As mentioned above, the FWS speaks of a number of reasons for having modified its final rule in the first instance. Implicit in the FWS' final rule would appear to be the FWS' paramount and overriding concern for the conservation of the limited migratory waterfowl resource. However, nowhere in ITRI's application to the FWS is there any comment by ITRI relative to the issue of the overall effectiveness of tin shot as an efficient shot for purposes of harvesting waterfowl. Of course, we are assuming that the FWS would not want to see the reoccurrence of the problems caused by the legalization of low velocity steel shot. That is, a nontoxic shot which cripples waterfowl, but does not cleanly and efficiently dispatch waterfowl, is of little use or benefit to anyone, least of all, to the limited migratory waterfowl resource, or to a waterfowler. Nor, for that matter, would an ineffective waterfowl load be remotely supportive of the notion of conserving the limited migratory waterfowl resource. Indeed, an ineffective nontoxic shot load would appear to be the antithesis of such a philosophy. Consequently, if the sentiment of game conservation is inherent in the FWS' final rule (as we assume it is), ITRI's application may well be deficient in terms of its failure to even address this issue in its submittal to the FWS.

With regards to the FWS' final rule, and the 3-Tier process outlined therein, some have suggested that implicit in the FWS' new rule is the fact that both Tier 2 and Tier 3 levels of scrutiny should be applied to all nontoxic shot applicants. That is to say, it would seem prudent for the FWS to give "tentative" approval to any shot candidate based upon that candidate successfully completing Tier 1 scrutiny, subject only to successful completion of Tier 2 scrutiny. Further, the same "tentative" approval for a candidate who has successfully completed Tier 2 scrutiny should be granted, subject only to Tier 3 scrutiny. Under such an interpretation, it would seemingly be in everyone's best interest (the public, the limited migratory waterfowl resource, the FWS and the particular manufacturer) to have a sufficient level of knowledge of any one shot so as to avoid the potential horrors associated with certain past products which were unwittingly allowed to enter the stream of commerce. Moreover, the FWS has been asked to justify approval of any nontoxic shot based upon less knowledge rather than more knowledge. Again, time will only tell what the FWS' response will be to this inquiry.

MUZZLE VELOCITY CONCERNS

In conjunction with the issue of overall effectiveness of any new nontoxic waterfowl load which the FWS may approve, it has been previously suggested to the FWS that there might be differences in manufacturing processes between various companies that elected to make tin shot waterfowl loads. Thus, assuming, arguendo, that Manufacturer A would make a tin shot load (3" magnum size no. 4 shot) with a muzzle velocity of 1200' p/sec., and Manufacturer B would make the same tin shot load (3" magnum size no. 4 shot), but with a muzzle velocity of 1450' p/sec, and supposing further that Manufacturer A's tin shot load cripples a full 60% of all wild mallards cleanly shot within 35 yards of the gunner (i.e., a 40% efficiency rating), while Manufacturer B's tin shot load cripples but just 10% of all wild mallards cleanly shot within 35 yards of the gunner (i.e., a 90% efficiency rating), would (or will) the FWS grant "blanket" approval for ITRI's tin shot application without first obtaining reasonable assurances that any tin shot load produced for purposes of a waterfowl load would not, at the same time, meet a certain pre-established threshold standard of efficiency for the intended purpose, i.e, a reasonable standard for efficiently dispatching cleanly shot waterfowl? It would appear to be the height of bureaucratic folly to permit any manufacturer of waterfowl shot load to knowingly make a measurably inefficient waterfowl load, even if it were nontoxic. Obviously, such a situation as this would clearly fly in the face of every standard of reasonableness that the FWS ever stood for. Thus, if the FWS were considering approving tin shot as a nontoxic waterfowl load, would it not also be feasible at the same time to set a minimum "dispatch" efficiency standard for every nontoxic load for which a manufacturer sought FWS approval? Could not the FWS easily quantify what that standard would be in the case of tin shot? Wouldn't both ITRI and the FWS want to work cooperatively to define this standard? These and other related questions will hopefully be answered in the near future by the FWS.

SHOT WADS

In further consideration of the FWS' newly established nontoxic shot approval protocol, it appears that the FWS is vitally concerned with the big picture in terms of its concern for the overall environment. In this regard, the ITRI tin shot approval application lacked any comment on the availability (or lack thereof) of biodegradable shot wads for tin shot loads. Since ITRI estimates that some 2500 tons of annual tin shot would be deposited into the environment, one can only wonder how many tons of non-biodegradable shot wads would likewise be deposited into our marshlands. While plastic wads may or may not pose a threat to the survival of wildlife (we assume the FWS would know best in this regard), however, unless picked up by a very neat and tidy waterfowler, and if for no other reason, a non-biodegradable wad (plastic wad) will certainly constitute environmental rubbish. We consider that bio-degradable shot wads for any nontoxic waterfowl loads would assuredly assist in everyone's effort to keep our many national wildlife refuges clean and refuse free.

CONTAINER LABELING

Since the FWS' primary mission is to effectively conserve fish and wildlife, would not the FWS want to see every approved waterfowl shot manufacturer assist in this regard? If a shot load manufacturer could, indeed, easily assist by means of a simple addition to its shot packaging, would it also not be reasonable for the FWS to make approval of any nontoxic shot contingent upon such labeling? Hopefully, this would be the case.

How can the FWS and any nontoxic shot applicant easily assist in conserving waterfowl by way of shot package labeling? Well, for one thing, an approved shot manufacturer could be compelled to print reasonably necessary consumer information on every package. For example, average muzzle velocity of the particular shot load would fall into such a category. So, too, would labeling which provided added information to the waterfowler in terms of "continuing hunter education and training" which the FWS has previously suggested a need for. Hence, would it be asking too much to compel every purchaser of an approved nontoxic waterfowl shot to hunt with a trained retriever? Obviously, it would be. But, would it be unreasonable to require a shot manufacturer to label its packaging with the following admonition? "Conserve Game - Hunt With A Trained Retriever." We suspect not. Would such a message be beneficial to send to the waterfowling community, particularly, novice waterfowlers? That is, does hunting waterfowl with a trained retriever help conserve the waterfowl resource? Well, if you were to ask virtually anyone who owns a trained retriever and who has ever hunted waterfowl around someone who doesn't, we strongly suspect the answer would be a resounding, "Yes."