this
proposed rule, to receive their input regarding the scientific aspects
of this proposal, and to ensure that there is coordination between both
agencies.
B. Migratory Bird Treaty Act
In considering this action under TSCA, EPA is also mindful of other
statutes intended to protect birds such as the Migratory Bird Treaty
Act (MBTA) (16 U.S.C. 703). Under the MBTA, it is unlawful to ``take''
migratory birds whether by killing, possessing, or trading except as
permitted by regulations. Section 703 of the MBTA prohibits ``by any
means or in any manner, to. . .take, capture, kill, attempt to take,
capture, or kill. . . migratory birds.'' The MBTA applies to ingestion
of lead by birds as seen by action taken by the FWS to ban the use of
lead shot to hunt certain waterfowl species. Numerous migratory
waterfowl have died from lead poisoning due to ingestion of spent lead
ammunition. Species such as sandhill cranes, and trumpeter, mute, and
tundra swans are migratory birds which would be protected under the
MBTA.
EPA believes that the MBTA is complimentary to the TSCA in
potentially reducing risks to waterbirds. While this rule as proposed
would regulate the manufacture, processing, and distribution in
commerce of fishing sinkers in the United States, the Department of
Interior has the authority to regulate the manner or method of fishing
on lands under their control.
C. Other EPA Activities
EPA has been active in protecting migratory birds, and signed a
Memorandum of Agreement along with the FWS, U.S. Forest Service, Bureau
of Land Management, National Park Service, Department of the Navy, and
the Agency for International Development on May 14, 1991, establishing
the Neotropical Migratory Bird Conservation Program (``Partners in
Flight''). This program, now comprised of many other Federal and State
agencies, non-governmental organizations, and academia addresses noted
population declines of migratory bird species which nest and breed in
North America and winter in Mexico, Central and South America, and the
Caribbean. In concert with other ``Partners in Flight,'' EPA plays a
major role in maintaining the environmental quality of migratory bird
habitats.
VIII. Coordination with Other Federal Agencies
Concurrent with petitioning EPA under section 21 of TSCA, on
October 20, 1992, the EDF, North American Loon Fund, Trumpeter Swan
Society, and Federation of Fly Fishers also petitioned the Department
of Interior (DOI) to utilize its authorities under the Migratory Bird
Treaty Act, 16 U.S.C. sections 703-712, the National Wildlife Refuge
System Administrator Act, 16 U.S.C. sections 668dd and 668ee, and the
National Park Service Act, 16 U.S.C. sections 1-3, to prohibit, by
regulation, the use of lead weights for fishing on any National
Wildlife Refuge or National Park where the trumpeter swan or common
loon breeds or stops over during migration. On June 4, 1993, DOI
published a Federal Register notice requesting comment on the petition
(58 FR 31740). Comments were due by September 2, 1993. It is EPA's
understanding that DOI is still developing its response to the
petition.
Under section 9 of TSCA, EPA is directed to consider whether the
risk to be addressed by regulatory action under TSCA may be prevented
or reduced to a sufficient extent by action taken under a Federal law
not administered by EPA. EPA recognizes that in the area of protection
of wildlife, and specifically of waterbirds and other avian species,
there are some areas of overlap between the statutory authorities
administered by EPA and DOI. However, some activities, the regulation
of which could protect wildlife (e.g., regulation of the manufacture,
processing, and distribution in commerce of chemical substances), are
clearly within the purview of EPA.
At this point, EPA has preliminarily determined that the potential
unreasonable risks to waterbirds would not be sufficiently prevented or
reduced through future regulatory initiatives by DOI so as to make
regulatory action under TSCA unnecessary. As discussed above, EPA has
worked closely in the past with a number of federal agencies, including
DOI, to protect migratory birds. EPA has also conferred with the FWS of
the DOI to ensure that there is coordination between the two agencies.
EPA will continue to confer with and coordinate its activities with DOI
in the course of this rulemaking to ensure a unified approach that
adequately protects human health and the environment, and avoids
unnecessary or duplicative Federal regulation.
IX. Unreasonable Risk
A. Standard
To promulgate a rule under TSCA section 6(a), EPA must find that
there is a ``reasonable basis to conclude'' that activities involving a
chemical substance or mixture present or will present ``an unreasonable
risk of injury to health or the environment.'' The finding of
unreasonable risk is a judgement under which the decision-maker
determines that the risk of health or environmental injury from the
chemical substance or mixture outweighs the burden to society of
potential regulations.
It is important to note that section 6 of TSCA does not require a
factual certainty, but only a ``reasonable basis to conclude'' that a
risk is unreasonable. The legislative history of TSCA makes it quite
clear that EPA may take regulatory action to prevent harm even though
there are uncertainties as to the threshold levels of risk. Congress
recognized that in addition to basing its decision on known facts, EPA
must, of necessity, often base its action on scientific theories,
consideration of projections from available data, modelling using
reasonable assumptions, and extrapolations from limited data. (H.R.
Rep. No. 1341, 94th Cong., 2d Sess. 32 (1976))
Although TSCA uses unreasonable risk as its basic standard for
deciding on appropriate action regarding the manufacture, processing,
distribution in commerce, use, or disposal of a chemical substance or
mixture, TSCA does not define the term ``unreasonable risk.'' The only
guidance in the statute is provided in section 6(c), which established
the requirements that to make an unreasonable risk determination under
section 6(a), EPA must consider the following: (1) The effects of the
chemical on health and the magnitude of its exposure to humans; (2) the
effects of the chemical on the environment and the magnitude of its
exposure to the environment; (3) the benefits of the chemical for
various uses and the availability of substitutes for such uses; and (4)
the reasonably ascertainable economic consequences of the rule, after
consideration of the effect on the national economy, small business,
technological innovation, the environment, and public health.
Section 6(c) offers no further guidance to decisionmakers. In
particular, it does not discuss how each of these factors are to be
weighed in relationship to each other. Consequently, guidance on
implementation of the unreasonable risk standard in regulatory
decisionmaking requires consideration of the legislative history. The
House Report on TSCA (H.R. Rep. No. 1341, 94th Cong., 2d Sess. 13-15
(1976)) provides the most useful pertinent explanation. The House
Report describes the finding of unreasonable risk as involving a
balancing of the probability that harm will occur, and the magnitude
and severity of that harm, against the adverse effects (social and
economic) on society of the proposed Agency action to reduce the harm.
In other words, unreasonable risk involves a weighing of the risks to
be reduced by Agency action and the consequences of the action.
B. Finding
Utilizing this analysis, EPA has evaluated the following elements
to make its preliminary ``unreasonable risk'' finding: (1) Evidence of
the toxicity of lead and zinc, (2) effects of lead fishing sinkers on
waterbirds, (3) species exposed and adversely affected by lead-
containing and potentially affected by zinc-containing fishing sinkers,
(4) potential magnitude of exposure to lead- and zinc-containing
fishing sinkers, (5) substitutes for lead- and zinc-containing fishing
sinkers, and (6) economic impacts of imposing the proposed rule. Each
individual element is discussed in detail in Units III. and V. of this
preamble.
EPA has weighed the risks of injury to waterbirds from continued
use of smaller lead- and zinc-containing fishing sinkers against the
costs of eliminating the manufacture, processing, and distribution in
commerce of such sinkers. The Agency believes that the benefits of
eliminating the effects to waterbirds of ingesting these fishing
sinkers outweigh the costs to society of the rule as proposed based on
the following:
1. The toxicity associated with lead exposure is well documented. A
review of extensive research on the toxicity of lead to waterbirds
leads to the conclusion that ingestion of lead fishing sinkers poses a
significant hazard to waterbirds. Specifically, common loons, trumpeter
swans, mute swans, sandhill cranes, and tundra swans have been
demonstrated to ingest lethal amounts of lead, either intentionally,
accidently, or incidentally, while feeding in aquatic habitats
containing discarded lead sinkers. Research has shown that one small
lead fishing sinker is enough to cause mortality in these and other
waterbirds. In addition, based on the toxicity of lead and zinc, other
lead-containing or zinc-containing fishing sinkers such as brass would
also pose a risk to waterbirds.
2. Lead and zinc are persistent in the environment. As more lead-
and zinc-containing sinkers are produced and sold, more may enter
ecosystems where they can become available to waterbirds.
3. The rule as proposed would create benefits by preventing
potential waterbird deaths. It is estimated that the proposed ban would
prevent over 450 million lead- and zinc-containing fishing sinkers that
have any dimension 1 inch or less from being produced each year, and
potentially from entering the environment.
4. Waterbirds have many benefits to society for reasons such as
bird watching, photography, biodiversity, part of and essential to the
health of the ecosystem, potential future genetic or medical value,
contributing to the aesthetic environment for hikers, campers and
anglers, and game for hunting. It is clear that significant public and
private expenditures are made to protect and enjoy these birds.
5. Although the magnitude of the effect lead fishing sinkers have
on waterbird populations is uncertain, it is reasonable to conclude
that as more lead fishing sinkers are discarded or lost in the
environment and are available for ingestion, further deaths will occur.
In the case of endangered species particularly, each individual is
valuable and vital to the continuation of the species.
6. Scientific evidence has demonstrated that zinc is also very
toxic to waterbirds (exposure to mallards has resulted in their death),
aquatic organisms, and mammals. Based on EPA's comparative toxicity
analysis, ingestion of zinc-containing fishing sinkers could also cause
death in waterbirds.
7. Substitutes for lead- and zinc-containing fishing sinkers are
available which perform as well as lead and zinc, albeit at a higher
cost. These sinkers can be manufactured using existing technologies.
8. EPA's analysis indicates that the costs of this proposed
rulemaking will not result in serious economic consequences for small
businesses or the national economy, and would result in minimal
economic consequences for anglers. The annual cost of the rule as
proposed to the average angler is less than $4.00.
9. A vast number of lead fishing sinkers are made by persons at
home. Exposure to lead may cause severe adverse health effects such as
brain damage in children, miscarriages, and hypertension. The rule as
proposed may assist in preventing exposures which may result from the
lead vapors or fumes created when making sinkers, and potential risks
to human health.
After examination of these factors, EPA has preliminarily concluded
that the continued manufacture, processing, and distribution in
commerce of fishing sinkers that contain any lead or zinc, and that
have any dimension 1 inch or less, presents or will present an
unreasonable risk of injury to waterbirds.
X. Issues for Comment
While EPA solicits comment on all aspects of this proposal, the
Agency specifically requests comments on the following issues: (1) The
size of fishing sinkers prohibited from being manufactured, processed,
and distributed in commerce; (2) whether the prohibitions will create
difficulties for manufacturers of other types of fishing sinkers
containing small amounts or impurities of lead and zinc; (3) the level
at which lead or zinc impurities are present in other type of metals
used for fishing sinkers; (4) additional avian or aquatic toxicity
information for antimony, brass, tin, copper, bismuth, tungsten,
terpene resin, polypropylene, and iron; (5) whether other types of
sinkers should be included under the proposed ban; (6) whether the
manufacture and sale of lead jigs should be prohibited or limited, and
if so, how could the Agency distinguish jigs from other types of lures;
(7) whether lead jigs are a likely or suitable substitute for lead
fishing sinkers; (8) whether other suitable less toxic substitutes are
available; (9) the effective date, or timing of the manufacture,
processing, and distribution ban on lead- and zinc-containing fishing
sinkers; (10) any further information which indicates that either lead-
and zinc-containing fishing sinkers, jigs, lures, or other uses of lead
in fishing equipment may be toxic to waterbirds, or other wildlife;
(11) studies or any other information regarding the valuation or
benefits of waterbirds, other birds, or endangered species (particular
avian), or methods to estimate those benefits; (12) comments on the
estimates of the cost associated with the proposed rule; (13) whether
the proposal would inadvertently lead to greater human exposure due to
increased illegal home production of lead fishing sinkers; (14)
potential impacts of the proposed rule on small manufactuers and the
cottage industry; (15) EPA's definition of fishing sinker; (16)
information, studies, or comments on whether consumers' response to
labels that do not warn of immediate and significant personal risk is
likely to be small or uncertain compared to the response to labels that
warn of personal risk; (17) whether warning labels on lead- or zinc-
containing fishing sinkers are likely to reduce purchases of such
sinkers by 0 to 10 percent; and (18) whether it is desirable or
feasible to pursue any of the rejected options versus the one EPA has
proposed.
XI. Exports
Section 12(b) of TSCA requires that any person who exports or
intends to export a chemical substance or mixture for which a rule has
been proposed or promulgated under section 6 of TSCA must notify EPA of
such exportation or intent to export. In this proposed rule, EPA is
addressing lead- and zinc-containing fishing sinkers. Since such
sinkers may consist of lead and zinc in combination with any other
material, EPA has concluded that it is proposing to regulate
``mixtures'' in the rule for purposes of applying section 12(b) export
notification requirements. Thus, as a result of this proposed rule, any
person who exports or who intends to export any lead- or zinc-
containing fishing sinker described in this proposed rule, to a foreign
country, would be required under section 12(b) of TSCA to notify EPA of
such exportation or intent to export. The export notification
requirements are described in 40 CFR part 707.
EPA anticipates that the burden of the export notification
requirements will be minimal. Exporters are required only to provide
notification the first time they export or intend to export to each
country in a calendar year. The notification requirements are set forth
in 40 CFR part 707 and consist of the company's name and address,
chemical name, TSCA section that triggered the notification (in this
case section 6), countries that are the receivers, and the export date
or intended export date. As described in Unit V. of this preamble,
there is very little export of sinkers.
XII. Recordkeeping
As discussed in Unit XI. of this preamble, TSCA section 12(a)
authorizes EPA to impose recordkeeping requirements under TSCA section
8 on a chemical substance, mixture, or article containing a chemical
substance or mixture even when it is manufactured, processed, or
distributed in commerce and properly marked or labeled as being
intended solely for export. Section 12(b) of TSCA permits EPA to
require export notification for any substance or mixture regulated or
proposed to be regulated under TSCA section 6.
EPA has the authority under section 8(a) of TSCA to require persons
to engage in recordkeeping and reporting activities. Section 8(a)(1) of
TSCA gives EPA authority to require persons who manufacture or process
chemical substances and mixtures to maintain records for manufacturing
purposes, including records necessary for effective enforcement of TSCA
requirements. Small manufacturers and processors are generally exempt
from recordkeeping under section 8(a). However, section
8(a)(3)(A)(ii)(I) provides that, when, as here, the chemical substance
or mixture involved is subject of a rule proposed or promulgated under
TSCA section 6, small manufacturers and processors also can be required
to report and keep records.
Pursuant to these authorities and to ensure compliance with this
proposed rule and TSCA section 12(b) export notification requirements,
as applicable, and to assist in enforcement efforts, each person who
manufactures or processes fishing sinkers that would be subject to the
rule, after the effective date of the final rule, would be required to
maintain manufacturing and shipment/distribution records for a period
of 3 years from the date of manufacture or shipment, such as: (1) The
product or brand name; (2) quantity and date of sinkers manufactured,
processed, or shipped; (3) name, address, and telephone number of the
person who shipped, and who received the sinker shipment; and (4)
inventory records of sinkers manufactured or produced.
EPA believes that the recordkeeping requirements will be necessary
for effective enforcement of the rule. This would enable EPA to ensure
compliance with the rule and conduct inspections effectively.
Examination of records would enable EPA to track distribution patterns
and would aid in identifying sites where a potential violation of the
final rule may exist.
XIII. Enforcement
Section 15 of TSCA makes it unlawful to fail or refuse to comply
with any provision of a rule promulgated under section 6 of TSCA. In
addition, section 15 of TSCA makes it unlawful for any person to: (1)
Use for commercial purposes a chemical substance which such person knew
or had reason to know was distributed in commerce in violation of a
rule under section 6; (2) fail or refuse to establish and maintain
records, submit reports or notices, or permit access to or copying of
records, as required by TSCA; or (3) fail or refuse to permit entry or
inspection as required by section 11 of TSCA.
Violators may be subject to both civil and criminal liability.
Under the penalty provision of section 16 of TSCA, any person who
violates section 15 could be subject to a civil penalty of up to
$25,000 per day for each violation. Each day of operation in violation
of the rule would constitute a separate violation. Knowing or willful
violations of the rule could lead to the imposition of criminal
penalties of up to $25,000 for each day of violation or imprisonment
for up to 1 year, or both. In addition, other remedies are available to
EPA under sections 7 and 17 of TSCA, such as seeking an injunction to
restrain violators of the rule and seizing any chemical substance or
mixture manufactured or imported in violation of the rule.
Individuals, as well as corporations, could be subject to
enforcement actions. Sections 15 and 16 of TSCA apply to ``any person''
who violates various provisions of TSCA. EPA may, at its discretion,
proceed against individuals as well as companies. In particular, EPA
may proceed against individuals who report false or misleading
information or cause it to be reported.
XIV. Business Confidentiality
A person may assert a claim of business confidentiality for any
public comments submitted to EPA in connection with the proposed rule.
Any person who submits a public comment that contains information
claimed as confidential, must also submit a nonconfidential version.
Any claim of confidentiality must accompany the information when it is
submitted to EPA. Persons may claim information confidential by
circling, bracketing, or underlining it, and marking it with
``CONFIDENTIAL'' or some other appropriate designation. EPA will
disclose information subject to a claim of business confidentiality
only to the extent permitted by section 14 of TSCA and 40 CFR part 2,
subpart B. If a person does not assert a claim of confidentiality for
information in public comments at the time it is submitted to EPA, the
Agency will put the comments in the public docket without further
notice to that person.
XV. Hearing Procedures
If persons request time for oral comment, EPA will hold informal
hearings in Washington, DC. Any informal hearing will be conducted in
accordance with EPA's ``Procedures for Conducting Rulemaking under
Section 6 of the Toxic Substances Control Act'' (40 CFR part 750).
Persons or organizations desiring to participate in the informal
hearing must file a written request to participate. The written request
to participate must be sent to the Environmental Assistance Division at
the address listed under FOR FURTHER INFORMATION CONTACT by [insert
date 60 days after date of publication in the Federal Register]. The
written request to participate must include: (1) A brief statement of
the interest of the person or organization in the proceeding; (2) a
brief outline of the points to be addressed; (3) an estimate of the
time required; and (4) if the request comes from an organization, a
non-binding list of the persons to take part in the presentation.
Organizations are requested to bring with them, to the extent possible,
employees with individual expertise in and responsibility for each of
the areas to be addressed. Organizations which do not file main
comments in the rulemaking will not be allowed to participate at the
hearing, unless the Record and Hearing Clerk grants a waiver of this
requirement in writing.
XVI. Rulemaking Record
In accordance with the requirements of section 19(a)(3) of TSCA,
EPA has established a record for this rulemaking [docket number OPPTS-
62134]. This record includes information considered by the Agency in
developing the proposed rule, and will include comments on the proposed
rule. A public version of the record which does not include information
claimed as confidential business information is available to the public
in the Nonconfidential Information Center (NCIC). The NCIC is located
in Rm. E-G102, 401 M St., SW., Washington, DC 20460, and is open from
noon to 4 p.m., Monday through Friday except legal holidays.
XVII. Support Documents
1. Smrchek, Jerry, U.S. EPA Environmental Effects Branch, Office of
Pollution Prevention and Toxics. Ecological Hazard and Exposure
Assessment of Lead Fishing Weights to Birds, With A Discussion of
Possible Substitutes, and Their Effects on Birds and Aquatic Organisms.
February 3, 1994.
2. ICF Incorporated. Economic Analysis of Options for Regulating
Lead and Other Toxic Fishing Sinkers. Prepared for the Office of
Pollution Prevention and Toxics, Economics, Exposure, and Technology
Division, Regulatory Impacts Branch. February 6, 1994.
XVIII. References
1. Birkhead, M. 1982. Causes of Mortality in the Mute Swan Cygnus
olor On the River Thames. Journal of Zoology. London. 198:15-25.
2. Blus, L.J., R.K. Stroud, B. Reiswig, and T. McEneaney. 1989.
Lead Poisoning and Other Mortality Factors in Trumpeter Swans.
Environmental Toxicology and Chemistry. 8:263-271.
3. Ciba-Geigy Corporation v. United States Environmental Protection
Agency. 874 F.2d 277 (5th Cir. 1989).
4. Ensor, K.L., D.D. Helwig, and L.C. Wemmer. 1992. Mercury and
Lead in Minnesota Common Loons (Gavia immer). Water Quality Division,
Minnesota Pollution Control Agency, St. Paul, Minnesota.
5. Environmental Defense Fund, Federation of Fly Fishers, The
Trumpeter Swan Society, and the North American Loon Fund October 20,
1992. Petition to EPA Administrator William K. Reilly pursuant to the
Toxic Substances Control Act, and the Administrative Procedure Act.
6. Environmental Defense Fund, Mr. Bruce Manheim. December 10,
1992. Letter to EPA Administrator William K. Reilly.
7. Environmental Defense Fund, Mr. Bruce Manheim and Mr. Michael
Bean. January 26, 1993. Letter to EPA Administrator Carol Browner.
8. Environmental Defense Fund, Inc. v. Carol Browner and the
Environmental Protection Agency. Amended Complaint for Declaratory and
Injunctive Relief filed in United States District Court for the
District of Columbia. Civil Action Number 93-0532. May 18, 1993.
9. Environmental Defense Fund, Inc. v. Carol Browner and the
Environmental Protection Agency. Joint Motion for Continuance filed in
United States District Court for the District of Columbia. Civil Action
Number 93-0532. June 22, 1993.
10. Franson, J.C., 1992. Causes of Mortality in Common Loons.
Abstract of Presentation at the ``Symposium on the Loon and Its
Ecosystem: Status, Management, and Environmental Concerns,'' College of
the Atlantic, Maine.
11. Locke, L.N. and L.T. Young. 1973. An Unusual Case of Lead
Poisoning in a Whistling Swan. Maryland Birdlife. 29(3):106-107.
12. Locke, L.N., S.M. Kerr, and D. Zoromski. 1981. Lead Poisoning
in Common Loons (Gavia immer). Avian Diseases. 26(2):392-396.
13. Pokras, M.A., and R., Chafel. 1992. Lead Toxicosis From
Ingested Fishing Sinkers in Adult Common Loons (Gavia immer) in New
England. Journal of Zoo and Wildlife Medicine. 23(1):92-97.
14. Pokras, M.A., Tufts University School of Veterinary Medicine.
Personal communication to N. Laurson, EPA, Office of Pollution
Prevention and Toxics. Photocopy of Lead Fishing Sinkers Found in
Common Loons Which Died of Lead Poisoning. September 2, 1993.
15. Rose Lake Wildlife Research Center. Wildlife Disease
Laboratory. Mortality Summary Tables and Necropsy Records for Common
Loon and Mute Swan Mortalities in Michigan 1988-1993.
16. Simpson, V. R., A.E. Hunt, and M.C. French. 1979. Chronic Lead
Poisoning in a Herd of Mute Swans. Environmental Pollution. 18:187-202.
17. U.S. Department of the Interior, Fish and Wildlife Service,
National Wildlife Health Research Center. Summary of Necropsy Records
for Common Loons and Trumpeter Swans. April 13, 1993.
18. U.S. Department of the Interior, Fish and Wildlife Service,
National Wildlife Health Research Center. Diagnostic Services Case
Report Number 10625. April 20, 1992.
19. U.S. Department of the Interior, Fish and Wildlife Service.
Endangered Species Technical Bulletin, Vol. 27 Nos. 3-8 1992. p. 16.
20. United States District Court for the District of Columbia.
Order Granting Joint Motion for Continuance filed in United States
District Court for the District of Columbia. Environmental Defense
Fund, Inc. v. Carol Browner and the Environmental Protection Agency.
Civil Action Number 93-0532. July 2, 1993.
21. U.S. Environmental Protection Agency. Office of Prevention,
Pesticides and Toxic Substances. Letter to Mr. Bruce Manheim and Mr.
Michael Bean, Environmental Defense Fund from Deputy Office Director,
Office of Pollution Prevention and Toxics. Receipt of Section 21
Petition Regarding Lead Fishing Sinkers. November 23, 1992.
22. U.S. Environmental Protection Agency. Office of Prevention,
Pesticides and Toxic Substances. Letter to Mr. Bruce Manheim and Mr.
Michael Bean, Environmental Defense Fund from Assistant Administrator
for Prevention, Pesticides and Toxic Substances. Response to Section 21
Petition Regarding Lead Fishing Sinkers. January 14, 1993.
23. U.S. Environmental Protection Agency. Office of Prevention,
Pesticides and Toxic Substances. Letter to Mr. Bruce Manheim and Mr.
Michael Bean, Environmental Defense Fund from Assistant Administrator
for Prevention, Pesticides and Toxic Substances. Response to January
26, 1993 Letter Regarding Lead Fishing Sinkers. March 11, 1993.
24. U.S. Environmental Protection Agency. Office of Prevention,
Pesticides and Toxic Substances. Letter to Mr. Bruce Manheim and Mr.
Michael Bean, Environmental Defense Fund from Assistant Administrator
for Prevention, Pesticides and Toxic Substances. Update on Progress in
Developing Proposed Rule. May 21, 1993.
25. U.S. Environmental Protection Agency. Office of Prevention,
Pesticides and Toxic Substances. Letter to Mr. Bruce Manheim and Mr.
Michael Bean, Environmental Defense Fund from Assistant Administrator
for Prevention, Pesticides and Toxic Substances. Clarification of May
21, 1993 Letter. June 22, 1993.
26. Windingstad, R.M., S.M. Kerr, L.N. Locke, and J.J. Hurt. 1984.
Lead Poisoning of Sandhill Cranes (Grus canadensis). Prairie
Naturalist. 16(1):21-24.
27. U.S. Environmental Protection Agency. Office of Pesticide
Programs. Preliminary Determination to Cancel Registrations of
Carbofuran Products, Availability of Technical Support Document and
Draft Notice of Intent to Cancel. 54 FR 3744. January 25, 1989.
28. U.S. Environmental Protection Agency. Office of Pesticide
Programs. In the Matter of: Ciba-Geigy Corporation, et al.,
Petitioners; Remand Decision. 55 FR 31138. July 31, 1990.
29. New York State Department of Environmental Conservation.
Wildlife Resources Center. Autopsy Reports. Case Numbers: 31-19, 82-70-
8, 86-35-19, 86-26-24, 89-8-16, 89-66-29, 90-09-32, and 90-25-23.
30. Pokras, M.A., and H. Stern. Tufts University School of
Veterinary Medicine. Personal communication to N. Laurson, EPA, Office
of Pollution Prevention and Toxics. Common Loons found in New England
between 1991 and 1993. February 1, 1994.
31. U.S. Consumer Product Safety Commission. Carol Pollack-Nelson.
March 1991. Estimated Effectiveness of Warning Labels.
XIX. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Under section 3(f),
the order defines a ``significant regulatory action'' as an action that
is likely to result in a rule: (1) Having an annual effect on the
economy of $100 million or more, or adversely and materially affecting
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities (also referred to as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raising novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in this Executive Order.
This proposed rule was submitted to OMB for review, and any
comments or changes made in response to OMB suggestions or
recommendations have been documented in the public record.
B. Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), EPA is required to
make a statement concerning the economic impact of this proposed rule
on small businesses. This proposed rule, if promulgated, will have a
significant economic impact on a number of small entities. A
substantial number of small business entities will be affected by the
proposed action such as the cottage industry.
The analysis indicates that the manufacturers of lead, zinc, and
brass sinkers all fall under the Small Business Administration's
definition of a small business. However, the analysis identified three
distinct subgroups of these manufacturers, ``large'' manufacturers with
significant capital, ``small'' manufactures which are often one or two
person operations, and home manufacturers. The impacts on these
segments were examined separately.
Large manufacturers are able to respond to the regulatory
requirements and switch to alternative processes and/or materials and
remain viable. While home manufacturers are unable to easily switch to
alternatives, they would not be adversely impacted because retail sale
of sinkers is not considered to be a primary source of income for these
individuals. While small manufacturers may be adversely impacted,
regulatory alternatives which may reduce the burden to these
manufacturers could create unfair market advantages for them and their
actions could continue to pose an unreasonable risk to the environment.
An exemption for certain non-split shot sinkers would serve to reduce
the burden on only some of the disproportionately impacted small
businesses but not others. To conclude, it is difficult to devise a
regulatory alternative which reduces the burden to this segment of the
industry without compromising the intent of the regulation.
The selected regulatory option would impose recordkeeping
requirements on industry; however, the overall impact of these
requirements is expected to be minimal. The estimated maximum cost to
industry is $16,450 annually, or approximately .2 percent of the annual
cost of the regulation overall.
C. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (44 U.S.C. 3501, et seq.),
the information collection requirements in this proposed rule have been
submitted to the OMB for approval. An Information Collection Request
(ICR) has been prepared by EPA (identified as ICR Number 1671.01), and
a copy may be obtained from Sandy Farmer (2136), Information Policy
Branch, EPA, 401 M St., SW., Washington, DC 20460, or by calling (202)
260-2740.
This collection of information has an estimated annual
recordkeeping burden of 54 hours per respondent. This estimate includes
time for gathering and maintaining information needed.
EPA believes that the proposed rule provisions regarding
maintenance of information poses a minimal burden. Manufacturers and
processors of lead- and zinc-containing fishing sinkers for export
would be required to keep records which establish the sale and/or
transfer of fishing sinkers that would be banned for domestic
consumption under this proposal. The type of information required
should already be maintained as normal business records, and readily
available. Therefore the information collection provision of this
proposed rule would not impose a significant burden on the regulated
entities.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch (2136), EPA, 401 M St., SW.,
Washington, DC 20460, and to the Office of Information and Regulatory
Affairs, OMB, Washington, DC 20503, marked ``Attention: Desk Officer
for EPA.'' The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.
List of Subjects in 40 CFR Part 745
Environmental protection, Hazardous substances, Lead, Recordkeeping
and notification requirements.
Dated: February 28, 1994.
Carol M. Browner,
Administrator.
Therefore, it is proposed that 40 CFR part 745 be amended to read
as follows:
1. The authority citation for part 745 would be revised to read as
follows:
Authority: 15 U.S.C. 2605, 2607, and 2681-2692.
2. Subparts F-Q are reserved and subpart R is added consisting of
Sec. 745.475 to read as follows:
Subparts F-Q--[Reserved]
Subpart R--Requirements for Specific Products Containing Lead
Sec. 745.475 Lead- and zinc-containing products.
(a) Scope, purpose, and applicability. (1) Scope. This subpart
contains restrictions on the manufacture (including import),
processing, and distribution in commerce of certain types of lead- and
zinc-containing fishing sinkers. This subpart imposes requirements on
persons who manufacture, process, or distribute fishing sinkers in
commerce for use in the United States that contain any lead or zinc in
combination with any other chemical substance, and are less than or
equal to 1 inch in any dimension.
(2) Purpose. The purpose of this subpart is to protect waterbirds
from unreasonable risk from ingestion of lead- and zinc-containing
fishing sinkers.
(3) Applicability. This subpart applies to any person engaged in
the manufacture, processing, or distribution in commerce of lead- and
zinc-containing fishing sinkers, as defined in this subpart. Any person
who manufactures or processes any such lead- or zinc-containing fishing
sinker for export or intends to export any such fishing sinker to a
foreign country will be subject to the export notification requirements
of section 12(b) of TSCA. The notification requirements are set forth
in 40 CFR part 707.
(b) Definitions. In addition to the terms defined in section 3 of
TSCA, the following definition also applies for the purposes of this
subpart:
(1) Fishing sinker means a weight which can be attached to a
fishing line, not permanently affixed to a hook. This includes, but is
not limited to split shot, worm weights, egg sinkers, bass casting,
pyramid sinkers, rubber core sinkers, pinch grip sinkers, and slip shot
sinkers.
(2) [Reserved]
(c) Manufacturing and processing limitations. Effective [insert
date 1 year after promulgation of the final rule], all persons are
prohibited from manufacturing or processing any fishing sinker for use
in the United States which contains any lead or zinc, and is less than
or equal to 1 inch in any dimension.
(d) Distribution in commerce limitations. Effective [insert date 2
years after promulgation of the final rule], all persons are prohibited
from distributing in commerce any fishing sinker for use in the United
States which contains any lead or zinc, and is less than or equal to 1
inch in any dimension.
(e) Recordkeeping. (1) Each person who manufactures or processes
lead- and zinc-containing fishing sinkers less than or equal to 1 inch
in any dimension for export shall maintain the following records: (i)
Product name and/or brand name of such fishing sinkers manufactured or
processed; (ii) location of where such fishing sinkers were
manufactured or processed; (iii) quantity and date of such fishing
sinkers manufactured or processed; (iv) product name and/or brand name
of such fishing sinkers distributed (shipped); (v) quantities of such
fishing sinkers shipped or delivered for shipment; (vi) date such
fishing sinkers shipped or delivered for shipment; (vii) name, address,
and telephone number of consignee; (viii) name, address, and telephone
number of originating shipment carrier; and (ix) inventory records of
the product and/or brand names, and quantity of such fishing sinkers
manufactured or processed (these records may be disposed of when a more
current inventory record is prepared by the manufacturer or processor).
This information must be retained for a period of 3 years from the date
of manufacture, processing or distribution in commerce. Shipping and
receiving documents such as invoices, freight bills, and receiving
tickets which provide the required information will be considered
satisfactory for purposes of this section.
(2) [Reserved]
(f) Enforcement. (1) Failure or refusal to comply with any
provision of this section is a violation of section 15 of TSCA (15
U.S.C. 2614).
(2) Failure or refusal to permit entry or inspection as required by
section 11 of TSCA (15 U.S.C. 2610) is a violation of section 15 of
TSCA (15 U.S.C. 2614).
(3) Violators are subject to the civil and criminal penalties
specified in section 16 of TSCA (15 U.S.C. 2615), or specific
enforcement and seizure as specified in section 17 of TSCA (15 U.S.C.
2616).
(g) Inspections. EPA will conduct inspections under section 11 of
TSCA (15 U.S.C. 2610) to ensure compliance with this section.
[FR Doc. 94-5298 Filed 3-8-94; 8:45 am]
BILLING CODE 6560-50-F