[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Notices]
[Pages 70246-70248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28972]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2010-0681; FRL-8850-6]


Lead Fishing Sinkers; Disposition of TSCA Section 21 Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On August 3, 2010, several groups filed a petition under the 
Toxic Substances Control Act (TSCA) section 21 requesting that EPA 
prohibit under TSCA section 6(a) the manufacture, processing, and 
distribution in commerce of (1) lead bullets and shot; and (2) lead 
fishing sinkers. On August 27, 2010, EPA denied the first request due 
to a lack of authority to regulate lead in bullets and shot under TSCA. 
EPA's decision was based on the exclusion of shells and cartridges from 
the definition of ``chemical substance'' in TSCA section 3(2)(B)(v). On 
November 4, 2010, EPA denied the second request. This notice explains 
EPA's reasons for the denial of the request specific to fishing 
sinkers.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Christina Wadlington, National Program Chemicals Division (7404T), 
Office of Pollution Prevention and Toxics, Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; 
telephone number: (202) 566-1859; e-mail address: 
[email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general. This action may, 
however, be of interest to you if you manufacture, process, import, or 
distribute in commerce lead fishing sinkers or lead fishing tackle. If 
you have any questions regarding this action, consult the technical 
person listed under FOR FURTHER INFORMATION CONTACT.

B. How can I get copies of this document and other related information?

    EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPPT-2010-0681. All documents in the 
docket are listed in the docket index available at http://www.regulations.gov. Although listed in

[[Page 70247]]

the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically at 
http://www.regulations.gov, or, if only available in hard copy, at the 
OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/
DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation are 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number of the EPA/DC Public Reading Room is 
(202) 566-1744, and the telephone number for the OPPT Docket is (202) 
566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

II. Background

A. What is a TSCA section 21 petition?

    Under section 21 of TSCA (15 U.S.C. 2620), any person can petition 
EPA to initiate a rulemaking proceeding for the issuance, amendment, or 
repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA 
section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the 
facts that are claimed to establish the necessity for the action 
requested. EPA is required to grant or deny the petition within 90 days 
of its filing. If EPA grants the petition, the Agency must promptly 
commence an appropriate proceeding. If EPA denies the petition, the 
Agency must publish its reasons for the denial in the Federal Register. 
A petitioner may commence a civil action in a U.S. district court to 
compel initiation of the requested rulemaking proceeding within 60 days 
of either a denial or, if the Agency does not resolve the petition, the 
expiration of the 90-day period.

B. What criteria apply to a decision on a TSCA section 21 petition?

    Section 21(b)(1) of TSCA requires that the petition ``set forth the 
facts which it is claimed establish that it is necessary'' to issue the 
rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 
implicitly incorporates the statutory standards that apply to the 
requested actions. In addition, TSCA section 21 establishes standards a 
court must use to decide whether to order EPA to initiate rulemaking in 
the event of a lawsuit filed by the petitioner after denial of a TSCA 
section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA 
generally relies on the standards in TSCA section 21 and in the 
provisions under which actions have been requested to evaluate 
petitions.

C. Summary of TSCA Section 21 Petition Received

    On August 3, 2010, the Center for Biological Diversity, American 
Bird Conservancy, Association of Avian Veterinarian, Project Gutpile 
and Public Employees for Environmental Responsibility filed a petition 
under TSCA section 21 requesting that EPA prohibit under TSCA section 
6(a) the manufacture, processing, and distribution in commerce of (1) 
lead bullets and shot; and (2) lead fishing gear. With respect to 
fishing gear, petitioners requested a nationwide, uniform ban on the 
manufacture, processing, and distribution in commerce of lead for use 
in all fishing gear, regardless of size, including sinkers, jigs and 
other tackle. (Ref. 1).

D. Summary of the Disposition of the Request With Respect to Lead in 
Bullets and Shot

    As discussed in the Federal Register of September 24, 2010 (75 FR 
58377) (FRL-8847-5), on August 27, 2010, EPA denied the first request 
due to a lack of authority to regulate lead in bullets and shot under 
TSCA. Today's notice provides EPA's reasons for denying the second 
portion of the petition: A request to prohibit under TSCA section 
6(a)(2)(A)(i) the manufacture, processing, and distribution in commerce 
of lead for use in all fishing gear.

III. Disposition of the Request With Respect to Lead in Fishing Sinkers

    On November 4, 2010, EPA denied the request to prohibit under TSCA 
section 6(a) the manufacture, processing, and distribution in commerce 
of lead fishing gear. EPA denied the request because the petitioners 
have not demonstrated that the action requested is necessary to protect 
against an unreasonable risk of injury to health or the environment, as 
required by TSCA section 21. The petitioners do not provide a 
sufficient justification for why a national ban of lead fishing sinkers 
and other lead fishing tackle is necessary given the actions being 
taken to address the concerns identified in the petition. The 
petitioners also have not demonstrated that the action requested--a 
uniform national ban of lead for use in all fishing gear--is the least 
burdensome alternative to adequately protect against the concerns 
identified in the petition, as required by section 6. There are an 
increasing number of limitations on the use of lead fishing gear on 
some Federal lands, as well as Federal outreach efforts. A number of 
states have established regulations that ban or restrict the use of 
lead sinkers and have created state education and fishing tackle 
exchange programs. The emergence of these programs and activities over 
the past decade calls into question whether the broad rulemaking 
requested by petitioners would be the least burdensome, adequately 
protective approach. EPA notes that the prevalence of non-lead 
alternatives in the marketplace continues to increase.
    Lead tackle already is prohibited for use in Yellowstone National 
Park and at several national wildlife refuges including Patuxent 
National Wildlife Refuge in Maryland, Rachel Carson National Wildlife 
Refuge in Maine, Rappahanock National Wildlife Refuge in Virginia, Red 
Rock Lakes National Wildlife Refuge in Montana, Seney National Wildlife 
Refuge in Michigan, and Union Slough National Wildlife Refuge in Iowa. 
Since 1999, the National Fish and Wildlife Service has encouraged the 
use of non-lead fishing tackle (See ``Let's Get the Lead Out'' at 
http://www.fws.gov/contaminants/Documents/leadpoisoning2.pdf). The 
National Park Service is also encouraging the use of alternatives to 
lead tackle in national parks through an education and outreach 
program. This program, which has a goal of eliminating the use of lead 
tackle in parks, focuses on the benefits of using lead-free fishing 
tackle.
    States also have been taking action to ban or limit the use of lead 
fishing sinkers or have been working to limit the use of lead fishing 
sinkers through outreach and exchange programs. Since 2000, five states 
have banned or limited the use of fishing sinkers. Maine, New York, and 
Vermont have banned the sale of lead fishing sinkers of less than one-
half ounce. In Massachusetts, the use of all lead sinkers in the 
Quabbin and Wachusett Reservoirs, the loons' primary habitat in the 
state, is prohibited, and starting in 2012, the use of lead sinkers, 
lead weights, and lead fishing jigs of less than one ounce will be 
prohibited in all inland waters. In New Hampshire, lead fishing sinkers 
and jigs are banned for use in all fresh waters. Additionally, the 
Washington Department of Fish and Wildlife is considering whether to 
adopt

[[Page 70248]]

restrictions on the use of lead tackle in the state. Other states have 
outreach and education and tackle exchange programs.
    The comments that EPA has received from states and a state 
organization highlight the geographic focus of state controls on lead 
fishing tackle. According to the Association of Fish and Wildlife 
Agencies, ``the exposure to certain migratory birds (primarily loons, 
and to a lesser extent, swans) and related impacts to populations of 
those birds is localized, and where impacts have been substantiated to 
be significant, state fish and wildlife agencies have acted to regulate 
the use of lead sinkers and jigs. In the northeast, five states have 
enacted restrictions (e.g., ban in certain bodies of water; ban on 
certain weights and sizes) on the use of lead fishing tackle where 
studies have identified lead toxicosis as a contributing factor to 
declining loon populations. Some states are also offering a fishing 
tackle exchange program (non-lead for lead products). States have thus 
demonstrated a responsible exercise of their authority to regulate or 
restrict lead fishing tackle under circumstances of exposure where it 
contributes to decline in loon populations'' (Ref. 2).
    Several state fish and game agencies submitted comments (Refs. 3-
5). All support denial of the petition and provide several reasons why 
they do not support the actions requested in the petition. These 
comments assert that mortality from ingestion of lead fishing tackle is 
rare and is primarily limited to some areas of the country, that states 
are already working closely with the Fish and Wildlife Service on 
education and exchange programs, and that where there have been impacts 
on loons and trumpeter swans, states have already taken action. These 
states contend that these impacts are best addressed by geographically 
targeted actions that the states are undertaking. As noted by these 
commenters, states in the northern part of the country, where the 
majority of the impacts on loons has been observed, have taken action 
to limit or ban the use of lead sinkers or have implemented tackle 
exchange programs.
    While it is the case, as petitioners noted, that 16 years ago, in 
1994, EPA proposed a ban of lead for use in certain smaller-sized 
fishing sinkers under TSCA section 6(a)(2)(A), the sweeping alternative 
requested by petitioners was not one the Agency, as reflected in its 
proposal, found to be appropriate even then. (59 FR 11122, March 9, 
1994). The steps that have been taken at the Federal and State levels 
since that time make a nationwide ban on all lead fishing gear such as 
that sought by petitioners even less appropriate today.
    Moreover, the market for fishing gear is changing. While lead 
tackle may still constitute the largest percentage of the fishing 
sinker market, over the last decade the availability of fishing sinkers 
made from other materials has expanded. New non-lead products have 
entered the market, and the market share of lead sinkers has decreased. 
With improvements in technology, changes in consumer preferences, 
state-level restrictions, and increased market competition, the market 
for lead fishing sinkers is expected to continue to decrease while the 
market for substitutes such as limestone, steel, and tungsten fishing 
sinkers is expected to continue to increase (Ref. 6).
    In sum, EPA is not persuaded that the action requested by the 
petitioners--a sweeping national uniform rule on lead in all fishing 
gear--is necessary. The petitioners also have failed to demonstrate 
that a national ban on lead fishing gear is the least burdensome 
approach to adequately address the risk to the environment addressed in 
the petition, as required by TSCA section 6, given the mix of actions 
that state agencies and the Federal Government already are taking to 
address the impact of lead fishing sinkers on local environments. The 
risk described by the petitioners does appear to be more prevalent in 
some geographic areas than others, and the trend over the past decade 
has been for increasing state and localized activity regarding lead in 
fishing gear. For these reasons, EPA denied the petitioners' request 
for a national ban on lead in all fishing gear.

V. References

    1. American Bird Conservancy, Petition to the Environmental 
Protection Agency to Ban Lead Shot, Bullets and Fishing Sinkers 
under the Toxic Substances Control Act. August 3, 2010.
    2. Association of Fish and Wildlife Agencies. Letter to 
Honorable Lisa Jackson, Administrator, United States Environmental 
Protection Agency. September 2, 2010.
    3. The State of Arizona Game and Fish Department. Letter to Lisa 
P. Jackson, Administrator, United States Environmental Protection 
Agency. September 14, 2010.
    4. Kentucky Department of Fish & Wildlife Resources Tourism, Art 
and Heritage Cabinet. Letter to Honorable Lisa Jackson, 
Administrator, United States Environmental Protection Agency. 
September 15, 2010.
    5. Commonwealth of Virginia Department of Game and Inland 
Fisheries. Letter to Honorable Lisa Jackson, Administrator, United 
States Environmental Protection Agency. September 15, 2010.
    6. Background Document--TSCA Sec.  21 Petition; Pb in Fishing 
Sinkers and Other Components. October 2010.

List of Subjects

    Environmental protection, Bird, Lead, Lead bullets, Lead fishing 
sinkers, Lead shot.

    Dated: November 4, 2010.
Steve A. Owens,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2010-28972 Filed 11-16-10; 8:45 am]
BILLING CODE 6560-50-P