[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Rules and Regulations]
[Pages 67619-67624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32470]
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DEPARTMENT OF INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AE38
Migratory Bird Hunting; Temporary Conditional Approval of
Tungsten-Matrix Shot as Nontoxic for the 1998-99 Season
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) amends Section
20.21(j) to grant temporary conditional approval of tungsten-matrix
shot as nontoxic for the 1998-99 migratory bird hunting season only,
except in the Yukon-Kuskokwim (Y-K) Delta, Alaska, while chronic
toxicity/reproductive testing is being completed. Tungsten-matrix shot
has been submitted for consideration as nontoxic by Kent
[[Page 67620]]
Cartridge Manufacturing Company, Ltd. (Kent), of Kearneysville, West
Virginia.
DATES: This rule takes effect immediately upon publication on December
8, 1998.
ADDRESSES: Copies of the EA are available by writing to the Chief,
Office of Migratory Bird Management (MBMO), U.S. Fish and Wildlife
Service, 1849 C Street, NW., ms 634-ARLSQ, Washington, DC 20240. The
public may inspect comments during normal business hours in room 634,
Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Robert J. Blohm, Acting Chief, or
James R. Kelley, Jr., Wildlife Biologist, Office of Migratory Bird
Management (MBMO), (703) 358-1714.
SUPPLEMENTARY INFORMATION: Since the mid-1970s, the Service has sought
to identify shot that does not pose a significant toxic hazard to
migratory birds or other wildlife. Currently, only steel and bismuth-
tin shot are approved by the Service as nontoxic. On October 7, 1998
tungsten-iron (63 FR 54015) and tungsten-polymer (63 FR 54021) shot
were given temporary conditional approval for the 1998-99 hunting
season. Compliance with the use of nontoxic shot has increased over the
last few years. The Service believes that this level of compliance will
continue to increase with the availability and approval of other
nontoxic shot types. The Service is eager to consider these other
materials for approval as nontoxic shot.
The revised procedures for approving nontoxic shot (50 CFR 20.134)
consist of a three-tier process whereby existing information can
minimize the need for full testing of a candidate shot. However,
applicants still carry the burden of proving that the candidate shot is
nontoxic. By developing the new approval procedure, it was the
Service's intent to discontinue the practice of granting temporary
conditional approval to candidate shot material. However, the
application by Kent was initiated prior to implementation of the new
protocol. To date, scientific information presented in the application
suggests that tungsten-matrix is nontoxic under conditions for the
proposed shot configuration. Therefore, the Service will grant
temporary conditional approval for the 1998-99 hunting season only.
Final approval will not be granted until chronic toxicity/reproductive
testing is successfully completed and the results are reviewed and
approved by the Director.
Kent's original candidate shot was fabricated from what is
described in their application as ``* * * a mixture of powdered metals
in a plastic matrix whose density is comparable to that of lead. All
component metals are present as elements, not compounds. Tungsten-
matrix pellets have specific gravity of 9.8 g/cm3 and is
composed of 88 percent tungsten, 4 percent nickel, 2 percent iron, 1
percent copper, and 5 percent polymers by mass'' (63 FR 30044; June 2,
1998). After consultation with the Service, Kent subsequently changed
the composition of their shot and removed several metal components. The
new shot material being considered has a density of 10.7 g/
cm3 and is composed of approximately 95.9 percent tungsten
and 4.1 percent polymers.
Kent's updated application includes a description of the
reformulated tungsten-matrix shot, a toxicological report (Thomas
1997), and results of a 30-day dosing study of the toxicity of the
original formulation in game-farm mallards (Wildlife International,
Ltd. 1998). The toxicological report incorporates toxicity information
(a synopsis of acute and chronic toxicity data for mammals and birds,
potential for environmental concern, and toxicity to aquatic and
terrestrial invertebrates, amphibians and reptiles) and information on
environmental fate and transport. The toxicity study is a 30-day dosing
test to determine if the original candidate shot poses any deleterious
effects to game-farm mallards. This will meet the requirements for Tier
2, as described in 50 CFR 20.134(b)(3). Because the re-formulated shot
contains no new components, and in fact has had components removed, the
Service determined that testing of the reformulated shot in the form of
a new 30-day dosing study was not necessary.
Toxicity Information: There is considerable difference in the
toxicity of soluble and insoluble compounds of tungsten. Elemental
tungsten, which is the material used in this shot, is virtually
insoluble and is therefore expected to be relatively nontoxic. Even
though most toxicity tests reviewed were based on soluble tungsten
compounds rather than elemental tungsten (while the toxicity of the
polymers is negligible due to its insolubility), there appears to be no
basis for concern of toxicity to wildlife for tungsten-matrix shot
(metallic tungsten and polymers) via ingestion by fish, birds, or
mammals (Wildlife International Ltd., 1998; Bursian et al., 1996;
Gigiema, 1983; Patty, 1981; Industrial Medicine 1946; Karantassis
1924).
Environmental Fate and Transport: Tungsten is insoluble in water
and, therefore, not mobile in hypergenic environments. Tungsten is very
stable in acids and does not easily complex. Preferential uptake by
plants in acid soil suggests that uptake of tungsten in the anionic
form is associated with tungsten minerals rather than elemental
tungsten (Kabata-Pendias and Pendias 1984).
Environmental Concentrations: Calculation of the estimated
environmental concentration (EEC) of tungsten in a terrestrial
ecosystem is based on 69,000 shot per hectare (Pain 1990), assuming
complete erosion of material in 5 cm of soil. The EECs for tungsten and
the 2 polymers in soil are 25.7 mg/kg, 4.2 mg/kg, and 0.14 mg/kg,
respectively. Calculation of the EEC in an aquatic ecosystem assumes
complete erosion of the shot in one cubic foot of water. The EECs in
water for tungsten and the 2 polymers are 4.2 mg/L, 0.2 mg/L, and 0.02
mg/L, respectively. Tungsten-matrix shot is considered insoluble and is
stable in basic, neutral, and mildly acidic environments. Therefore,
erosion of shot is expected to be minimal, and adverse effects on biota
are not expected to occur.
Effects on Birds: An extensive literature review provided
information on the toxicity of elemental tungsten to waterfowl and
other birds. Ringelman et al. (1993), orally dosed 20 8-week-old game-
farm mallards with 12-17 (1.03g) tungsten-bismuth-tin (TBT) pellets and
monitored them for 32 days for evidence of intoxication. No birds died
during the trial, gross lesions were not observed during the postmortem
examination, histopathological examinations did not reveal any evidence
of toxicity or tissue damage, and tungsten was not detectable in kidney
or liver samples. The authors concluded that TBT shot presented
virtually no potential for acute intoxication in mallards.
Kraabel et al. (1996) assessed the effects of embedded TBT shot on
mallards and concluded that TBT was not acutely toxic when implanted in
muscle tissue. Inflammatory reactions to TBT shot were localized and
had no detectable systemic effects on mallard health.
Nell et al. (1981) fed laying hens (Gallus domesticus) 0.4 or 1 g/
kg tungsten in a commercial mash for five months to assess reproductive
performance. Weekly egg production was normal and hatchability of
fertile eggs was not affected. Exposure of chickens to large doses of
tungsten either through injection or by feeding, resulted in an
increased tissue concentration of tungsten and a decreased
concentration of molybdenum (Nell et al. 1981). The loss of tungsten
from the liver occurred in an exponential manner with a half-life of
[[Page 67621]]
27 hours. The alterations in molybdenum metabolism seemed to be
associated with tungsten intake rather than molybdenum deficiency.
Death due to tungsten occurred when tissue concentrations increased to
25 mg/g liver. At that concentration, xanthine dehydrogenase activity
was zero.
The two plastic polymers used in tungsten-matrix shot act as a
physical matrix in which the tungsten is distributed as ionically-bound
fine particles. Most completely polymerized nylon materials are
physiologically inert, regardless of the toxicity of the monomer from
which they are made (Peterson, 1977). A literature review did not
reveal studies in which either of the two polymers were evaluated for
toxicity in birds. Montgomery (1982) reported that feeding Nylon 6 to
rats at a level of 25 percent of the diet for 2 weeks caused a slower
rate of weight gain, presumably due to a decrease in food consumption
and feed efficiency. However, the rats suffered no anatomic injuries
due to the consumption of nylon.
Kent's 30-day dosing study on the original formulation (Wildlife
International Ltd., 1998) included 4 treatment and 1 control group of
game-farm mallards. Treatment groups were exposed to 1 of 3 different
types of shot: 8 #4 steel, 8 #4 lead, or 8 #4 tungsten-matrix; whereas
the control group received no shot. The 2 tungsten-matrix treatment
groups (1 group deficient diet, 1 group balanced diet) each consisted
of 16 birds (8 males and 8 females); whereas remaining treatment and
control groups consisted of 6 birds each (3 males and 3 females). All
tungsten-matrix-dosed birds survived the test and showed no overt signs
of toxicity or treatment-related effects on body weight. There were no
differences in hematocrit or hemoglobin concentration between the
tungsten-matrix treatment group and either the steel shot or control
groups. No histopathological lesions were found during gross necropsy.
In general, no adverse effects were seen in mallards given 8 #4 size
tungsten-matrix shot and monitored over a 30-day period. Tungsten was
found to be below the limit of detection in all samples of femur,
gonad, liver, and kidney from treatment groups.
Based on the results of the toxicological report and the toxicity
test of the original shot formulation (Tier 1 and 2), the Service
concludes that tungsten-matrix shot, (approximately 95.9 percent
tungsten and 4.1 percent polymer, by weight with <1 percent residual
lead), does not appear to pose a significant danger to migratory birds
or other wildlife and their habitats. However, the Service has some
concern that absorption of tungsten into the femur, kidney, and liver,
as noted in a separate study on mallards, could potentially affect the
spectacled eider (Somateria fischeri); a species already subject to
adverse weather, predation, and lead poisoning on the Yukon-Kuskokwim
(Y-K) Delta, Alaska. Until chronic toxicity/reproductive testing has
been successfully completed and the Service has reviewed and approved
the results, tungsten-matrix shot cannot be approved for the Y-K Delta.
The first condition of approval is toxicity testing. Candidate
materials not approved under Tier 1 and/or 2 testing are subjected to
standards of Tier 3 testing. The scope of Tier 3 includes chronic
exposure under adverse environmental conditions and effects on
reproduction in game-farm mallards, as outlined in 50 CFR 20.134
(b)(4)(i)(A and B) (Tier 3), and in consultation with the Service's
Office of Migratory Bird Management and the U.S. Geological Survey's
Division of Biological Resources. This study includes assessment of
long-term toxicity under depressed temperature conditions using a
nutritionally-deficient diet, as well as a moderately long-term study
that includes reproductive assessment. The tests require the applicant
to demonstrate that tungsten-matrix shot is nontoxic to waterfowl and
their offspring.
The second condition of final unconditional approval is testing for
residual lead levels. Any tungsten-matrix shot with lead levels equal
to or exceeding 1 percent will be considered toxic and, therefore,
illegal. In the Federal Register of August 18, 1995 (60 FR 43314), the
Service indicated that it would establish a maximum level for residual
lead. The Service has determined that the maximum environmentally
acceptable level of lead in any nontoxic shot is trace amounts of <1
percent and has incorporated this requirement (50 CFR 20.134(b)(5)) in
the December 1, 1997, final rule (62 FR 63608). Kent documented that
tungsten-matrix shot has no residual lead levels equal to or exceeding
1 percent.
The third condition of final unconditional approval involves
enforcement. In the August 18, 1995 Federal Register (60 FR 43314), the
Service indicated that final unconditional approval of any nontoxic
shot would be contingent upon the development and availability of a
noninvasive field testing device. This requirement was incorporated
into regulations at 50 CFR 20.134(b)(6) in the December 1, 1997, final
rule (62 FR 63608). A noninvasive field testing device is under
development to separate tungsten-matrix shot from lead shot. Tungsten-
matrix shot cannot be drawn to a magnet as a simple field detection
method. The Service incorrectly stated in the proposed rule of October
19, 1998, that tungsten-matrix was magnetic (63 FR 55842).
In summary, this rule amends 50 CFR 20.21(j) by temporarily
approving tungsten-matrix shot as nontoxic for the 1998-99 migratory
bird hunting season throughout the United States, except for the Y-K
Delta in Alaska. It is based on the request made to the Service by Kent
Cartridge on September 18, 1997 (subsequently modified), the
toxicological reports, and the acute toxicity studies. Results of the
toxicological report and 30-day toxicity test undertaken for Kent
Cartridge indicate the apparent absence of any deleterious effects of
tungsten-matrix shot when ingested by captive-reared mallards or to the
ecosystem. Final unconditional approval of tungsten-matrix shot as
nontoxic for the entire U.S. will not be considered until all required
chronic toxicity/reproductive tests have been successfully completed
and the results are reviewed and approved by the Director.
Public Comments and Responses
The October 19, 1998, proposed rule published in the Federal
Register (63 FR 55840) invited public comments from interested parties.
The closing date for receipt of all comments was November 18, 1998.
During this 30-day comment period, the Service received eight comments.
The California Waterfowl Association strongly supported the
proposed temporary approval of tungsten-matrix shot for the 1998-99
season. They believed that temporary approval of tungsten-matrix shot
was an important step to address concerns relating to efforts to reduce
unnecessary crippling of waterfowl through development of more
effective nontoxic shot materials.
The Wildlife Legislative Fund of America encouraged the Service to
approve tungsten-matrix shot for the 1998-99 season. They believe that
approval of tungsten-matrix would help fulfill the objective of making
lead shot substitutes available to hunters.
The International Association of Fish and Wildlife Agencies
supported temporary and conditional approval of tungsten-matrix shot
for the 1998-99 season. They acknowledged that final approval is
pending successful completion of further testing.
The Wisconsin Department of Natural Resources (Wisconsin) supported
temporary approval of tungsten-matrix
[[Page 67622]]
provided there is no scientific evidence that indicates it is toxic to
waterfowl or the environment. However, Wisconsin expressed concern
about the timing of the proposed and final rules and the confusion that
it creates for hunters. They encouraged the Service to initiate
publication of rules concerning nontoxic shot before August 1 to allow
proper planning by States.
The National Rifle Association urged the Service to temporarily
approve tungsten-matrix shot for the remainder of the 1998-99 season.
They further expressed their support of research and development of
ballistically efficient nontoxic shot ammunition.
The WILDFOWL.NET organization expressed concern that the Service
has not taken steps to approve tungsten-matrix shot in a prompt manner.
They questioned why the Service could not approve a generic tungsten
shotload, in a manner similar to steel shot. Finally, they inquired
whether the Service intends to either arrest and/or cite waterfowl
hunters that use tungsten-matrix shot prior to granting final approval
of the shot.
Kent Cartridge Company (Kent) supported prompt conditional approval
of tungsten-matrix shot for the 1998-99 waterfowl hunting season. They
stated that they fully intend to complete chronic toxicity/reproductive
testing on tungsten-matrix shot that is required before final approval
can be considered. Kent pointed out that the concentration of lead in
their shot is below the 1 percent level that the Service has stipulated
for nontoxic shot. Furthermore, they indicated that noninvasive field
testing equipment for detecting tungsten-matrix shot is expected to be
available shortly.
The Federal Cartridge Company (Federal) noted that a complete
description of candidate shot materials must be submitted to the
Director, and that a complete description of tungsten-matrix shot was
not published in the Federal Register. Federal also questioned whether
the 2 percent iron, referenced in the initial application, was removed
from the candidate shot as it was not mentioned in the October 19
proposed rule description. Lastly, Federal questioned whether tungsten-
matrix shot could be drawn to a magnet as a field test method.
Service Response: Regarding the timing of the rulemaking, the
Service recognizes the information dissemination problems caused by
conditionally approving tungsten-matrix shot at this time. However, the
Service acts on nontoxic shot applications as they are received.
Therefore, when applications are approved, either conditionally or
permanently, the Service proceeds with the application process
regardless of the timing of hunting seasons. Because Kent's application
was being treated under the old nontoxic shot approval process, which
provided for conditional approval, the Service decided to proceed with
this rulemaking. Providing another nontoxic shot option for hunting
waterfowl and coots likely will improve hunter compliance, thereby
reducing the amount of lead shot in the environment.
Regarding the assertion that the Service has not processed
temporary approval of tungsten-matrix shot in a prompt manner, we
stress that the Service made every attempt to process Kent's
application as quickly as possible.
Regarding the question of whether approval can be given for generic
tungsten shots, we point out that for the three tungsten shot
applications currently being processed by the Service (tungsten-iron,
tungsten-polymer, and tungsten-matrix), no data has been submitted on
the required chronic toxicity/reproductive tests. Without such
information, it would not be prudent to approve a generic tungsten shot
type. The revised test protocol for nontoxic approval procedures (50
CFR 20.134) published in the Federal Register on December 1, 1997 (62
FR 63608) established a three-tier approval process. The system has
three tiers, with each tier enhancing the information base on the
candidate material. Those candidate materials where appropriate
background information, toxicological data, ecological risk assessment,
and reproductive effects information are available demonstrating the
candidate material to be benign may receive nontoxic approval.
Applications for nontoxic approval of candidate shots submitted after
December, 1997, must satisfy all information requirements determined by
the Service before any form of approval can be granted. Without chronic
toxicity/reproductive test data (Tier 3) there would be insufficient
information to approve future tungsten shot applications under the new
test protocol. Furthermore, depending on the specific composition of
future tungsten candidate shot types and associated concerns over their
toxicity, there may be sufficient cause for requiring additional
information before approval can be granted.
Regarding whether the Service intends to arrest or cite waterfowl
hunters that use tungsten-matrix shot prior to granting final permanent
approval of the shot, we would like to clarify that the Service is not
requiring final permanent approval of tungsten-matrix shot before
making it legal for the 1998-99 season. Final permanent approval of
tungsten-matrix will not be considered until results from chronic
toxicity/reproductive testing, scheduled to be conducted during spring
1999, are submitted to the Service for review. We emphasize that this
rule grants temporary approval of the shot for hunting waterfowl and
coots for the remainder of the 1998-99 hunting season only. Therefore,
as of the publication date of this rule and for the remainder of the
1998-99 season only, hunters using tungsten-matrix to hunt waterfowl
and coots during the current season would be in compliance with the law
and should not be cited.
The Service is pleased that Kent intends to complete the required
chronic toxicity/reproductive testing of their tungsten-matrix shot. We
look forward to reviewing the results of such tests as soon as possible
so that a decision can be made on the shot's nontoxic status before the
1999-2000 hunting season.
Regarding the questions on shot composition, the composition of
tungsten-matrix shot approved by this rule is not magnetic and no
longer contains 2 percent iron. Both of these issues were oversights on
our part in the October 19 proposed rule. Regarding the completeness of
the description of the subject shot material, Kent included a complete
description of tungsten-matrix shot in their application to the
Service, including the specific polymers used in the shot. Sufficient
information was contained in Kent's application to allow the Service to
assess short-term toxicity of the shot and subsequently grant temporary
approval for the remainder of the 1998-99 hunting season. Because Kent
requested that the Service not divulge proprietary information
concerning the nature of the polymers used in their shot, the exact
description of the polymers will not be published.
Effective Date
Under the APA (5 U.S.C. 553 (d)) the Service waives the 30-day
period before the rule becomes effective and finds that ``good cause''
exists, within the terms of 5 U.S.C. 553(d)(3) of the APA, and this
rule will, therefore, take effect immediately upon publication. This
rule relieves a restriction and, in addition, it is not in the public
interest to delay the effective date of this rule. During the public
comment period for temporary conditional approval the Service received
eight comments. Of these comment letters, six were from conservation
organizations, one was from a State natural resource agency,
[[Page 67623]]
and one was from an ammunition manufacturer. All objections/comments
have been remedied satisfactorily and are discussed under the Public
Comment and Responses section of this document. It is in the best
interest of migratory birds and their habitats to grant temporary
conditional approval to tungsten-matrix shot as nontoxic for the 1998-
99 migratory bird hunting season. It is in the best interest of the
hunting public to provide them an additional legal option for hunting
waterfowl and coots for the 1998-99 season, which began on September 1,
1998. It is in the best interest of small retailers who have stocked
tungsten-matrix shot for the current season. The Service believes
another nontoxic shot option likely will improve hunter compliance,
thereby reducing the amount of lead shot in the environment.
References
Bursian, S. J., M. E. Kelly, R. J. Aulerich, D. C. Powell, and S.
Fitzgerald. 1996. Thirty-day dosing test to assess the toxicity of
tungsten-polymer shot in game-farm mallards. Report to Federal
Cartridge Co. 77 pp.
Gigiema I Sanitariya. 1983. Mezhdunarodnaya Kniga. Moscow, USSR.
48(7):77.
Industrial Medicine. 1946. Volume 15, p. 482.
Interagency Ecosystem Management Task Force. 1995. The ecosystem
approach: healthy ecosystems and sustainable economics. Volume II--
Implementation Issues.
Kabata-Pendias, A. and H. Pendias. 1984. Trace elements in soil and
plants. CRC Press, Inc. Boca Raton, FL.
Karantassis, T. 1924. On the toxicity of compounds of tungsten and
molybdenum. Ann. Med. 28:1541091543.
Kraabel, F. W., M. W. Miller, D. M. Getzy, and J. K. Ringleman.
1996. Effects of embedded tungsten-bismuth-tin shot and steel shot
on mallards. J. Wildl. Dis. 38(1):1098.
Montgomery, R. R. 1982. Polymers. In Patty's Industrial Hygiene and
Toxicology, Vol. IIIA (G. D. Clayton and F. E. Clayton, Eds.) pp.
4209-4526. John Wiley and Sons, NY.
Nell, J. A; Bryden, W. L.; Heard, G. S.; Balnave, D. 1981.
Reproductive performance of laying hens fed tungsten. Poultry
Science 60(1):257-258.
Pain, D. J. 1990. Lead shot ingestion by waterbirds in the
Carmarque, France: an investigation of levels and interspecific
difference. Environ. Pollut. 66:273-285.
Patty's Industrial Hygiene and Toxicology. 1981. Wiley Interscience.
Wiley & Sons, Inc. NY, NY. Third Ed.
Peterson, J. E. 1977. Industrial Health. Prentice-Hall, Englewood
Cliffs, NJ.
Ringelman, J. K., M. W. Miller and W. F. Andelt. 1993. Effects of
ingested tungsten-bismuth-tin shot on mallards. CO Div. Wildl., Fort
Collins, 24 pp.
Thomas, V. G. 1997. Application for approval of tungsten-matrix shot
as non-toxic for the hunting of migratory birds. 39 pp.
Wildlife International, Ltd. 1998. Tungsten-matrix shot: An oral
toxicity study with the mallard. Project No. 475-101. 162 pp.
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), the Service prepared an Environmental Assessment in
October 1998. This EA is available to the public at the location
indicated under the ADDRESSES caption. Based on review and evaluation
of the information in the EA, the Service has determined that amending
50 CFR 20.21(j) to extend temporary approval of tungsten-matrix shot as
nontoxic for the 1998-99 migratory bird hunting season would not be a
major Federal action that would significantly affect the quality of the
human environment.
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 * * * .'' The Service has completed
a Section 7 consultation under the ESA for this rule and determined
that granting temporary approval of tungsten-matrix shot for the 1998-
99 hunting season, except on the Yukon-Kuskokwin (Y-K) Delta, is not
likely to affect any threatened, endangered, proposed or candidate
species. The result of the Service's consultation under Section 7 of
the ESA is available to the public at the location indicated under the
ADDRESSES caption.
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. The economic impacts of annual hunting on small business
entities were analyzed in detail and a Small Entity Flexibility
Analysis (Analysis), under the Regulatory Flexibility Act (5 U.S.C.
601, et seq.), was issued by the Service in 1998 (copies available upon
request from the Office of Migratory Bird Management). The Analysis
documented the significant beneficial economic effect on a substantial
number of small entities. The primary source of information about
hunter expenditures for migratory game bird hunting is the National
Hunting and Fishing Survey, which is conducted at 5-year intervals. The
Analysis utilized the 1996 National Hunting and Fishing Survey which it
was estimated that migratory bird hunters would spend between $429 and
$1084 million nationwide at small businesses in 1998. The approval of
tungsten-matrix as an alternative shot to steel will have a minor
positive impact on small businesses by allowing them to sell another
nontoxic shot to the hunting public. However, the overall effect to
hunting expenditures in general would be minor. Therefore, the Service
determined 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.
The Service anticipates no dislocation or other local effects, with
regard to hunters and others.
Executive Order 12866
This rule was not subject to Office of Management and Budget (OMB)
review under Executive Order 12866. E.O. 12866 requires each agency to
write regulations that are easy to understand. The Service invites
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? (5) Is
the description of the rule in the ``Supplementary Information''
section of the preamble helpful in understanding the rule? What else
could the Service do to make the rule easier to understand?
Send a copy of any comments that concern how this rule could be
made easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street, N.W., Washington, D.C.
20240. Comments may also be e-mailed to: E[email protected].
[[Page 67624]]
Congressional Review
In accordance with Section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 8), this rule has been
submitted to Congress. Because this rule deals with the Service's
migratory bird hunting program, this rule qualifies for an exemption
under 5 U.S.C. 808(1); therefore, the Department determines that this
rule shall take effect immediately.
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 Service has examined this
regulation under the Paperwork Reduction Act of 1995 and found it to
contain no information collection requirements. However, the Service
does have OMB approval (1018-0067; expires 06/30/2000) for information
collection relating to what manufacturers of shot are required to
provide the Service for the nontoxic shot approval process. For further
information see 50 CFR 20.134.
Unfunded Mandates Reform
The Service has determined and certifies pursuant to the Unfunded
Mandates 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
The Service, in promulgating this rule, determines 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, these rules, authorized
by the Migratory Bird Treaty Act, do not have significant takings
implications and do not affect any constitutionally protected property
rights. These rules will not result in the physical occupancy of
property, the physical invasion of property, or the regulatory taking
of any property. In fact, these rules allow hunters to exercise
privileges that would be otherwise unavailable; and, therefore, 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. These rules do 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 12612,
these regulations do not have significant federalism effects and do 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 evaluated possible
effects on Federally recognized Indian tribes and have determined that
there are no effects.
Authorship
The primary author of this proposed rule is James R. Kelley, Jr.,
Office of Migratory Bird Management.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and record-keeping
requirements, Transportation, Wildlife. Accordingly, Part 20,
subchapter B, chapter 1 of Title 50 of the Code of Federal Regulations
is amended as follows:
PART 20--[AMENDED]
1. The authority citation for Part 20 continues to read as follows:
Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.
2. Section 20.21 is amended by revising paragraph (j) introductory
text, and adding paragraph (j)(4) to read as follows:
Sec. 20.21 Hunting methods.
* * * * *
(j) While possessing shot (either in shotshells or as loose shot
for muzzleloading) other than steel shot, or bismuth-tin (97 parts
bismuth: 3 parts tin with <1 percent residual lead) shot, or tungsten-
iron ([nominally] 40 parts tungsten: 60 parts iron with <1 percent
residual lead) shot, or tungsten-polymer (95.5 parts tungsten: 4.5
parts Nylon 6 or 11 with <1 percent residual lead) shot, or tungsten-
matrix (95.9 parts tungsten: 4.1 parts polymer with <1 percent residual
lead) shot, or such shot approved as nontoxic by the Director pursuant
to procedures set forth in 20.134, provided that:
(1) * * *
(4) Tungsten-matrix shot (95.9 parts tungsten: 4.1 parts polymer
with <1 percent residual lead) is legal as nontoxic shot for waterfowl
and coot hunting for the 1998-1999 hunting season only, except for the
Yukon-Kuskokwim Delta habitat in Alaska.
Dated: December 1, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-32470 Filed 12-7-98; 8:45 am]
BILLING CODE 4310-55-P