[Federal Register Volume 82, Number 213 (Monday, November 6, 2017)]
[Rules and Regulations]
[Pages 51358-51362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24117]


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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: Final rule.

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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) approves 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: This rule is effective on November 6, 2017.

ADDRESSES: You can view the final 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.

FOR FURTHER INFORMATION CONTACT: Ron Kokel, Division of Migratory Bird 
Management, at 703-358-1967; [email protected].

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

[[Page 51359]]

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 title 50 of the Code of Federal Regulations 
(CFR) in part 20. We prohibit the use of shot types other than those 
listed 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. Following a process 
set forth at 50 CFR 20.134, we review applications for approval of 
nontoxic shot types and coatings and add those that we approve to the 
migratory bird hunting regulations at 50 CFR 20.21(j).
    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 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 an environmental assessment (see 
ADDRESSES, above, for information on viewing a copy of the 
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 conclude 
that this type of shot if left in the aquatic or terrestrial 
environments 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 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 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 that 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 
exposure to direct sunlight, a condition which would essentially render 
the shotshell useless.''

[[Page 51360]]

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 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 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 conclude the impacts of the approval for waterfowl hunting in 
the United States should be positive.

Review of Public Comments

    On August 15, 2017, we published in the Federal Register (82 FR 
38664) a proposed rulemaking to approve this group of alloys for 
hunting waterfowl and coots and to make available our draft 
environmental assessment. We accepted public comments on our proposed 
rule and draft environmental assessment for 30 days, ending September 
14, 2017. We received eight comments on the proposed rule. Several 
commenters simply expressed support for the inclusion of CIC shot in 
the list of approved nontoxic shot types and for providing hunters with 
another nontoxic shot option. More specific comments and responses are 
identified below:
    Comment: A commenter believed CIC shot would be better 
environmentally than lead shot but objected to hunting and the use of 
tax dollars to support hunting.
    Service Response: As we stated above, the Migratory Bird Treaty Act 
of 1918 (Act) implements migratory bird treaties between the United 
States and Great Britain for Canada, Mexico, Japan, and Russia. 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 regulate the hunting of migratory game birds through 
regulations at 50 CFR part 20. Furthermore, our long-term objectives 
continue to include providing opportunities to harvest portions of 
certain migratory game bird populations and to limit harvests to levels 
compatible with each population's ability to maintain healthy, viable 
numbers. We annually take into account the zones of temperature and the 
distribution, abundance, economic value, breeding habits, and times and 
lines of flight of migratory birds, before establishing hunting seasons 
that are compatible with the current status of migratory bird 
populations and long-term population goals.
    Comment: A commenter requested further information on whether 
hunters would use CIC shot based on market price and ballistic 
properties of the shot.
    Service Response: Our responsibility is to determine if the shot in 
question is safe for the environment. We conclude that it is safe. We 
have no control over the marketplace. The public will ultimately decide 
whether they support both the price and ballistic properties of CIC 
shot.
    Comment: A commenter had questions regarding the reliability of the 
proposed method for differentiating between CIC shot and illegal lead 
shot in the field.
    Service Response: As discussed above in Shot Coating and Test 
Device, the UV-fluorescent shot coating on CIC shot is encapsulated 
within two separate cylinders of polyethylene: the inner ``wad'' 
containing the shot and the outer ``hull.'' The proposed detection 
method is based on several separate and distinct layers of protection. 
For example, the unique shot coloration would be visibly evident 
through the translucent wad and hull assembly. Second, the inner wad 
cylinder would clearly be printed with the manufacturer and shot type. 
And, finally, and only in the event that the law enforcement officer 
still had reasons to be suspicious of counterfeiting, the officer could 
shine a simple long-wave UV light on the outside of the shotshell 
assembly to observe the very bright UV ``glow'' unique to CIC shot.
    Therefore, as stated in the proposed rule, we reviewed the subject 
shot under the criteria at 50 CFR 20.134, and we add this product to 
the list of those approved for hunting waterfowl and coots at 50 CFR 
20.21(j).

Effective Date of This Rule

    This rule is effective upon publication in the Federal Register. We 
have determined that any further delay in allowing this additional 
nontoxic shot would not be in the public interest, in that a delay 
would preclude hunters an additional nontoxic shot option. Allowing use 
of additional nontoxic shot types may encourage greater hunter 
compliance with nontoxic shot requirements and discourage the use of 
lead shot, which is harmful to the environment. Increased use of 
nontoxic shot will enhance protection of migratory waterfowl and their 
habitats. Furthermore, CIC shot is very similar to other nontoxic shot 
that is already available and in use. We provided a 30-day public 
comment period for the August 15, 2017, proposed rule. This rule 
relieves restrictions by newly approving CIC shot for hunting waterfowl 
and coots. We therefore find that ``good cause'' exists, within the 
terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, to 
make these regulations effective immediately upon publication.

[[Page 51361]]

List of References Cited

    A list of the references cited in this rule may be found at 
http://www.regulations.gov in Docket No. FWS-HQ-MB-2015-0073.

Required Determinations

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This 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 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 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 rule would 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 of 1995 (PRA)

    This 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 environmental assessment is part of the administrative record 
for this 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 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

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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 rule would not affect listed species.

List of Subjects in 50 CFR Part 20

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

Regulation Promulgation

    For the reasons discussed in the preamble, we 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 is revised to read as follows:

    Authority:  16 U.S.C. 703-712, and 16 U.S.C. 742a-j.


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


Sec.  20.21  What hunting methods are illegal?

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

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          Approved shot type *             Percent composition by weight          Field testing device **
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Corrosion-inhibited copper..............  >=99.9 copper with               Ultraviolet Light.
                                           benzotriazole and
                                           thermoplastic fluorescent
                                           powder coatings.
 
                                                  * * * * * * *
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* Coatings of copper, nickel, tin, zinc, zinc chloride, zinc chrome, fluoropolymers, and fluorescent
  thermoplastic on approved nontoxic shot types also are approved.
** The information in the ``Field Testing Device'' column is strictly informational, not regulatory.

* * * * *

    Dated: October 25, 2017.
Jason Larrabee,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-24117 Filed 11-3-17; 8:45 am]
 BILLING CODE 4333-15-P