[Federal Register: May 6, 2005 (Volume 70, Number 87)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
Migratory Bird Hunting; Approval of Iron-Tungsten-Nickel Shot as
Nontoxic for Hunting Waterfowl and Coots
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule, availability of Draft Environmental Assessment.
SUMMARY: The U.S. Fish and Wildlife Service (we, us, or USFWS) proposes
to approve 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 have determined that it is not a threat
to wildlife or their habitats, and that further testing of ITN shot is
not necessary. We have concluded that because all of the metals in ITN
shot type have been approved in higher concentrations in other nontoxic
shot types and in ITN shot are very unlikely to adversely affect fish,
habitats, or the human environment, we do not need to prepare an
Environmental Assessment for this action. We believe that the toxicity
risks from ITN shot are small.
This rule also corrects the formulation of Tungsten-Tin-Bismuth
shot. We inadvertently left the iron in the formulation out of our
August 9, 2004, approval of the shot type (69 FR 48163).
DATES: Send comments on this proposal by June 6, 2005.
ADDRESSES: You may submit comments, identified by RIN 1018-AT87, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web Site: http://migratorybirds.fws.gov. Follow the
links to submit a comment.
E-mail address for comments: George_T_Allen@fws.gov.
Include ``RIN 1018-AT87'' in the subject line of the message. Please
submit electronic comments as text files; do not use file compression
or any special formatting.
Mail: Chief, Division of Migratory Bird Management, U.S.
Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-
4107, Arlington, Virginia 22203-1610.
Hand Delivery: Division of Migratory Bird Management, U.S.
Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091,
Arlington, Virginia 22203-1610.
We will not accept anonymous comments. Comments will become part of
the Administrative Record for the review of the application. You may
inspect comments at the mailing address above during normal business
The Draft Environmental Assessment for approval of ITN shot is
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 a copy of the
Draft Environmental Assessment.
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 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 have 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 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 propose to amend 50 CFR 20.21 (j)
to add ITN shot to the list of the approved types of shot for waterfowl
and coot hunting.
The taxonomic family Anatidae, principally subfamily Anatinae
(ducks) and their habitats, comprise the affected environment.
Waterfowl habitats and populations in North America this year were
described by the U.S. Fish and Wildlife Service (2004). In the Breeding
Population and Habitat Survey traditional survey area (strata 1-18, 20-
50, and 75-77), the total-duck population estimate was 32.2 < plus-
minus> 0.6 ( 1 standard error) million birds, 11% below
last year's estimate of 36.2 0.7 million birds and 3%
below the 1955-2003 long-term average. Mallards (Anas platyrhynchos)
numbered 7.4 0.3 million, similar to last year's estimate
of 7.9 0.3 million birds and to the long-term average.
Blue-winged teal (A. discors) numbered 4.1 0.2 million,
26% below last year's estimate of 5.5 0.3 million, and 10%
below the long-term average. Among other duck species, northern
shovelers (A. clypeata, 2.8 0.2 million) and American
wigeon (A. americana, 2.0 0.1 million) were both 22% below
their 2003 estimates. As in 2003, gadwall (A. strepera, 2.6 < plus-
minus> 0.2 million, +56%), green winged teal (A. crecca, 2.5 0.1 million, +33%), and northern shovelers (+32%) were above
their long-term averages. Northern pintails (A. acuta, 2.2
0.2 million, -48%), scaup (Aythya affinis and A. marila, 3.8 < plus-
minus> 0.2 million, -27%), and American wigeon (-25%) were well below
their long-term averages in 2004.
Total May ponds in Prairie Canada and the north-central U.S. were
3.9 0.2 million, or 24% lower than last year and 19% below
the long-term average. The projected mallard fall flight (which is
fundamental for setting waterfowl hunting regulations) was 9.4 < plus-
minus> 0.1 million birds, compared to the estimate of 10.3
0.1 million in 2003.
The 2004 total-duck population estimate for the eastern survey area
(strata 51-56 and 62-69) was 3.9 0.3 million birds. This
estimate was similar to last year's estimate of 3.6 0.3
million birds and to the 1996-2003 average. Individual species
estimates for this area were similar to 2003 estimates and to 1996-2003
averages, with the exception of American wigeon (0.1 0.1
million) and goldeneyes (Bucephala clangula and B. islandica, 0.4
0.1 million), which were 61% and 42% below their 1996-2003
averages, respectively, and ring-necked ducks (Aythya collaris, 0.7
0.2 million), for which the estimate was up 67% from 2003.
Waterfowl hunting occurs in habitats used by many taxa of migratory
birds, as well as by aquatic invertebrates, amphibians, and some
mammals. Fish also may be found in many hunting locations.
Shot Formulation and Production
Iron-Tungsten-Nickel shot is an alloy of 62% iron, 25% tungsten,
and 13% nickel. Its density is about 9 grams/cm\3\. The shot has no
coating, nor is it chemically or physically altered when fired from a
manufacturing the shot nor firing shotshells containing the shot will
alter the metals or increase their susceptibility to dissolving in the
ENVIRON-Metal estimates that the volume of ITN shot for use in
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.
Environmental Fate of the Metals in ITN Shot
Elemental tungsten and iron are virtually insoluble in water, and
therefore do not weather and degrade in the environment. Tungsten is
stable in acids and does not easily form compounds with other
substances. Preferential uptake by plants in acidic soil suggests
uptake of tungsten when it has formed compounds with other substances
rather than when it is in its elemental form (Kabata-Pendias and
Nickel is usually found at less than 1 part per billion (ppb) in
fresh waters in locations unaffected by human activities. Pure nickel
is not soluble in water. Free nickel may be part of chemical reactions,
such as sorption, precipitation, and complexation. Reactions of nickel
with anions are unlikely. Complexation with organic agents is poorly
understood (USEPA 1980). Water hardness is the dominant factor
governing nickel effects on biota (Stokes 1988).
Possible Environmental Concentrations
Calculation of the estimated environmental concentration (EEC) of a
candidate shot in a terrestrial ecosystem is based on 69,000 shot per
hectare (50 CFR 20.134). For ITN shot, if the shot are completely
dissolved in dry, porous soil, the EEC for iron is 14.55 g/m\3\, or
11.19 parts per million (ppm). Iron is naturally widespread, comprising
approximately 2% of the composition of soils and sediments in the U.S.
The EEC for iron from ITN shot is much lower than that level.
Tungsten is rare (1.5 ppm in the earth's crust), and is never found
free in nature. The EEC for tungsten in soil is 5.92 g/m\3\, or 4.55
ppm. This is below the EEC for several other tungsten-based shot types
that we have previously approved. We are not aware of any problems
associated with those shot types. The U.S. Environmental Protection
Agency (USEPA) does not have a biosolids application limit for
The EEC for nickel in ITN shot in soils is 3.08 g/m\3\, or 4.55
ppm. This concentration is far below the USEPA biosolids application
limit of 420 ppm (USEPA 2000).
The EEC for water assumes that 69,000 4 shot are
completely dissolved in 1 hectare of water 1 foot (30.48 cm) deep. For
ITN shot, the EEC for iron in water is 2.39 milligrams per liter (mg/
l). The USEPA chronic water quality criterion for iron in fresh water
is 1 mg/l.
The EEC for tungsten from ITN shot is 0.97 mg/l. The USEPA has set
no acute or chronic criteria for tungsten in aquatic systems.
The aquatic EEC for nickel from ITN shot is 505 mcg/l. The USEPA
(1980) acute criterion for nickel in fresh water is 1400 mcg/l; the
chronic criterion is 160 mcg/l. The acute and chronic criteria for salt
water are 75 and 8.3 mcg/l, respectively.
Effects of Iron-Tungsten-Nickel Shot
Iron is an essential nutrient, so reported iron toxicosis in
mammals is primarily a phenomenon of overdosing of livestock. Maximum
recommended dietary levels of iron range from 500 ppm for sheep to
3,000 ppm for pigs (National Research Council [NRC] 1980). Chickens
require at least 55 ppm iron in the diet (Morck and Austic 1981).
Chickens fed 1,600 ppm iron in an adequate diet displayed no ill
effects (McGhee et al. 1965). Turkey poults fed 440 ppm in the diet
suffered no adverse effects. The tests in which eight 4
tungsten-iron shot were administered to each mallard in a toxicity
study indicated that the 45% iron content of the shot had no adverse
effects on the test animals (Kelly et al. 1998).
Tungsten may be substituted for molybdenum in enzymes in mammals.
Ingested tungsten salts reduce growth, and can cause diarrhea, coma,
and death in mammals (e.g. Bursian et al. 1996, Cohen et al. 1973,
Karantassis 1924, Kinard and Van de Erve 1941, National Research
Council 1980, Pham-Huu-Chanh 1965), but elemental tungsten is virtually
insoluble and therefore essentially nontoxic. Tungsten powder added to
the food of young rats at 2, 5, and 10% by mass for 70 days did not
affect health or growth (Sax and Lewis 1989). A dietary concentration
of 94 parts ppm did not reduce weight gain in growing rats (Wei et al.
1987). Exposure to pure tungsten through oral, inhalation, or dermal
pathways is not reported to cause any health effects (Sittig 1991).
Tungsten salts are toxic to mammals. Lifetime exposure to 5 ppm
tungsten as sodium tungstate in drinking water produced no discernible
adverse effects in rats (Schroeder and Mitchener 1975). At 100 ppm
tungsten as sodium tungstate in drinking water, rats had decreased
enzyme activity after 21 days (Cohen et al. 1973).
Kraabel et al. (1996) surgically embedded tungsten-bismuth-tin shot
in the pectoralis muscles of ducks to simulate wounding by gunfire and
to test for toxic effects of the shot. They found that the shot neither
produced toxic effects nor induced adverse systemic effects in the
ducks during the 8-week period of their study.
Chickens given a complete diet showed no adverse effects of 250 ppm
sodium tungstate administered for 10 days in the diet. However, 500 ppm
in the diet reduced xanthine oxidase activity and reduced growth of
day-old chicks (Teekell and Watts 1959). Adult hens had reduced egg
production and egg weight on a diet containing 1,000 ppm tungsten (Nell
et al. 1981). Ecological Planning and Toxicology (1999) concluded that
the No Observed Adverse Effect Level for tungsten for chickens should
be 250 ppm in the diet; the Lowest Observed Adverse Effect Level should
be 500 ppm. Kelly et al. (1998) demonstrated no adverse effects on
mallards dosed with tungsten-iron or tungsten-polymer shot according to
nontoxic shot test protocols.
Ringelman et al. (1993) conducted a 32-day acute toxicity study
which involved dosing game-farm mallards with a shot alloy of 39%
tungsten, 44.5% bismuth, and 16.5% tin (TBT shot) by weight,
respectively. All the test birds survived, showed normal behavior, and
suffered no tissue toxicity or damage. Kraabel et al. (1996) determined
that imbedded tungsten-bismuth-tin shot neither produced toxic effects
nor induced any adverse systemic effects on the health of ducks.
Nickel is a dietary requirement of mammals, with necessary
consumption set at 50 to 80 ppb for the rat and chick (Nielsen and
Sandstead 1974). Though it is necessary for some enzymes, nickel can
compete with calcium, magnesium, and zinc for binding sites on many
Water-soluble nickel salts are poorly absorbed if ingested by rats
(Nieboer et al. 1988). Nickel carbonate caused no treatment effects in
rats fed 1,000 ppm for 3 to 4 months (Phatak and Patwardhan 1952). Rats
fed 1,000 ppm nickel sulfate for 2 years showed reduced body and liver
weights, an increase in the number of stillborn pups, and decrease in
weanling weights through three generations (Ambrose et al. 1976).
Nickel chloride was even more toxic; 1,000 ppm fed to young rats caused
weight loss in 13 days (Schnegg and Kirchgessner 1976).
Soluble nickel salts are very toxic to mammals, with an oral
LD50 of 136 mg/kg in mice, and 350 mg/kg in rats (Fairchild
et al. 1977). Nickel catalyst (finely divided nickel in vegetable oil)
fed to young rats at 250 ppm for 16 months, however, produced no
detrimental effects (Phatak and Patwardhan 1952).
In chicks from hatching to 4 weeks of age, 300 ppm nickel as nickel
carbonate or nickel acetate in the diet produced no observed adverse
effects, but concentrations of 500 ppm or more reduced growth (Weber
and Reid 1968). A diet containing 200 ppm nickel as nickel sulfate had
no observed effects on mallard ducklings from 1 to 90 days of age.
Diets of 800 ppm or more caused significant changes in physical
condition of the ducklings (Cain and Pafford 1981). Eastin and O'Shea
(1981) observed no apparent significant changes in pairs of breeding
mallards fed diets containing up to 800 ppm nickel as nickel sulfate
for 90 days. Mallard ducklings fed 1,200 ppm nickel as nickel sulfate
from one to 90 days of age experienced reduced growth rates, tremors,
paresis, and death (71% within 60 days) (Cain and Pafford 1981).
Weights of ducklings receiving 200 and 800 ppm nickel were not
significantly different than controls, but the humerus weight/length
ratio, a measure of bone density, was significantly lower than controls
among females in the 800 ppm group and all birds in the 1,200 ppm
group. There was no mortality in the 200 and 800 ppm groups. Assuming a
mean daily consumption of 128 g per bird (Heinz 1979), the 800 ppm
treatment group would have consumed 102 mg nickel each day and 9.2 g
nickel during the course of the 90-day study. In a Tier 2 dosing study
under the regulations governing approval of nontoxic shot, mallard
ducks birds would each be given eight number 4 ITN shot (each
containing 0.02206 g of nickel) during the study. A duck would be
exposed to 0.176 g of nickel during the study if the nickel were
completely dissolved. This is much less than the nickel exposure
experienced by the mallards in the Eastin and O'Shea (1981) study.
Toxicity of nickel to aquatic organisms is dependent upon water
hardness, pH, and organic content, as well as other minor environmental
parameters (Allen and Hansen 1996). In soft water, as few as 7 ppb may
be acutely toxic to fish fry, but in harder waters toxicity thresholds
may be an order of magnitude higher (Stokes 1988). General toxicity
ranges for aquatic organisms are as variable, with an acute toxicity of
as low as 82 mcg/l for some oligochaetes to 138,000 mcg/l for some
gastropods; chronic toxicity values range from fewer than 100 mcg/l for
some green algae to 10,000 mcg/l for filamentous algae (Stokes 1988).
The freshwater criterion maximum concentration is dependent on
hardness. For a water body with hardness of 50 mg/l (generally
associated with highly oligotrophic systems that would not support
large numbers of waterfowl), this results in a criterion of 1,400 mcg/
l. However, because early fish life stages are more sensitive to
nickel, the freshwater chronic criterion is 160 mcg/l at a hardness of
50 mg/l (USEPA 1986).
The aquatic EEC for nickel from ITN shot is 505 mcg/l. The USEPA
(1980) acute criterion for nickel in fresh water is 1400 mcg/l; the
chronic criterion is 160 mcg/l. The acute and chronic criteria for salt
water are 75 and 8.3 mcg/l, respectively. Based on the EEC, the maximum
release of nickel from ITN shot would be well below the fresh water
acute criterion for protection of aquatic life. The EEC exceeds the
chronic criterion for fresh water and both acute and chronic values for
seawater. However, ENVIRON-Metal reported that corrosion studies
recently performed by an independent laboratory show that the corrosion
rate for ITN shot is essentially equivalent to that of common steel,
which is roughly linear with exposure time. Assuming that the rate of
loss in the corrosion study continued, ITN shot would release about 11%
of the calculated EEC per year; or about 4% of the acute water quality
criterion and 35% of the chronic criterion for nickel in fresh water.
After accounting for the dissolution of the shot, the EEC would be
below the chronic criterion for salt water, but still about 7 times the
acute criterion. However, the 11% dissolution would occur over a full
year. Deposition of ITN shot in salt water environments would occur
only during the hunting season, so worst-case nickel concentrations
would be well below the chronic criterion. In addition, in most
settings, shot deposition is far below that upon which the EEC is
Based on the information provided about ITN shot provided to us, we
have little concern for the organisms from ingestion of ITN shot or
from dissolution of the shot in aquatic settings.
We have previously approved as nontoxic other shot types that
contain tungsten, iron, and nickel. Previous assessments of tungsten-
containing alloys indicated that neither the tungsten nor the iron in
ITN shot should be of concern in terrestrial or aquatic systems. The
release of iron from the shot would be insignificant in natural
settings. Reviews of past studies for approvals of other tungsten-alloy
nontoxic shot types also support the idea that ingestion of ITN shot
will not cause harm to birds or mammals.
Impacts of Approval of ITN Shot as Nontoxic
The status quo would be maintained by not authorizing use of ITN
shot for hunting waterfowl and coots. By regulation, 10 other nontoxic
shot types are authorized for use by waterfowl and coot hunters.
Because these shot types are nontoxic to migratory birds, using only
those shot types would have no adverse impact on waterfowl and their
Based on past test results of shot types containing the metals in
ITN shot, we believe it too is nontoxic to waterfowl, other biota, and
their habitats. Furnishing another approved nontoxic shot will likely
result in a minor positive long-term impact on waterfowl and wetland
habitats. Approval of ITN shot as nontoxic would have a positive impact
on the waterfowl resource.
The impact on endangered and threatened species of approval of the
shot will be small but positive. We obtain a biological opinion
pursuant to Section 7 of the Endangered Species Act 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
Our consultations do not address take resulting from noncompliance.
Indeed, a factor considered when we developed the regulations banning
the use of lead for migratory waterfowl hunting was the impact of lead
on endangered and threatened species. Hunter failures to comply with
the ban on lead for waterfowl and coot hunting are of concern to us. We
believe noncompliance is of some concern, but failure to approve ITN
shot as nontoxic would have only a small negative impact on the
The impact of approval of ITN shot on endangered and threatened
species is similar to that described for waterfowl. In the short- and
long-term, approval would provide a positive impact on endangered and
threatened species because all indications are that ITN shot is
nontoxic. Also, as an alternative shot, it will further discourage the
use of lead during waterfowl hunting and perhaps extend to upland game.
Approval of ITN shot as nontoxic would have a short-term positive
impact on ecosystems. Some hunters still
shooting lead shot might switch to ITN shot. Approval of an additional
nontoxic shot type will result in positive long-term impact on
We foresee no negative cumulative impacts of approval of ITN shot
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 ITN shot for waterfowl hunting should be positive both in
the United States and elsewhere.
Nontoxic Shot Approval
The first condition for nontoxic shot approval is toxicity testing.
Based on the results of the toxicological reports and the toxicity
tests, we preliminarily conclude that ITN shot does not pose a
significant danger to migratory birds, other wildlife, or their
The second condition for approval is testing for residual lead
levels. Any shot with a lead level of 1% or more will be illegal. We
determined that the maximum environmentally-acceptable level of lead in
shot is 1%, and incorporated this requirement in the nontoxic shot
approval process we published in December 1997 (62 FR 63608).
International Nontoxic Composites, Inc. has documented that ITN shot
meets this requirement.
The third condition for approval involves enforcement. In 1995 (60
FR 43314), we stated that approval of any nontoxic shot would be
contingent upon the development and availability of a noninvasive field
testing device. This requirement was incorporated in the nontoxic shot
approval process. ITN shotshells can be drawn to a magnet as a simple
field detection method.
For these reasons, and in accordance with 50 CFR 20.134, we propose
to approve Iron-Tungsten-Nickel shot as nontoxic for migratory bird
hunting, and propose to amend 50 CFR 20.21(j) accordingly. This
decision is based on data about the components of this shot, assessment
of concentrations in aquatic settings, and assessment of the
environmental effects of the shot. Those results indicate no likely
deleterious effects of ITN shot to ecosystems or when ingested by
waterfowl. Earlier testing of shot types containing tungsten and/or tin
and/or iron indicated no environmental problems due to those metals in
nontoxic shot. We do not believe the nickel in ITN shot will pose a
significant environmental hazard, and we propose to approve ITN shot
with no further testing.
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criteria for nickel. U.S. Environmental Protection Agency,
U.S. Environmental Protection Agency. 1986. Ambient water quality
criteria--nickel. USEPA Office of Water, Criteria and Standards
Division, Washington, DC. EPA 440/5-86-004.
U.S. Environmental Protection Agency. 2000. Biosolids technology
fact sheet: land application of biosolids. U.S. Environmental
Protection Agency, Office of Water. Washington, DC. EPA 832-F-00-
U.S. Fish and Wildlife Service. 2004. Waterfowl population status,
2004. U.S. Fish and Wildlife Service, Washington, DC.
Weber, C. W. and B. L. Reid. 1968. Nickel toxicity in growing
chicks. Journal of Nutrition 95:612-616.
Wei, H. J., X-M. Luo, and X-P. Yand. 1987. Effects of molybdenum and
tungsten on mammary carcinogenesis in Sprague-Dawley (SD) rats.
Chung Hua Chung Liu Tsa Chih 9:204-7. English abstract.
Public Comments Solicited
Our past experience with nontoxic shot approvals has been that 30
days is sufficient time for those interested in these actions to
comment. Tungsten, iron, and nickel have been reviewed for use in
nontoxic shot. Therefore, we will accept comments on this proposal for
a 30-day period. A longer public comment period could unnecessarily
delay approval of this shot for subsequent production and use.
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 have prepared a Draft
Environmental Assessment for this action. We will finalize the
Environmental Assessment before we publish a final rule on this action.
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.
We foresee no negative cumulative impacts from approval of this
additional nontoxic shot type. Approval of an additional shot type with
metals already approved as nontoxic will not additionally impact the
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 proposes to approve 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 and others.
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, 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
OMB makes the final determination under E.O. 12866. We invite
comments on how to make this rule easier to understand, including
answers to questions such as the following: (1) Are the requirements in
the rule clearly stated? (2) Does the rule contain technical language
or jargon that interferes with its clarity? (3) Does the format of the
rule (grouping and order of sections, use of headings, paragraphing,
etc.) aid or reduce its clarity? (4) Would the rule be easier to
understand if it were divided into more (but shorter) sections? (A
``section'' appears in bold type and is preceded by the symbol ``Sec.
'' and a numbered heading; for example, ``Sec. 20.134 Approval of
nontoxic shot types.'') (5) Is the description of the rule in the
SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the rule? What else could we do to make the rule easier
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 for the nontoxic shot approval process, and
has assigned control number 1018-0067, which expires on December 31,
2006, to collection of information shot manufacturers are required to
provide to us for the nontoxic shot approval process. For further
information see 50 CFR 20.134.
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.
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
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
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 propose to 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.
* * * * *
Dated: February 1, 2005.
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-9022 Filed 5-5-05; 8:45 am]
BILLING CODE 4310-55-P