Recently, the U.S. Fish and Wildlife Service (FWS) promulgated its final rule for purposes of establishing its approval protocol for all new non-toxic waterfowl shot applications. The FWS' final rule consists of a possible, although not mandated, three-tier approach to approving new applications for non-toxic waterfowl shot. The rule was published by the FWS in the Federal Register (FR) on December 1, 1997 and the same became effective on December 31, 1997. The FR file number is denominated "fr01de97R" or "fr01de97-15" (as the search engine may reveal) and may be viewed and/or downloaded via GPO Internet access.

FINAL RULE HIGHLIGHTS

The new rule was purportedly established because of a) new advancements in science, and b) the perception of the need to reduce the burden on both applicants and the FWS in the overall review process, and c) to reduce the number of test animals used in the process, and d) in order to make the testing protocol come into compliance with the FWS' overall "ecosystem management perspective," which perspective is at the heart of the FWS' approach to its conservation management practice.

Depending on the nature of the shot, the completeness of the application, and subject to any public comment which may be received during the public comment period, a party submitting a comprehensive application for approval of nontoxic shot for purposes of its use in hunting waterfowl in the US may receive approval after completing only the Tier 1 process.

The scope of the Tier 1 process appears to be a limited one inasmuch as it only includes a) physical and chemical characterization of the candidate shot or shot coating (empirical formula, melting point, molecular weight, etc.); and b) information on the toxicity of the candidate material; and c) an ecological risk assessment; and d) effects on reproduction in water birds of the candidate material (evidently, only pen-raised mallards are tested though). There is also a public comment period for any candidate shot that the FWS indicates it is considering approving.

If the candidate shot doesn't obtain approval at the Tier 1 stage, and assuming it hasn't been deemed toxic by the FWS, the candidate may be required to go through the Tier 2 process. The scope of the Tier 2 test includes "in vitro" erosion rate testing (test procedures are spelled out in detail), short-term (30 day) acute toxicity testing on mallards, and toxicity tests with invertebrates and early-life stage vertebrates to assess potential impacts on waterfowl habitat. Similar to the Tier 1 level, there is a public comment period for any candidate shot that the FWS indicates it is considering approving after Tier 2 testing.

As with Tier 1, if the candidate doesn't receive FWS approval at the Tier 2 stage, it may submit testing on the Tier 3 level. The scope of Tier 3 includes chronic exposure under adverse environmental conditions and effects on reproduction in mallards. Similar to all other Tier levels, there is a public comment period for any candidate shot that the FWS indicates it is considering approving after Tier 3 testing.

Other conditions of approval consist of both residual lead levels (can't be greater than 1% lead residual in any approved shot), and the ability for field agents (game wardens) to test the shot by means of an available "noninvasive" test device (i.e., a testing device which doesn't require a game warden to cut the shell open - hence, pocket knives are out).

Finally, if the FWS' final rule is too tough to comprehend in one bite, the FWS has produced a "flow" diagram to demonstrate the review process pictorially.

THE NEW RULE AND ITRI'S TIN SHOT APPROVAL APPLICATION

In late 1997, International Tin Research Institute, Ltd. (ITRI), a United Kingdom-based organization representing the tin industry, applied to the FWS for approval of all tin shot which may be manufactured by any number of national and/or international shotshell manufacturers. ITRI's application to the FWS appeared to be a "blanket" application for all possible future as well as existing manufacturers of tin shot. Of course, whether its new final rule expressly permits the application for nontoxic shot approval on such a "blanket" basis, is a question which, evidently, the FWS has not previously considered. Some have suggested that the rule requires individual manufacturers of particular waterfowl shot (even assuming every application is for tin shot approval) make separate application to the FWS for approval pursuant to the mandates of the FWS' final rule.

The issue in this regard appears to be whether the FWS can reasonably assume that all manufacturers of tin shot for waterfowl loads would, in fact, make the same identical product. Of course, ITRI has not addressed this issue in their application to the FWS. Nor, for that matter, has ITRI even submitted any sample shells to the FWS. The reason for this is on account of the fact that the FWS' new rule requires a manufacturer to merely submit five pounds of the candidate shot, not any actual sample loads. Thus, it seems a bit too early to determine which way the FWS will rule on this issue.