[Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
[Rules and Regulations]
[Pages 43314-43316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20462]




[[Page 43313]]

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Part V





Department of the Interior





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Fish and Wildlife Service



_______________________________________________________________________



50 CFR Part 20



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

  Federal Register / Vol. 60, No. 160 / Friday, August 18, 1995 / Rules 
and Regulations   

[[Page 43314]]


DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AD41


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: 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 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.

EFFECTIVE DATE: This rule becomes effective on September 1, 1995.

FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, or Keith 
Morehouse and Pete Poulos, Staff Specialists, Office of Migratory Bird 
Management, U.S. Fish and Wildlife Service, ms 634 ARLSQ, 1849 C Street 
NW., Washington DC 20240 (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 percents, 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 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. A status report of the current 
reproductive toxicity testing dated July 7, 1995, and received for 
review by the Office of Migratory Bird Management concludes that as of 
day 150 of the test ``... we had observed no toxic effects, which we 
can attribute to ingested Bi shot, on young adult ducks, or their 
offspring...''
    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 
placed 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.
    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. 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 

[[Page 43315]]
proper, would be contingent upon the development and availability of a 
noninvasive field testing shot device.

Public Comments

    The June 14 proposed rule (60 FR 31356) invited comments from 
interested parties. Closing date for receipt of all comments was July 
14, 1995. During this 30-day comment period, the Service received 35 
comments. These comments consisted of 1 from Flyway Councils, 5 from 
State fish and wildlife agencies, 10 from other organizations, and 18 
from individuals. Of the 35 comments, only the Indiana Department of 
Natural Resources expressed opposition to the proposed rule. They 
stated that bismuth-tin shot should not be approved for use until after 
reproductive toxicity testing was completed and noninvasive field 
detection procedures were available for law enforcement personnel. The 
field testing procedure issue was also raised by the New York 
Department of Conservation, Division of Law Enforcement, that expressed 
concern that the level of noncompliance with the law ``is apt to 
increase'' without a viable noninvasive field test; however, this 
comment did acknowledge some positive aspects to the availability of 
this alternative shot. The State of South Carolina also expressed 
concern about the difficulty facing law enforcement personnel when 
inspecting shot in the field, but otherwise supported the development 
of alternative shot.
    Comments received from the Atlantic Flyway Council and the States 
of Louisiana and New Jersey were supportive of this regulation. The 
Atlantic Flyway Council expressed concern that the approval process is 
confusing to the average hunter and they suggest that the Service make 
every effort to quickly clarify the legal status of bismuth-tin shot. 
Several other comments also included a general concern that the 
approval process was confusing.
    Organizations were represented by 10 comments. Support for this 
proposal came from the California Waterfowl Association, The Wildlife 
Legislative Fund of America, Ontario Federation of Anglers & Hunters, 
New Jersey State Federation of Sportsmen's Clubs, Inc., Michigan United 
Conservation Clubs, New York State Conservation Council Inc., 
Congressional Sportsmen's Foundation, National Rifle Association of 
America, Safari Club International and the Congressional Sportsmen's 
Caucus. These organizations used phrases such as ``strongly supports,'' 
``in favor of,'' ``unconditional support,'' and ``unanimously urges'' 
to endorse this proposal.
    Individuals submitted 19 comments that were in favor of this 
proposal, with several of the comments including statements in 
opposition to steel shot. A comment from one individual, while not 
stating opposition to the bismuth-tin proposal per se, expressed the 
opinion that opposition to steel is not due to the performance of the 
shot but instead, due to the improper use of the steel shot by the 
hunter.

Response to Comments

    While the comments received expressed minimum opposition to this 
regulation, there was concern for the difficulty that would be 
experienced by law enforcement personnel in detecting the shot in the 
field and in the general procedure/timing of the bismuth-tin shot 
approval process.
    The Service continues to support the development of a noninvasive 
field detection device to address law enforcement concerns and 
continues to believe that this is an important component of the 
alternative shot approval process. It is the current position of the 
Service to withhold unconditional approval of this shot until a viable 
fully tested field detection device is available.
    The Service recognizes the difficulty that was caused last year 
when conditional approval of bismuth-tin shot was granted after the 
start of the 1994-1995 hunting season. As we stated in the January 3, 
1995, Federal Register (60 FR 61) regulation, conditional approval was 
dependent on conclusion of the Phase 1 30-day acute toxicity test. The 
test was concluded after the start of the 1994-1995 hunting season and 
the Service felt that the effort made by the Bismuth Cartridge Company 
to complete the testing, warranted immediate approval. With the 
cooperation of the shot manufacturer, the Service will make every 
effort to avoid a similar situation from occurring in the future.
    The Service anticipates the required toxicity testing and the 
development of a viable noninvasive field detection device will be 
concluded in the near future. If test results prove nontoxicity and a 
field device is readily available to law enforcement personnel, it is 
anticipated that unconditional approval for the use of this shot can be 
granted prior to the 1996-1997 hunting season.

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 under the caption FOR FURTHER INFORMATION CONTACT. 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 initiated Section 
7 consultation under the ESA for this rulemaking to legalize, on a 
conditional basis, the use of bismuth-tin shot for hunting waterfowl 
and coots during the 1995-96 seasons. Completed 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 under the caption FOR FURTHER 
INFORMATION CONTACT.

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 

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(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 section 
20.21(j), by restricting permission to use bismuth-tin for the 1995-96 
season. Because this rule relieves a restriction, and the current 
hunting season begins on September 1, 1995, the Service has determined 
that there is good cause to establish the effective date of this rule 
as the first day of the hunting season, as authorized under 5 U.S.C. 
553(d)(1 and 3).

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 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 (July 3, 1918), as amended 
(16 U.S.C. 703-711); 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 
percents, respectively) shot or such shot approved as nontoxic by the 
Director pursuant to procedures set forth in Sec. 20.134.
    Provided that:
* * * * *
    (2) Bismuth-tin shot is legal as nontoxic shot only during the 
1995-96 season.

    Dated: August 10, 1995.
Robert P. Davison,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-20462 Filed 8-17-95; 8:45 am]
BILLING CODE 4310-55-F