[Federal Register Volume 74, Number 201 (Tuesday, October 20, 2009)]
[Rules and Regulations]
[Pages 53665-53671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25108]


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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