[Federal Register: August 9, 2004 (Volume 69, Number 152)]
[Rules and Regulations]               
[Page 48163-48165]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 48163]]



Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT32

Migratory Bird Hunting; Approval of Three Shot Types--Tungsten-
Bronze, Tungsten-Iron, and Tungsten-Tin-Bismuth--as Nontoxic for 
Hunting Waterfowl and Coots

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We (us or Fish and Wildlife Service) approve three shot types, 
Tungsten-Bronze [formulated of tungsten, bronze (copper and tin), and 
less than 1 percent iron], Tungsten-Iron (formulated of tungsten and 
iron), and Tungsten-Tin-Bismuth (formulated of tungsten, tin, and 
bismuth), as nontoxic for hunting waterfowl and coots. We assessed 
possible effects of all three shot types, and have determined that none 
of the types presents a significant toxicity threat to wildlife or 
their habitats. Therefore, further testing is not necessary for any of 
the types. An Environmental Assessment for each of the shot types is 
available from us.
    In our proposed rule we called tungsten-bronze shot tungsten-
bronze-iron (TBI) shot. However, we have concluded that it is more 
appropriate to call it tungsten-bronze shot because it contains less 
than 1 percent iron.

DATES: This rule takes effect on September 8, 2004.

ADDRESSES: Copies of the Final Environmental Assessments are available 
from the Chief of the Division of Migratory Bird Management, U.S. Fish 
and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-4107, 
Arlington, Virginia 22203-1610.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 
Migratory Bird Management, telephone 703-358-1714; John J. Kreilich, 
Jr., Wildlife Biologist, telephone 703-358-1928; or Dr. George T. 
Allen, Wildlife Biologist; telephone 703-358-1825; Division of 
Migratory Bird Management.



    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, Mexico, Japan, and Russia 
(then the Soviet Union). These treaties protect certain migratory birds 
from take, except as permitted under the Act. The Act authorizes the 
Secretary of the Interior to regulate take of migratory birds in the 
United States. Under this authority, the Fish and Wildlife Service 
controls the hunting of migratory game birds through regulations in 50 
CFR part 20.
    Deposition of shot and release of shot components in waterfowl 
hunting locations is potentially harmful to a variety of organisms. 
Research has shown that the effects of ingestion of spent lead shot 
causes significant mortality in migratory birds. Since the mid-1970s, 
we have sought to identify shot types that do not pose significant 
toxicity hazards to migratory birds or other wildlife. We first 
addressed the issue of lead poisoning in waterfowl in a 1976 
Environmental Impact Statement (EIS), and later readdressed the issue 
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, and set a ban on lead for waterfowl and coot hunting beginning in 
1991. Since then, we have sought to consider other potential nontoxic 
shot candidates; we believe that other nontoxic shot types should be 
made available for public use in hunting, and steel, bismuth-tin, 
tungsten-iron, tungsten-polymer, tungsten-matrix, tungsten-nickel-iron, 
and tungsten-tin-iron-nickel types are now approved as nontoxic (50 CFR 
20.21(j)). Compliance with the use of nontoxic shot for waterfowl 
hunting has increased over the last few years (Anderson et al. 2000). 
We believe that it will continue to increase as other nontoxic shot 
types are approved and available in growing numbers and possibly at 
lower cost.
    On March 15, 2004, we published a proposed rule to approve these 
three shot types in the Federal Register (69 FR 12105). The 
applications for the three shot types included information on chemical 
characterization, production variability, use, expected production 
volume, toxicological effects, environmental fate and transport, and 
evaluation, and the proposed rule included this information, a 
comprehensive evaluation of the likely effects of each shot, and an 
assessment of the affected environment.
    The Director of the U.S. Fish and Wildlife Service has concluded 
that the spent shot material will not pose a significant danger to 
migratory birds or other wildlife or their habitats, and therefore 
approves the use of Tungsten-Bronze (TB), Tungsten-Iron (TI), and 
Tungsten-Tin-Bismuth (TTB) as nontoxic for hunting waterfowl and coots. 
Our previously approved tungsten-iron shot, an alloy of approximately 
40 percent tungsten and 60 percent iron differs in composition from the 
22 percent tungsten and 78 percent iron shot approved in this rule.
    We received 22 comments in response to the proposed rule; 3 from 
state agencies and 19 from individuals. Most supported approval of all 
three shot types. However, as discussed below, several issues raised 
warranted further evaluation of our proposal.
    One individual suggested that the low percentage of iron in the TB 
shot was not sufficient to allow detection of the shot in the field. TB 
shot is slightly magnetic, and TB shotshells are only very slightly 
attracted to a typical magnet. We tested inert loaded shotshells 
containing TB shot with rare-earth magnets, which we determined are 
sufficient to identify the shotshells in the field.
    It was suggested by one commenter that the composition of TB shot 
should be confirmed and the reported section density should be 
confirmed. Analysis of the shot showed it to be 50.4 percent tungsten, 
44.1 percent copper, 4.7 percent tin, and 0.8 percent iron, compared to 
the 51.1 percent tungsten, 44.4 percent copper, 3.9 percent tin, and 
0.6 percent iron formulation submitted for approval as nontoxic. We 
conclude that the shot conforms with the formulation for which the 
submitter sought approval. The section density of the shot was 11.68 
grams per cubic centimeter (g/cc), compared to the reported 12.1 g/cc.
    One State agency commenter suggested that ``It is getting confusing 
for hunters with all the non-toxic shot types * * * that perform 
differently. Right now, the ballistic equivalent to 2 steel is 
3 bismuth, 4 Tungsten-iron, -matrix and -polymer, and 
5 Hevi-shot [sic]. We have no idea how these 3 new shot types 
compare to steel and would not know what to recommend to hunters for 
use on ducks or geese.'' This commenter noted that it will be difficult 
to regulate the new shot types until more is known about their density 
and performance. Further, the commenter suggested that manufacturers 
should ``be required to conduct lethality testing and publish their 
results before these shot types are legalized.''
    We agree that the increasing number of approved nontoxic shot types 
may be confusing. Nevertheless, we believe that it is in the best 
interest of waterfowl populations and the public to approve new shot 
types that we believe to be nontoxic. Information on sectional density 
of the shot types can be the

[[Page 48164]]

basis for simple comparisons of their likely effectiveness. We will try 
to make information available on the different types of approved 
nontoxic shot. However, lethality testing is not required by the 
regulations governing approval of nontoxic shot for waterfowl hunting, 
and it is a function of shot type, velocity, pellet buffering, and 
perhaps other factors that can be readily varied in different shotshell 
loadings. We do not believe we can effectively address lethality in 
nontoxic shot approvals.

Cumulative Impacts

    We foresee no negative cumulative impacts of approval of the three 
shot types for waterfowl hunting. Approval of an additional nontoxic 
shot type should help to further reduce the negative impacts of the use 
of lead shot for hunting waterfowl and coots. We believe the impacts of 
approval of the three shot types for waterfowl hunting should be 
positive both in the United States and elsewhere. Approval of 
additional nontoxic shot types should help to further reduce lead 
poisoning of waterfowl that migrate south of the United States for the 
winter and of animals that prey on them or consume their carcasses.

NEPA Consideration

    In compliance with the requirements of section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)) and the 
Council on Environmental Quality's regulation for implementing NEPA (40 
CFR 1500-1508), we have complied with NEPA by completing draft and 
final Environmental Assessments and a Finding of No Significant Impact 
for each of the shot types. These documents are available to the public 
at the location indicated in the ADDRESSES section.

Endangered Species Act Considerations

    Section 7 of the Endangered Species Act (ESA) of 1972, as amended 
(16 U.S.C. 1531 et seq.), provides that Federal agencies shall ``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.'' We completed a Section 7 consultation under 
the ESA for each shot covered by this rule. Approval of these shot 
types is not likely to adversely affect threatened or endangered 
species. The results of our ESA consultations are available at the 
location indicated in the ADDRESSES section.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires the preparation of flexibility analyses for rules that will 
have a significant effect on a substantial number of small entities, 
which include small businesses, organizations, or governmental 
jurisdictions. This rule is to add the three additional types of 
nontoxic shot that may be sold and used to hunt migratory birds to the 
list of those that are already approved. We have determined, however, 
that this rule will not affect small entities because the approved 
shots merely will supplement nontoxic shot types already in commerce 
and available throughout the retail and wholesale distribution systems. 
We anticipate no dislocation or other local effects, with regard to 
hunters and others. This rule was not subject to Office of Management 
and Budget (OMB) review under Executive Order 12866.

Small Business Regulatory Enforcement Fairness Act

    Similarly, this is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rule does not 
impose an unfunded mandate of more than $100 million per year or have a 
significant or unique effect on State, local, or tribal governments or 
the private sector because it is the Service's responsibility to 
regulate the take of migratory birds in the United States.

Executive Order 12866

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action subject to Office of Management 
and Budget (OMB) review under Executive Order 12866. OMB makes the 
final determination under E.O. 12866. This rule will not have an annual 
economic effect of $100 million or adversely affect any economic 
sector, productivity, competition, jobs, the environment, or other 
units of government. Therefore, a cost-benefit economic analysis is not 
required. This action will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency. The action is consistent with the policies 
and guidelines of other Department of the Interior bureaus. This action 
will not materially affect entitlements, grants, user fees, loan 
programs, or the rights and obligations of their recipients because it 
has no mechanism to do so. This action will not raise novel legal or 
policy issues because the Service has already approved several other 
nontoxic shot types.
    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We received no comments suggesting 
improvements to this rule.

Paperwork Reduction Act

    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. The information collection 
associated with this rule (see 50 CFR 20.134) is already approved under 
OMB control number 1018-0067, which expires December 31, 2006.

Unfunded Mandates Reform

    We have determined and certify pursuant to the Unfunded Mandates 
Reform Act, 2 U.S.C. 1502, et seq., that this rulemaking will not 
impose a cost of $100 million or more in any given year on local or 
State government or private entities.

Civil Justice Reform--Executive Order 12988

    We have determined that this rule meets the applicable standards 
provided in Sections 3(a) and 3(b)(2) of Executive Order 12988.

Takings Implication Assessment

    In accordance with Executive Order 12630, this rule, authorized by 
the Migratory Bird Treaty Act, does not have significant takings 
implications and does not affect any constitutionally-protected 
property rights. This rule will not result in the physical occupancy of 
property, the physical invasion of property, or the regulatory taking 
of any property. In fact, this rule will allow hunters to exercise 
privileges that would be otherwise unavailable, and therefore will 
reduce restrictions on the use of private and public property.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the Migratory Bird Treaty Act. This rule does not have a substantial 
direct effect on fiscal capacity, change the roles or responsibilities 
of Federal or State governments, or intrude on State policy or 
administration. Therefore, in accordance with Executive Order 13132, 
this regulation does not have significant federalism effects and does 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment.

[[Page 48165]]

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) and 512 DM 2, we have determined that this 
rule has no effects on Federally recognized Indian tribes.

Energy Effects

    In accordance with Executive Order 13211, this rule, authorized by 
the Migratory Bird Treaty Act, does not significantly affect energy 
supply, distribution, and use. This rule is not a significant energy 
action and no Statement of Energy Effects is required.

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 hereby amend part 20, 
subchapter B, chapter I of Title 50 of the Code of Federal Regulations 
as follows:


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

    Authority: 16 U.S.C. 703-712; 16 U.S.C. 742 a-j; Pub. L. 106-

2. Section 20.21 is amended by revising paragraph (j) to read as 

Sec.  20.21  What hunting methods are illegal?

* * * * *
    (j)(1) While possessing loose shot for muzzleloading or shotshells 
containing other than the following approved shot types.

           Approved shot type             Percent composition by weight
bismuth-tin............................  97 bismuth, 3 tin.
steel..................................  iron and carbon.
tungsten-bronze........................  51.1 tungsten, 44.4 copper, 3.9
                                          tin, 0.6 iron.
tungsten-iron (2 types)................  40 tungsten, 60 iron and 22
                                          tungsten, 78 iron.
tungsten-matrix........................  95.9 tungsten, 4.1 polymer.
tungsten-nickel-iron...................  50 tungsten, 35 nickel, 15
tungsten-polymer.......................  95.5 tungsten, 4.5 Nylon 6 or
tungsten-tin-bismuth...................  49-71 tungsten, 29-51 tin; 0.5-
                                          6.5 bismuth.
tungsten-tin-iron-nickel...............  65 tungsten, 21.8 tin, 10.4
                                          iron, 2.8 nickel.

    (2) Each approved shot type must contain less than 1 percent 
residual lead (see Sec.  20.134).
    (3) This shot type restriction applies to the taking of ducks, 
geese (including brant), swans, coots (Fulica americana), and any other 
species that make up aggregate bag limits with these migratory game 
birds during concurrent seasons in areas described in Sec.  20.108 as 
nontoxic shot zones.

    Dated: July 26, 2004.
David P. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-18073 Filed 8-6-04; 8:45 am]