[Federal Register: August 23, 2005 (Volume 70, Number 162)]
[Rules and Regulations]               
[Page 49194-49197]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT87

Migratory Bird Hunting; Approval of Iron-Tungsten-Nickel Shot as 
Nontoxic for Hunting Waterfowl and Coots

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; availability of Final Environmental Assessment and 
Finding of No Significant Impact.


SUMMARY: The U.S. Fish and Wildlife Service (we, us, or USFWS) approves 
shot formulated of 62 percent iron, 25 percent tungsten, and 13 percent 
nickel as nontoxic for waterfowl and coot hunting in the United States. 
We assessed possible toxicity effects of the Iron-Tungsten-Nickel (ITN) 
shot, and determined that it is not a threat to wildlife or their 
habitats, and that further testing of ITN shot is not necessary. We 
have prepared a Final Environmental Assessment and a Finding of No 
Significant Impact in support of this decision.
    This rule also corrects an error and adds clarity to the list of 
currently approved nontoxic shot types.

DATES: This rule takes effect on September 22, 2005.

ADDRESSES: The Final Environmental Assessment for approval of ITN shot 
and the associated Finding of No Significant Impact are available from 
the Division of Migratory Bird Management, U.S. Fish and Wildlife 
Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 
22203-1610. You may call 703-358-1825 to request copies.
    The complete file for this rule is available, by appointment, 
during normal business hours at the same address. You may call 703-358-
1825 to make an appointment to view the files.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of 
Migratory Bird Management, 703-358-1714.



    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 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

[[Page 49195]]

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, the 
U.S. Fish and Wildlife Service controls the 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 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 the issue of lead 
poisoning in waterfowl in an Environmental Impact Statement 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 
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.
    We received an application from ENVIRON-Metal, Inc. of Sweet Home, 
Oregon, for approval of Iron-Tungsten-Nickel shot formulated as 62 
percent iron, 25 percent tungsten, and 13 percent nickel by weight for 
waterfowl and coot hunting. We 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 ITN shot to the 
list of the approved types of shot for waterfowl and coot hunting.
    On May 6, 2005, we published a proposed rule to approve ITN as a 
nontoxic shot type (70 FR 23954). The application for the approval of 
ITN shot 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 Iron-Tungsten-Nickel shot as nontoxic for hunting 
waterfowl and coots.
    We received one comment in response to the proposed rule. However, 
the commenter did not raise any issues that caused us to reconsider our 
proposed approval of ITN shot as nontoxic. Neither manufacturing the 
shot nor firing shotshells containing the shot will alter the metals or 
increase their susceptibility to dissolving in the environment.
    ENVIRON-Metal estimates that the volume of ITN shot used hunting 
migratory birds in the United States will be approximately 200,000 
pounds (90,719 kilograms) during the first year of sale, and perhaps 
500,000 pounds (227,000 kg) per year thereafter.
    This rule also corrects the formulation of Tungsten-Tin-Bismuth 
(TTB) shot. We inadvertently left out the iron in the TTB formulation 
in our August 9, 2004, approval of the shot type (69 FR 48163).
    The listing of approved nontoxic shot types is also changed to 
provide more consistent naming of approved shot types. The shot types 
are now named and listed by the predominant metals in the alloys.

Cumulative Impacts

    We foresee no negative cumulative impacts from approval of this 
nontoxic shot type. Approval of a shot type that contains only metals 
already approved as nontoxic will not additionally impact the human 

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), though all of the metals in this shot type have been 
approved in higher concentrations in other shot types and are not 
likely to pose adverse toxicity effects on fish, wildlife, their 
habitats, or the human environment, we prepared a Draft Environmental 
Assessment for this action, on which we received no comments. We have 
completed the Final Environmental Assessment for approval of ITN shot 
as nontoxic.

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 have concluded that because all of the 
metals in this shot type have been approved in higher concentrations in 
other shot types and should not be available to biota due to use of ITN 
shot, this action will not affect endangered or threatened species. A 
Section 7 consultation under the ESA for this rule is not needed.

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 includes small businesses, organizations, or governmental 
jurisdictions. This rule approves an additional type of nontoxic shot 
that may be sold and used to hunt migratory birds; this rule would 
provide one shot type in addition to the types that are approved. We 
have determined, however, that this rule will have no effect on small 
entities since the approved shot merely will supplement nontoxic shot 
already in commerce and available throughout the retail and wholesale 
distribution systems. We anticipate no dislocation or other local 
effects, with regard to hunters or others.

Small Business Regulatory Enforcement Fairness Act

    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. This rule 
will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; it will only affect availability of the approved 
nontoxic shot type. Finally, because this rule only affects approval of 
this nontoxic shot type, it will not have a significant adverse effect 
on competition, employment, investment, productivity, innovation, or 
the ability of U.S.-based enterprises to compete with foreign-based 

Executive Order 12866

    This rule is not a significant regulatory action subject to Office 
of Management and Budget (OMB) review under Executive Order 12866. This 
rule will not have an annual economic effect of $100 million or more or 
adversely affect an economic sector, productivity,

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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. No other Federal 
agency has any role in regulating nontoxic shot for migratory bird 
hunting. 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.

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. We have examined this regulation 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501) and found it 
to contain no information collection requirements. OMB has approved 
collection of information from shot manufacturers for the nontoxic shot 
approval process, and has assigned control number 1018-0067, which 
expires on December 31, 2006. For further information, see 50 CFR 

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, in promulgating this rule, have determined that these 
regulations meet 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.

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.

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.

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 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. 742a-j; Pub. L. 106-108.

2. Section 20.21 is amended by revising paragraph (j)(1) to read as 

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
bismuth-tin............................  97 bismuth, 3 tin.
iron (steel)...........................  iron and carbon.
iron-tungsten (2 types)................  60 iron, 40 tungsten and 78
                                          iron, 22 tungsten.
iron-tungsten-nickel...................  62 iron, 25 tungsten, 13
tungsten-bronze........................  51.1 tungsten, 44.4 copper, 3.9
                                          tin, 0.6 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, 0.8 iron.
tungsten-tin-iron-nickel...............  65 tungsten, 21.8 tin, 10.4
                                          iron, 2.8 nickel.

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* * * * *

    Dated: July 26, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-16720 Filed 8-22-05; 8:45 am]