[Federal Register Volume 74, Number 151 (Friday, August 7, 2009)]
[Proposed Rules]
[Pages 39598-39604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18985]


=======================================================================
-----------------------------------------------------------------------

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 Draft Environmental Assessment

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessment.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service propose to approve 
tungsten-iron-fluoropolymer shot alloys for hunting waterfowl and 
coots. We published an advance notice of proposed rulemaking for this 
group of alloys in the Federal Register on March 3, 2009, under RIN 
1018-AW46 (74 FR 9207). 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.

DATES: Send comments on this proposal and/or the associated Draft 
Environmental Assessment by September 8, 2009.

ADDRESSES: Draft Environmental Assessment: You may obtain a copy of the 
draft environmental assessment

[[Page 39599]]

online at http://www.regulations.gov or by contacting the person listed 
under FOR FURTHER INFORMATION CONTACT. Written Comments: You may submit 
comments on the proposed rule by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket Number FWS-
R9-MB-2009-0003.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AW46; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203-1610.

We will not accept e-mails or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide (see the Public Comments section below 
for more information).

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 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 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.
    Tundra Composites, LLC, seeks 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. We conclude that they raise no particular 
concerns about deposition in the environment or about ingestion by 
waterfowl or predators.
    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 submissions.
    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 TIF shot to the list 
of the approved types of shot for waterfowl and coot hunting.

Affected Environment

Waterfowl Populations

    In 2008, 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 37.3 <plus-minus> with a standard error of 0.6 
million birds. This was 9% lower than last year's estimate of 41.2 
<plus-minus> 0.7 million birds, but 11% above the 1955-2007 long-term 
average. Mallard (Anas platyrhynchos) abundance was 7.7 <plus-minus> 
0.3 million birds, similar to last year's estimate of 8.3 <plus-minus> 
0.3 million birds and to the long-term average. Blue-winged teal (A. 
discors) estimated abundance was 6.6 <plus-minus> 0.3 million birds 
similar to last year's estimate of 6.7 <plus-minus> 0.4 million birds, 
and 45% above the long-term average. Estimated abundances of gadwall 
(A. strepera; 2.7 <plus-minus> 0.2 million) and northern shovelers (A. 
clypeata; 3.5 <plus-minus> 0.2 million) were lower than those of last 
year (-19% and -23%, respectively), but both remained 56% above their 
long-term averages. Estimated abundance of American wigeon (A. 
americana; 2.5 <plus-minus> 0.2 million) was similar to the 2007 
estimate and the long-term average. Estimated abundances of green-
winged teal (A. crecca; 3.0 <plus-minus> 0.2 million) and redheads 
(Aythya americana; 1.1 <plus-minus> 0.1 million) were similar to last 
year's, but were each more than 50% above their long-term averages. The 
redhead and green-winged teal estimates were the highest and the second 
highest ever for the traditional survey area. The canvasback (A. 
valisineria) estimate of 0.5 <plus-minus> 0.05 million was down 44% 
relative to 2007's record high, and 14% below the long-term average. 
Northern pintails (Anas acuta; 2.6 <plus-minus> 0.1 million) were 22% 
below last year's estimate and 36% below their long-term average. The 
estimate for scaup (Aythya affinis and A. marila combined), 3.7 <plus-
minus> 0.2 million, was similar to that of 2007 and 27% below the long-
term average.

Habitats

    Habitat conditions during the 2008 Waterfowl Breeding Population 
and Habitat Survey were characterized in many areas by a delayed spring 
compared to several preceding years. Drought in many parts of the 
traditional survey area contrasted sharply with record snow and 
rainfall in the eastern survey area. The total pond estimate for 
Prairie Canada and the United States combined was 4.4 <plus-minus> 0.2 
million ponds, 37% below last year's estimate of 7.0 <plus-minus> 0.3 
million ponds and 10% lower than the long-term average of 4.9 <plus-
minus> 0.03 million ponds. The 2008 estimate of ponds in Prairie Canada 
was 3.1 <plus-minus> 0.1 million. This was a 39% decrease from last 
year's estimate (5.0 <plus-minus> 0.3 million), and 11% below the 1955-
2007 average (3.4 <plus-minus> 0.03 million). The 2008 pond estimate 
for the north-central United States (1.4 <plus-minus> 0.1 million) was 
30% lower than last year's estimate (2.0 <plus-minus> 0.1 million) and 
11% below the long-term

[[Page 39600]]

average (1.5 <plus-minus> 0.02 million). The projected mallard fall-
flight index was 9.2 <plus-minus> 0.8 million, similar to the 2007 
estimate of 10.9 <plus-minus> 1.0 million birds. 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 (B. albeola), American black duck (A. 
rubripes), ring-necked duck (Aythya collaris), mergansers (red-breasted 
[Mergus serrator], common [M. merganser], and hooded [Lophodytes 
cucullatus]), and goldeneye (common [Bucephala clangula] and Barrow's 
[B. islandica]) all were similar to their 2007 estimates and long-term 
averages.

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 other alloys are increasingly greater in sectional density. The 
steel in the alloys contains up to 1.3% manganese, 1.2% silicon, and 
1.2% 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
----------------------------------------------------------------------------------------------------------------
                                                    Density (g/       Percent      Percent steel      Percent
                      Alloy                           cm\3\)         tungsten            *         fluoropolymer
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
* 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. 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% 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.

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 CaCO<INF>3</INF>). 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,

[[Page 39601]]

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 by-products 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 by-product 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; and 71 FR 4294, January 26, 
2006). We have approved alloys of almost 100% 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 or freshwater 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 
CaCO<INF>3</INF>) (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 freshwater 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.
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 so 
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% 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

[[Page 39602]]

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. Furnishing additional 
approved nontoxic shot types will likely further reduce 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 ESA 
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 and 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. Though we believe 
noncompliance is of concern, approval of the TIF alloys will have 
little impact on the resource.

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.

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 propose to approve TIF shot as 
nontoxic for hunting waterfowl and coots, and propose to 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 proposed rule, 
contact the person listed under FOR FURTHER INFORMATION CONTACT.

Public Comments

    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment, including any personal identifying information, will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.

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 would 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.

[[Page 39603]]

    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 proposed 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 Draft Environmental Assessment is part of the administrative 
record for this proposed regulations change. 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 would it involve unresolved 
conflicts concerning alternative uses of available resources. 
Therefore, preparation of an Environmental Impact Statement (EIS) is 
not required.

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 rule change will not be 
a significant regulatory action under E.O. 12866, nor would it 
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 (ESA) 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 chapter'' (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 
the regulation change will not affect listed species.

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:

PART 20--[AMENDED]

    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.

    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,    Magnet or Hot Shot.[supreg]
                                        and >=1 iron.
Iron-tungsten-nickel.................  >=1 iron, any proportion of    Magnet or Hot Shot.[supreg]
                                        tungsten, and up to 40
                                        nickel.
Tungsten-bronze......................  51.1 tungsten, 44.4 copper,    Rare Earth Magnet.
                                        3.9 tin, 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- Hot Shot[supreg] or Rare Earth Magnet.
                                        16 copper, and 5-7 nickel.
Tungsten-matrix......................  95.9 tungsten, 4.1 polymer...  Hot Shot.[supreg]

[[Page 39604]]

 
Tungsten-polymer.....................  95.5 tungsten, 4.5 Nylon 6 or  Hot Shot.[supreg]
                                        11.
Tungsten-tin-iron....................  any proportions of tungsten    Magnet or Hot Shot.[supreg]
                                        and tin, and >=1 iron.
Tungsten-tin-bismuth.................  49-71 tungsten, 29-51 tin;     Rare Earth Magnet.
                                        0.5-6.5 bismuth, and 0.8
                                        iron.
Tungsten-tin-iron-nickel.............  65 tungsten, 21.8 tin, 10.4    Magnet.
                                        iron, and 2.8 nickel.
Tungsten-iron-polymer................  41.5-95.2 tungsten, 1.5-52.0   Magnet or Hot Shot.[supreg]
                                        iron, and 3.5-8.0
                                        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: July 30, 2009.
Will Shafroth,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-18985 Filed 8-6-09; 8:45 am]
BILLING CODE 4310-55-P