In August 27, 2010 the Environment Protection Agency (EPA) denied a petition filed by the Center for Biological Diversity (CBD) and others calling for a ban on the production and distribution of lead hunting ammunition. EPA sent a letter to the petitioners explaining the rejection – that letter can be found at http://www.epa/gov/oppt/chemtest/pubs/sect21.html.
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 (TSCA) – 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 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 Toxic Substances Control Act (TSCA) has a provision that allows petitions by outside groups in which case the EPA must act within 90 days. Luckily, Congress has expressly exempted ammunition. That did not deter the CBD and others that tried to argue their way around the exemption. If successful, it could have banned all shot and bullets containing lead.
The initial petition is entitled Petition to the Environmental Protection Agency to Ban Lead Shot, Bullets, and Fishing Sinkers under the Toxic Substance Control Act. It can be viewed on the EPA’s website at http://www.abcbirds.org/conservationissues/threats/Final%20TSCA%20lead%20ban%20petition%208-3-10.pdf. The petitioners are the Center for Biological Diversity, American Bird Conservancy, Association of Avian Veterinarians, Project Gutpile and Public Employees for Environmental Responsibility (PEER). In press releases they claim 40 other organizations have since joined with them. The petition was dated August 3, 2010 and is 100 pages long. It asks the EPA to “ban the manufacture, processing and distribution in commerce of lead shot, bullets and fishing sinkers.” It points out that the EPA has already determined that lead is a “toxic substance and has removed nearly all products containing lead from the market.” The petitioners point out that the EPA has already banned leaded gasoline, paint, and has recently banned automobile wheel balancing weights that are to be phased out in 2011. It asks for a ban on the “use” of these products as well as their production and distribution. The request to ban lead fishing sinkers includes “jigs” and all “fishing gear containing lead.” This includes “lures, sinkers, lead core fishing line, downrigger cannonballs, weights, a variety of fishing traps and nets that employ the use of lead.” The final paragraph clarifies that the petition request includes lead in “all…fishing tackle,” not just sinkers.
The EPA has only 90 days to act on the petition under the law, which is November 1, 2010, but the comment cut-off is before that in September. Even though the CBD’s petition is very persuasive, the EPA’s early decision denying that part pertaining to lead ammunition, is jurisdictional. The Toxic Substances Control Act of 1994 has an express exception. Certain substances are excluded from the definition of “chemical substances” that are subject to regulation. Section 2602(B) excludes from regulation any article the sale of which is subject to Section 4181 of the Internal Revenue Code. That code section is the Pittman-Robertson Act excise tax on the manufacture of all firearms and cartridges.
This is a very serious matter for both anglers and hunters! The CBD has since issued a press release claiming that the “EPA claim that it lacks authority to regulate lead ammunition” is contrary to the Congressional intent expressed in the Congressional Record. The petitioners admit that the EPA “is specifically prohibited from regulating ammunition or firearms” under the Toxic Substances Control Act, but (importantly) claims that the exemption does not apply to toxic components of ammunition. Bullets, it claims, are only a component part of a cartridge. It points out that the bullets are not taxed apart from a full cartridge, so the EPA regulatory exemption that rests upon the excise tax is not applicable. The CBD has sent a FOIA request to the EPA requesting all of its decisional information. I would expect the CBD to file suit challenging the ammunition decision in November, if not sooner.
Regarding fishing gear, it is not clear what the greater cost of substitute fishing tackle components would be if lead fishing gear was banned. Perhaps more expensive alternatives would actually increase both hunting and fishing excise taxes, but likewise fewer sportsmen and women will be able to afford to participate. The tax rate is 12 percent.
