[Federal Register: October 20, 2009 (Volume 74, Number 201)]
[Rules and Regulations]
[Page 53665-53671]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc09-9]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[Docket No. FWS-R9-MB-2009-0003; 91200-1231-9BPP]
RIN 1018-AW46
Migratory Bird Hunting; Approval of Tungsten-Iron-Fluoropolymer
Shot Alloys as Nontoxic for Hunting Waterfowl and Coots; Availability
of Final Environmental Assessment
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; availability of final environmental assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service, approve tungsten-iron-
fluoropolymer shot alloys for hunting waterfowl and coots. Having
completed our review of the application materials, we have concluded
that these alloys are very unlikely to adversely affect fish, wildlife,
or their habitats. We therefore add this shot type to the list of those
approved for hunting waterfowl and coots.
DATES: This rule is effective on October 20, 2009.
ADDRESSES: You can view the final environmental assessment for this
action on http://www.regulations.gov, or you can obtain a copy by
contacting the person listed under FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: George T. Allen, Division of Migratory
Bird Management, 703-358-1825.
SUPPLEMENTARY INFORMATION:
Background
The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-711) and
the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712) implement
migratory bird treaties between the United States and Great Britain for
Canada (1916, amended), Mexico (1936, amended), Japan (1972, amended),
and Russia (then the Soviet Union, 1978). These treaties protect
certain migratory birds from take, except as permitted under the Acts.
The Acts authorize the Secretary of the Interior to regulate take of
migratory birds in the United States. Under this authority, we control
hunting of migratory game birds through regulations in 50 CFR part 20.
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
[[Page 53666]]
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 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 on lead for waterfowl
and coot hunting in 1991. We have continued to consider other potential
candidates for approval as nontoxic shot. We are obligated to review
applications for approval of alternative shot types as nontoxic for
hunting waterfowl and coots.
Tundra Composites, LLC, requested approval of tungsten-iron-
fluoropolymer (TIF) shot alloys of 41.5 to 95.2 percent tungsten, 1.5
to 52.0 percent steel, and 3.5 to 8.0 percent fluoropolymer by weight
as nontoxic. The tungsten and iron in this shot type have already been
approved in other nontoxic shot types. The applicant did a worst-case
evaluation of the potential impacts of the fluoropolymer on fish,
wildlife, and their habitats.
The data from the applicant indicate that the tungsten-iron-
fluoropolymer alloys will be nontoxic when ingested by waterfowl, and
should not pose a significant danger to migratory birds, other
wildlife, or their habitats.
Many hunters believe that some nontoxic shot types do not compare
favorably to lead and that they may damage some shotgun barrels, and a
small 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 will
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,
however, is that the Fish and Wildlife Service is obligated to consider
all complete nontoxic shot applications.
We have reviewed the shot under the criteria in Tier 1 of the
revised nontoxic shot approval procedures contained in 50 CFR 20.134
for permanent approval of shot as nontoxic for hunting waterfowl and
coots. We amend 50 CFR 20.21(j) to add TIF shot to the list of the
approved types of shot for waterfowl and coot hunting.
Affected Environment
Waterfowl Population Status and Harvest
The following paragraphs provide a brief summary of information on
the status and harvest of waterfowl excerpted from various reports. For
more detailed information on methodologies and results, you may obtain
complete copies of the various reports at the address indicated under
FOR FURTHER INFORMATION CONTACT or from our Web site http://
www.fws.gov/migratorybirds/NewsPublicationsReports.html.
Status of Ducks
Federal, provincial, and State agencies conduct surveys each spring
to estimate the size of breeding populations and to evaluate the
conditions of the habitats. These surveys are conducted using fixed-
wing aircraft and helicopters and encompass principal breeding areas of
North America, and cover over 2.0 million square miles. The Traditional
survey area comprises Alaska, Canada, and the northcentral United
States, and includes approximately 1.3 million square miles. The
Eastern survey area includes parts of Ontario, Quebec, Labrador,
Newfoundland, Nova Scotia, Prince Edward Island, New Brunswick, New
York, and Maine, an area of approximately 0.7 million square miles.
Breeding Ground Conditions
Habitat conditions during the 2009 Waterfowl Breeding Population
and Habitat Survey were characterized by above-average moisture across
the southern portions of the traditional survey area, good habitat in
the eastern survey area, and late spring conditions across northern
survey areas. The total pond estimate (prairie Canada and U.S.
combined) was 6.4 0.2 million. This was 45 percent above
the 2007 estimate of 4.4 0.2 million ponds and 31 percent
above the long-term average of 4.9 0.03 million ponds. The
2009 estimate of ponds in prairie Canada was 3.6 0.1
million. This was a 17 percent increase from the 2007 estimate (3.1
0.1 million) and was similar to the long-term average (3.4
0.03 million). The 2009 pond estimate for the northcentral
U.S. of 2.9 0.1 million was 108 percent above the 2007
estimate (1.4 0.07 million) and 87 percent above the long-
term average (1.5 0.02 million).
Breeding Population Status
In the Waterfowl Breeding Population and Habitat Survey traditional
survey area (strata 1-18, 20-50, and 75-77), the total duck population
estimate was 42.0 0.7 [SE] million birds. This estimate
represents a 13 percent increase over the 2007 estimate of 37.3 0.6 million birds and was 25 percent above the long-term average
(1955-2008). Estimated mallard (Anas platyrhynchos) abundance was 8.5
0.2 million birds, which was a 10 percent increase over
the 2007 estimate of 7.7 0.3 million birds and 13 percent
above the long-term average. Estimated abundance of gadwall (A.
strepera; 3.1 0.2 million) was similar to the 2008
estimate and 73 percent above the long-term average. Estimated American
wigeon abundance (A. americana; 2.5 0.1 million) was
similar to 2008 and the long-term average. Estimated abundances of
green-winged teal (A. crecca; 3.4 0.2 million) and blue-
winged teal (A. discors; 7.4 0.4 million) were similar to
the 2007 estimates and well above their long-term averages (+79 percent
and +60 percent, respectively). Northern shovelers (A. clypeata; 4.4
0.2 million) were 25 percent above the 2008 estimate and
remain 92 percent above their long-term average. The estimate for
northern pintails (A. acuta) was 3.2 0.2 million, which
was 23 percent above the 2008 estimate of 2.6 0.1 million,
and 20 percent below the long-term average. Estimated abundance of
redheads (Aythya americana; 1.0 0.1 million) was similar
to last year and 62 percent above the long-term average. The canvasback
estimate (A. valisineria; 0.7 0.06 million) was 35 percent
above the 2008 estimate (0.5 0.05 million) and similar to
the long-term average. The scaup estimate (A. affinis and A. marila
combined; 4.2 0.2 million) was similar to that of 2008 and
18 percent below the long-term average of 5.1 0.05
million.
The eastern survey area was restratified in 2005 and is now
composed of strata 51-72. Estimates of mallards, scaup, scoters (black
[Melanitta nigra], white-winged [M. fusca], and surf [M.
perspicillata]), green-winged teal, American wigeon, bufflehead
(Bucephala albeola), American black duck (Anas rubripes), ring-necked
duck (Aythya collaris), mergansers (red-breasted [Mergus serrator],
common [M. merganser], and hooded [Lophodytes cucullatus]), and
goldeneye (common [B. clangula] and Barrow's [B. islandica]) all were
similar to their 2008 estimates and long-term averages.
[[Page 53667]]
Fall Flight Estimate
The mid-continent mallard population is composed of mallards from
the traditional survey area (revised in 2008 to exclude Alaska
mallards), Michigan, Minnesota, and Wisconsin, and was estimated to be
10.3 0.9 million in 2009. This was similar to the 2008
estimate of 9.2 0.8 million.
Status of Geese and Swan
We provide information on the population status and productivity of
North American Canada geese (Branta canadensis), brant (B. bernicla),
snow geese (Chen caerulescens), Ross' geese (C. rossii), emperor geese
(C. canagica), white-fronted geese (Anser albifrons), and tundra swans
(Cygnus columbianus). In May of 2009, temperatures were 1-5 degrees
Celsius colder than average throughout the central region of subarctic
and Arctic Canada. In some locales harsh spring conditions persisted
into June. In areas near Hudson Bay and the Queen Maud Gulf, goose and
swan nesting activities were delayed by 1 to 3 weeks. In contrast,
nesting conditions were favorable near Wrangel Island, Alaska's North
Slope and eastern interior regions, parts of the Canadian high Arctic,
and Newfoundland. Improved wetland abundance in the Canadian and U.S.
prairies, and other temperate regions, will likely improve the
production of Canada geese that nest at southern latitudes. Primary
abundance indices decreased for 15 goose populations and increased for
10 goose populations in 2009 compared to 2008. Primary abundance
indices for both populations of tundra swans increased in 2009 from
2008 levels. The following populations displayed significant positive
trends during the most recent 10-year period (P < 0.05); Mississippi
Flyway Giant, Aleutian, Atlantic, and Eastern Prairie Canada geese;
Greater, Western Arctic/Wrangel Island, and Western Central Flyway
light geese; and Pacific white-fronted geese. No populations showed a
significant negative 10-year trend. The forecast for the production of
geese and swans in North America for 2009 is regionally variable, but
production for many populations will be reduced this year due to harsh
spring conditions in much of central Canada.
Waterfowl Harvest and Hunter Activity
National surveys of migratory bird hunters were conducted during
the 2007 and 2008 hunting seasons. About 1.2 million waterfowl hunters
harvested 14,578,900 (4%) ducks and 3,666,100 (6%) geese in 2007, and harvested 13,635,700 (4%)
ducks and 3,792,600 (5%) geese in 2008. Mallard, green-
winged teal, gadwall, wood duck (Aix sponsa), and American wigeon were
the 5 most-harvested duck species in the United States, and Canada
goose was the predominant goose species in the goose harvest. Coot
hunters (about 33,700 in 2007 and 31,100 in 2008) harvested 198,300
(29%) coots in 2007 and 275,900 (+43%) in 2008.
Characterization of the Shot Type
Tungsten-iron-fluoropolymer shot has a density ranging from 8.0 to
12.5 grams per cubic centimeter (g/cm\3\), and is corrosion resistant
and magnetic. Tundra Composites estimates that the volume of TIF shot
for use in hunting migratory birds in the United States will be
approximately 330,000 pounds (150,000 kilograms, kg) per year. The 8.0
g/cm\3\ alloy is approximately the same density as steel. The steel in
the alloys contains up to 1.3 percent manganese, 1.2 percent silicon,
and 1.2 percent carbon by weight. The shot may have a very fine
residual coating of mica from production. We expect the environmental
and health effects of the mica to be negligible.
Table 1--Composition of TIF Shot Alloys
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Percent
Alloy Density (g/cm\3\) Percent tungsten Percent steel * fluoropolymer
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1................................... 8.0 41.5-50.6 41.6-52.0 6.1-8.0
2................................... 9.5 61.0-68.7 24.8-34.0 5.0-6.6
3................................... 11.0 75.2-81.8 12.5-20.5 4.3-5.7
4................................... 12.5 85.9-96.0 1.0-10.3 3.8-5.2
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* The steel contains no more than 0.25% chromium, 0.20% copper, and 0.20% nickel. In the alloys, these
percentages are no more than 0.13%, 0.1%, and 0.1%, respectively.
Environmental Fate of the Tungsten and Iron in TIF Shot
The tungsten and the iron in these alloys have been approved in
other nontoxic shot types (see ``Impact of Approval of the Shot
Type''), and the submitters asserted that the alloys pose no adverse
toxicological risks to waterfowl or other forms of terrestrial or
aquatic life. The metals in the alloys are insoluble under normal hot
and cold temperatures. Neither manufacturing the shot nor firing
shotshells containing the shot will alter the metals or the
fluoropolymer, or change how they dissolve in the environment.
Possible Environmental Concentrations for the Manganese and Silicon and
Fluoropolymer in TIF Shot in Terrestrial Systems
Calculation of the estimated environmental concentration (EEC) of a
candidate shot in a terrestrial ecosystem is based on 69,000 shot per
hectare (ha) (50 CFR 20.134). These calculations assume that the shot
dissolves promptly and completely after deposition. Because the
tungsten and iron have been approved in other nontoxic shot types, we
focus on the manganese and silicon in the alloys.
The EEC for the manganese in TIF shot would be approximately 0.11
parts per million. The maximum increase in environmental concentration
for manganese in terrestrial settings would be 23.1 micrograms per
liter. If the shot were completely dissolved or eroded, the EEC in soil
is much less than the 50th percentile of typical background
concentrations for manganese in soils of the United States.
If totally dissolved, the shot would produce a silicon
concentration of 0.1082 parts per million (ppm), or 0.07 kg/ha/year.
Silicon is not found free in nature, but combines with oxygen and other
elements in nature to form silicates (LANL 2003; USGS 2009). Silicates
constitute more than 25 percent of the Earth's crust (USGS 2009). Sand,
quartz, rock crystal, amethyst, agate, flint, jasper, and opal are some
of the forms in which the oxide appears (LANL 2003). Thus, the silicon
from TIF shot would be insignificant.
[[Page 53668]]
Possible Environmental Concentrations for the Manganese, Silicon, and
Fluoropolymer in the TIF Shot in Aquatic Systems
The EEC for water assumes that 69,000 number 4 shot are completely
dissolved in 1 ha of water 30.48 centimeters deep. The submitter then
calculates the concentration of each metal in the shot if the shot
pellets dissolve completely. The analyses assume complete dissolution
of the shot type containing the highest proportion of each metal in the
range of alloys submitted.
The maximum EEC for manganese is 23.1 ppm. There are no U.S.
Environmental Protection Agency (EPA) acute or chronic quality criteria
available for manganese for freshwater or saltwater. However, the State
of Colorado has acute and chronic freshwater quality criteria for
manganese of 2,986 ppm and 1,650 ppm, respectively (assuming a hardness
of 100 mg/L as CaCO3). The manganese from TIF shot would
lead to a fraction of these concentrations, so we believe that the
manganese from TIF shot will not pose a threat to the environment.
The EEC for silicon from TIF shot would be 21.4 ppm. The EPA has
set no acute or chronic criteria for silicon in freshwater or
saltwater. Furthermore, silicates are commonly present in many soils
and sediments.
For the fluoropolymer in the shot, the EEC in aquatic systems would
be 273.1 ppm. We believe this value has little meaning given the
insolubility of the fluoropolymer.
In Vitro Solubility Evaluation of TIF Shot
When nontoxic shot is ingested by waterfowl, both physical breakup
of the shot and dissolution of the metals that comprise the shot may
occur in the highly acidic environment of the gizzard. In addition to
the standard Tier 1 application information (50 CFR 20.134), Tundra
Composites provided the results of an in vitro gizzard simulation test
conducted to quantify the release of metals in solution under the
prevailing pH conditions of the avian gizzard. The metal concentrations
released during the simulation test were, in turn, compared to known
levels of metals that cause toxicity in waterfowl. The evaluation
followed the methodology of Kimball and Munir (1971) as closely as
possible.
The test solution pH averaged 2.01 over the 14-day test period and
the average temperature of the digestion solution averaged 41.8 [deg]C.
In the test, the average amount of nickel, copper, and chromium
released from 8 TIF shot/day was 0.037 mg, 0.017 mg, and 0.024 mg,
respectively.
It is reasonable to expect that if the in vitro gizzard simulation
test conditions had degraded the fluoropolymer in the TIF shot,
fluoride would be present in the digestion solution. However, the
fluoropolymer present in TIF shot is extremely resistant to
degradation. The formation of hazardous decomposition byproducts from
the fluoropolymer occurs only at temperatures over 300 [deg]C. A
representative fluoropolymer, polytetrafluoroethylene, will endure 260
[deg]C for more than 2 years until failure due to degradation
(Imbalzano 1991). The applicant concluded that the fluoride
concentrations in the solution were background levels of fluoride in
the digestion solution, rather than a decomposition byproduct of the
fluoropolymer. This conclusion was supported by the variability and
lack of a trend in the estimated fluoride concentrations (Day 0
concentrations were greater than Day 14 concentrations).
Perfluorooctanoic acid (PFOA) is not used in the manufacture or
formulation of the fluoropolymer present in TIF shot because it has
been identified as a persistent global contaminant (EPA 2003).
The testing completed by the applicant indicates that TIF shot is
highly resistant to degradation, and poses little risk to waterfowl or
other biota if ingested in the field. The slow breakdown of the shot
only permits metals to be released at concentrations that are
substantially below toxic levels of concern in waterfowl. Furthermore,
the fluoropolymer present in TIF shot will not degrade if ingested by
waterfowl.
Impacts of Approval of the Shot Type
Effects of the Metals
We have previously assessed and approved various alloys containing
tungsten and/or iron as nontoxic for hunting waterfowl (e.g. 66 FR 737,
January 4, 2001; 68 FR 1388, January 10, 2003; 69 FR 48163, August 9,
2004; 70 FR 49194, August 23, 2005; 71 FR 4294, January 26, 2006). We
have approved alloys of almost 100 percent of both tungsten and iron.
Approval of TIF alloys raises no new concerns about approval of the
tungsten or the iron in TIF shot.
Manganese
Manganese is an essential nutrient for both plants and animals. In
animals, manganese is associated with growth, normal functioning of the
central nervous system, and reproductive function. In plants, manganese
is essential for the oxidation-reduction process (EPA 2007). Manganese
compounds are important soil constituents, and the 50th percentile of
typical background concentrations for manganese range from 400 kg dry
weight in eastern U.S. soils to 600 kg dry weight in western U.S.
soils.
One number 4 TIF shot contains approximately 0.001 gram of
manganese. The geometric mean of avian No Observed Adverse Effect Level
(NOAEL) values for reproduction and growth that were identified by the
EPA in its derivation of an Ecological Soil Screening Level (Eco-SSL)
for manganese was 179 kg of body weight per day (EPA 2007). Based upon
the avian NOAEL of 179 milligrams of manganese per kilogram of body
weight per day, a 2-kg bird could safely consume about 352 TIF shot per
day without suffering from the consumption of the shot. Similarly for
mammals, the geometric mean of mammalian NOAEL values for reproduction
and growth that were identified by the EPA in its derivation of an Eco-
SSL for manganese was 51.5 milligrams of manganese per kilogram of body
weight per day (EPA 2007). Based upon the mammalian NOAEL of 51.5
milligrams of manganese per kilogram of body weight per day, a 1-kg
mammal could safely consume approximately 50 TIF shot per day without
suffering manganese toxicosis.
There are no EPA acute or chronic freshwater or saltwater criteria
for manganese. However, Colorado acute and chronic freshwater criteria
are 2,986 micrograms per liter and 1,650 micrograms per liter,
respectively (assuming a hardness of 100 milligrams per liter as
CaCO3) (5 CCR 1002-31). The aquatic EEC for manganese is
23.1 micrograms per liter when we assume complete dissolution of the
69,000 shot in 1 ha of water 30.48 cm deep. Therefore, the manganese
from TIF shot should not pose an environmental problem in aquatic
environments.
Based upon available NOAEL values, birds and mammals would have to
ingest in excess of 50 TIF shot per day before manganese toxicosis
could occur. Assuming complete erosion of all shot, the EEC of
manganese in soil is much less than the 50th percentile of typical
background concentrations for manganese in soils of the United States.
The EEC for manganese is well below both the acute and chronic criteria
for fresh water from the State of Colorado, assuming complete
dissolution of the shot. In sum, the manganese in TIF shot will result
in very minimal estimated exposure concentrations to wetland biota.
[[Page 53669]]
Nickel
No reproductive or other effects were observed in mallards
consuming the equivalent of 102 milligrams of nickel as nickel sulfate
each day for 90 days (Eastin and O'Shea 1981). Therefore, the 0.037
milligram of nickel released from 8 TIF shot per day will pose no risk
of adverse effects to waterfowl. In addition, metallic nickel likely is
absorbed less from the gastrointestinal tract than is the nickel
sulfate used in the mallard reproduction study.
Copper
The maximum tolerable level of dietary copper during the long-term
growth of chickens and turkeys has been reported to be 300 kg (CMTA
1980). At the maximum tolerable level for chronic exposure of 300 kg
for poultry, a 1.8-kg chicken consuming 100 g of food per day (Morck
and Austic 1981) would consume 30 mg copper per day (16.7 milligrams of
copper per kilogram of body weight per day). Since the average amount
of copper released from 8 TIF shot per day would be 0.017 mg, a bird
would have to ingest in excess of 1000 TIF shot to exceed the maximum
tolerable level.
Dietary levels of 10.0 mg chromium(III)/kilogram for 10 weeks
depressed survival in young black ducks (Haseltine et al. 1985), but no
adverse effects were observed in chickens exposed to 100 ppm dietary
chromium(VI) in a 32-day study (Rosomer et al. 1961). Therefore, the
average amount of chromium released from 8 TIF shot/day of 0.024 mg
will pose no risk of adverse effects to waterfowl.
Effects of Silicon
We found no data for assessing acute or chronic toxicity of the
silicon present in TIF shot. EPA has not set acute or chronic criteria
for silicon in aquatic systems. However, silicon compounds are
widespread in nature, and we think it highly likely that sediments
consumed incidentally by waterfowl contain silicates.
Silicon is not found free in nature, but silicates constitute more
than 25 percent of the Earth's crust (USGS 2009), in sand, quartz, rock
crystal, amethyst, agate, flint, jasper, and opal, among other rocks.
Granite, hornblende, asbestos, feldspar, clay, and mica are among the
numerous silicate minerals.
Effects of the Fluoropolymer
No data are available on acute or chronic toxicity of the
fluoropolymer used in the TIF alloys. However, fluorinated organic
polymers are very stable and resistant to hydrolysis (Danish Ministry
of the Environment 2004). An in vitro gizzard simulation test conducted
with 8.0 g/cm\3\ TIF shot showed that the fluoropolymer used in the
alloys will not degrade if ingested by waterfowl. Exposure to stable
fluoropolymers does not give rise to increased free fluoride
concentration in the blood in humans (Danish Ministry of the
Environment 2004). Based on the information provided by the applicant
and our assessment, we have little concern for problems due to
organisms ingesting TIF shot or from dissolution of the shot in aquatic
settings.
Effects of the Approval on Migratory Waterfowl
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. Thus, approving
additional nontoxic shot types will likely result in a minor positive
long-term impact on waterfowl and wetland habitats.
Effects on Endangered and Threatened Species
The impact on endangered and threatened species of approval of the
TIF alloys would be very small, but positive. The metals in TIF alloys
have been approved in other nontoxic shot types, and we believe that
the fluoropolymer is highly unlikely to adversely affect animals that
consume the shot or habitats in which the shot might be used. We see no
potential effects on threatened or endangered species due to approval
of these alloys.
We obtained 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 seasonal hunting regulations. The hunting
regulations promulgated as a result of this consultation remove and
alleviate chances of conflict between migratory bird hunting and
endangered and threatened species.
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 with 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. Therefore, approval of the TIF alloys will have
little impact on the resource, unless it has the small positive impact
of reducing the rate of noncompliance.
Cumulative Impacts
We foresee no negative cumulative impacts of approval of the TIF
alloys for waterfowl hunting. Their approval may 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 TIF shot for waterfowl
hunting in the United States should be positive.
Review of Public Comments
On August 7, 2009, we published in the Federal Register (74 FR
39598) 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
8, 2009.
We received one comment on the proposed rule. The commenter
disagreed with our analysis that the proposed shot was nontoxic and
claimed that the fluoropolymer in the shot should be of concern.
However, as noted in the application and the environmental assessment,
an in vitro gizzard simulation test conducted with 8.0 g/cm\3\ TIF shot
showed that the fluoropolymer used in the alloys will not degrade if
ingested by waterfowl. Exposure to stable fluoropolymers does not give
rise to increased free fluoride concentration in the blood in humans
(Danish Ministry of the Environment 2004).
Thus, based on the information provided by the applicant and our
assessment, TIF shot should not pose a significant danger to migratory
birds, other wildlife, or their habitats due to organisms ingesting
shot or from dissolution of the shot in aquatic settings. Further, we
conclude that this group of alloys raises no particular concerns about
deposition in the environment or about ingestion by waterfowl or
predators.
Summary
Previous assessments of nontoxic shot types indicated that the iron
and the tungsten from shot alloys should not harm aquatic or
terrestrial systems. The solubility testing of TIF shot indicated that
the negligible release of the metals from TIF shot (including the trace
amounts of chromium, copper, and nickel released at low pH) will not be
a hazard to aquatic systems or to biota. For these reasons, and in
accordance with 50 CFR 20.134, we approve TIF
[[Page 53670]]
shot as nontoxic for hunting waterfowl and coots, and amend 50 CFR
20.21(j) accordingly. Our approval is based on the toxicological
report, acute toxicity studies, reproductive/chronic toxicity studies,
and other published research. The available information indicates that
the TIF alloys should be nontoxic when ingested by waterfowl and that
they pose no significant danger to migratory birds, other wildlife, or
their habitats.
Literature Cited
For a complete list of the literature cited in this rule, visit
http://www.regulations.gov or contact the person listed under FOR
FURTHER INFORMATION CONTACT.
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 and discourage the use of lead shot harmful to the
environment. Increased use of nontoxic shot will enhance protection of
migratory waterfowl and their habitats. Furthermore, tungsten-iron-
fluoropolymer 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 7, 2009, proposed rule. This rule relieves
restrictions by newly approving tungsten-iron-fluoropolymer shot alloys
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.
Required Determinations
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant under E.O. 12866. OMB bases its determination
upon the following four criteria:
a. Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
b. Whether the rule will create inconsistencies with other Federal
agencies' actions.
c. Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. Whether the rule raises novel legal or policy issues.
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 will not have a
significant economic impact on a substantial number of small entities.
The rule will allow small entities to continue actions they have been
able to take under the regulations--actions specifically designed to
improve the economic viability of those entities--and, therefore, will
not significantly affect them economically. We certify that because
this rule will 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 will not have an annual effect on the economy of $100
million or more.
b. This rule will 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 will 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 will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. Actions
under the regulation will not affect small government activities in any
significant way.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. It will not be a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, this rule does 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 assessment under E.O. 13132. It will 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 the 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
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 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. 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 April
30, 2012.
National Environmental Policy Act
Our environmental assessment is part of the administrative record
for this rulemaking. 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 TIF alloys will
not have a significant effect on the quality of the human environment,
nor will it involve unresolved conflicts concerning alternative uses of
available resources. Therefore, preparation of an environmental impact
statement (EIS) is not required.
[[Page 53671]]
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 will 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)
On May 18, 2001, the President issued E.O. 13211 addressing
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This rulemaking is not a
significant regulatory action under E.O. 12866, and it will not
significantly affect energy supplies, distribution, or use. This action
will 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 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 change to the regulations will not affect listed species.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
0
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--[AMENDED]
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 by revising paragraph (j) to read as follows:
Sec. 20.21 What hunting methods are illegal?
* * * * *
(j)(1) While possessing loose shot for muzzle loading or shotshells
containing other than the following approved shot types.
----------------------------------------------------------------------------------------------------------------
Approved shot type * Percent composition by weight Field testing device **
----------------------------------------------------------------------------------------------------------------
Bismuth-tin......................... 97 bismuth, and 3 tin................. Hot Shot[supreg]. ***
Iron (steel)........................ iron and carbon....................... Magnet or Hot Shot[supreg].
Iron-tungsten....................... any proportion of tungsten, and >=1 Magnet or Hot Shot[supreg].
iron.
Iron-tungsten-nickel................ >=1 iron, any proportion of tungsten, Magnet or Hot Shot[supreg].
and up to 40 nickel.
Tungsten-bronze..................... 51.1 tungsten, 44.4 copper, 3.9 tin, Rare Earth Magnet.
and 0.6 iron, or 60 tungsten, 35.1
copper, 3.9 tin, and 1 iron.
Tungsten-iron-copper-nickel......... 40-76 tungsten, 10-37 iron, 9-16 Hot Shot[supreg] or Rare Earth
copper, and 5[dash]7 nickel. Magnet.
Tungsten-matrix..................... 95.9 tungsten, 4.1 polymer............ Hot Shot[supreg].
Tungsten-polymer.................... 95.5 tungsten, 4.5 Nylon 6 or 11...... Hot Shot[supreg].
Tungsten-tin-iron................... any proportions of tungsten and tin, Magnet or Hot Shot[supreg].
and >=1 iron.
Tungsten-tin-bismuth................ any proportions of tungsten, tin, and Rare Earth Magnet.
bismuth..
Tungsten-tin-iron-nickel............ 65 tungsten, 21.8 tin, 10.4 iron, and Magnet.
2.8 nickel.
Tungsten-iron-polymer............... 41.5-95.2 tungsten, 1.5-52.0 iron, and Magnet or Hot Shot[supreg].
3.5[dash]8.0 fluoropolymer.
----------------------------------------------------------------------------------------------------------------
* Coatings of copper, nickel, tin, zinc, zinc chloride, and zinc chrome on approved nontoxic shot types also are
approved.
** The information in the ``Field Testing Device'' column is strictly informational, not regulatory.
*** The ``HOT*SHOT'' field testing device is from Stream Systems of Concord, CA.
(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: October 7, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-25108 Filed 10-19-09; 8:45 am]
BILLING CODE 4310-55-P