[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
_______________________________________________________________________
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
[[Page 43316]]
(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