[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Rules and Regulations]
[Pages 61-64]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32214]



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DEPARTMENT OF THE INTERIOR
50 CFR Part 20

RIN 1018-AC66


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) is publishing 
this final rule to notify the public of the interim conditional 
approval of the use of bismuth-tin for the remainder of the 1994-1995 
migratory bird hunting season. Toxicity studies undertaken by the 
Bismuth Cartridge Company and other pertinent materials indicate that 
bismuth-tin shot is nontoxic to waterfowl when ingested.

EFFECTIVE DATE: This rule becomes effective January 3, 1995.

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

SUPPLEMENTARY INFORMATION: The Service published a proposed regulation 
in the Federal Register on August 22, 1994 (59 FR 43088) to provide for 
conditional approval of bismuth-tin shot (in a mixture of [nominally] 
97-3 percents, respectively) as nontoxic for the taking of waterfowl 
and coots during the 1994-1995 hunting season. This proposed action was 
in response to a petition for rulemaking from the Bismuth Cartridge 
Company received June 24, 1994. The petition requested that the Service 
modify the provisions of 50 CFR 20.21(j), to legalize the use of 
bismuth-tin shot on an interim, conditional basis for both the 1994-95 
and the 1995-96 seasons. The petition cited the following reasons in 
support of the proposal: (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. This petition 
acknowledged responsibility by the Bismuth Cartridge Company to 
complete all the nontoxic shot approval tests as outlined in 50 CFR 
20.134.
    The current petition for rulemaking follows two previous 
applications to the Service for final approval, one dated October 21, 
1993, and the other dated December 30, 1993. The Service replied that 
the applications were deficient because the bismuth-based shot material 
had not been adequately tested. Preliminary toxicity testing by the 
applicants had been with essentially-pure bismuth only. Thus, there was 
not adequate scientific data (either available or provided with the 
application) covering toxicity of the material to be loaded into 
shotshells. The Service pledged in both replies, however, to work with 
the applicants to process the applications in as timely a fashion as 
possible.
    In response to the Bismuth Cartridge Company's petition of June 14, 
1994, the Service proposed (59 FR 43088) the interim conditional 
approval of bismuth-tin shot based on what was known about the toxicity 
of bismuth and on the agreement by the Bismuth Cartridge Company to 
conduct and complete the 30-day acute toxicity test as described in 50 
CFR 20.134.
    For bismuth, there are three especially recent and relevant studies 
that support this proposal. The three studies include Sanderson and 
Anderson (1994), Ringelman et al. (1992), and Sanderson et al. (1992). 
A complete description of these studies can be found in the proposed 
rule (59 FR 43088). In addition, test results with tin include those by 
Grandy et al. (1968) in which there were no deaths associated with 
mallards dosed with tin shot. Positive results from the acute toxicity 
test (Sanderson et al. 1994) (just concluded) and the other toxicity 
information (cited above) suggest that a temporary conditional approval 
for bismuth-tin can be provided without significant risk to migratory 
bird resources. The Service believes it has sufficient flexibility in 
the regulations to approach approval of shot in a step manner.
    The toxicity analysis procedures (50 CFR 20.134) consist of three 
tests which represent the three major categories of toxic effects: 
short-term periodic exposure, chronic exposure under adverse 
environmental conditions, and the impact of chronic exposure on 
reproduction. Tests include both steel-shot and lead-shot control 
groups and statistical analyses of all data from each test. Test 1 is a 
short-term, 30-day acute [[Page 62]] toxicity study using commercially-
available duck food and including blood tests and organ analysis. Test 
2 is a chronic 14-week toxicity test in cold weather using a 
nutritionally-deficient diet, and test 3 is a chronic-dosage study that 
includes reproductive assessment using a commercially-available duck 
food diet. For bismuth-tin shot to achieve interim conditional 
approval, results from test 1 (30-day acute toxicity) must show a 
finding of nontoxicity to waterfowl. Unconditional final approval will 
result when the second and third tests are concluded with a finding of 
nontoxicity.
    The Bismuth Cartridge Company contracted with Dr. Glen Sanderson, 
Center for Wildlife Ecology, Illinois Natural History Survey, to 
conduct the 30-day (short-term) acute toxicity study. Results from the 
test indicate that bismuth-tin is not toxic when ingested by waterfowl. 
As stated in the proposed rule of August 22, 1994 (59 FR 43088), ``. . 
. this concluding work will be completed before any final rulemaking . 
. .'' Having received these test results and final report, the Service 
now issues this final rule providing interim conditional approval to 
the use of bismuth-tin shot for the remainder of the 1994-1995 
migratory bird hunting season.
    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. The 
Service believes, however, that there may be other suitable candidate 
shot materials that could be approved for use as nontoxic shot.
    In summary, this rule provides interim conditional approval for the 
use of bismuth-tin shot for waterfowl and coot hunting only for the 
1994-1995 hunting season. Further approval will be granted only upon 
satisfactory completion of the remaining tests required by the Service 
and the regulations at 50 CFR 20.134, and upon availability of a field 
detection device to address law enforcement concerns.

Public Comments

    The August 22 proposed rule invited comments from interested 
parties. Closing date for receipt of all comments was September 21, 
1994. During this 30-day comment period, the Service received 351 
comments. These comments consisted of 2 from Flyway Councils, 5 from 
Federal agencies, 19 from State fish and wildlife agencies, 23 from 
other organizations, and 302 from individuals, including a letter 
signed by 33 Congressmen. A brief summary of those comments is as 
follows:
    The Mississippi and Pacific Flyway Councils both opposed the 
proposal. The Mississippi Council cited incomplete toxicity testing, 
enforcement problems caused by lack of a simple field identification 
technique and the timing of the approval. The Pacific Council stated 
that ``this expedient action abandons the hard-fought standards set for 
waterfowling ammunition, fails to consider impacts on law enforcement 
and education programs, and unnecessarily sets a precedent for special 
exemptions.''
    Four of the Federal agency comments were submitted by law 
enforcement personnel and opposed the action, primarily on the basis of 
enforcement problems caused by lack of a non-invasive field method to 
distinguish bismuth-tin from lead. They suggested further that 
approving bismuth-tin will provide an additional opportunity for those 
using lead to go undetected. Comments reiterated the need for the 
development of a cheap, easy non-invasive field test to distinguish 
between bismuth-tin and lead. The Canadian Wildlife Service appeared to 
endorse the action with a statement that the conditional approval of 
bismuth shot would be consistent with actions taken in Canada. Bismuth 
is apparently considered nontoxic in Canada since the comment indicated 
that toxic shot is defined as anything containing more than one percent 
lead.
    Nineteen comments were received that represented 18 States (2 
comments from Maryland). Of the 19 comments, 6 endorsed the proposal, 
13 opposed it. Opposition came from Arkansas, Colorado, Delaware, 
Indiana, Kentucky, Minnesota, Missouri, Montana, Washington, and 
Wisconsin. These comments also raised the issue of enforcement 
difficulties, incomplete toxicity testing, and concern about timing 
(delay approval until 1995-96 hunting season). Support for this action 
came from Louisiana, Maryland, Mississippi, Nevada, and New Jersey.
    Organizations were represented by 23 comments. Of the 23 comments, 
21 endorsed the proposal and 2 (McGraw Wildlife Foundation and National 
Wildlife Federation) opposed it. Opposition was based mainly on 
concerns that ``shortcuts'' were being taken on testing procedures for 
toxicity and that the process was ``moving too fast.'' Support came 
from Ontario Federation of Anglers & Hunters, Safari Club 
International, Arkansas Wildlife Federation, International Association 
of Fish and Wildlife Agencies, Congressional Sportsman Foundation, 
National Rifle Association, South Carolina Waterfowl Association, The 
Wildlife Legislative Fund of America, Catahoula Lake Conservation Club, 
Alabama Waterfowl Association, Inc., California Waterfowl Association, 
Sporting Shooters' Association of Australia (Inc.), New Jersey State 
Federation of Sportsman's Clubs, Inc., Michigan United Conservation 
Clubs, Ducks Unlimited, The American Outdoorsman Hunting Club, 
International Joint Commission--Great Lakes, ASARCO, Inc., Smoking 
Barrel Duck Club, The Bismuth Cartridge Company, and the Sportsman's 
Council of Central California.
    Individuals submitted 302 comments with 299 favoring the action and 
only 3 opposing it. The comments favoring the approval of bismuth-tin 
were, in fact, generally anti-steel, restating opposition to steel shot 
due to such factors as crippling loss and gun-barrel damage. The 
consensus expressed support of anything that could replace steel.

Response to Comments

    Opposition to the regulation focused on 3 major areas: enforcement, 
toxicity testing, and timing.
    1. Enforcement--Concern was expressed in the comments that there is 
no simple procedure to distinguish bismuth-tin shot from lead shot in 
the field, creating a burden on law enforcement personnel. The Service 
recognizes this difficulty and acknowledges that a prescribed field 
testing method (short of exposing the shot through invasive inspection) 
to determine shot composition should ideally be in place before 
approval. In fact, field methods are currently being developed to 
address this concern. Since resistance to steel shot is promoting a 
climate for noncompliance, however, it is important to provide an 
alternative to steel shot that could give the public greater choice 
during this interim period and improve hunter compliance, thereby 
reducing the amount of lead shot being used. In addition, increased 
hunter use of this alternative shot could benefit upland habitats, 
through the diminished use of [[Page 63]] lead shot in those areas. The 
Service believes that by offering alternatives to steel shot, a climate 
of compliance will be promoted, not reduced, and that this is a 
reasonable approach to take while field testing techniques are being 
developed.
    2. Toxicity Testing--Comments expressed concern that testing is 
incomplete and that testing procedures, clearly defined by regulation 
are not being followed. The Service stresses that there have been no 
actions relative to this process outside compliance with 50 CFR 20.134. 
The Service believes, however, that the regulatory process is 
sufficiently flexible to provide the opportunity for interim 
conditional approval of alternatives to steel shot. The applicant has 
demonstrated a good faith effort to comply with the regulatory 
procedures defined for toxicity testing and there appears to be no 
information suggesting a hazard to migratory birds. The Service 
believes this flexibility can be exercised. The procedures described in 
50 CFR 20.134 are in place and interim conditional approval is being 
granted only after completion of the 30-day acute toxicity test and an 
independent review of the test results. In addition, the Service has 
clearly stated that only interim conditional approval has been given 
and the Bismuth Cartridge Company must still complete all remaining 
toxicity tests before unconditional final approval is granted for the 
use of bismuth-tin shot.
    3. Timing--Concern was expressed that the hunting season will have 
begun if/when bismuth-tin shot is approved.The Service regrets that the 
conditional approval of bismuth-tin had to be delayed until after the 
start of the 1994-95 hunting season. Although an earlier approval date 
would have been preferred, the Service was obligated to wait until the 
acute toxicity tests, analysis of data, and review of the results were 
completed. The fact that the season has already begun is not considered 
an adequate justification to delay approval, especially considering the 
effort put forth to complete the testing and review process as quickly 
as possible. It was determined that the ``inconvenience'' of approving 
the use of bismuth-tin shot after the start of the hunting season was 
outweighed by the opportunity for the hunting public to use bismuth-
tin, even if few days remained in the 1994-95 season.

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., W.L. Anderson, G.L. Foley, L.M. Skowron, and J.W. 
Seets. 1994. Toxicity and reproductive effects of ingested bismuth 
alloy shot and effects of embedded bismuth alloy, lead, and iron 
shot on game-farm mallards. Final Report, Ill. Nat. Hist. Surv., 
Champaign, IL. 64 pp. + tables.
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.

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 regulation for implementing NEPA (40 
CFR 1500-1508), an Environmental Assessment has been prepared and is 
available to the public at the Office of Migratory Bird Management at 
the address listed above. Based on review and evaluation of the 
information contained in the Environmental Assessment, the Service 
determined that the proposed action to amend 50 CFR 20.21(j) to allow 
interim conditional use of bismuth-tin as nontoxic shot for the 1994-95 
waterfowl 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), 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 . . .''
    Toxicity testing conducted by the Bismuth Cartridge Company 
indicates that bismuth-tin is nontoxic to the environment; therefore, 
no adverse impact on endangered and threatened species is anticipated. 
Pursuant to section 7 of the ESA, MBMO sought review and concurrence 
that this action ``is not likely to adversely affect'' threatened, 
endangered, proposed, and category 1 species. Based on review and 
evaluation of the toxicity testing and other available information, the 
Service determined that no adverse impact on endangered and threatened 
species would result from the proposed action. The results of this 
review may be inspected by the public in, and will be available to the 
public from, the Office of Migratory Bird Management, U.S. Fish and 
Wildlife Service, Department of the Interior, Washington, DC 20240.

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. The Service has determined, however, 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.

Effective Date

    This rule reflects the interim approval in the text of 50 CFR 
20.21(j), by restricting permission to use bismuth-tin for the 1994-95 
season. Because this rule relieves a restriction, and the current 
hunting season ends on February 28, 1995, the Service has determined 
that there is good cause to establish the effective date of this rule 
as the date of publication in the Federal Register, as authorized under 
5 U.S.C. 553(d) (1 and 3).

Authorship

    The primary author of this final rule is Peter G. Poulos, Office of 
Migratory Bird Management. [[Page 64]] 

List of Subjects in 50 CFR Part 20

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

    Accordingly, Part 20, Subchapter B, Chapter I of Title 50 of the 
Code of Federal Regulations is amended as follows:

PART 20--[AMENDED]

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

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

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


Sec. 20.21  Hunting methods.

* * * * *
    (j) While possessing shot (either in shotshells or as loose shot 
for muzzleloading) other than steel shot, bismuth-tin ([nominally] 97-3 
percents, respectively) shot or such shot approved as nontoxic by the 
Director pursuant to procedures set forth in Section 20.134.
    Provided that:
    (1) This restriction applies only to the taking of Anatidae (ducks, 
geese [including brant] and swans), coots (Fulica americana) and any 
species that make up aggregate bag limits during concurrent seasons 
with the former in areas described in Section 20.108 as nontoxic shot 
zones, and
    (2) Bismuth-tin shot is legal as nontoxic shot only during the 
1994-95 season.

    Dated: December 22, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife.
[FR Doc. 94-32214 Filed 12-30-94; 8:45 am]
BILLING CODE 4310-55-P