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EPA denies petition calling for lead ammunition ban

Bullets2

The U.S. Environmental Protection Agency Friday denied a petition calling for a ban on the production and distribution of lead hunting ammunition. EPA sent a letter to the petitioners explaining the rejection.

Steve Owens, EPA assistant administrator for the Office of Chemical Safety and Pollution Prevention, issued the following statement on the agency’s decision:

EPA today denied a petition submitted by several outside groups for the agency to implement a ban on the production and distribution of lead hunting ammunition. EPA reached this decision because the agency does not have the legal authority to regulate this type of product under the Toxic Substances Control Act -- nor is the agency seeking such authority.

This petition, which was submitted to EPA at the beginning of this month, is one of hundreds of petitions submitted to EPA by outside groups each year. This petition was filed under TSCA, which requires the agency to review and respond within 90 days.

EPA is taking action on many fronts to address major sources of lead in our society, such as eliminating childhood exposures to lead; however, EPA was not and is not considering taking action on whether the lead content in hunting ammunition poses an undue threat to wildlife. 

As there are no similar jurisdictional issues relating to the agency's authority over fishing sinkers, EPA – as required by law – will continue formally reviewing a second part [of] the petition related to lead fishing sinkers.

Those wishing to comment specifically on the fishing tackle issue can do so by visiting http://www.regulations.gov. EPA will consider comments that are submitted by September 15.

The denial is in response to a petition filed Aug. 3 by several environmental groups, including the Center for Biological Diversity, the American Bird Conservancy and the Assn. of Avian Veterinarians, seeking to ban the use of lead in ammunition and fishing tackle. The petition claimed that traditional bullets used by hunters are inconsistent with the Toxic Substance Control Act and that such ammo poses a danger to wildlife, in particular raptors, that may feed on unrecovered game in the field.

-- Kelly Burgess
twitter.com/latimesoutposts

Photo: Handgun ammunition of various calibers. Credit: Judi Bottoni / Associated Press

 
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Comments (11)

wow Robin.... whatever you are smoking, it must be very good. So, please tell me if I have this correct. Continuing to allow law-abiding citizens to hunt for sport and sometimes much needed food is causing "mankinds destruction"? Would you care to elaborate on that so that we may all be enlightened as well?

Just Another step for mankind in bringing
everything closer to a tragic end.
You are forever taking life forgranted.
The timer is very visable and ticking
your children will never forgive you!
We have only planet that allows us to live
and breath and you grown adults play it like a game.
And in time ...you will see without a doubt! there will be no chance to change any bad decisions you made.
For 51 yrs I have watched mankinds destruction and it hasmade me to believe there is a thing called evil. And it is winning,for now.
stupid is as stupid does.
Robin Davidson Washington State

August 23, 2010

Lisa P. Jackson
Administrator
Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Dear Administrator Jackson:

The National Shooting Sports Foundation (“NSSF”) is the trade association for the firearm, ammunition, hunting, and shooting sports industry. We respectfully write to urge you to deny the petition submitted by the Center for Biological Diversity and others to ban traditional ammunition made with lead components under the Toxic Substances and Control Act (“TSCA”). TSCA simply does not allow the Environmental Protection Agency (“EPA”) to regulate ammunition of any kind or in the manner proposed by the Petitioners, and EPA should promptly deny this petition.

NSSF and our association of shooting ranges are proud of our cooperative relationship with EPA on the voluntary Shooting Range Certification Program that encourages ranges and gun clubs to operate in an environmentally responsible manner by implementing an Environmental Stewardship Plan (“ESP”). We commend you for the important role you played in developing this joint EPA-NSSF program while working with EPA Region 2. We remain committed to continuing and strengthening our relationship with EPA on the Shooting Range Certification Program as one way of achieving our shared goals.

TSCA expressly excludes from the definition of “chemical substance” subject to regulation under TSCA, any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1954 (determined without regard to any exemptions from such tax provided by sections 4181 or 4221 or any other provision of such Code). 15 U.S.C. § 2602(2) (B)(v). There is no debate that “shells and cartridges” are subject to taxes imposed pursuant to section 4181 of the Internal Revenue Code. Thus, “shells and cartridges” are not “chemical substances” subject to Section 6 of TSCA.

Petitioners acknowledge this exemption, but claim that because “lead shot and bullets are not subject to this tax,” EPA may regulate them under TSCA. In essence, while Petitioners concede that “shells and cartridges” are exempt from TSCA, they nonetheless would have EPA regulate these identical items under TSCA by illegally creating a loophole dependent on the component parts of “shells and cartridges.” This would effectively read out of the statute Congress’s clear direction that TSCA was not intended to regulate ammunition, since ammunition is simply the sum total of its components.
When TSCA was enacted in 1976, essentially the only substance available at that time to manufacture shot and bullets was lead. This indicates that Congress’s intent in exempting shells and cartridges from TSCA regulation was also to exempt their lead-containing component parts. Any other interpretation would stand the exemption on its head and impute an absurd intention to Congress. Congress would not have exempted shells and cartridges from TSCA regulation only to effectively undo the exemption by allowing EPA to use TSCA to ban or regulate their indispensible component parts. By claiming they “have waited until nontoxic alternatives have become available to submit this petition” Petitioners concede this point -- alternatives to traditional ammunition containing lead components were not available in 1976. It is worth noting that the timing of the petition can have no bearing on Congressional intent.

Petitioners cite no legal authority to support their claim that Congress intended to authorize EPA to use TSCA to regulate or ban the component parts of ammunition, but yet prohibited EPA using TSCA to regulate the final product itself. Petitioners can cite only to an IRS Revenue Ruling for the obvious proposition that the tax rates in 26 U.S.C. § 4181 should be applied to the sale price for the final manufactured product, rather than as cumulative, value-added taxes on each separate component. Petitioners claim that this ruling “has been confirmed by subsequent administrative decisions,” but further cite only to the “Fed. Tax Coordinator,” which is simply a legal treatise on various tax issues. It does not support Petitioners’ claim.

We note that adopting Petitioners’ statutory interpretation would impute a second absurd intention to Congress: lead-containing shells and cartridges could no longer be manufactured in the United States (because lead shot and bullets would have been banned); yet lead-containing shells and cartridges could still be imported from other countries for use in the United States because, as even the Petitioners conceded, shells and cartridges are not subject to TSCA. EPA’s guidance on TSCA’s import requirements confirms the conclusion that imported ammunition is not subject to TSCA. See, Introduction to the Chemical Import Requirements of the Toxic Substances Control Act at p. 2 (EPA, 1999). Therefore, EPA cannot ban the importation of lead-containing shells and cartridges, nor their use for hunting in the United States. Congress did not intend such a curious regulatory scheme.

Granting the petition would therefore not result in a ban on the use of lead ammunition because it would then be imported and used. Instead, granting the petition would only eliminate numerous jobs of people working in the manufacturing sector and ship these jobs to foreign countries. America’s firearm and ammunition industry contributed almost $28 billion to our nation’s economy, creating 183,000 well paying full time jobs, generating wages exceeding $8.2 billion and contributing almost $4 billion in state and federal taxes. In 2009, the sale of ammunition to hunters, target shooters and sportsmen contributed nearly $171 million dollars to wildlife conservation funding in the United States. We estimate that over 92% of that amount was from the sale of traditional ammunition made with lead components, less than 6% was from the sale of alternative shot shells and only 2% from the sale of metallic (non-shot shell) ammunition.

Finally, EPA’s own regulations and guidance show that the individual components of ammunition are not to be regulated under TSCA. For example, EPA has stated that “ammunition” is not subject to the pre-manufacture notification requirements of Section 5 of TSCA. 48 Fed. Reg. 21722, 21723 (May 13, 1983). Further, under 40 C.F.R. § 712, manufacturers have to report to EPA certain information on chemical substances. In the instructions to the Part 712 form (known as the “Manufacturer’s Report, Preliminary Assessment Information,” copy attached), EPA instructs manufacturers not to report “any quantity of chemical substance that is manufactured or processed solely for use as: . . . firearms or ammunition. . . . The above are not TSCA-regulable.” (See p. 4, emphasis added.) EPA goes on to explain that:

Some of the chemical substances are manufactured for both TSCA and non-TSCA regulable purposes. If a chemical from a given manufacturing stream is solely for a non-TSCA use, no reporting is required.
Id. EPA does not define “manufacturing stream” in Part 712, but does define it in the Part 721 rules broadly as “all reasonably anticipated transfer, flow, or disposal of a chemical substance, regardless of physical state or concentration, through all intended operations of manufacture, including the cleaning of equipment.” 40 C.F.R. § 721.3.

Given these provisions, it is clear that, in accordance with the exemption contained in the statute, EPA cannot use TSCA to regulate the individual components of ammunition. The use and processing of lead “solely for use” as ammunition (e.g., the manufacture of bullets or shot) is a “non-TSCA regulable” use.

We, of course, also strongly disagree with Petitioners’ other arguments and scientific claims, which they advance in support of their petition. However, our purpose in writing to you today is not to engage in a full rebuttal of the petition. Our purpose is simply to call to your attention the fact that Petitioners’ attempt to do away with the statutory exemption for shells and cartridges finds no support in the statute, regulations, or EPA’s guidance.

Accordingly, and with all due respect, EPA should promptly deny the petition because the Agency has no authority to regulate either the finished product—shells and cartridges—or their component parts—lead-containing shot and bullets. We are standing by to help EPA in any way in considering this petition. We would welcome the opportunity to discuss this with you further and to provide EPA with additional information, which might assist the Agency in considering the petition.

Sincerely,

Lawrence G. Keane

Sorry, I stand completely behind my assertions. Go to your local Raptor Rehab Center to look at eagles that have been lead poisoned, especially in the fall. Or go online and see the videos. Bald Eagles are increasing in spite of lead poisoning because of the work of conservationists. I am completely aware of the distinction between pellets and game ammo. And so are the peoplpe who have done the studies. Many birds scavage carcases and ingest lead from bullets. Apparently, you are not aware that the state of California has banned lead bullets in the vicinity of California Condors -- the reason, lead bullets from shot game are killing them as well as eagles and others. Arizona has a voluntary ban on lead bullets in Condor areas but many hunters ignore the ban and the birds still die from lead poisoning. The studies are real and they are accurate. The data on waterfowl hunters is accurate -- from the U.S. Fish and Wildlife Service. And if you don't believe that, then go ask the folks at Ducks Unlimited. They'll tell you the same thing. Waterfowl hunting numbers are up 30% since lead shot was banned 20 years ago.

Bob Johns

If lead is poisoning Bald eagles,why has the population grown over 700% since the population started to recover.
IN fact the Eagles recovered so well,that they were REMOVED from the endangered species list in 2007. Your statement that birds are poisoned by lead bullets is an
outright lie,maybe by lead shot,not by lead bullets,which are used for big game hunting.
Your statement about the number of waterfowl hunters increasing is not true either.The numbers have decreased in the past few years. So your data is either incomplete,or inaccurate.Maybe your data should come from sources other than extreme environmental groups.
Lead from high power rifle ammunition poses zero risk to humans,or to wildlife.
Lead shot, on the other hand,may need further study,and IF it is found that CURRENT lead shot used by hunters is having an ill effect on wildlife,then a ban on all lead shot would be reasonable.
Using studies from the 80's,or even early to mid 90's does not provide accurate results.
Did you ever stop to think that maybe lead shot from years ago could be a problem? Or that poachers,and others who are breaking the law by shooting non-game species are the cause of some of the lead shot in the environment?

There are exactly ZERO studies that document poisoning of wildlife from lead BULLETS,NONE,NOT A SINGLE ONE!!!

Your entire post is ludicrous,and based on false claims.
From the first sentence where you say that there are almost 500 studies that document "massive wildlife poisonings from lead bullets -- tens of millions of birds." NOT ONE of the studies documents that ANY birds are harmed from lead hunting bullets.
You need to learn that there is a huge difference between lead bullets,and lead shot. Otherwise,you are spreading misinformation,and generally using obfuscation as a tactic
to convince those who do not know the difference that you are correct,when you are far from it.
And people wonder why hunters do not usually agree with environmentalists,maybe it is because of the lies,half truths,and obsfucation used by the enviros?

Here are some facts: there are almost 500 studies that document massive wildlife poisonings from lead bullets -- tens of millions of birds. Most of the studies are peer reviewed. That means that they are scientifically valid -- using proper study techniques and methodologies. If you want to see them, simply do a search. The gun lobby has said that none of those studies show species are threatened with extinction because of the poisoning. They don't deny that it is happening, they just say it is not on a large enough scale. We think the threshold for taking action needs to be more than "Is the species in danger of going extinct." That is ludicrous. Do a search on bald eagle lead poisoning. Look at the videos and see the white tails turn green as the bird's vital organs shut down and the bird just lays down dead. In the 20 years since lead shot was banned for waterfowl hunting, we have seen waterfowl hunting increase about 30 percent so don't tell me that game hunting would disappear -- the data says otherwise.

@Nate, that information is old. 1981 to be exact. Since then all waterfowlers are required to use steel shot. As of now it's upland game birds that are an issue. I could see implementing steel shot in Shotgun shells, but not in rifle/pistol bullets. Bird shot poses more of an issue than single round bullets.

Nathan Collins,

Here is the "testing" you asked for.

Toxic effects of lead and lead compounds on human health, aquatic life, wildlife plants, and livestock - http://www.informaworld.com/smpp/content~db=all~content=a907539031

Bioaccumulation of Lead in Wildlife Dependent on the Contaminated Environment of the Kafue Flats - http://www.springerlink.com/content/k2550x2dm0hb8vva/

Experimental lead-shot poisoning in bald eagles - http://www.jstor.org/pss/3808728

An ecological risk assessment of lead shot exposure in non-waterfowl avian species: Upland game birds and raptors - http://onlinelibrary.wiley.com/doi/10.1002/etc.5620150103/abstract

That's just a small portion. Feel free to do a Google scholar search on "lead + wildlife" if you need more, There are pages and pages of "testing".

Honestly though, do you really think that if people were suddenly required to use steel shot instead of lead shot they'd be out robbing, stealing, and killing? If so, it sounds like you've got bigger problems than access to lead ammunition.

Glad to hear that the EPA denied their request to ban lead ammunition. Its not just a bad idea to attack hunters and sport shooters in this manner but it would create a black market for lead so instead of it being regulated and monitored to avoid unnecessary exposure to lead it would make any body with lead to sell distrubute it freely. But gun owners are the most law abiding people you will ever meet in spite of what you hear on the news.

curious-it's still on their website
(8:00PM CT-8/27/10) wanting comments including "ammunition" @ http://www.regulations.gov/search/Regs/home.html#docketDetail?R=EPA-HQ-OPPT-2010-0681

And their denial is done on the same day it receives publicity.

Whatever your Politics or Stance - how can this not bother you?

I would like to start off by saying that sometimes certain people just need to get a life. Really,what kinds of testing has been done by these groups that would lead them to the conclusion that lead bullets and sinkers are a major concern for our wildlife? What other cheap alternatives are there that are safe? Ultimately, people hunt and fish for fun and food; which is better than other things like robbing, stealing or killing. Which is another thing, if lead is taken out of bullets and whatever replaces it is expensive then what are people supposed to do to protect themselves from the robbers, thieves and killers.


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