[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Proposed Rules]
[Pages 10451-10455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4087]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OPPT-2012-0135; FRL-9339-5]


Fishing Tackle Containing Lead; Disposition of Petition Filed 
Pursuant to TSCA Section 21

AGENCY: Environmental Protection Agency (EPA).

ACTION: Petition, reasons for Agency response.

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SUMMARY: On November 17, 2011, EPA received a petition from the Center 
for Biological Diversity, the Loon Lake Loon Association, and Project 
Gutpile (petitioners). The petitioners cited section 21 of the Toxic 
Substances Control Act (TSCA) and requested EPA to initiate a 
rulemaking under section 6(a) of TSCA applicable to fishing tackle 
containing lead (e.g., fishing weights, sinkers, lures, jigs, and/or 
other fishing tackle), of various sizes and uses that are ingested by 
wildlife, resulting in lead exposure. After careful consideration, EPA 
denied the petition by letter dated

[[Page 10452]]

February 14, 2012. This notice explains EPA's reasons for the denial.

FOR FURTHER INFORMATION CONTACT:
    For technical information contact: Thomas Groeneveld, 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) 566-1188; fax 
number: (202) 566-0470; email address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email 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 fishing tackle containing lead. Since other 
entities may also be interested, the Agency has not attempted to 
describe all the specific entities that may be affected by this action. 
If you have any questions regarding the applicability of this action to 
a particular entity, consult the technical person listed under FOR 
FURTHER INFORMATION CONTACT.

B. How can I access information about this petition?

    EPA has established a record for this petition response under 
docket identification (ID) number EPA-HQ-OPPT-2012-0135. All documents 
in the docket are listed in the docket index available at http://www.regulations.gov. Although listed in 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. TSCA Section 21

A. What is a TSCA section 21 petition?

    Under TSCA section 21 (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 the expiration of the 90-day period if EPA fails 
to respond within 90 days.

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 has 
relied on the standards in TSCA section 21 and in the provisions under 
which actions have been requested to evaluate this petition.

III. Summary of the Petition

    On November 17, 2011, the Center for Biological Diversity, the Loon 
Lake Loon Association, and Project Gutpile petitioned EPA to ``evaluate 
the unreasonable risk of injury to the environment from fishing tackle 
containing lead (including fishing weights, sinkers, lures, jigs, and/
or other tackle) of various sizes and uses that are ingested by 
wildlife resulting in lead exposure'' and to ``initiate a proceeding 
for the issuance of a rulemaking under section 6(a) of TSCA to 
adequately protect against such risks'' (Ref. 1, p. 27). The petition 
expressly states that this petition ``asks the EPA to initiate a 
rulemaking for regulations that adequately protect wildlife against the 
unreasonable risk of injury from lead fishing tackle * * *. This 
petition does not request a specific regulatory alternative. It is the 
obligation of the EPA to determine the least burdensome alternative 
that adequately addresses the unreasonable risk of injury'' (Ref. 1, p. 
8). As such, the petition does not actually identify a rule to be 
issued, amended, or repealed.
    This is not the first time EPA has been petitioned to take action 
with respect to fishing tackle containing lead. On August 3, 2010, the 
Center for Biological Diversity, American Bird Conservancy, Association 
of Avian Veterinarians, 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 lead fishing gear (Ref. 2). 
In particular, the 2010 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. EPA denied the petition on November 4, 2010 
(Ref. 2). The comments that EPA received from states and a state 
organization about the 2010 petition highlighted the geographic focus 
of state controls on lead fishing tackle (Ref. 2). Several state fish 
and game agencies submitted comments, all supporting denial of the 
petition (Ref. 2).
    Additionally, on October 20, 1992, the Environmental Defense Fund, 
Federation of Fly Fishers, Trumpeter Swan Society, and North American 
Loon Fund petitioned EPA under section 21 of TSCA and the 
Administrative Procedure Act to initiate rulemaking procedures under 
section 6(a) 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. 3). EPA granted the petition and, 
ultimately, in 1994, EPA proposed a 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 (59 FR 11122, March 9, 1994). EPA received

[[Page 10453]]

comments from many states or state agencies in response to the 1994 
proposal; the majority of these comments argued that Federal action was 
not warranted. That proposal has not been finalized and in 2005 EPA 
indicated its intent to withdraw the proposal (70 FR 27625, May 16, 
2005). Given limited resources and competing priorities, EPA has not 
yet formally withdrawn the proposal but is currently taking steps to do 
so.

IV. Disposition of Petition Filed Pursuant to TSCA Section 21

A. What is EPA's response?

    On February 14, 2012, EPA denied the November 2011 petition. A copy 
of the Agency's response, which consists of a letter to the 
petitioners, is available in the docket for this petition. EPA's 
reasons for denying the petition are provided in Unit IV.B.

B. What are EPA's reason for this denial?

    In denying the petitioners' request, EPA determined that the 
petitioners did not demonstrate that Federal action is necessary based, 
in part, on the fact that the petitioners' supporting data indicate 
that the issue of wildlife exposure to fishing tackle containing lead 
has a regional or local geographic context coupled with the fact that 
the states where risk of injury appears to be greatest (based on 
documented incidences) are largely the states that have taken action to 
address the risks posed by lead fishing tackle. While several species 
of waterfowl are included, the most extensive information provided in 
the petition pertains to the ingestion by loons of fishing tackle 
containing lead and indicates that common loons are known to ingest 
lead objects more frequently than other species of water birds sampled 
across the United States. For loons, most of the documented cases of 
lead tackle ingestion cited in the petition are for the time period 
between 1987 and 2002 and are confined to northern states, all of which 
are located on or near the northern border of the United States. The 
U.S. Fish and Wildlife Service report cited in the petition also 
indicates that loon populations are stable or increasing in all of 
these northern states where lead tackle ingestion by loons has been 
documented, with the exception of Washington. While such examples 
suggest harm to wildlife, and waterfowl in particular, they do not, in 
and of themselves, demonstrate that Federal rulemaking under section 
6(a) of TSCA is necessary.
    Indeed, as evidenced by the petition, since 2000, a number of 
states have established regulations that ban or restrict the use of 
lead tackle. In addition, a number of other states have created state 
education and/or fishing tackle exchange programs. In light of the 
emergence and expansion of these programs and other activities over the 
past decade coupled with a paucity of data on bird mortality 
attributable to lead tackle ingestion during this same timeframe, the 
petition does not suffice to establish that a Federal action under 
section 6(a) of TSCA as requested by the petitioners is necessary to 
adequately protect wildlife.
    Specifically, since 2000, Maine, Massachusetts, New Hampshire, New 
York, Vermont, and Washington 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. Two states, Massachusetts 
and New Hampshire, have expanded the scope of water bodies covered by 
use prohibitions over time. In Massachusetts, the use of all lead 
sinkers was initially prohibited in the Quabbin and Wachusett 
Reservoirs, the loons' primary habitat in the state. The Massachusetts 
regulations expanded the use prohibitions, effective in 2012, to 
include additional tackle--lead weights, and lead fishing jigs of less 
than one ounce--and to encompass all inland waters. In New Hampshire, 
initial use prohibitions for fishing sinkers and jigs were expanded 
from lakes and ponds to all waters of the state in 2006. In 2011, 
Washington State began to regulate fishing tackle containing lead by 
approving measures to prohibit the use of fishing tackle containing 
lead at lakes with nesting common loons. EPA also notes that other 
states (e.g., Minnesota and Wisconsin) have voluntary education or 
outreach programs, including efforts to discourage the use of fishing 
tackle containing lead, to raise awareness of lead poisoning in 
wildlife, and events to exchange fishing tackle containing lead for 
lead-free alternatives.
    Thus, the trend is that states are being responsive to the harms 
attributed to fishing tackle containing lead by implementing regulatory 
and voluntary programs.
    For example, EPA notes that among the states where the petition 
cites documented cases of lead tackle ingestion by loons, five of the 
states regulate the use or sale of fishing tackle containing lead and 
have been doing so since at least 2006. Further, EPA notes that two 
states with voluntary programs are among the same states. In other 
words, the states where ingestion of fishing tackle containing lead is 
best linked to loon mortality have responded with regulatory or 
voluntary programs. In some cases, these programs have expanded over 
time. The petition does not demonstrate that these state and local 
efforts are ineffective or have failed to reduce the exposure and risks 
presented to waterfowl in particular. In light of these state actions, 
EPA concludes that the petition does not demonstrate that action under 
TSCA section 6(a) is necessary to adequately protect wildlife.
    EPA also notes that when Federal actions have been taken to address 
the use of lead fishing tackle in federally managed lands and water 
bodies across the nation, they have been limited to specific, localized 
National Wildlife Refuges, not the entire National Wildlife Refuge 
System. For example, use of fishing tackle containing lead is 
prohibited in several wildlife refuges, including in states with 
breeding loon populations such as Rachel Carson National Wildlife 
Refuge in Maine, Seney National Wildlife Refuge in Michigan, and Red 
Rock Lakes National Wildlife Refuge in Montana.
    Moreover, EPA recognizes that state and local natural resource 
agencies consider geographic context in their resource assessments, and 
manage these resources based on evaluations of local impacts on fish 
and wildlife resources and habitats. EPA also is cognizant that these 
state and local agencies historically have made such evaluations while 
considering the societal benefits of traditional fishing practices. 
This perspective is supported by the vast majority of comments received 
from states and members of the general public on the petition submitted 
on August 3, 2010 (Ref. 2) and the section 6(a) rule proposed by EPA on 
March 9, 1994 (59 FR 11122).
    In response to the petition submitted on August 3, 2010, EPA 
received comments from states and a state organization that 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

[[Page 10454]]

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).
    All state agencies that commented on the 2010 petition supported 
the denial of the petition and provided several reasons why Federal 
action is unwarranted (Ref. 2). 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 U.S. 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, 
because policy development is biologically, socially, and economically 
complex, 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 in particular have been observed, have taken action to 
limit or ban the use of lead sinkers or have implemented tackle 
exchange programs.
    In addition, comments received on the 2010 petition from Members of 
Congress, representing two different states (e.g., Arkansas and 
Wisconsin), also opposed Federal action on lead fishing tackle (Ref. 
2). A Representative from Wisconsin opposed a prohibition on lead 
fishing tackle in favor of voluntary education and outreach programs 
(Ref 2).
    These comments were consistent with the comments EPA received in 
response to the 1994 proposal. In their comments on the 1994 proposed 
rule, numerous state fish and wildlife management agencies from across 
the U.S. commented that they did not believe that the data as a whole 
(e.g., exposure information, limited incidents of lead toxicity linked 
to tackle, number of specific species likely to be affected, geographic 
nature of the issue), support the need for a nationwide ban on fishing 
tackle containing lead. Many of these states also strongly expressed 
their opinion that they, as state fish and wildlife agencies, have the 
best knowledge of the status of bird populations in their states and 
are therefore best suited to identify if their wildlife resources are 
impacted, and to determine what the most appropriate management actions 
should be, if any. In total, the vast majority of these comments 
opposed the prohibitions in the 1994 proposed rule.
    These comments and the actions taken by states reinforce EPA's 
conclusion that petitioners have not shown that Federal action under 
TSCA section 6(a) is necessary to protect wildlife resources at this 
time.
    EPA also recognizes that the market for fishing tackle and 
equipment continues to change and that the prevalence of non-lead 
alternatives in the marketplace continues to increase. While fishing 
tackle containing lead may still constitute the largest percentage of 
the market, the availability of lead-free alternatives has increased in 
the last decade (Ref. 2). New non-lead products have entered the 
market, and the market share of lead sinkers has decreased (Ref. 2). 
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. 2). In light of 
these trends, the petition does not demonstrate that rulemaking is 
necessary under TSCA section 6(a).
    In sum, EPA is not persuaded that the action requested by the 
petitioners is necessary given the mix of regulatory and education 
actions states agencies and the Federal Government already are taking 
to address the impact of lead fishing tackle 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 Federal activity regarding 
lead in fishing tackle. Therefore, EPA concludes that the petition does 
not demonstrate that action under TSCA section 6(a) is necessary in 
light of these state and Federal actions.
    Furthermore, for the same reasons stated in this unit, while the 
petition does provide evidence of exposure and a risk to waterfowl in 
some areas of the United States, it does not provide a basis for 
finding that the risk presented is an unreasonable risk. ``The finding 
of unreasonable risk is a judgment 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'' (59 FR 11122, 11138). Again, the risk described 
by the petitioners appears to be more prevalent in some geographic 
areas than others, and the trend over the past decade has been for 
increasing state and localized Federal activity regarding lead in 
fishing tackle. Given the mix of regulatory and educational actions 
state agencies and the Federal Government already are taking to address 
the impact of lead fishing tackle on local environments, and the other 
considerations described in Unit IV.B., the petition does not 
demonstrate that exposure from lead fishing tackle presents an 
unreasonable risk.
    Finally, although EPA proposed to make a finding that lead fishing 
tackle presented an unreasonable risk in 1994, the Agency did not 
finalize that rule and indicated its intent to withdraw the proposal in 
2005 (70 FR 27625). The Agency's view that the proposal should be 
withdrawn is buttressed by the emergence and continued expansion of 
state and local programs in the states that appear to be most affected. 
Likewise, other data and information (e.g., incidents of lead tackle 
ingestion and mortality in certain species of waterfowl) that supported 
that proposal are clearly outdated. To the extent that petitioners rely 
on that proposal, their reliance is unpersuasive.
    For these reasons, EPA denied the petitioners' request.

V. References

    The following is a list of the documents that are specifically 
referenced in this notice and placed in the docket that was established 
under docket ID number EPA-HQ-OPPT-2012-0135. For information on 
accessing the docket, refer to Unit I.B.

1. Center for Biological Diversity, Loon Lake Loon Association, 
Project Gutpile. Petition to the Environmental Protection Agency to 
Regulate Lead Fishing Tackle Under the Toxic Substances Control Act; 
Petition. (November 16, 2011). Available online at: http://www.epa.gov/oppt/chemtest/pubs/TSCA_sinker_petition.pdf.
2. U.S. Environmental Protection Agency. Lead Fishing Sinkers and 
Ammunition Components; Docket. Docket ID: EPA-HQ-OPPT-2010-0681. 
Available online at: http://www.regulations.gov/#!docketDetail;dct=FR%252BPR%252BN%252BO%252BSR;rpp=10;po=0;D=EPA-
HQ-OPPT-2010-0681.
3. Environmental Defense Fund, Federation of Fly Fishers, the 
Trumpeter Swan Society, and the North American Loon Fund. Petition 
to EPA Administrator William K. Reilly pursuant to the Toxic 
Substances Control Act, and the Administrative Procedure Act; 
Petition (October 20, 1992).

[[Page 10455]]

List of Subjects

    Environmental protection, Bird, Lead, Lead fishing sinkers, Lead 
fishing tackle.

    Dated: February 14, 2012.
James Jones,
Acting Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2012-4087 Filed 2-21-12; 8:45 am]
BILLING CODE 6560-50-P