[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Proposed Rules]
[Pages 31356-31357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14513]




[[Page 31355]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Decision on the Conditional Approval of 
Bismuth-Tin Shot as Nontoxic for the 1995-96 Season; Proposed Rule

  Federal Register / Vol. 60, No. 114 / Wednesday, June 14, 1995 / 
Proposed Rules   

[[Page 31356]]


DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AC66


Migratory Bird Hunting; Decision on the Conditional Approval of 
Bismuth-Tin Shot as Nontoxic for the 1995-96 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) is publishing 
this proposed rule to amend Section 20.21(j) and provide for the 
conditional approval of bismuth-tin shot for the 1995-96 migratory bird 
hunting season. Concluded acute toxicity studies, ongoing toxicity 
reproductive studies undertaken by the Bismuth Cartridge Company, and 
other pertinent materials indicate that bismuth-tin shot is nontoxic 
when ingested by waterfowl.

DATES: Comments on this proposal must be received by July 14, 1995.

ADDRESSES: Written comments should be sent to: Chief, Office of 
Migratory Bird Management, U.S. Fish and Wildlife Service, ms 634 
ARLSQ, 1849 C Street NW., Washington D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, or Keith 
Morehouse and Pete Poulos, Staff Specialists, Office of Migratory Bird 
Management, (703/358-1714).

SUPPLEMENTARY INFORMATION: The Service published a final regulation in 
the January 3, 1995, Federal Register (60 FR 61) to provide for 
conditional approval of bismuth-tin shot (in a mixture of [nominally] 
97-3 percent, respectively) as nontoxic for the taking of waterfowl and 
coots during the 1994-1995 hunting season. This 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 section 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 
section 20.134. The Service granted conditional approval (effective 
December 30, 1994) of the use of bismuth-tin shot for the 1994-95 
hunting season only. For a complete review of the bismuth-tin shot 
application and review process, refer to the Supplementary Information 
Section of the January 3, 1995, Federal Register (60 FR 61).
    This proposed regulatory action is now taken to further amend 
Section 20.21(j) to extend the conditional approval for bismuth-tin 
shot to the 1995-96 hunting season. This is based on a request made to 
the Fish and Wildlife Service by the Bismuth Cartridge Company on March 
20, 1995. Results of the concluded 30-day acute toxicity test and 
progress made by the Bismuth Cartridge Company in their current 
reproductive toxicity testing are viewed as justification for extending 
conditional approval into the next hunting season.
    The reproductive toxicity test is being conducted by Dr. Glenn 
Sanderson and follows a testing protocol reviewed and approved by the 
Service, with technical assistance provided by the Branch of 
Environmental Contaminants Research of the Patuxent Environmental 
Service Center. The general outline of the reproductive toxicity test 
given below is not a complete description of the testing protocol, but 
gives the basic outline of the test procedures being conducted:

    The test consists of 60 male and 60 female mallards and uses No. 
4 lead, steel, and candidate (bismuth-tin) shot. Males and females 
will be paired randomly and divided into four groups that will be 
dosed with lead, steel, bismuth-tin, and sham dosed. After diet and 
light manipulation, birds will be brought into breeding condition. 
Nests will be checked twice daily with recorded data including 
clutch initiation, number of eggs laid, egg fertility, egg 
hatchability, and number of ducklings produced. Eggs collection will 
continue until 21 uncracked eggs have been collected or until 150 
days have elapsed. Eggs will be place in an incubator and after 
hatching, ducklings will be examined for signs of intoxication and 
illness. Blood will be collected with hematocrits determined and the 
blood analyzed. Livers, kidneys, and gonads from adults will be 
examined for gross and microscopic lesions, and analyzed for major 
elements found in the candidate shot and for major essential and 
trace elements. Livers and kidneys will be collected from ducklings 
and will be examined for gross and microscopic lesions, and analyzed 
for major elements contained in the candidate shot and for major 
essential and trace elements. Blood, liver, kidneys, and gonads will 
be analyzed by ICP for calcium, potassium, magnesium, zinc, copper, 
tin, iron, and any metal other than Bismuth or lead. Bismuth and 
lead in the livers, kidneys, and gonads, and blood will be analyzed 
by graphite furnace atomic absorption spectrometry.

    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. 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. The Service is eager to consider these other 
materials for approval as nontoxic, and does not feel constrained to 
limit nontoxic shot options.
    Resistance to the use of steel shot, however, is undoubtedly 
creating an unknown level of noncompliance with the requirement to use 
nontoxic shot for waterfowl and coot hunting. Although compliance with 
the use of nontoxic shot has increased moderately over the last few 
years, the Service believes that this level of compliance may continue 
to increase with the use of bismuth-tin shot in conjunction with the 
use of adequate field testing equipment by law enforcement personnel.
    In summary, this rule extends conditional approval for the use of 
bismuth-tin shot for waterfowl and coot hunting to the 1995-96 season. 
Additionally, the applicant, wishing to obtain final unconditional 
approval for bismuth-tin shot as nontoxic, is required to obtain 
season-by-season approval until successfully completing the remaining 
tests required by 50 CFR section 20.134.
    One additional standard will be applied to the unconditional 
approval of bismuth-tin shot. Since bismuth is a by-product of the 
smelting of iron, copper, and tin, it is not surprising that traces of 
lead may be present in bismuth-tin shot. The Service has initiated 
discussion with the Branch of Environmental Contaminants Research at 
the Patuxent Environmental Science Center to determine the maximum 
environmentally acceptable level of lead in bismuth-tin shot. Once this 
maximum level is determined, it will be stated in any regulation 
granting unconditional approval for the use of bismuth-tin shot. It 
will be the Service's position that any bismuth-tin shot manufactured 
with lead levels exceeding those stated in the regulation will be 
considered toxic and therefore, illegal.
    We are encouraged by the progress that has been made to develop a 
noninvasive field testing device to assist law enforcement personnel in 
detecting the use of illegal shot. However, those devices currently 
available still appear to need refinement. We are hopeful that 
additional development and testing is planned since noninvasive 
enforcement 

[[Page 31357]]
is an important component in the approval of any alternative shot 
material. Service law enforcement personnel will be asked to assess any 
noninvasive field testing equipment on the market to determine their 
utility and accuracy. Final unconditional approval, if otherwise 
proper, would be contingent upon the development and availability of a 
noninvasive field testing shot device.

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 indicated under the caption ADDRESSES. 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 conditional use of bismuth-tin an nontoxic shot 
for the 1995-96 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 ``ensure 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 ESA for this proposed rulemaking to 
legalize, on a conditional basis, the use of bismuth-tin shot for 
hunting waterfowl and coots during the 1995-96 seasons. When completed, 
the results of the Service's consultation under Section 7 of the ESA 
may be inspected by the public in, and will be available to the public 
from, the Office of Migratory Bird Management, at the address in the 
ADDRESSES section.

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.

    Authorship: The primary author of this proposed rule is Peter G. 
Poulos, 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 continues to read as follows:

    Authority: Migratory Bird Treaty Act (July 3, 1918), as amended 
(16 U.S.C. 701-711); the Fish and Wildlife Improvement Act of 1978 
(November 8, 1978); as amended, (16 U.S.C. 712); and the Fish and 
Wildlife Act of 1956 (August 8, 1956), as amended, (16 U.S.C. 742 a-
d and e-j).

    2. Section 20.21 is amended by revising paragraphs (j) introductory 
text and (j)(2) 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 
percent, respectively) shot or such shot approved as nontoxic by the 
Director pursuant to procedures set forth in Sec. 20.134.
    Provided that:
    (1) * * *
    (2) Bismuth-tin shot is legal as nontoxic shot only during the 
1995-96 season.

    Dated: June 5, 1995.
George T. Frampton,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-14513 Filed 6-13-95; 8:45 am]
BILLING CODE 4310-55-P