[Federal Register Volume 59, Number 161 (Monday, August 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20621]


[[Page Unknown]]

[Federal Register: August 22, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AC66

 

Migratory Bird Hunting; Conditional Approval of Bismuth-Tin Shot 
as Nontoxic for the 1994-95 Seasons

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: This is to inform the public that the U.S. Fish and Wildlife 
Service (Service) is proposing in this notice to conditionally approve 
bismuth-tin shot as nontoxic for waterfowl and coot hunting during the 
1994-95 waterfowl hunting season. Available information and data from 
studies indicate that bismuth-tin shot is nontoxic to migratory 
waterfowl if ingested. Further studies will be required to confirm 
these preliminary conclusions.

DATES: Comments on this proposal must be received by September 21, 
1994.

ADDRESSES: Comments regarding this Notice should be addressed to: 
Director (FWS/MBMO), U.S. Fish and Wildlife Service, 634 ARLSQ, 1849 C 
St., NW, Washington, D.C. 20240. Comments received on this Notice will 
be available for public inspection during normal business hours in Room 
634 Arlington Square Building, 4401 No. Fairfax Drive, Arlington, VA 
22203.

FOR FURTHER INFORMATION CONTACT: Mr. Paul R. Schmidt, Chief, or Dr. 
Keith A. Morehouse, Staff Specialist, Office of Migratory Bird 
Management, U.S. Fish and Wildlife Service, 634 ARLSQ, 1849 C St., NW, 
Washington, D.C. 20240 (703/358-1714).

SUPPLEMENTARY INFORMATION: The Service is proposing on an interim basis 
to conditionally approve the use of bismuth-tin shot (in a mixture of 
[nominally] 97-3 percents, respectively) as nontoxic for the taking of 
waterfowl and coots during the 1994-95 hunting season. This proposed 
action responds to a petition for rulemaking by the Bismuth Cartridge 
Company, dated June 14, 1994, and received by the Service on June 24, 
1994. Specifically, the petition requests that the Service modify the 
provisions of 50 CFR, section 20.21(j), to make legal the use of 
bismuth-tin shot on an interim, conditional basis for the 1994-95 and 
the 1995-96 seasons. The Bismuth Cartridge Company petition 
acknowledges responsibility for completion of the nontoxic shot 
approval procedures studies outlined in 50 CFR, 20.134, before final 
approval is considered.
    The petition for rulemaking cites as reasons in support of the 
proposal the following: a) bismuth is nontoxic; b) the proposed rule is 
conditional; and c) the evidence presented in the record, i.e., the 
application from the Bismuth Cartridge Company.
    The petition for rulemaking follows two applications for final 
approval, one dated October 21, 1993, and the other dated December 30, 
1993, that were provided to the Service. In reply, the Service 
responded that the applications were deficient because the bismuth-
based shot material expected to be loaded into shotshells had not been 
found through preliminary testing to be nontoxic. Preliminary toxicity 
testing by the applicants had been with (essentially) pure bismuth 
only. Thus, there was not (either available or provided with the 
application) adequate scientific data covering toxicity of the material 
to be loaded into shotshells. However, the Service pledged in both 
replies to work with the applicants to process the applications in as 
timely a fashion as possible.
    Since the mid-1970s, the Service has sought to identify shot that 
when spent does not pose a significant hazard to migratory birds and 
other wildlife. Ingestion of spent lead shot has long been identified 
as a source of significant mortality in migratory birds. The Service 
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 latter provided the scientific 
justification for the ban on the use of lead shot for hunting waterfowl 
and coots that was begun in 1986 and completed in 1991. Currently, only 
steel shot has been approved by the Service Director as nontoxic. 
However, the Service believes that there may be other suitable 
candidate shot materials available which could be approved for use as 
nontoxic shot. The Service is anxious to consider these other potential 
candidates for approval as nontoxic, and does not feel constrained to 
limit nontoxic shot options.
    The regulation relative to use of nontoxic shot and the concomitant 
endorsement by the Service of steel shot has generated some 
controversy. Some hunters still believe that steel shot is less 
ballistically efficient than lead and can damage shotgun barrels, 
although the Service believes that the majority of hunters have 
accepted steel as an effective alternative to lead. However, resistance 
to the use of steel shot is undoubtedly creating an unknown level of 
noncompliance with the requirement to use nontoxic shot for waterfowl 
and coot hunting. The availability of an alternative to steel shot will 
provide the public greater choice during an interim period and, thus, 
could improve hunter compliance with nontoxic shot requirements in 
waterfowl hunting situations. In addition, increased hunter use of this 
alternative shot could benefit upland game bird habitats, and upland 
game birds as well, through the diminished use of lead shot in those 
areas.
    The Service is proposing this conditional, interim approval on the 
basis of what is known about the toxicity of bismuth and tin, 
principally the former because it makes up almost all of the of the 
shot. However, test results with tin include those by Grandy et al. 
(1968) in which there were no deaths associated with mallards dosed 
with tin shot. For bismuth, there are three especially recent and 
relevant studies that support this proposal.
    In a 30-day acute toxicity study now being completed with bismuth-
tin shot, Sanderson et al. (1994) report no mortality associated with 
dosage of mallard ducks. Although the dosage phase and preliminary 
analyses have been completed, concluding tissue examination and 
analyses remain to be carried out. However, this concluding work will 
be completed before any final rulemaking; when reviewing the 
preliminary results, it is doubtful that any dramatically different 
findings are yet to occur.
    Sanderson et al. (1992), over the course of a 30-day acute toxicity 
study on captive-reared mallards with three different shot-types, i.e., 
lead, essentially pure bismuth and iron shot, found no mortality 
associated with bismuth. Further, calculations on the absorption of 
bismuth based on estimated excreted quantities, with known amounts in 
blood, liver, bone and muscle (a range of none to minute amounts) 
suggest that most of the bismuth eroded from the shot as a result of 
gizzard action was excreted in the feces. Sanderson et al. (1992) state 
that ``All nine ducks (three control, three Bi8 and three Fe8) examined 
at the end of the study had normal amounts of muscle and abundant fat 
depots. Internal organs were within normal limits. No significant 
differences were observed among the three groups of ducks.'' (Numbers 
behind symbols refer to dosage rates, i.e., 8 bismuth and 8 iron shot, 
which is the maximum number of the range specified by the experimental 
design.)
    Ringelman et al. (1992) conducted a 32-day acute toxicity study 
which involved dosing game-farm mallards with a shot alloy of tungsten-
bismuth-tin (TBT), which was 39, 44.5 and 16.5 percent by weight, 
respectively. No dosed birds died during the trial, and behavior was 
normal. 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 
study.''
    Sanderson et al. (1992) have reviewed the relevant, and mostly 
earlier, literature with regard to the toxicity of bismuth. This 
literature provides little in the way of comparison to the results of 
the types of toxicity studies required by the Service and cited here. 
However, this literature provides findings which tend not to create a 
concern for any potential metallic bismuth-related intoxication in 
waterfowl when ingested. Although there have been some human 
neurological problems reported that are related to chronic use of 
organic bismuth compounds, bismuth (especially metallic) is not 
considered a serious industrial hazard to humans. A common use of 
bismuth is in pharmaceuticals for stomach ailments; bismuth is the 
principal active ingredient in Pepto-Bismol.
    The studies cited here for support of the application represent 
only the first of a series of three toxicity tests required by 50 CFR 
20.134, before a final approval can be given to the applicant by the 
Director of the Service. The other two toxicity tests required are for: 
(1) long-term chronic exposure; and (2) reproduction. The Service 
believes it has sufficient flexibility in the regulations to approach 
final approval in a step manner. That is, acute toxicity tests and 
other toxicity information suggest that a 1-year conditional approval 
can be provided without significant risk to migratory bird resources. 
If indicated, second and third 1-year approvals can be provided until 
the series of toxicity tests are completed; at which time, final 
approval may be made. This series of tests would have to be completed 
before the Service would consider final approval of bismuth-tin shot as 
nontoxic.
    Bismuth-tin shot is currently approved by the Canadian Wildlife 
Service for use in nontoxic shot zones on a conditional basis under 
terms similar to those described above. Bismuth-tin shot is also used 
in several European countries, and elsewhere in the world.

References:

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
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
Sanderson, G.C. and W.L. Anderson. 1994. Toxicity and reproductive 
effects of ingested bismuth alloy shot and effects of embedded 
bismuth alloy, lead, and iron shot on game-farm mallards. 3rd Prog. 
Rpt., Ill. Nat. Hist. Surv., Champaign, IL. 14 pp. + tables
Sanderson, G.C., S.G. Wood, G.L. Foley and J.D. Brawn. 1992. 
Toxicity of bismuth shot compared with lead and steel shot in game-
farm mallards. Trans. 57th. N. A. Wildl. Nat. Res. Conf., 57:526-
540.

    In summary, this rule proposes to conditionally approve the use of 
bismuth-tin shot for waterfowl and coot hunting for the 1994-95 season. 
The applicants, who wish to obtain final approval for their shot as 
nontoxic, would be required to obtain season-by-season approval until 
they have successfully completed all of the tests in the testing 
procedures required by 50 CFR, section 20.134.

NEPA Consideration

    Pursuant to the requirements of section 102(2)(C) of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)), and the 
Council on Environmental Quality's regulations for implementing NEPA 
(40 CFR 1500-1508), the Service will comply with NEPA prior to 
implementation of the final rule.

Endangered Species Act Considerations

    Section 7 of the Endangered Species Act, as amended (16 U.S.C. 
1531-1543; 87 Stat. 884), provides that, ``The Secretary shall review 
other programs administered by him and utilize such programs in 
furtherance of the purposes of this Act'' (and) 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 . . .'' Consequently, the Service will initiate 
Section 7 consultation under the Endangered Species Act for this 
proposed rulemaking to legalize, on an interim and conditional basis, 
the use of bismuth-tin shot for hunting waterfowl and coots during the 
1994- 95 seasons. When completed, the results of the Service's 
consultation under Section 7 of the Endangered Species Act may be 
inspected by the public in, and will be available to the public from, 
the Division of Endangered Species and Habitat Conservation or the 
Office of Migratory Bird Management, U.S. Fish and Wildlife Service, 
Department of the Interior, Washington, D.C. 20240. Copies of these 
documents are available from the Service at the address indicated under 
the caption ADDRESSES.

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 and/or governmental 
jurisdictions. However, the Service has determined that this rule will 
have no effect on small entities since the shot to be approved will 
merely supplement nontoxic shot already in commerce and available 
throughout the retail and wholesale distribution systems. No 
dislocation or other local effects, with regard to hunters and others, 
are apt to be evidenced. This rule was not subject to Office of 
Management and Budget (OMB) review under Executive Order 12866. This 
rule does not contain any information collection efforts requiring 
approval by the OMB under 44 U.S.C. 3504.

Authorship

    The primary author of this final rule is Dr. Keith A. Morehouse, 
Office of Migratory Bird Management.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    Accordingly, Part 20, Subchapter B, Chapter 1 of Title 50 of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 20--[AMENDED]

    1. The authority citation for Part 20 would continue to read as 
follows:

    Authority: Migratory Bird Treaty Act, as amended (16 U.S.C. 703 
et seq.)

    2. Section 20.21 is proposed to be amended by revising paragraph 
(j) introducting text and paragraph (j)(2) to read as follows (The 
introductory paragraph would be republished for reader convenience):


Sec. 20.21  Hunting methods.

    Migratory birds on which open seasons are prescribed in this part 
may be taken by any method except those prohibited in this section. No 
persons shall take migratory game birds:
* * * * *
    (j) While possessing shot (either in shotshells or as loose shot 
for muzzleloading) other than steel shot, bismuth-tin (97-3 percents, 
respectively) shot or such shot approved as nontoxic by the Director 
pursuant to procedurs set forth in Sec. 20.134, Provided, that:
* * * * *
    (2) Bismuth-tin shot is legal as nontoxic shot only during the 
1994-95 seasons.

    Date: August 2, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-20621 Filed 8-19-94; 8:45 am]
BILLING CODE 4310-55-P