[Federal Register Volume 82, Number 156 (Tuesday, August 15, 2017)]
[Proposed Rules]
[Pages 38664-38668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17175]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[Docket No. FWS-HQ-MB-2015-0073; FF09M21200-178-FXMB1231099BPP0]
RIN 1018-BB06


Migratory Bird Hunting; Approval of Corrosion-Inhibited Copper 
Shot as Nontoxic for Waterfowl Hunting

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessment.

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SUMMARY: Having completed our review of the application materials for 
corrosion-inhibited copper shot, the U.S. Fish and Wildlife Service 
(hereinafter Service or we) proposes to approve the shot for hunting 
waterfowl and coots. We have concluded that this type of shot left in 
terrestrial or aquatic environments is unlikely to adversely affect 
fish, wildlife, or their habitats. Approving this shot formulation 
would increase the nontoxic shot options for hunters.

DATES: Electronic comments on this proposal or on the draft 
environmental assessment via http://www.regulations.gov must be 
submitted by 11:59 p.m. Eastern time on September 14, 2017. Comments 
submitted by mail must be postmarked no later than September 14, 2017.

ADDRESSES: Document Availability. You may view the application and our 
draft environmental assessment by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for Docket No. FWS-HQ-MB-2015-0073.
     Request a copy by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Written Comments: You may submit comments on the proposed rule or 
the associated draft environmental assessment by either one of the 
following two methods:
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-HQ-
MB-2015-0073.
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-HQ-MB-2015-0073; Division of Policy, Performance, and 
Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg 
Pike, MS: BPHC, Falls Church, VA 22041-3803.
    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: Ron Kokel, Division of Migratory Bird 
Management, at 703-358-1967.

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

[[Page 38665]]

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 at 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 coatings and added them to the migratory bird 
hunting regulations at 50 CFR 20.21(j). We continue to review shot 
types and coatings submitted for approval as nontoxic following a 
process set forth at 50 CFR 20.134.
    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 nontoxic shot candidates for approval. 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 Service is obligated to 
consider all complete nontoxic shot applications submitted to us for 
approval.

Application

    Environ-Metal, Inc., of Sweet Home, Oregon, seeks approval of 
corrosion-inhibited copper shot as nontoxic. We evaluated the impact of 
approval of this shot type in a draft environmental assessment (see 
ADDRESSES, above, for information on viewing a copy of the draft 
environmental assessment). The data from Environ-Metal, Inc., indicate 
that the shot's coating will essentially eliminate copper exposure in 
the environment and to waterfowl if the shot is ingested. We believe 
that this type of shot will not pose a danger to migratory birds, other 
wildlife, or their habitats.
    We have reviewed the shot under the criteria in Tier 1 of the 
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 to the list 
of those approved for waterfowl and coot hunting. Details on the 
evaluations of the shot can be found in the draft environmental 
assessment.

Corrosion-Inhibited Copper Shot

    Corrosion-inhibited copper shot (CIC shot) consists of commercially 
pure copper that has been surface-treated with benzotriazole (BTA) to 
obtain insoluble, hydrophobic films of BTA-copper complexes (CDA 2009). 
These films are very stable; are highly protective against copper 
corrosion in both salt water and fresh water; and are used extensively 
to protect copper, even in potable water systems. Other high-volume 
applications include deicers for aircraft and dishwasher detergent 
additives, effluents of which may be directly introduced into municipal 
sewer systems, indicative of the exceptionally low environmental impact 
of BTA. ``The corrosion-inhibiting effectiveness of BTA-copper complex 
coating, based on actual testing conducted by the applicants and by 
others, is substantial.''

Shot Coating and Test Device

    CIC shot will have an additional coating that will fluoresce under 
ultraviolet light. The coating is applied by a proprietary process, and 
coats the shot so that the layers of coating are visible through the 
translucent shotshell. The coating is environmentally safe and is very 
long-lasting in the shotshells. The sole purpose of fluorescent-coating 
CIC shot is to provide a portable, non-invasive and affordable field 
detection method for use by law enforcement officers to identify this 
non-magnetic shot type as approved for waterfowl and coot hunting.
    ECO Pigments\TM\, manufactured exclusively by DayGlo, Inc. 
(Cleveland, OH), are thermoplastic fluorescent powders free of 
formaldehyde, heavy metals, azo compounds, perfluorooctanoic acid, 
aromatic amines, regulated phthalates, bisphenol A (BPA), polyaromatic 
hydrocarbons, substance of very high concern (SVHC) chemicals, and 
California Proposition 65 chemicals. The pigments were originally 
developed for use as brightly colored ``markers'' to be mixed with 
aerially applied, fire-retardant chemicals used in forest fire 
suppression, because they are more ``environmentally friendly'' than 
even the relatively inert iron-oxide powders formerly applied. They are 
globally approved for a wide variety of uses, including textile dyes, 
paints, and toys. Environ-Metal, Inc., anticipates applying coatings 
approximately 0.001-inch thick, a value which is calculated to add 
about 0.13 percent by weight to the mass of a #4-size copper shot.
    Environ-Metal, Inc., will apply the pigment to metallic shot using 
a proprietary process to create a thin, adherent coating of a tough, 
resilient, fluorescent substance. The coating is visually detectable 
through the wall of a shotshell when ultraviolet light is applied to 
the exterior of the shell. To further aid field detection, after 
application of the nontoxic ultraviolet (UV) pigment to CIC shot, the 
shot is loaded into an uncolored (``clear'') hull, with a unique inner 
shot wad printed with the manufacturer and shot material type.
    Law enforcement officers who have reason to suspect that a non-
magnetic shotshell may contain unapproved shot (e.g., toxic lead) need 
only shine the UV light on the side of the translucent shell, which 
will be marked by Environ-Metal, Inc., as containing copper, to 
determine the presence or absence of a visible glow emitted by the shot 
coating.
    Although the shot coating is inherently water-proof, it is further 
protected against environmental degradation by being sealed within two 
layers of polyethylene plastic--the wad and the hull or shell. Environ-
Metal, Inc., has stated that ``potential fading of the thermoplastic UV 
dye could not become significant until after both of the enveloping 
polyethylene cylinders had become embrittled/cracked by excessive

[[Page 38666]]

exposure to direct sunlight, a condition which would essentially render 
the shotshell useless.''

Positive Effects for Migratory Waterfowl Populations

    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.

Unlikely Effects on Endangered and Threatened Species

    The impact on endangered and threatened species of approving 
corrosion-inhibited copper shot would be very small, but positive. 
Corrosion-inhibited copper shot is highly unlikely to adversely affect 
animals that consume the shot or habitats in which it might be used. We 
see no potential significant negative effects on endangered or 
threatened species due to approval of the shot type.
    Further, we annually obtain 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 annual migratory bird hunting 
regulations. The migratory bird hunting regulations promulgated as a 
result of this annual consultation remove and alleviate chances of 
conflict between migratory bird hunting and endangered and threatened 
species.

Beneficial 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 would have little impact on the resource, except the small 
positive impact of reducing the rate of noncompliance.

Cumulative Impacts

    We foresee no negative cumulative impacts if we approve this shot 
type for waterfowl hunting. Its 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 approval for waterfowl hunting in 
the United States should be positive.

Public Comments

    You may submit information concerning this proposed rule or the 
draft environmental assessment by one of the methods listed in 
ADDRESSES. If you submit information via http://www.regulations.gov, 
your entire submission--including any personal identifying 
information--will be posted on the Web site. If your submission is made 
via a hardcopy that includes personal identifying information, you may 
request at the top of your document that we withhold this personal 
identifying information from public review. However, we cannot 
guarantee that we will be able to do so. We will post all hardcopy 
submissions on http://www.regulations.gov.
    Information and supporting documentation that we receive in 
response to this proposed rule will be available for you to review at 
http://www.regulations.gov, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Division of Migratory 
Bird Management, 5275 Leesburg Pike, Falls Church, VA.

Required Determinations

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is considered to be an Executive Order (E.O.) 
13771 deregulatory action (82 FR 9339, February 3, 2017) because it 
would approve an additional type of nontoxic shot in our regulations at 
50 CFR part 20.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that 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 proposed 
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.

[[Page 38667]]

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 proposed rule 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 proposed rule would not have 
significant takings implications. A takings implication assessment is 
not required. This proposed rule does not contain a provision for 
taking of private property.

Federalism

    This proposed 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 proposed 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 of 1995 (PRA)

    This proposed rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). 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 March 31, 2020. We may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

National Environmental Policy Act

    Our draft environmental assessment is part of the administrative 
record for this proposed rule. 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 
corrosion-inhibited copper 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 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)

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule 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 Act'' (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 
this proposed rule 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 ADDRESSES. 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.

Proposed Regulation Promulgation

    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--MIGRATORY BIRD HUNTING

0
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; Public Law 
106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

0
2. Amend Sec.  20.21 paragraph (j)(1) by:
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a. Adding a table entry for ``Corrosion-inhibited copper'', immediately 
following the entry for ``Copper-clad iron''; and
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b: Revising the first table note.
    The addition and revision read as follows:


Sec.  20.21  What hunting methods are illegal?

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

[[Page 38668]]



------------------------------------------------------------------------
                                Percent composition by    Field testing
     Approved shot type *               weight              device **
------------------------------------------------------------------------
 
                              * * * * * * *
Corrosion-inhibited copper....  >=99.9 copper with      Ultraviolet
                                 benzotriazole and       Light.
                                 thermoplastic
                                 fluorescent powder
                                 coatings.
 
                              * * * * * * *
------------------------------------------------------------------------
* Coatings of copper, nickel, tin, zinc, zinc chloride, zinc chrome,
  fluoropolymers, and fluorescent thermoplastic on approved nontoxic
  shot types also are approved.

* * * * *

    Dated: August 8, 2017.
Todd D. Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-17175 Filed 8-14-17; 8:45 am]
 BILLING CODE 4333-15-P