[Federal Register: March 15, 2004 (Volume 69, Number 50)]
[Proposed Rules]               
[Page 12105-12112]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT32

Migratory Bird Hunting; Approval of Three Shot Types--Tungsten-
Bronze-Iron, Tungsten-Iron, and Tungsten-Tin-Bismuth--as Nontoxic for 
Hunting Waterfowl and Coots

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We (Fish and Wildlife Service) propose to approve three shot 
types, Tungsten-Bronze-Iron [formulated of tungsten, bronze (copper and 
tin), and iron], Tungsten-Iron (formulated of tungsten and iron), and 
Tungsten-Tin-Bismuth (formulated of tungsten, tin, and bismuth), as 
nontoxic for hunting waterfowl and coots. We assessed possible effects 
of all three shot types, and have determined that none of the types 
presents any significant toxicity threat to wildlife or their habitats; 
therefore, further testing is not necessary for any of the types. In 
addition, approval of these shot types may encourage greater numbers of 
waterfowl hunters to refrain from the illegal use of lead shot, thereby 
reducing lead risks to species and habitats.

DATES: We must receive comments on the proposed rule no later than 
April 14, 2004.

ADDRESSES: You may submit comments, identified by RIN 1018-AT32, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
 Follow the instructions for submitting comments.

     E-mail: migratorybirds@fws.gov.
     Fax: 703-358-2272.
     Mail: Chief, Division of Migratory Bird 
Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 
Mail Stop MBSP-4107, Arlington, Virginia 22203-1610. You may inspect 
comments during normal business hours at the same address.
     Hand Delivery/Courier: Division of Migratory 
Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax 
Drive, Room 4091, Arlington, Virginia 22203-1610.
    Instructions: All submissions received must include Regulatory 
Information Number (RIN) 1018-AT32 at the beginning. All comments 
received, including any personal information provided, will be 
available for public inspection at the above (``Hand Delivery/
Courier'') address. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the ``Public 
Participation'' heading in the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 
Migratory Bird Management, telephone (703) 358-1714; Dr. George T. 
Allen, Wildlife Biologist, Division of Migratory Bird Management, 
telephone (703) 358-1825; or John J. Kreilich, Jr., Wildlife Biologist, 
Division of Migratory Bird Management, (703) 358-1928.



    The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-712 and 
16 U.S.C. 742 a-j) implements migratory bird treaties between the 
United States and Great Britain for Canada (1916 and 1996 as amended), 
Mexico (1936 and 1972 as amended), Japan (1972 and 1974 as amended), 
and Russia (then the Soviet Union, 1978). These treaties protect 
certain migratory birds from take, except as permitted under the Act. 
The Act authorizes the Secretary of the Interior to regulate take of 
migratory birds in the United States. Under this authority, the Fish 
and Wildlife Service controls the hunting of migratory game birds 
through regulations in 50 CFR part 20.
    Deposition of shot and release of shot components in waterfowl 
hunting locations are potentially harmful to many organisms. Research 
has shown that the effects of ingestion of 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 first addressed the 
issue of lead poisoning in waterfowl in a 1976 Environmental Impact 
Statement (EIS), and later readdressed the issue 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, and set a ban on lead 
for waterfowl and coot hunting beginning in 1991. Since then, we have 
sought to consider other potential nontoxic shot candidates; we believe 
that other nontoxic shot types should be made available for public use 
in hunting. Steel, bismuth-tin, tungsten-iron, tungsten-polymer, 
tungsten-matrix, tungsten-nickel-iron, and tungsten-tin-iron-nickel 
types are now approved as nontoxic. [Our previously approved tungsten-
iron shot, an alloy of approximately 40 percent tungsten and 60 percent 
iron, announced with a final rule in the Federal Register on August 19, 
1999 (64 FR 45399), differs in composition from the newly proposed 
tungsten-iron shot, which is an alloy of approximately 22 percent 
tungsten and 78 percent iron.] Compliance with the use of nontoxic shot 
for waterfowl hunting has increased over the last few years (Anderson 
et al. 2000). We believe that it will continue to increase as other 
nontoxic shot types are approved and available in growing numbers.
    The purpose of this proposed rule is to approve the use of 
Tungsten-Bronze-Iron (TBI) shot, Tungsten-Iron (TI) shot, and Tungsten-
Tin-Bismuth (TTB) shot for waterfowl and coot hunting.

Applications for Approval as Nontoxic Shot Types

    The following applicants have applied to us for approval of the 
following shot types and compositions, and we have announced these 
applications in the Federal Register:

                                       Shot type
            Applicant              (abbreviation in    Shot formulation         Density        Federal Register
                                    this document)         by weight                               citation
International Nontoxic            tungsten-bronze-    51.1% tungsten,     12.1 grams (g)/     68 FR 65023,
 Composites Corporation.           iron (TBI).         44.4% copper,       centimeter          November 18, 2003
                                                       3.9% tin, 0.6%      (cm)\3\.
ENVIRON-Metal, Inc..............  tungsten-iron (TI)  22% tungsten, 78%   9 g/cm\3\.........  68 FR 60897,
                                   (under product      iron.                                   October 24, 2003
                                   name HEVI-

[[Page 12106]]

Victor Oltrogge.................  tungsten-tin-       49--71% tungsten,   10.5 to 13.0 g/     68 FR 60898,
                                   bismuth (TTB)       29-51% tin, 0.5-    cm\3\.              October 24, 2003
                                   (under product      6.5% bismuth.
                                   name SilvexTM).

    For each of the three shot types, the initial application (Tier 1) 
included information on chemical characterization, production 
variability, use volume, toxicological effects, environmental fate and 
transport, and evaluation. After reviewing the initial (tier 1) 
application for and assessing the possible effects of each of the three 
shot types, we have concluded that none of the shot types poses a 
significant toxicity threat to wildlife or their habitats. Therefore, 
we propose to amend 50 CFR 20.21(j), which describes approved types of 
shot for waterfowl and coot hunting.

Waterfowl Populations

    The taxonomic family Anatidae, principally subfamily Anatinae 
(ducks) and their habitats, comprise the affected environment. 
Waterfowl habitats and populations in North America this year were 
described by the U.S. Fish and Wildlife Service (2003).
    In the Breeding Population and Habitat Survey for the traditional 
waterfowl survey area in North America, the total duck population 
estimate was 36.2  0.7 (1 
standard error) million birds, 16 percent above the 2002 estimate of 
31.2  0.5 million birds (P<0.001), and 9 percent 
above the 1955-2002 long-term average (P<0.001). There were 7.9  0.3 million mallards (Anas platyrhynchos) in the 
traditional survey area, a value similar to the 2002 estimate of 7.5 
 0.2 million birds (P=0.220) and to the long-term 
average (P=0.100). Blue-winged teal (Anas discors) were at 5.5  0.3 million birds, 31 percent above the 2002 estimate 
of 4.2  0.2 million birds (P=0.001) and 23 
percent above the long-term average (P=0.001). Shovelers (Anas 
clypeata) at 3.6  0.2 million (+56 %) and 
pintails (Anas acuta) at 2.6  0.2 million (+43 %) 
were above their 2002 estimates (P<0.001). Gadwall (Anas strepera) at 
2.5  0.2 million, American wigeon (Anas 
americana) at 2.6  0.2 million, green-winged teal 
(Anas crecca) at 2.7  0.2 million, redheads 
(Aythya americana) at 0.6  0.1 million, 
canvasbacks (Aythya valisineria) at 0.6  0.1 
million, and scaup (Aythya marila and Aythya affinis) at 3.7  0.2 million were unchanged from their 2002 estimates 
(P=0.149). Gadwall (+55%) and shovelers (+72%) were above their long-
term averages (P<0.001). Green-winged teal were at their second highest 
level since 1955, 46 percent above their long-term average (P<0.001). 
Pintails (-39%) and scaup (-29%) remained well below their long-term 
averages (P<0.001). American wigeon, redheads, and canvasbacks were 
unchanged from their long-term averages (P=0.582).
    The 2003 total duck population estimate for the eastern survey area 
was 3.6  0.3 million birds. This was 17 percent 
lower than in 2002 (4.4  0.3 million birds, 
P=0.065), but similar to the 1996-2002 average (P=0.266). Individual 
species estimates were similar to those from 2002 and to their 1996-
2002 averages, with the exception of mergansers (0.6  0.1 million), which decreased 30 percent from the 2002 
estimate (P=0.035).


    The total number of May ponds in Prairie Canada and the north-
central United States, at 5.2  0.2 million, was 
91 percent higher than in 2002 (P<0.001) and 7 percent above the long-
term average (P=0.034). Canadian and U.S. ponds were 3.5  0.2 and 1.7  0.1 million, 
respectively, and both above 2002 (+145% and +30%, P<0.001). The number 
of ponds in Canada was similar to the 1961-2002 average (P=0.297), 
while U.S. ponds were 10 percent above their 1974-2002 average 
    Waterfowl hunting occurs in habitats used by many taxa of migratory 
birds, as well as by aquatic invertebrates, amphibians, and some 
mammals. Fish also may be found in many hunting locations.

Estimated Environmental Concentrations

Terrestrial Settings

    Calculation of the estimated environmental concentration (EEC) of a 
candidate shot in a terrestrial ecosystem is based on 69,000 4 
shot per hectare (2.47 acres) (50 CFR 20.134).
TBI Shot
    For TBI shot, if the shots are completely dissolved, the EEC for 
tungsten in soil is 12.92 g/m\3\. In dry, porous soil, the EECs for 
copper, tin, and iron are 11.22, 0.99, and 0.15 g/m\3\, respectively. 
The EEC for tungsten from TBI shot is below that for tungsten-matrix 
    Tungsten is very rare, and is never found free in nature. The 
tungsten concentration in the earth's crust is estimated to be 1.5 
parts per million (ppm). In conterminous U.S. soils, copper and tin are 
found at approximately 17 and 0.9 ppm, respectively (Shacklette and 
Boerngen 1984). The terrestrial EEC for copper is considerably below 
the U.S. Environmental Protection Agency (EPA) maximum for sludge to be 
applied in terrestrial settings. The EEC for tin is comparable to the 
concentration found in U.S. soils. Iron is widespread in such settings, 
comprising approximately 2 percent of the composition of soils and 
sediments in the United States. The EEC for iron from all three shot 
types is much lower than that level.
TI Shot
    For TI shot, if the shot are completely dissolved, the EEC for 
tungsten in soil is 14.08 mg/kg. The EEC for iron is less than 0.01% of 
the typical background concentration, and the iron is in an insoluble 
TTB Shot
    Assuming complete dissolution of the shot, the EEC for tungsten in 
soil is 10.1 mg/kg to 18.5 mg/kg, depending on the shot formulation. 
The EEC for tin in soil is 6.77 mg/kg to 10.5 mg/kg depending on the 
shot formulation. This is considerably smaller than the 50 mg/kg 
suggested maximum concentration in surface soil tolerated by plants 
(Kabata-Pendias and Pendias 2001). The EEC for tin also is comparable 
to the concentration found in U.S. soils. The EEC for bismuth in soil 
is 0.130 mg/kg to 1.28 mg/kg, depending on the shot formulation.

Aquatic Settings

TBI Shot
    The EEC for water assumes that 69,000 4 shot are 
completely dissolved in 1 hectare of water 1 foot (30.48 cm) deep (50 
CFR 20.134). For TBI shot, the EEC for tungsten is 2.119 mg/Liter (L). 
The EEC value for copper in water is 1.842 mg/L. This EEC is 
approximately 153 times the EPA (2002) 12-microgram (mcg)/L 4-day 
average continuous concentration criterion for copper. It is about 635 
times the 2.9 mcg/L criterion for salt water.

[[Page 12107]]

    The EEC value for tin in an aquatic setting is 0.162 mg/L. We found 
no EPA aquatic criterion for elemental tin.
    The aquatic EEC for iron in water is 0.025 mg/L. The EPA water 
quality criterion for iron in fresh water is 1,000 mcg/L. We are not 
aware of an EPA criterion for salt water.
TI Shot
    The EECs for the elements in TI shot in water are 846.7 mcg/L for 
tungsten and 3,001.6 mcg/L for iron. Earlier, we concluded that a 
tungsten concentration of 10,500 mcg/L posed no threat to aquatic life 
(62 FR 4877, January 31, 1997).
    The EEC for iron is below the chronic criterion for protection of 
aquatic life. Previous assessments of tungsten demonstrated dissolution 
at a rate of 10.5 mg/L (equal to 10,500 mcg/L) and concluded no risk to 
aquatic life (62 FR 4877). The EEC of tungsten from TI is 846.7 mcg/L. 
This level is less than one-tenth of the 10,500 mcg/L level previously 
TTB Shot
    The EEC for tungsten in water is 2,150 mcg/L to 3,940 mcg/L, 
depending on the shot formulation. The EEC for tin in water is 1,444 
mcg/L to 2,240 mcg/L, depending on the shot formulation. The EEC for 
bismuth in water is 27.7 mcg/L to 274 mcg/L, depending on the shot 
    Previous assessments of tungsten demonstrated dissolution at a rate 
of 10.5 mg/L (equal to 10,500 mcg/L) and concluded no risk to aquatic 
life (62 FR 4877). The EEC of tungsten from TTB shot is no more than 
3,940 mcg/L. This level is approximately one-third of the 10,500 mcg/L 
level previously mentioned.
    Tin occurs naturally in soils at 2 to 200 mg/g with areas of 
enrichment at much higher concentrations (up to 1,000 mg/g) (WHO 1980). 
However, in the United States, soil concentrations are between 1 and 5 
ppm (Kabata-Pendias and Pendias 2001).
    The EEC for bismuth in water is 27.7 mcg/L to 274 mcg/L, depending 
on the shot formulation. Bismuth is a relatively rare metal. It is 
considered nontoxic [U.S. Geological Survey (USGS) 2003].

Environmental Fate of the Components

    Elemental tungsten and iron are virtually insoluble in water, and 
therefore do not weather and degrade in the environment. Tungsten is 
stable in acids and does not easily form compounds with other 
substances. Preferential uptake by plants in acidic soil suggests 
uptake of tungsten when it has formed compounds with other substances 
rather than when it is in its elemental form (Kabata-Pendias and 
Pendias 1984). Elemental copper can be oxidized by organic and mineral 
acids that contain an oxidizing agent. Elemental copper is not oxidized 
in water (Aaseth and Norseth 1986). In water, tin is stable under 
ambient conditions.

Toxicological Effects

    Tungsten may be substituted for molybdenum in enzymes in mammals. 
Ingested tungsten salts reduce growth, and can cause diarrhea, coma, 
and death in mammals (e.g. Bursian et al. 1996, Cohen et al. 1973, 
Karantassis 1924, Kinard and Van de Erve 1941, National Research 
Council 1980, Pham-Huu-Chanh 1965), but elemental tungsten is virtually 
insoluble and therefore essentially nontoxic. Tungsten powder added to 
the food of young rats at 2, 5, and 10 percent by mass for 70 days did 
not affect health or growth (Sax and Lewis 1989). A dietary 
concentration of 94 ppm did not reduce weight gain in growing rats (Wei 
et al. 1987). Exposure to pure tungsten through oral, inhalation, or 
dermal pathways is not reported to cause any health effects (Sittig 
    Tungsten salts are toxic to mammals. Lifetime exposure to 5 ppm 
tungsten as sodium tungstate in drinking water produced no discernible 
adverse effects in rats (Schroeder and Mitchener 1975). At 100 ppm 
tungsten as sodium tungstate in drinking water, rats had decreased 
enzyme activity after 21 days (Cohen et al. 1973).
    Kraabel et al. (1996) surgically embedded tungsten-tin-bismuth shot 
in the pectoralis muscles of ducks to simulate wounding by gunfire and 
to test for toxic effects of the shot. The authors found that the shot 
neither produced toxic effects nor induced adverse systemic effects in 
the ducks during the 8-week period of their study.
    Chickens given a complete diet showed no adverse effects of 250 ppm 
sodium tungstate administered for 10 days in the diet. However, 500 ppm 
in the diet reduced xanthine oxidase activity and reduced growth of 
day-old chicks (Teekell and Watts 1959). Adult hens had reduced egg 
production and egg weight on a diet containing 1,000 ppm tungsten (Nell 
et al. 1981). Ecological Planning and Toxicology (1999) concluded that 
the No Observed Adverse Effect Level for tungsten for chickens should 
be 250 ppm in the diet; the Lowest Observed Adverse Effect Level should 
be 500 ppm. Kelly et al. (1998) demonstrated no adverse effects on 
mallards dosed with tungsten-iron or tungsten-polymer shot according to 
nontoxic shot test protocols.
    Most toxicity tests reviewed were based on soluble tungsten 
compounds rather than elemental tungsten. As we found in our reviews of 
other tungsten shot types, we have no basis for concern about the 
toxicity of the tungsten in TI or TTB shot to fish, mammals, or birds.
    Copper is a dietary essential for all living organisms. In most 
mammals, ingestion of one TBI shot pellet would result in release of 8 
to 25 milligrams (mg) of copper, not all of which would be absorbed. In 
humans, ingestion of a TBI shot pellet could mobilize approximately 8 
mg of copper, though again not all would be absorbed. These low levels 
of copper would not pose any risk to mammals. Copper poisoning due to 
ingestion of TBI shot is highly unlikely in most mammals.
    Copper requirements in birds may vary depending on intake and 
storage of other minerals (Underwood 1971). The maximum tolerable level 
of dietary copper during the long-term growth of chickens and turkeys 
is 300 ppm (Committee on Mineral Toxicity in Animals 1980). Eight-day-
old ducklings were fed a diet supplemented with 100 ppm copper as 
copper sulfate for 8 weeks. They showed greater growth than controls, 
but some thinning of the caecal walls (King 1975). Studying day-old 
chicks, Poupoulis and Jensen (1976) reported that no gizzard lining 
erosion could be detected in chicks fed 125 ppm of copper for 4 weeks, 
but they detected slight gizzard erosion in chicks fed 250 ppm copper. 
The authors found that it required 500 to 1,000 ppm of copper to 
depress growth and weight gain of chicks. Jensen et al. (1991) found 
that 169 ppm copper in the diet produced maximal weight gain in 
    The influence of dietary copper addition on the body mass and 
reproduction of mature domestic chickens was analyzed by Stevenson and 
Jackson (1980). Hens fed on a diet containing 250 ppm copper for 48 
days showed a similar daily rate of food intake as control hens (no 
copper in the diet). The mean number of eggs laid daily also did not 
differ between hens fed 250 ppm copper and controls. Negative effects 
on the daily food intake, body mass loss, and egg laying rates were 
observed only at dietary copper levels in excess of 500 ppm, and after 
4 months of being fed such diets.
    Similar performance tests on growing domestic turkeys showed that 
300 ppm copper in the daily diet produced no long-term effect on 1-
week-old turkey poults, but 800 ppm of copper in the diet for 3 weeks 
inhibited growth (Supplee 1964). Vohra and Kratzer

[[Page 12108]]

(1968) reported no effect of feeding 400 ppm of copper as copper 
sulfate to turkey poults in the daily diet for 21 weeks, and concluded 
that poults could tolerate 676 ppm of copper without exhibiting 
deleterious effects. However, these authors reported reduced growth of 
poults fed 800 ppm and 910 ppm of copper over the same time, and death 
at 3,240 ppm in the diet. This conclusion was supported by Christmas 
and Harms (1979), who found that copper in the diet of domestic turkeys 
had to rise to the 500-750 ppm level before signs of slight toxicity 
appeared, assuming that adequate methionine were also present.
    Henderson and Winterfield (1975) reported acute copper toxicity in 
3-week-old Canada geese (Branta canadensis) that had ingested water 
contaminated with copper sulfate. The authors calculated the copper 
intake to be about 600 mg copper sulfate/kg body weight, or 239 mg Cu/
kg. The amount of copper released from eight 4 shot would be 
42.26 mg, which is much less than the 239 mg/kg toxic level.
    Ingested copper shot does not increase mortality among mallards. 
Ducks dosed with eight 6 copper shot showed no toxic effects 
due to copper (Irby et al. 1967).
    Inorganic tin compounds are comparatively harmless. Inorganic tin 
and its salts are poorly absorbed, their oxides are relatively 
insoluble, and they are rapidly lost from tissues (see Eisler 1989 for 
reviews). Reviews indicate that elemental tin is not toxic to birds 
(Cooney 1988, Eisler 1989). Tin shot designed for waterfowl hunting is 
used in several European countries. We are aware of no reports that 
suggest that tin shot causes toxicity problems for wildlife.
    On mallard ducks, Grandy et al. (1968) and the Huntingdon Research 
Centre (1987) conducted acute toxicity tests lasting 30 and 28 days, 
respectively, by placing tin pellets inside the ducks' digestive tracts 
or tissues. They reported that all treated ducks survived without 
deleterious effects.
    Elemental and inorganic tins have low toxicity, due largely to low 
absorption rate, low tissue accumulation, and rapid excretion rates. 
Inorganic tin is only slightly to moderately toxic to mammals. The oral 
LD50 values for tin (II) chloride for mice and rats are 250 
and 700 mg/kg of body weight, respectively (WHO 1980).
    A 150-day chronic toxicity/reproductive study conducted for tin 
shot revealed no adverse effects in mallards dosed with eight 
4 shot. There were no significant changes in egg production, 
fertility, or hatchability of birds dosed with tin when compared to 
steel-dosed birds (Gallagher et al. 2000).
    Bismuth is the only nontoxic heavy metal (USGS 2003). Ringelman et 
al. (1993) conducted a 32-day acute toxicity study which involved 
dosing game-farm mallards with a shot alloy of 39 percent tungsten, 
44.5 percent bismuth, and 16.5 percent tin (TBT shot) by weight, 
respectively. All the test birds survived and showed normal behavior. 
Examination of tissues post-euthanization revealed no toxicity or 
damage related to shot exposure. Blood calcium differences between 
dosed and undosed birds were judged to be unrelated to shot exposure. 
Although bismuth concentrations in kidney and liver were near 
detectable limits, they did not differ between dosed and undosed birds. 
This study concluded that ``TBT shot presents virtually no potential 
for acute intoxication in mallards under the conditions of this 
    As noted for tungsten, Kraabel et al. (1996) imbedded TBT shot in 
muscles of ducks for an 8-week study. They determined that the shot 
neither produced toxic effects nor induced any adverse systemic effects 
on the health of the ducks.
    The 2 percent tin in bismuth-tin (BT) shot produced no 
toxicological effects in ducks during reproduction. It did not affect 
the health of ducks, the reproduction by male and female birds, or the 
survival of ducklings over the long term (Sanderson et al. 1997).
    In a 30-day dosing study with game-farm mallards dosed with eight 
4 tin shot, there were no overt signs of toxicity or 
treatment-related effects on body weight. Tin was not detected in any 
tissues (Gallagher et al. 1999).
    Based on the toxicological report and the toxicity tests for tin 
shot, we concluded that tin shot, which was approximately 99.9 percent 
tin by weight, posed no significant danger to migratory birds or other 
wildlife and their habitats (65 FR 76885, December 7, 2000). We believe 
the small amount of tin in TBI shot is not likely to harm waterfowl.
    TBI shot will rapidly be broken up and dissolved in the gizzard if 
ingested by waterfowl. TBI shot disintegrated completely in less than 
14 days under chemical action alone, according to data submitted by 
International Nontoxic Composites (INC). The INC submission also 
asserted that ``action of the gizzard assisted by grit would cause 
complete fragmentation in a much shorter time, probably less than 1 
week. Moreover, the fine pieces of shot that are released in a gizzard 
would quickly leave the gizzard, so lowering the overall dissolution of 
    Ingestion of TBI shot by waterfowl would subject the shot to low pH 
and grinding in the gizzard. Based on an in vitro simulation, INC 
concluded that ingestion of eight 4 TBI shot (1.39 g) would 
release a maximum of 42.26 mg of copper each day for 1 week or less. In 
a diet of 150 g of dry food, that release is equivalent to 281.7 ppm 
copper. In young chickens, 500 ppm or more reduced body growth when 
ingested for 1 month (Poupoulis and Jensen 1976). Stevenson and Jackson 
(1980) determined that adult chickens suffered negative effects of 
copper ingestion only at dietary levels in excess of 500 ppm for 4 
months. Copper toxicosis in young Canada geese was triggered by 
ingestion of water that contained approximately 239 mg/kg of body 
weight (Henderson and Winterfield 1975).
    INC also suggested that ``The Tungsten-Bronze-Iron shot will also 
liberate iron ions at the same time that copper is being dissolved in 
the gizzard. The iron in solution could moderate the uptake of copper 
from the small intestine of the bird (see Davis and Mertz 1987).''
    Iron is an essential nutrient. Iron toxicosis in mammals is 
primarily a phenomenon of overdosing of livestock. Maximum recommended 
dietary levels of iron range from 500 ppm for sheep to 3,000 ppm for 
pigs (National Research Council [NRC] 1980). The amounts of iron in TBI 
and TI shots would not pose a hazard to mammals.
    Chickens require at least 55 ppm iron in the diet (Morck and Austic 
1981). There were no ill effects on chickens fed 1,600 ppm iron in an 
adequate diet (McGhee et al. 1965). Turkey poults fed 440 ppm in the 
diet suffered no adverse effects. Tests in which eight 4 
tungsten-iron shot were administered to each mallard in a toxicity 
study indicated that the 45 percent iron content of the shot had no 
adverse effects on the test animals (Kelly et al. 1998).

Environmental Concentrations

    We have previously approved as nontoxic other shot types that 
contain tungsten, iron, and tin. Previous assessments of tungsten-iron, 
tungsten-polymer, tungsten-matrix, and tungsten-nickel-iron shot 
indicated that neither the tungsten nor the iron in TBI shot should be 
of concern in aquatic systems. Similarly, release of tin and iron from 
TBI shot should not harm aquatic or terrestrial systems. It is 
generally agreed that inorganic tin and tin compounds are comparatively 
harmless (Eisler

[[Page 12109]]

1989). The release of iron from the shot would be insignificant in 
natural settings. Reviews of past studies for approvals of other 
tungsten-based and iron-based nontoxic shot types also support the idea 
that ingestion of TBI or TI shot will not cause harm to birds or 
mammals. We have no concerns about approving an additional shot that 
contains these metals.
    However, the 1.842 mg/L EEC for copper from TBI shot calculated for 
Tier 1 review is considerably greater than the EPA criteria for both 
fresh water and salt water. Though the Tier 1 EEC is a ``worst-case'' 
preliminary evaluation of possible effects of the components of a 
proposed nontoxic shot type, the determination of the aquatic EEC 
suggested that evaluation of the release of copper from TBI shot and 
the resultant effects on aquatic biota is warranted.
    To determine the actual release of copper from TBI shot, Tin 
Technology, Ltd. and ITRI Ltd. of the United Kingdom conducted 28-day 
in vitro tests of the shot in synthetic buffered waters with pHs of 
5.6, 6.6, and 7.8 at 15 [deg]C. Under normal pH conditions, TBI shot is 
very sparingly soluble, and the tests demonstrated that copper release 
from TBI shot is minimal. INC reported that ``5 shot would be required 
in 1 liter quantities of moderately hard water to generate sufficient 
concentrations of dissolved copper to be detectable in the leaching 
tests.'' The concentrations in water for a single shot calculated at 
the end of 28-day leaching tests were 0.4136 mcg/L at pH 5.6, 0.1261 
mcg/L at pH 6.6, and 0.0233 mcg/L at pH 7.8. These concentrations are 
the equivalent of background values.
    From the copper concentrations under the three pH conditions, the 
risk to aquatic organisms due to use of TBI shot can be evaluated (50 
CFR 20.134 (b)(2)(i)(D)(2)). The risk of the submitted shot material is 
determined by comparing the EEC to an appropriate toxicological level 
of concern--in this case, EPA LC50 values for the most sensitive 
aquatic organisms. Ceriodaphnia reticulata have the lowest average LC50 
listed, 9.92 mcg/L. The ratio of the EEC to the LC50 for this species 
(using the EEC for pH 5.6) is (0.4136/9.92), or 0.042. Under the 
guidelines in (50 CFR 20.134 (b)(2)(i)(D)(2), a risk ratio quotient 
less than 0.1 indicates that detrimental effects on aquatic organisms 
are not likely. For TBI shot, even under acidic conditions, the risk 
ratio is only about 4 percent of the effect level. Thus, we conclude 
that negative effects from approval of TBI shot are very unlikely.

Impacts of Approval of TBI, TI, and TTB Shot Types as Nontoxic

    The status quo would be maintained by not authorizing use of the 
three shot types for hunting waterfowl and coots. By regulation, steel, 
bismuth-tin, tungsten-iron, tungsten-polymer, tungsten-matrix, 
tungsten-nickel-iron, and tungsten-tin-iron-nickel are nontoxic shot 
types authorized for use by waterfowl and coot hunters. Because these 
shot types have been shown to be nontoxic to migratory birds, using 
only those shot types would have no adverse impact on waterfowl and 
their habitats.
    Data provided to us and analyses of the likely effects of the three 
shot types on migratory birds indicate that these three shot types are 
nontoxic. We are concerned, however, because some nontoxic shot types 
are not widely used, and steel is unacceptable to a percentage of 
waterfowl hunters. Without alternative nontoxic shot types, hunters 
might not comply with the requirement for use of nontoxic shot when 
hunting waterfowl. The hunters who still consider steel an unacceptable 
alternative might continue to use lead, resulting in a small negative 
impact to the migratory bird resource. Use of lead shot would also 
negatively impact wetland habitats because of shot erosion and the 
ingestion of shot by aquatic animals.
    Approving additional nontoxic shot types will likely result in a 
minor positive long-term impact on waterfowl and wetland habitats. 
Approval of TBI, TI, and TTB shot types as nontoxic would have a 
positive impact on the waterfowl resource.
    The impact on endangered and threatened species of approval of the 
three shot types will be small but positive. We obtain a biological 
opinion pursuant to Section 7 of the Endangered Species Act 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. We also will consult on effects on threatened and 
endangered species concurrent with the approval of the three shot 
    Our consultations do not address take resulting from noncompliance. 
Indeed, a factor considered when we developed the regulations banning 
the use of lead for migratory waterfowl hunting was the impact of lead 
on endangered and threatened species. Hunter failures to comply with 
the existing ban on lead are of concern to us. If additional 
alternatives to lead shot are not available, small amounts of lead shot 
may be added to the environment, causing a negative impact on 
endangered and threatened species. We believe noncompliance is of 
concern, but failure to approve the three shot types as nontoxic would 
have only a small negative impact on the resource.
    The impact of approval of the three shot types on endangered and 
threatened species is similar to that described for waterfowl. In the 
short and long term, approval would provide a positive impact on 
endangered and threatened species by assuring that the three shot types 
have been found nontoxic. Also, as alternative shot types, they will 
further discourage the use of lead during waterfowl hunting and perhaps 
extend to upland game.
    Approval of the three shot types as nontoxic would have a short-
term positive impact on ecosystems. Some hunters still shooting lead 
shot may switch to one of the three shot types. Approval of them as 
nontoxic will result in positive long-term impact on ecosystems.
    In the short and long term, a minor positive impact will result by 
approving the three shot types as an alternative to other approved 
nontoxic shot types. People who may have stopped hunting might be 
encouraged to participate again, and businesses could experience 
increased activity. Funding support for public programs will increase 
and product manufacturers will be able to target potential markets.

Cumulative Impacts

    We foresee no negative cumulative impacts of approval of the three 
shot types for waterfowl hunting. Approval of an additional nontoxic 
shot type should 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 the three shot types for waterfowl hunting should be 
positive both in the United States and elsewhere. Approval of 
additional nontoxic shot types should help to further reduce lead 
poisoning of waterfowl that migrate south of the United States for the 
winter and of animals that prey on them or consume their carcasses.

Nontoxic Shot Approval Process

    The first condition for nontoxic shot approval is toxicity testing. 
Based on the data provided to us, we preliminarily conclude that none 
of the three shot types poses a significant danger to migratory birds, 
other wildlife, or their habitats. Based on the results of past 
toxicity tests, we conclude that the shots do not pose significant 
dangers to

[[Page 12110]]

migratory birds, other wildlife, or their habitats.
    The second condition for approval is testing for residual lead 
levels. Any shot with a lead level of 1 percent or more will be 
illegal. We determined that the maximum environmentally-acceptable 
level of lead in shot is 1 percent, and incorporated this requirement 
in the nontoxic shot approval process we published in the Federal 
Register on December 1, 1997 (62 FR 63608). International Nontoxic 
Composites, Inc. has documented that TBI shot meets this requirement, 
ENVIRON-Metal, Inc. has documented that TI shot meets this requirement, 
and Victor Oltrogge has documented that TTB shot meets this 
    The third condition for approval involves enforcement. In 1995 (60 
FR 43314), we stated that approval of any nontoxic shot would be 
contingent upon the development and availability of a noninvasive field 
testing device. This requirement was incorporated in the nontoxic shot 
approval process. TBI and TI shotshells can be drawn to a magnet as a 
simple field detection method. TTB shotshells can be detected in the 
field by testers already in use for bismuth-tin, tungsten-matrix, and 
tungsten-polymer shot types.
    For these reasons, and in accordance with 50 CFR 20.134, we intend 
to approve TBI, TI, and TTB shots as nontoxic for migratory bird 
hunting, and propose to amend 50 CFR 20.21(j) accordingly. This 
decision is based on data about the components of these shots, 
assessment of concentrations in aquatic settings, and assessment of the 
environmental effects of the shot. Those results indicate no likely 
deleterious effects of TBI, TI, or TTB shot to ecosystems or when 
ingested by waterfowl. Earlier testing of shot types containing 
tungsten and/or tin and/or iron indicated no environmental problems due 
to those metals in nontoxic shot. We do not believe the copper in TBI 
shot will pose any environmental hazard, and we propose to approve TBI 
shot with no further testing.
    This proposed rule will amend 50 CFR 20.21(j) by approving TBI, TI, 
and TTB shot as nontoxic for migratory bird hunting. It is based on the 
toxicological reports, acute toxicity studies, and assessment of the 
environmental effects of the shot. Those results indicate no 
deleterious effects of any of the shot types to ecosystems or when 
ingested by animals.

Public Participation

    Past proposed rules on approval of nontoxic shot have generated 
fewer than five comments. Furthermore, tungsten, iron, bismuth, and tin 
already have been reviewed extensively for use in nontoxic shot. 
Therefore, we will accept comments on this proposal until the closing 
date in the DATES section.
    Please submit electronic comments as text files; do not use file 
compression or any special formatting. Comments will become part of the 
administrative record for the review of the application.
    All comments on the proposed rule will be available for public 
inspection during normal business hours at Room 4091 at the Fish and 
Wildlife Service, Division of Migratory Bird Management, 4501 North 
Fairfax Drive, Arlington, Virginia 22203-1610. The complete file for 
this proposed rule is available, by appointment, during normal business 
hours at the same address. You may call (703) 358-1825 to make an 
appointment to view the files.


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Eisler, R. 1989. Tin hazards to fish, wildlife and invertebrates: a 
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Gallagher, S. P., J. B. Beavers, R. Van Hoven, and M. Jaber. 1999. 
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Henderson, R. M. and R. W. Winterfield. 1975. Acute copper toxicosis 
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Karantassis, T. 1924. On the toxicity of compounds of tungsten and 
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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), we have complied with NEPA in the following manner for 
the three shot applications:

                    For                                                NEPA compliance
TBI shot...................................  a Draft Environmental Assessment (EA).
TI shot....................................  a Draft Environmental Assessment (EA).
TTB shot...................................  a Draft Environmental Assessment (EA).

    These documents are available to the public at the location 
indicated in the ADDRESSES section.

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.'' We are completing a Section 7 consultation 
under the ESA for this proposed rule. The result of our consultation 
under Section 7 of the ESA will be available to the public at the 
location indicated in the ADDRESSES section.

Regulatory Flexibility 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. This rule proposes to approve additional types of 
nontoxic shot that may be sold and used to hunt migratory birds; this 
proposed rule would provide shot types in addition to the types that 
are approved. We have determined, however, that this proposed rule will 
have no effect on small entities since the approved shots merely will 
supplement nontoxic shot types already in commerce and available 
throughout the retail and wholesale distribution systems. We anticipate 
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.

Small Business Regulatory Enforcement Fairness Act

    Similarly, this policy is not a major rule under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. This policy 
does not impose an unfunded mandate of more than $100 million per year 
or have a significant or unique effect on State, local, or tribal 
governments or the private sector because it is the Service's 
responsibility to regulate the take of migratory birds in the United 

Executive Order 12866

    In accordance with the criteria in Executive Order 12866, this 
proposed rule is not a significant regulatory action subject to Office 
of Management and Budget (OMB) review under Executive Order 12866. OMB 
makes the final determination under E.O. 12866. This rule will not have 
an annual economic effect of $100 million or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government. Therefore, a cost-benefit economic analysis 
is not required. This proposed action will not create inconsistencies 
with other agencies' actions or otherwise interfere with an action 
taken or planned by another agency. The action proposed is consistent 
with the policies and guidelines of other Department of the Interior 
bureaus. This proposed action will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients because it has no mechanism to affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. This proposed action will not raise novel legal or 
policy issues because the Service has already approved several other 
nontoxic shot types.
    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite comments on how to make this 
rule easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain

[[Page 12112]]

technical language or jargon that interferes with its clarity? (3) Does 
the format of the rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the 
rule be easier to understand if it were divided into more (but shorter) 
sections? (5) Is the description of the rule in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful in understanding the rule? 
What else could we do to make the rule easier to understand? Send a 
copy of any comments on how we could make this proposed rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may 
e-mail your comments to this address: Exsec@ios.doi.gov.

Paperwork Reduction Act

    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. The information collection 
associated with this proposed rule (see 50 CFR 20.134) is already 
approved under OMB control number 1018-0067, which expires December 31, 
2003. On October 22, 2003, we published in the Federal Register (68 FR 
60409) a notice that we have submitted a request to OMB to renew the 
information collection associated with 50 CFR 20.134 for 3 years. OMB 
has not yet responded to our request.

Unfunded Mandates Reform

    We have determined and certify pursuant to the Unfunded Mandates 
Reform Act, 2 U.S.C. 1502, et seq., that this proposed 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

    We have determined that these regulations meet the applicable 
standards provided in Sections 3(a) and 3(b)(2) of Executive Order 

Takings Implication Assessment

    In accordance with Executive Order 12630, this proposed rule, 
authorized by the Migratory Bird Treaty Act, does not have significant 
takings implications and does not affect any constitutionally-protected 
property rights. This proposed rule will not result in the physical 
occupancy of property, the physical invasion of property, or the 
regulatory taking of any property. In fact, this proposed rule will 
allow hunters to exercise privileges that would be otherwise 
unavailable; and, therefore, reduces restrictions on the use of private 
and public property.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the Migratory Bird Treaty Act. This proposed rule does not have a 
substantial direct effect on fiscal capacity, change the roles or 
responsibilities of Federal or State governments, or intrude on State 
policy or administration. Therefore, in accordance with Executive Order 
13132, this proposed regulation does not have significant federalism 
effects and does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

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) and 512 DM 2, we have determined that this 
proposed rule has no effects on Federally recognized Indian tribes.

Energy Effects

    In accordance with Executive Order 13211, this proposed rule, 
authorized by the Migratory Bird Treaty Act, does not significantly 
affect energy supply, distribution, and use. This proposed rule is not 
a significant energy action and no Statement of Energy Effects is 

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 1 of Title 50 of the Code of Federal 
Regulations as follows:


    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; Pub. L. 
106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
    2. Section 20.21 is amended by revising paragraph (j) to read as 

Sec.  20.21  What hunting methods are illegal?

* * * * *
    (j)(1) While possessing loose shot for muzzleloading or shotshells 
containing other than the following approved shot types:

           Approved shot type                             Composition by weight (in percentages)
bismuth-tin............................  97 bismuth, 3 tin
steel..................................  iron and carbon
tungsten-bronze-iron...................  51.1 tungsten, 44.4 copper, 3.9 tin, 0.6 iron
tungsten-iron (2 types)................  40 tungsten, 60 iron 22, tungsten, 78 iron
tungsten-matrix........................  95.9 tungsten, 4.1 polymer
tungsten-nickel-iron...................  50 tungsten, 35 nickel, 15 iron
tungsten-polymer.......................  95.5 tungsten, 4.5 Nylon 6 or 11
tungsten-tin-bismuth...................  49-71 tungsten, 29-51 tin; 0.5-6.5 bismuth
tungsten-tin-iron-nickel...............  65 tungsten, 21.8 tin, 10.4 iron, 2.8 nickel

    (2) Each approved shot type must contain less than 1 percent 
residual lead (see Sec.  20.134). This lead 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 them during concurrent seasons in areas described in Sec.  20.108 
as nontoxic shot zones.

    Dated: March 8, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5782 Filed 3-12-04; 8:45 am]