

[Federal Register: July 27, 2006 (Volume 71, Number 144)]
[Notices]               
[Page 42640-42642]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy06-36]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2006-0397; FRL-8079-7]

 
TSCA Section 21 Petition; Response to Citizen's Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On April 21, 2006, the Sierra Club petitioned EPA under 
section 21 of the Toxic Substances Control Act (TSCA) to take four 
actions under TSCA to mitigate risks from lead in toy jewelry. The 
petitioner requested that EPA: (1) Require TSCA section 8(d) health and 
safety data reporting; (2) submit a report to the Consumer Product 
Safety Commission (CPSC) under TSCA section 9; (3) issue a significant 
new use rule pursuant to TSCA section 5(a); and (4) issue quality 
control orders under TSCA section 6(b). Of the actions requested by the 
petitioner, TSCA section 21 applies only to the requests for actions 
under TSCA sections 6(b) and 8(d). For the reasons set forth in this 
notice, EPA has denied the petition to initiate rulemaking under these 
two sections.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address:TSCA-
Hotline&epa.gov.
    For technical information contact: Doreen Cantor, 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) 566-0486; e-mail 
address: cantor.doreen@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me

    You may potentially be affected by this action if you manufacture, 
import, or distribute in commerce toy jewelry containing lead, or if 
you manufacture, import, process, or distribute in commerce lead. 
Potentially affected entities may include, but are not limited to:
     (NAICS code 339914) Costume jewelry and novelty 
manufacturing
     (NAICS code 339932) Game, toy, and children's vehicle 
manufacturing
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding some of the entities likely to be 
affected by this action. Other types of entities not listed in this 
unit could also be affected. The North American Industrial 
Classification System (NAICS) codes have been provided to assist you 
and others in determining whether this action might apply to certain 
entities. 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 Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established a docket for this action under 
docket identification number EPA-HQ-OPPT-2006-0397. The docket is 
available for public viewing at the EPA Docket Center, Rm. B102, 1301 
Constitution Ave., NW., Washington, DC. The EPA Docket Center is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The EPA Docket Center Public Reading Room telephone number is 
(202) 566-1744, and the telephone number for the OPPT Docket is (202) 
566-0280.
    2. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.

    Publicly available docket materials are available electronically at 
http://www.regulations.gov or in hard copy at the OPPT docket.


II. Background

A. What is a TSCA Section 21 Petition

    Section 21 of TSCA allows citizens to petition EPA to initiate a 
proceeding for the issuance, amendment, or repeal of a rule under TSCA 
section 4, 6, or 8 or an order under section 5(e) or 6(b)(2). A TSCA 
section 21 petition must set forth facts that the petitioner believes 
establish the need 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. Within 60 days of denial, or the 
expiration of the 90-day period, if no action is taken, the petitioners 
may commence a civil action in a U.S. district court to compel 
initiation of the requested rulemaking proceeding.

B. What Action is Requested Under this TSCA Section 21 Petition?

    On April 21, 2006, the Sierra Club petitioned EPA to take four 
actions intended to reduce risks from toy jewelry containing lead. The 
Sierra Club defines toy jewelry as any item that serves a decorative 
but no or minimal functional purpose that is valued at less than $20 
per item. The requested actions are:
     Require TSCA section 8(d) health and safety data reporting 
for lead and lead salts.
     Submit a TSCA section 9 report to CPSC regarding lead and 
lead salts.
     Issue a TSCA section 5(a) significant new use rule 
regarding lead and lead salts in toy jewelry.
     Issue TSCA section 6(b) quality control orders regarding 
production of toy jewelry.
The petition also requested certain actions by CPSC.
    Again, of the actions requested by the petitioner, TSCA section 21 
applies only to actions under TSCA sections 6(b) and 8(d), and these 
requests are addressed in this notice.

III. Disposition of Petition

    EPA does not believe that the actions requested by the petitioner 
under TSCA sections 6(b) and 8(d) would be helpful in addressing the 
problem presented by lead in toy jewelry, at this time. These two 
requests are therefore denied. The other two requests, for actions 
under TSCA sections 5(a) and 9, are not petitionable under TSCA section 
21. Section 21 enumerates specific sections and subsections of TSCA 
under which any person may petition the Administrator to initiate a 
proceeding for the issuance, amendment, or repeal of a rule or an 
order. Sections 5(a) and 9 are not included.

A. Request to Issue Section 6(b) Quality Control Order Regarding 
Production of Toy Jewelry

    EPA does not believe that section 6(b) is an appropriate tool to 
address the risks associated with lead in toy jewelry at this time. The 
use of section 6(b) would be most beneficial when the Agency can 
identify a small number of companies who, by their unique actions, are 
causing unreasonable risks to be present. In the case at hand, EPA 
believes that this approach may be inadequate and inefficient. 
Information

[[Page 42641]]

contained in several of the public comments suggests that there may be 
numerous instances where toy jewelry containing lead is still available 
in the marketplace. EPA is working in coordination with CPSC to 
understand the scope of the problem. A holistic and proactive approach 
may be more effective and less resource intensive than the case-by-case 
approach provided for under section 6(b).
    Where the Administrator has a reasonable basis to conclude that a 
particular manufacturer or processor is manufacturing or processing a 
chemical substance or mixture in a manner which unintentionally causes 
the chemical substance or mixture to present an unreasonable risk, TSCA 
section 6(b)(1) allows the Administrator to require the manufacturer or 
processor to provide information regarding the relevant quality control 
procedures followed in the manufacturing or processing. If the 
Administrator then determines such procedures are inadequate, TSCA 
section 6(b)(2) allows the Administrator to require the manufacturer or 
processor to revise its procedures. EPA notes that only orders under 
section 6(b)(2) are subject to TSCA section 21. The request contained 
in this petition is for orders to remedy quality control procedures 
where necessary (section 6(b)(2)). However, EPA is not in a position to 
issue such orders at this time because it has not issued any section 
6(b)(1) orders that could provide the basis for section 6(b)(2) orders.
    The request that EPA identify and issue section 6(b) orders to all 
manufacturers and processors producing toy jewelry with greater than 
0.06% lead is therefore denied. However, EPA is not foreclosing the 
possibility of issuing section 6(b) orders in the future should it 
conclude that section 6(b) is an appropriate tool to address risks 
presented by particular manufacturers or processors.

B. Request to Require TSCA Section 8(d) Health and Safety Data 
Reporting for Lead and Lead Salts

    TSCA section 8(d) authorizes the Agency to promulgate rules 
requiring that manufacturers, processors, and distributors of chemical 
substances or mixtures submit lists and copies of such health and 
safety studies to the Administrator. While this could allow the Agency 
to require the submission of health and safety studies on lead and lead 
salts, the Agency does not believe that a section 8(d) rule would 
provide useful information, at this time.
    Extensive and detailed information on the toxicity of lead is 
already widely available. The Agency is already in possession of 
voluminous information on the health hazards of lead, and has 
undertaken numerous rulemakings and other actions based on this 
information. Along with the rest of the federal government and many 
other bodies, the Agency has concluded that lead can cause multiple 
adverse health effects, and has set a goal to eliminate lead poisoning 
as a major health concern in children by 2010. While the Agency is 
always open to the receipt of additional information on the health and 
safety of various substances, it believes that the health effects of 
lead are already well-known and accepted. Over the course of EPA's many 
rulemaking and policy development efforts to address lead risks to 
children, including numerous notice and comment proceedings, public 
meetings, and other fora for exchange of information, EPA believes that 
it has assessed the most critical existing lead health and safety 
studies that EPA and/or CPSC would find most valuable for regulatory 
purposes.
    While it is possible some new information could be obtained from a 
section 8(d) rule, EPA does not consider it likely that it would gain 
significant new information through a section 8(d) rule requiring the 
types of studies identified by the petitioner. In addition, it is not 
clear that EPA has authority to obtain under section 8(d) all of the 
information identified by the petitioner (e.g., information on 
marketing and patterns of use).
    For the reasons described above, EPA does not believe, at this 
time, that the requested section 8(d) rule would be helpful in 
assessing the risks to children from lead in toy jewelry and is, thus, 
denying this request. However, EPA is continuing to work with CPSC, and 
would consider doing a targeted section 8(d) rule should EPA conclude 
in the future that it has a need for specific information that could 
likely be obtained through this mechanism.

IV. Related Issues

    After receiving this petition, EPA published a notice in theFederal 
Register soliciting comments and further information on the issues 
associated with lead in toy jewelry (71 FR 30921, May 31, 2006) (FRL-
8069-3). EPA has carefully assessed this information, along with the 
information provided in the petition, and will continue to evaluate 
this information and conduct additional analyses to better understand 
the scope and severity of this issue.
    Despite EPA's reservations about the specific approaches requested 
in this petition, the Agency is concerned about the continuing use of 
lead in toy jewelry and is working with CPSC to develop the most 
effective means to address this issue. The two Agencies have met four 
times since receiving this petition and have established an interagency 
group to identify the most effective steps to move forward. In the 
short-term, EPA will work with CPSC to examine approaches to outreach 
to retailers.

V. Comments Received

    EPA received 10 comments in response to the Federal Register notice 
published May 31, 2006 (71 FR 30921), announcing EPA's receipt of this 
TSCA section 21 petition.
    Five comments were received from state and municipal governmental 
agencies (Chicago, Minnesota, Minneapolis/Hennepin County, New York 
State, and Illinois), all of which strongly supported the petition. 
Several of these comments included survey data and anecdotal 
information showing that toy jewelry containing lead is available and 
causes moderate to severe health effects. These comments stressed the 
need for Federal action to eliminate lead from toy jewelry. Several 
comments also stressed that Federal action is needed to eliminate lead 
from other consumer and children's products as well.
    Four comments were received from other sources (a private citizen, 
the Regulated Community Compliance Project of Boston University, the 
Coastal Health District, and Kids in Danger) which were also supportive 
of the petition, describing health risks to children from lead in toy 
jewelry. These comments did not include additional data, except that 
one (from Kids In Danger) included its 2004 report ``Playing With 
Poison: Lead Poisoning Hazards of Children's Products, 1990-2004''). 
These comments also urged federal action to eliminate lead in toy 
jewelry and in other products.
    One trade association (the Association of Battery Recyclers (ABR)) 
submitted comments. This commenter opposed the petition for the TSCA 
section 8(d) request, on the bases that the petitioner had not 
identified benefits to be derived from the use of section 8(d), had not 
demonstrated why EPA action is needed given CPSC programs, and was 
overly broad. The comment also opposed the TSCA section 9 request on 
the basis of being overly broad. This commenter had no comment on the 
requests for action under TSCA sections 5(a) and 6(b).
    EPA has considered these comments in responding to the petition.

List of Subjects

    Environmental protection, lead, children's health.


[[Page 42642]]


    Dated: July 20, 2006.
James B. Gilliford
Assistant Administrator, Office of Prevention, Pesticides and Toxic 
Substances.
[FR Doc. E6-12044 Filed 7-26-06; 8:45 am]

BILLING CODE 6560-50-S
