[Federal Register Volume 77, Number 187 (Wednesday, September 26, 2012)]
[Proposed Rules]
[Pages 59158-59162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23657]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[Dockets No. FWS-R9-MB-2012-0028 and FWS-R9-MB-2012-0038; FF09M21200-
123-FXMB1231099BPP0L2]
RINs 1018-AY61, 1018-AY66


Migratory Bird Hunting; Application for Approval of Copper-Clad 
Iron Shot and Fluoropolymer Shot Coatings as Nontoxic for Waterfowl 
Hunting

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessments.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, propose to approve 
copper-clad iron shot and fluoropolymer coatings for hunting waterfowl 
and coots. We published a notice of application for nontoxic shot 
approval for copper-clad iron shot in the Federal Register on June 20, 
2012 (77 FR 36980), and one for the fluoropolymer shot coatings on July 
6, 2012 (77 FR 39983). Having completed our review of the application 
materials for both, we have concluded that neither the shot nor the 
coatings are likely to adversely affect fish, wildlife, or their 
habitats.

DATES: Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on 
October 26, 2012. Comments submitted by mail must be postmarked no 
later than October 26, 2012.

ADDRESSES: Document Availability. You may view the application and our 
draft environmental assessments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for Docket No. FWS-R9-MB-2012-0028 for

[[Page 59159]]

copper-clad iron shot, or Docket No. FWS-R9-MB-2012-0038 for 
fluoropolymer shot coatings.
     Request a copy by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Written Comments: You may submit comments by either one of the 
following two methods:
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on either or both of 
the dockets.
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-R9-MB-2011-0060; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide.

FOR FURTHER INFORMATION CONTACT: Dr. George Allen, at 703-358-1825.

SUPPLEMENTARY INFORMATION:

Background

    The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-712 and 
16 U.S.C. 742 a-j) implements migratory bird treaties between the 
United States and Great Britain for Canada (1916 and 1996 as amended), 
Mexico (1936 and 1972 as amended), Japan (1972 and 1974 as amended), 
and Russia (then the Soviet Union 1978). These treaties protect most 
migratory bird species from take, except as permitted under the Act, 
which authorizes the Secretary of the Interior to regulate take of 
migratory birds in the United States. Under this authority, we control 
the hunting of migratory game birds through regulations in 50 CFR part 
20. We prohibit the use of shot types other than those listed in the 
Code of Federal Regulations (CFR) at 50 CFR 20.21(j) for hunting 
waterfowl and coots and any species that make up aggregate bag limits.
    Deposition of toxic shot and release of toxic shot components in 
waterfowl hunting locations are potentially harmful to many organisms. 
Research has shown that ingested spent lead shot causes significant 
mortality in migratory birds. Since the mid-1970s, we have sought to 
identify types of shot for waterfowl hunting that are not toxic to 
migratory birds or other wildlife when ingested. We have approved 
nontoxic shot types and added them to the migratory bird hunting 
regulations in 50 CFR 20.21(j). We continue to review all shot types 
submitted for approval as nontoxic.
    We addressed lead poisoning in waterfowl in an environmental impact 
statement (EIS) in 1976, and again in a 1986 supplemental EIS. The 1986 
document provided the scientific justification for a ban on the use of 
lead shot and the subsequent approval of steel shot for hunting 
waterfowl and coots that began that year, with a complete ban of lead 
for waterfowl and coot hunting in 1991. We have continued to consider 
other potential candidates for approval as nontoxic shot. We are 
obligated to review applications for approval of alternative shot types 
as nontoxic for hunting waterfowl and coots.
    Many hunters believe that some nontoxic shot types compare poorly 
to lead and may damage some shotgun barrels. A small and decreasing 
percentage of hunters have not complied with nontoxic shot regulations. 
Allowing use of additional nontoxic shot types may encourage greater 
hunter compliance and participation with nontoxic shot requirements and 
discourage the use of lead shot. The use of nontoxic shot for waterfowl 
hunting increased after the ban on lead shot (Anderson et al. 2000), 
but we believe that compliance would continue to increase with the 
availability and approval of other nontoxic shot types. Increased use 
of nontoxic shot will enhance protection of migratory waterfowl and 
their habitats. More important is that the U.S. Fish and Wildlife 
Service is obligated to consider all complete nontoxic shot 
submissions.

Applications

    Environ-Metal, Inc., of Sweet Home, Oregon, seeks approval of 
copper-clad iron shot as nontoxic. We evaluated the impact of approval 
of this shot type in a draft environmental assessment, which we are 
making available for public review (see ADDRESSES). The iron core of 
the shot has long been approved, so our concern with this shot is the 
copper cladding on the iron core. The data from Environ-Metal indicate 
that the copper will not be toxic when ingested by waterfowl, and 
should not pose a significant danger to migratory birds, other 
wildlife, or their habitats. We conclude that the shot should not be of 
concern if deposited in the environment or if ingested by waterfowl or 
predators.
    Spectra Shot, LLC, of Lafayette, Louisiana, seeks approval of 
fluoropolymer coatings as evaluated in a draft environmental 
assessment, which we are making available for public review (see 
ADDRESSES). Information from Spectra Shot indicates that the 
fluoropolymer coatings will be nontoxic when ingested by waterfowl, and 
should not pose a significant danger to migratory birds, other 
wildlife, or their habitats. We conclude that the information raises no 
particular concerns about deposition in the environment or about 
ingestion by waterfowl or predators.
    We have reviewed the shot and the shot coatings under the criteria 
in Tier 1 of the revised nontoxic shot approval procedures at 50 CFR 
20.134 for permanent approval of shot and coatings as nontoxic for 
hunting waterfowl and coots. We propose to amend 50 CFR 20.21(j) to add 
the shot and the coatings to the list of those approved for waterfowl 
and coot hunting. Details on the evaluations of the shot and the 
coatings can be found in the draft environmental assessments.

Copper-Clad Iron Shot

    Copper-clad iron shot is a composite in which copper is thermo-
mechanically bonded to centerless-ground steel rod, then mechanically 
worked to final wire and shot configurations. Copper-clad iron shot may 
be produced with a variety of different proportions of copper and iron, 
ranging from 16 to 44.41% by weight copper, with a density of 
approximately 8.3 grams per cubic centimeter. Environ-Metal asserts 
that ``there is little variability in composition to be expected'' in 
production of the shot. Environ-Metal expects to produce about 50,000 
pounds of copper-clad iron shot per year.

Fluoropolymer Coatings

    Spectra Shot is cut wire shotgun shot (steel shot) with a 
proprietary shot coating. Four different colors of the coated shot will 
be marketed as Spectra ShotTM Blue, Spectra 
ShotTM Green, Spectra ShotTM Orange, and Spectra 
ShotTM Yellow. The thickness of the coating will be 3 to 10 
microns, with a corresponding weight per shot as follows: Spectra 
ShotTM Blue--0.209 milligram per shot; Spectra 
ShotTM Green--0.732 milligram per shot; Spectra 
ShotTM Orange--0.942 milligram per shot; and Spectra 
ShotTM Yellow--1.779 milligrams per shot. Spectra Shot 
expects annual use of the coated shot in hunting migratory birds in the 
United States to be 98,000 pounds.
    Polyamide-imide copolymer, polytetrafluoroethylene, amorphous fumed 
silica, and methylphenyl polysiloxane are common to all Spectra 
ShotTM colors and make up the bulk of the coating. The 
pigments vary between coatings, and comprise 13.8% to 20.5% by weight 
of the dry film.

[[Page 59160]]

Effects of the Approval on Migratory Waterfowl

    Allowing use of additional nontoxic shot types may encourage 
greater hunter compliance and participation with nontoxic shot 
requirements and discourage the use of lead shot. Furnishing additional 
approved nontoxic shot types and nontoxic coatings likely would further 
reduce the use of lead shot. Thus, approving additional nontoxic shot 
types and coatings would likely result in a minor positive long-term 
impact on waterfowl and wetland habitats.

Effects on Endangered and Threatened Species

    The impact on endangered and threatened species of approval of 
copper-clad iron shot and fluoropolymer coatings alloys would be very 
small, but positive. Copper-clad iron shot and fluoropolymer coatings 
are highly unlikely to adversely affect animals that consume the shot 
or habitats in which the shot might be used. We see no potential 
effects on threatened or endangered species due to approval of the shot 
type or the coatings.
    We obtained a biological opinion pursuant to section 7 of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), 
prior to establishing the seasonal hunting regulations. The hunting 
regulations promulgated as a result of this consultation remove and 
alleviate chances of conflict between migratory bird hunting and 
endangered and threatened species.

Effects on Ecosystems

    Previously approved shot types have been shown in test results to 
be nontoxic to the migratory bird resource, and we believe that they 
cause no adverse impact on ecosystems. There is concern, however, about 
noncompliance with the prohibition on lead shot and potential ecosystem 
effects. The use of lead shot has a negative impact on wetland 
ecosystems due to the erosion of shot, causing sediment/soil and water 
contamination and the direct ingestion of shot by aquatic and predatory 
animals. Though we believe noncompliance is of concern, approval of the 
shot type and the coatings would have little impact on the resource, 
unless it has the small positive impact of reducing the rate of 
noncompliance.

Cumulative Impacts

    We foresee no negative cumulative impacts if we approve the shot 
type and the coatings for waterfowl hunting. Their approval could help 
to further reduce the negative impacts of the use of lead shot for 
hunting waterfowl and coots. We believe the impacts of the approvals 
for waterfowl hunting in the United States should be positive.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small entities (i.e., 
small businesses, small organizations, and small government 
jurisdictions).
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act, and have determined that this action would not have a 
significant economic impact on a substantial number of small entities. 
The rule would allow small entities to improve their economic 
viability. However, the rule would not have a significant economic 
impact because it would affect only two companies. We certify that 
because this rule would not have a significant economic effect on a 
substantial number of small entities, a regulatory flexibility analysis 
is not required.
    This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)).
    a. This rule would not have an annual effect on the economy of $100 
million or more.
    b. This rule would not cause a major increase in costs or prices 
for consumers; individual industries; Federal, State, Tribal, or local 
government agencies; or geographic regions.
    c. This rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule would not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. Actions 
under the regulation would not affect small government activities in 
any significant way.
    b. This rule would not produce a Federal mandate of $100 million or 
greater in any year. It would not be a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with E.O. 12630, this rule does not have significant 
takings implications. A takings implication assessment is not required. 
This rule does not contain a provision for taking of private property.

Federalism

    This rule does not have sufficient Federalism effects to warrant 
preparation of a federalism summary impact assessment under E.O. 13132. 
It would not interfere with the ability of States to manage themselves 
or their funds.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that this rule does not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

    This proposed rule does not contain any new collections of 
information that require approval by the Office of

[[Page 59161]]

Management and Budget (OMB) under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.). An agency may not conduct or sponsor and a person 
is not required to respond to a collection of information unless it 
displays a currently valid OMB control number. OMB has approved our 
collection of information associated with applications for approval of 
nontoxic shot (50 CFR 20.134) and assigned OMB Control Number 1018-
0067, which expires May 31, 2015.

National Environmental Policy Act

    Our draft environmental assessment is part of the administrative 
record for this proposed regulations change. In accordance with the 
National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq. and 
Part 516 of the U.S. Department of the Interior Manual (516 DM), 
approval of copper-clad iron shot and fluoropolymer coatings would not 
have a significant effect on the quality of the human environment, nor 
would it involve unresolved conflicts concerning alternative uses of 
available resources. Therefore, preparation of an environmental impact 
statement (EIS) is not required.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have 
evaluated potential effects on federally recognized Indian Tribes and 
have determined that there are no potential effects. This rule would 
not interfere with the ability of Tribes to manage themselves or their 
funds or to regulate migratory bird activities on Tribal lands.

Energy Supply, Distribution, or Use (E.O. 13211)

    On May 18, 2001, the President issued E.O. 13211 addressing 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This rule change would not be 
a significant regulatory action under E.O. 12866, nor would it 
significantly affect energy supplies, distribution, or use. This action 
would not be a significant energy action, and no Statement of Energy 
Effects is required.

Compliance With Endangered Species Act Requirements

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this chapter'' (16 
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure 
that any action authorized, funded, or carried out * * * is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). We have concluded that 
the regulation change would not affect listed species.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, please send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    For the reasons discussed in the preamble, we propose to amend part 
20, subchapter B, chapter I of title 50 of the Code of Federal 
Regulations as follows:

PART 20--[AMENDED]

    1. The authority citation for part 20 continues to read as follows:

    Authority: Migratory Bird Treaty Act, 40 Stat. 755, 16 U.S.C. 
703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Pub. L. 
106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

    2. Amend Sec.  20.21(j)(1) by revising the table and footnotes to 
read as follows.


Sec.  20.21  What hunting methods are illegal?

* * * * *
    (j)(1) * * *

----------------------------------------------------------------------------------------------------------------
                                        Percent composition by
        Approved shot type *                    weight                        Field testing device **
----------------------------------------------------------------------------------------------------------------
Bismuth-tin........................  97 bismuth, and 3 tin......  Hot Shot[supreg] ***.
Iron (steel).......................  iron and carbon............  Magnet or Hot Shot[supreg].
Iron-tungsten......................  any proportion of tungsten,  Magnet or Hot Shot[supreg].
                                      and >=1 iron.
Iron-tungsten-nickel...............  >=1 iron, any proportion of  Magnet or Hot Shot[supreg].
                                      tungsten, and up to 40
                                      nickel.
Copper-clad iron...................  84 to 56.59 iron core, with  Magnet or Hot Shot \7\.
                                      copper cladding up to 44.1
                                      of the shot mass.
Tungsten-bronze....................  51.1 tungsten, 44.4 copper,  Rare Earth Magnet.
                                      3.9 tin, and 0.6 iron, or
                                      60 tungsten, 35.1 copper,
                                      3.9 tin, and 1 iron.
Tungsten-iron-copper-nickel........  40-76 tungsten, 10-37 iron,  Hot Shot[supreg] or Rare Earth Magnet.
                                      9-16 copper, and 5-7
                                      nickel.
Tungsten-matrix....................  95.9 tungsten, 4.1 polymer.  Hot Shot[supreg].
Tungsten-polymer...................  95.5 tungsten, 4.5 Nylon 6   Hot Shot[supreg].
                                      or 11.
Tungsten-tin-iron..................  any proportions of tungsten  Magnet or Hot Shot[supreg].
                                      and tin, and >=1 iron.
Tungsten-tin-bismuth...............  any proportions of           Rare Earth Magnet.
                                      tungsten, tin, and bismuth.
Tungsten-tin-iron-nickel...........  65 tungsten, 21.8 tin, 10.4  Magnet.
                                      iron, and 2.8 nickel.
Tungsten-iron-polymer..............  41.5-95.2 tungsten, 1.5-     Rare Earth Magnet or Hot Shot[supreg].
                                      52.0 iron, and 3.5-8.0
                                      fluoropolymer.
----------------------------------------------------------------------------------------------------------------
* Coatings of copper, nickel, tin, zinc, zinc chloride, zinc chrome, and fluoropolymers on approved nontoxic
  shot types also are approved.
** The information in the ``Field Testing Device'' column is strictly informational, not regulatory.
*** The ``HOT*SHOT'' field testing device is from Stream Systems of Concord, CA.


[[Page 59162]]

* * * * *

    Dated: September 12, 2012.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2012-23657 Filed 9-25-12; 8:45 am]
BILLING CODE 4310-55-P