[Federal Register Volume 63, Number 143 (Monday, July 27, 1998)]
[Proposed Rules]
[Pages 40077-40080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19891]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AE35


Migratory Bird Hunting; Extension of Temporary Approval of 
Tungsten-Iron Shot as Nontoxic for the 1998-99 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) is proposing to 
amend Section 20.21(j) to grant temporary approval of tungsten-iron 
shot as nontoxic for the 1998-99 migratory bird hunting season, except 
in the Yukon-Kuskokwim (Y-K) Delta, Alaska. The Service had previously 
granted temporary approval of tungsten-iron shot as nontoxic for the 
1997-98 season. The toxicological report, which is an extensive 
literature search and analysis of tungsten and tungsten-iron, suggests 
that these compounds are nontoxic under assumed use and in the 
environment. Analysis of the toxicity study reveal no adverse effects 
over a 30-day period when dosing mallards (Anas platyrhynchos) with 8 
BB size tungsten-iron shot. However, there is some concern that the 
absorption of tungsten into the femur, kidney, and liver could 
potentially affect the spectacled eider (Somateria fischeri), a species 
already subject to adverse weather, predation, and lead poisoning on 
the Y-K Delta. Until a reproductive/chronic toxicity test has been 
completed and the Service has reviewed the results, tungsten, iron shot 
will not be approved for the Y-K Delta.

DATES: Comments on the proposed rule must be received no later than 
August 26, 1998.

ADDRESSES: Copies of the EA are available by writing to the Chief, 
Office of Migratory Bird Management (MBMO), U.S. Fish and Wildlife 
Service, 1849 C Street, NW., room 634-ARLSQ, Washington, DC 20240. The 
public may inspect comments during normal business hours in room 634, 
Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, Office of 
Migratory Bird Management, (703) 358-1714.

SUPPLEMENTARY INFORMATION: Since the mid-1970s, the Service has sought 
to identify shot that, when spent, does not pose a significant toxic 
hazard to migratory birds and other wildlife. The

[[Page 40078]]

Service established procedures and requirements for approval of shot 
and shot coatings as nontoxic in 1986 and published them in 50 CFR 
20.134. The Service adopted new procedures in December 1997. These are 
published at 50 CFR 20.134. Currently, only steel shot and bismuth-tin 
shot are approved by the Service as nontoxic shot. The Service granted 
temporary approval of bismuth-tin as nontoxic on two separate actions 
for the hunting seasons of 1994-95 and 1995-96. Tungsten-iron shot was 
given temporary approval for the 1997-98 migratory bird hunting season 
(62 FR 43444 published August 18, 1997). The Service believes approval 
for other suitable candidate shot materials as nontoxic is feasible. 
Compliance with the use of nontoxic shot is increasing over the last 
few years. The Service believes that this level of compliance will 
continue to increase with the availability and approval of other 
nontoxic shot types.
    Federal Cartridge Company's (Anoka, Minnesota) candidate shot is 
made from sintering tungsten and iron, which together forms a two-phase 
alloy. Shot made from this material has a density of approximately 10.3 
g/cc or 94 percent of the density of lead. The shot will contain 
nominally 55 percent tungsten and 45 percent iron, by weight. The 
pellet will have sufficient iron to attract a magnet.
    Federal's application includes a description of the new tungsten-
iron shot, a toxicological report, and results of a 30-day dosing study 
to assess the toxicity of this shot in game-farm mallards (Anas 
platyrhynchos). The toxicological report incorporates toxicity 
information (a synopsis of acute and chronic toxicity data for birds, 
acute effects on mammals, potential for environmental concern, toxicity 
to aquatic and terrestrial invertebrates, amphibians and reptiles), and 
information on environmental fate and transport (shot alteration, 
environmental half-life, and environmental concentration). The toxicity 
study is a 30-day dosing test to determine if the candidate shot poses 
any deleterious effects to game farm mallards. This meets the 
requirements of Tier 1 and Tier 2, 50 CFR Sec. 20.134(b)(2) and 
(b)(3)(B).

Toxicity Information

    There is considerable difference in the toxicity of soluble and 
insoluble compounds of tungsten and iron. Elemental tungsten and iron 
are virtually insoluble and, therefore, are expected to be nontoxic. 
After completion of the literature review, there appears to be no known 
basis for concern of toxicity to wildlife for the candidate shot 
material (metallic tungsten and iron) via ingestion by fish, birds, or 
mammals (Bursian et al., 1996; Gigiena, 1983; Patty, 1981; Industrial 
Medicine, 1946; Karantassis, 1924). However, there is some concern that 
the absorption of tungsten into the femur, kidney, and liver could 
potentially affect certain endangered or threatened species such as the 
spectacled eider (Somateria fischeri) on the Y-K Delta, Alaska. Until a 
reproductive/chronic toxicity test has been completed and the Service 
has reviewed the results, tungsten-iron shot will not be approved for 
the Y-K Delta.

Environmental Fate and Transport

    Tungsten is insoluble in water and, therefore, not mobile in 
hypergenic environments. Tungsten is very stable with acids and does 
not easily complex. Preferential uptake by plants in acid soil suggests 
uptake of tungsten in the anionic form associated with tungsten 
minerals rather than elemental tungsten (Kabata-Peddias, 1984).

Environmental Concentration

    Calculation of the environmental concentration (EEC) for a 
terrestrial ecosystem is on 69,000 shot per hectare (Pain 1990), 
assuming complete erosion of material in 5 cm of soil. The EEC for 
tungsten in soil is 32.9 mg/kg for a shot composition of 62.9 percent 
tungsten-iron alloy, 11.87 percent tungsten, and 25.31 percent iron. 
Adverse effects on biota are not expected to occur for shot components, 
given the Hazard Quotients (HQs).

Environmental Concentration

    Calculation of the environmental concentration (EEC) for an aquatic 
ecosystem assumes complete erosion of the shot in one cubic foot of 
water. The EEC in water for tungsten was 10.5 mg/L for a shot 
composition of 62.9 percent tungsten-iron alloy, 11.87 percent 
tungsten, and 25.31 percent iron. Given these HQs, adverse effects on 
biota are not expected to occur for shot components.
    An extensive literature search and review provides information on 
the toxicity of elemental tungsten to waterfowl and other birds. In 
Ringelman et al. (1993) effects of ingested tungsten-bismuth-tin shot 
(TBT) on captive mallards saw no acute toxicity. Orally dosing 20 8-
week-old game farm mallards with 12 to 17 pellets (1.03g) TBT and 
monitoring for 32 days for evidence of intoxication saw no effect. No 
birds died during the trial. Gross lesions were not observed during the 
postmortem examination. Histopathological examination did not reveal 
any evidence of toxicity or tissue damage. Tungsten was not detectable 
in kidney or liver samples. The author's conclusion is that TBT shot 
presents virtually no potential for acute intoxication in mallards.
    A study by Kraabel et al. (1996) assesses the effects of embedded 
tungsten-bismuth-tin shot on mallards. The authors' conclusion was that 
TBT is not acutely toxic when implanted in mallard muscle tissue. 
Inflammatory reactions to TBT shot were localized, and had no 
detectable systemic effects on mallard health.
    Nell (1981) fed laying hens 0.4 or 1 g/kg tungsten in a commercial 
mash for five months to assess the reproductive performance. Weekly egg 
production was normal and hatchability of fertile eggs was not 
affected.
    Large doses of tungsten given to chickens (Gallus domesticus) 
either through injection or by feeding saw an increase in tissue 
concentration of tungsten and a decreased tissue concentration of 
molybdenum (Nell, 1981). The loss rate of tungsten from the liver 
occurred in an exponential manner with a half-life of 27 hours. The 
alterations in molybdenum metabolism seem to identify with tungsten and 
not of molybdenum deficiency. Death due to tungsten occurred when 
tissue concentrations were increased to 25 mg/g liver. At this 
concentration, the activity of xanthine dehydrogenase was zero.
    In Federal's 30-day dosing study 8 male and 8 female adult mallards 
given 8 No. 4 steel shot, 8 No. 4 lead shot or 8 BB's of tungsten-iron 
were observed over a 30-day period. An additional 8 males and 8 females 
were given no shot. All tungsten-iron birds survived the test with a 
slight increase in body weight. There were no changes in hematocrit, 
hemoglobin concentration, and ALAD activity, as well as 25 plasma 
chemistry parameters. Five of the 16 tungsten-iron birds had a mild 
hepatocellular biliary stasis, but the authors felt this was not 
remarkable. No other histopathological lesions were found. In general, 
no adverse effects were seen when mallards were given 8 BB size 
tungsten-iron shot and monitored over a 30-day period. Fifty percent of 
the lead-dosed birds (5 males and 3 females) died during the 30-day 
test while there were no mortalities in the other groups. Lead-dosed 
birds were the only ones to display green excreta, lethargy, and 
ataxia. Alteration of body weights is not significant in any of the 
treatments, although lead-dosed birds which died during the trial lost 
an average of 30 percent of their body weight.

[[Page 40079]]

Hematocrit, hemoglobin concentrations, and ALAD activity were 
significantly depressed at day 15 in the lead-dosed females, while 
lead-dosed males had significantly depressed hematocrit and hemoglobin 
concentration in comparison to the other three groups. There were no 
significant differences in these whole-blood parameters at day 30.
    As a result of the toxicological report and toxicity test, the 
Service concludes at this time that the available information indicates 
that tungsten-iron shot, nominally 40-55 percent tungsten and 60-45 
percent iron, by weight with <1 percent residual lead, does not impose 
significant danger to migratory birds and other wildlife and their 
habitats, but that reproductive/chronic toxicity data is lacking.
    Lacking sufficient reproductive/chronic toxicity data on the 
candidate shot, the applicant was advised to conduct additional testing 
as described in Tier 2 and Tier 3 as outlined in 50 CFR 20.134 (b)(3) 
and (4), and in consultation with the Service's Office of Migratory 
Bird Management and the U.S. Geological Survey's Division of Biological 
Resources (BRD). One test includes assessment of reproduction, 
fertility rates, and egg hatchability (egg weight, shell thickness, and 
content analysis). The test requires the applicant to demonstrate that 
tungsten-iron shot is nontoxic to waterfowl and their offspring.
    The Service's maximum environmentally acceptable level of residual 
lead in shot is trace amounts of <1 percent (50 CFR 20.134 (b) (5)). 
The Service will consider any tungsten-iron shot manufactured with lead 
levels equal to or exceeding 1 percent as toxic and, therefore, 
illegal. At this time, the tungsten-iron shot meets the acceptable 
specifications.
    Before approval of any shot for use in migratory game bird hunting, 
a noninvasive field testing device must be available for enforcement 
officers to determine the shot material in a given shell in the field 
(50 CFR 20.134 (b)(6)). Several noninvasive field testing devices are 
under development to separate tungsten-iron shot from lead shot. 
Tungsten-iron shot can be drawn to a magnet as a simple field detection 
method.
    In summary, this proposed rule would amend 50 CFR 20.21(j) by 
extending temporary approval of tungsten-iron shot as nontoxic for the 
1998-99 migratory bird hunting season, except in the Y-K Delta, Alaska. 
It is based on the original request made to the Service by Federal 
Cartridge Company on August 20, 1996, the toxicological report, and 
acute toxicity study reviewed by the Service in its initial decision to 
grant temporary approval for the 1997-98 season (62 FR 43444). Results 
of the toxicological report and 30-day toxicity test undertaken for 
Federal Cartridge Company document the apparent absence of any 
deleterious effects of tungsten-iron shot when ingested by captive-
reared mallards or to the ecosystem. Information since the Service's 
initial decision has not changed or been supplemented to date. A 
reproductive/chronic toxicity test will be completed and the Service 
will review the results, prior to any final unconditional approval of 
tungsten-iron shot for migratory bird hunting.

References

Barr Engineering Company. 1996. Toxicology Report on New Shot. 
Contract Report 2302118/40970-1/CET. 21 pp.
Bursian, S. J., M. E. Kelly, R. J. Aulerich, D. C. Powell, and S. 
Fitzgerald. 1996. Thirty-Day Dosing Test to Assess the Toxicity of 
Tungsten-Iron Shot in Game-Farm Mallards. 1996. Report to Federal 
Cartridge Co. 77 pp.
Gigiema I. Sanitariya. 1983. Mezhdunarodnaya Kniga. Moscow, USSR. 
48(7):77.
Grandy, J. W., L. N. Locke, and G. E. Bagley. 1968. Relative 
toxicity of lead and five proposed substitute shot types to pen-
reared mallards. J. Wildl. Manage. 32(3):483-488.
Interagency Ecosystem Management Task Force. 1995. The Ecosystem 
Approach: Healthy Ecosystems and Sustainable Economics. Volume II-
Implementation Issues.
Kabata-Peddias, A. and H. Pendias. 1984. Trace elements in soil and 
plants. CRC Press, Inc. Boca Raton, FL.
Karantassis, T. 1924. On the toxicity of compounds of tungsten and 
molybdenum. Ann. Med. 28:1541-1543.
Kraabel, F. W., M. W. Miller, D. M. Getzy, and J. K. Ringleman. 
1996. Effects of embedded tungsten-bismuth-tin shot and steel shot 
on mallards. J. Wildl. Dis. 38(1):1-8.
Pain, D. J. 1990. Lead shot ingestion by waterbirds in the 
Carmarque, France: an investigation of levels and interspecific 
difference. Environ. Pollut. 66:273-285.
Patty's Industrial Hygiene and Toxicology. 1981. Wiley Interscience. 
Wiley & Sons, Inc. NY, NY. Third Ed.
Ringelman, J. K., M. W. Miller, and W. F. Andelt. 1992. Effects of 
ingested tungsten-bismuth-tin shot on mallards. CO Div. Wildl., Fort 
Collins, 24 pp.

NEPA Consideration

    In compliance with the requirements of section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the 
Council on Environmental Quality's regulation for implementing NEPA (40 
CFR 1500-1508), the Service prepared an Environmental Assessment (EA) 
in May, 1998. This EA is available to the public at the location 
indicated under the ADDRESSES caption. Based on review and evaluation 
of the information in the EA, the Service has determined that amending 
50 CFR 20.21(j) to extend temporary approval of tungsten-iron shot as 
nontoxic for the 1998-99 migratory bird hunting season would not be a 
major Federal action that would significantly affect the quality of the 
human environment.

Endangered Species Act Considerations

    Section 7 of the Endangered Species Act (ESA) of 1972, as amended 
(16 U.S.C. 1531, et seq.), provides that Federal agencies shall 
``insure that any action authorized, funded or carried out . . . is not 
likely to jeopardize the continued existence of any endangered species 
or threatened species or result in the destruction or adverse 
modification of (critical) habitat . . .'' The Service has completed a 
Section 7 consultation under the ESA for this rule and determined that 
granting temporary approval of tungsten-iron shot for the 1998-99 
hunting season, except on the Yukon-Kuskokwin (Y-K) Delta, is not 
likely to affect any threatened, endangered, proposed or candidate 
species. The result of the Service's consultation under Section 7 of 
the ESA is available to the public at the location indicated under the 
ADDRESSES caption.

Regulatory Flexibility Act, Executive Order 12866, and the 
Paperwork Reduction Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.) 
requires the preparation of flexibility analyses for rules that will 
have a significant effect on a substantial number of small entities, 
which includes small businesses, organizations or governmental 
jurisdictions. The economic impacts of annual hunting on small business 
entities were analyzed in detail and a Small Entity Flexibility 
Analysis (Analysis), under the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.), was issued by the Service in 1996 (copies available upon 
request from the Office of Migratory Bird Management). The Analysis 
documented the significant beneficial economic effect on a substantial 
number of small entities. The primary source of information about 
hunter expenditures for migratory game bird hunting is the National 
Hunting and Fishing Survey, which is conducted at 5-year intervals. The 
Analysis utilized the 1991 National Hunting and Fishing Survey and the 
U.S. Department of Commerce's County Business Patterns from which it 
was

[[Page 40080]]

estimated that migratory bird hunters would spend between $254 and $592 
million at small businesses in 1996. The approval of tungsten-iron as 
an alternative shot to steel and bismuth-tin will have a minor positive 
impact on small businesses by allowing them to sell a third nontoxic 
shot to the hunting public. However, the overall effect to hunting 
expenditures in general would be minor. Therefore, the Service 
determined this rule will have no effect on small entities since the 
approved shot merely will supplement nontoxic shot already in commerce 
and available throughout the retail and wholesale distribution systems. 
The Service anticipates no dislocation or other local effects, with 
regard to hunters and others. This rule was not subject to Office of 
Management and Budget (OMB) review under Executive Order 12866. The 
Service has examined this regulation under the Paperwork Reduction Act 
of 1995 and found it to contain no information collection requirements. 
However, the Service does have OMB approval (1018-0067; expires 06/30/
2000) for information collection relating to what manufacturers of shot 
are required to provide the Service for the nontoxic shot approval 
process. For further information see 50 CFR 20.134.

Unfunded Mandates Reform

    The Service has determined and certifies pursuant to the Unfunded 
Mandates Act, 2 U.S.C. 1502, et seq., that this rulemaking will not 
impose a cost of $100 million or more in any given year on local or 
State government or private entities.

Civil Justice Reform--Executive Order 12988

    The Service, in promulgating this rule, determines that these 
regulations meet the applicable standards provided in Sections 3(a) and 
3(b)(2) of Executive Order 12988.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.
    Accordingly, the Service proposes to amend Part 20, Subchapter B, 
Chapter 1 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: 16 U.S.C. 703-712; and 16 U.S.C. 742 a-j.

    2. Amend Section 20.21 by revising paragraph (j)(2) to read as 
follows:


Sec. 20.21  Hunting methods.

* * * * *
    (j) * * *
    (2) Tungsten-iron shot (nominally 40 parts tungsten: 60 parts iron 
with <1 percent residual lead) is legal as nontoxic shot for the 1998-
99 migratory bird hunting season, except in the Yukon-Kuskokwim (Y-K) 
Delta, Alaska.

    Dated: July 14, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-19891 Filed 7-24-98; 8:45 am]
BILLING CODE 4310-55-P