[Federal Register Volume 61, Number 159 (Thursday, August 15, 1996)]
[Rules and Regulations]
[Pages 42492-42494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20725]



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Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Approval of Bismuth-Tin Shot as Nontoxic; Final 
and Proposed Rules

  Federal Register / Vol. 61, No. 159 / Thursday, August 15, 1996 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018 - AD41


Migratory Bird Hunting; Extension of Decision on the Conditional 
Approval of Bismuth-Tin Shot as Nontoxic for the 1996-97 Season

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) is amending 
Section 20.21(j) and approving bismuth-tin shot as nontoxic for the 
1996-97 migratory bird hunting season. Acute, chronic, and reproductive 
toxicity studies, undertaken for the Bismuth Cartridge Company, 
indicate that bismuth-tin shot is nontoxic when ingested by waterfowl 
(captive-reared mallards).
EFFECTIVE DATE: This rule becomes effective on September 1, 1996.

FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, or Cyndi 
Perry, Wildlife Biologist, Office of Migratory Bird Management (MBMO), 
U.S. Fish and Wildlife Service, (703/358-1714).

SUPPLEMENTARY INFORMATION: Since the mid-1970s, the Service has sought 
to identify shot that, when spent, does not pose a significant toxic 
hazard to migratory birds and other wildlife. Currently, only steel 
shot has approval by the Service as nontoxic. The Service believes 
approval for other suitable candidate shot materials as nontoxic shot 
is feasible. The Service is eager to consider these other materials for 
approval as nontoxic.
    The nontoxic shot requirement for hunting waterfowl and coots 
created resistance among some hunters with only steel shot available. 
With the resistance came an unknown level of noncompliance. Although 
compliance with the use of nontoxic shot has increased over the last 
few years, the Service believes that this level of compliance will 
increase with the availability and approval of other nontoxic shot 
types.
    On October 21, 1993, the Bismuth Cartridge Company petitioned the 
Service to approve bismuth-tin shot for hunting waterfowl and coots. At 
that time the company had not undertaken the studies necessary to 
demonstrate that bismuth-tin shot is nontoxic to waterfowl and the 
Service did not approve their petition. On June 24, 1994, the Bismuth 
Cartridge Company petitioned the Service to modify provisions of 50 CFR 
20.21(j), to legalize the use of bismuth-tin shot on an interim, 
conditional basis for the 1994-95 and 1995-96 hunting seasons while 
conducting toxicity tests. The petitioner's supporting rationale was: 
1) bismuth is nontoxic; 2) the rule would be conditional; and 3) the 
evidence presented in the record, i.e., the application from the 
Bismuth Cartridge Company. The petition acknowledged the responsibility 
of the Bismuth Cartridge Company to complete all nontoxic shot approval 
tests outlined in 50 CFR 20.134. Final regulations published in the 
Federal Register [(January 3, 1995, (60 FR 61) and August 18, 1995, (60 
FR 43314)] provide conditional approval of bismuth-tin shot (nominally, 
97 parts bismuth and 3 parts tin) as nontoxic for hunting waterfowl and 
coots during the 1994-95 and 1995-96 seasons, respectively. A complete 
review of the bismuth-tin shot application and review process is within 
the January 3, 1995, Federal Register (60 FR 61).
    Aside from recently completed toxicity studies there are several 
other works that support the Service's decision. Sanderson et al. 
(1994), Ringelman et al. (1992), and Sanderson et al. (1992) saw no 
adverse effects when bismuth alloy shot was ingested by captive-reared 
mallards. In Grandy et al. (1968), there were no deaths associated with 
mallards dosed with tin shot.
    The Service has been provided with evidence of completion of the 
conditions for approval that were previously established. First, a 
series of toxicity tests demonstrating bismuth-tin shot as nontoxic to 
waterfowl was necessary. The Service reviewed and approved the employed 
testing protocol, with technical assistance provided by the National 
Biological Service (NBS).
    The short-term (30 day) acute toxicity test entails dosing ducks 
with shot and feeding them commercially available duck food. 
Researchers record survival, body weight, blood hematocrit, and organ 
analysis. Survival to 30 days post dosing, hematocrit values, body 
weight, mean weight of kidney, liver, gonad, and gizzard were similar 
in game-farm mallards dosed with either six No. 4 bismuth-tin shot, six 
No. 4 steel shot, or control animals (Sanderson et al. 1995).
    The 14-week chronic toxicity test entails dosing ducks with either 
lead shot, steel shot, bismuth-tin shot, or a placebo (control group), 
during cold weather using a nutritionally deficient diet. Researchers 
record survival, body weight, retention and dissolution of shot, blood 
and tissue analysis, and histopathology. Sixty-five male and sixty-five 
female mallards underwent doses of either No. 4 lead, or steel, or 
bismuth-tin shot, or a placebo (control group) on Days 0, 30, 60, and 
90. All lead-dosed ducks died within 14 days of initial dosing. All 
steel- and placebo-dosed ducks survived until sacrificed. All bismuth-
tin dosed ducks survived until sacrificing except one female who died 
of undetermined causes 131 days post dosing after laying 16 eggs. In 
general, the chronic test documents the absence of any deleterious 
effects of these bismuth-tin doses on captive-reared mallards 
(Sanderson et al. 1996).
    The reproductive toxicity test is a chronic dosage study which 
includes assessment of reproduction, fertility rates, and egg 
hatchability. Researchers record egg weight, shell thickness, and 
content analysis. For ducklings, researchers record body weight, sex 
ratios, blood and organ analysis. The reproductive test ran 
concurrently with the chronic study. Results confirmed no significant 
differences in the time required for either control, steel, or bismuth-
tin-dosed ducks to lay 21 eggs, and no differences in the dates when 
the three dosed groups began to lay. Similarly, no significant 
differences among doses in the fertility rates, hatchability rates, or 
chemical content of the eggs arose. In ducklings, no significant 
differences among doses in the mean body weight (by day 7), sex ratios, 
hematocrit, mean weights of kidney and liver, mean amounts of elements 
in organs, or in the histopathology arose (Sanderson et al. 1996).
    As a result of these toxicity tests, the Service concludes that 
bismuth-tin shot composed of 97 parts bismuth and 3 parts tin with <1 
percent residual lead does not impose significant danger to migratory 
birds and other wildlife and their habitats.
    The second condition of approval is residual lead levels. The 
Service will consider any bismuth-tin shot manufactured with lead 
levels equal to or exceeding 1 percent toxic and therefore, illegal. 
Bismuth may occur as a by-product of iron, copper, and tin smelting and 
often contains lead. In the August 18, 1995, Federal Register (60 FR 
43314), the Service indicated it would establish a maximum level for 
residual lead. The Service, in consultation with the NBS, determined 
the maximum environmentally acceptable level of lead in bismuth-tin 
shot is trace amounts or <1 percent and is incorporating this 
requirement into the final rule.
    Finally, enforcement is an important component in the approval of 
any alternative shot material. In the August 18, 1995, Federal Register 
(60 FR

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43314), the Service indicated that final unconditional approval would 
be contingent upon the development and availability of a noninvasive 
field testing device. Several noninvasive field testing devices are 
available. Service Law Enforcement personnel assessed these devices 
determining them to be accurate and useful.
    This rule amends 50 CFR 20.21(j) by extending the conditional 
approval on bismuth-tin shot as nontoxic for the 1996-97 migratory bird 
hunting season. It is based on the original request made to the Service 
by the Bismuth Cartridge Company on October 21, 1993, and subsequent 
toxicity testing. Results of the acute, chronic, and reproductive 
toxicity tests undertaken for the Bismuth Cartridge Company document 
the apparent absence of any deleterious effects of bismuth-tin shot 
when ingested by captive-reared mallards.

Public Comment

    The Service, by this rule, is approving for one season (1996-1997) 
the use of bismuth-tin shot for waterfowl hunting without the standard 
notice for public comment. As required by the Administrative Procedure 
Act (5 U.S.C. 553(b)), the Service has found that the notice and public 
procedure required by the APA are impracticable, unnecessary, and 
contrary to the public interest for the following reasons: 1) At each 
stage of testing bismuth-tin shot has been shown to be non-toxic. 2) 
This approval is for one season only. 3) Bismuth-tin shot has been 
approved the last two years for one season each as a result of the 
public process that included public notices in the Federal Register and 
opportunities for comment. 4) Providing a third comment period at this 
time would preclude the availability of a proven alternative nontoxic 
shot for a significant portion of the upcoming hunting seasons. 5) The 
Service is simultaneously publishing a proposed rule that would finally 
approve bismuth-tin shot as nontoxic without season limitation and is 
providing the standard notice and opportunity for comment on that 
proposed final action, thereby providing the public procedure required 
by the APA on this issue.

Effective Date

    Under the APA (5 U.S.C. 553 (d)) the Service waives the 30 day 
period before the rule becomes effective and establishes September 1, 
1996, as the effective date. This rule relieves a restriction and, in 
addition, it is not in the public interest to delay the effective date 
of this rule. During the two prior public comment periods for 
conditional approval the Service received 386 comments. Of these, 360 
were in favor of approving bismuth-tin shot for hunting waterfowl and 
coots with 26 opposed. The opposition felt that the incomplete toxicity 
tests and no noninvasive field detection device should delay the rule. 
These two objections are now remedied satisfactorily. It is in the best 
interest of migratory birds and their habitats to extend the 
conditional approval on bismuth-tin shot as nontoxic for the 1996-97 
migratory bird hunting season. It is in the best interest of the 
hunting public to provide them an additional legal option for hunting 
waterfowl and coots for the 1996-97 season, which begins on September 
1, 1996. It is in the best interest of small retailers who have stocked 
bismuth-tin shot for the coming season. The Services believes another 
nontoxic shot option likely will improve hunter compliance, thereby 
reducing the amount of lead shot in the environment.

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 Survey. Champaign, 
IL. 64pp.
    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.
    Sanderson, G.C., W.L. Anderson, G.L. Foley, L.M. Skowron, J.D. 
Brawn and J.W. Seets. 1995. Toxicity of ingested bismuth alloy shot on 
game-farm mallards (Revised Final Report). Report to Peterson 
Publishing Company by the Univ. of Illinois, Ill. Nat. Hist. Survey. 
Champaign, IL. 69pp.
    Sanderson, G.C., W.L. Anderson, G.L. Foley, K.L. Duncan, L.M. 
Skowron, J.D. Brawn and J.W. Seets. 1996. Toxicity and reproductive 
test including chronic health effects of ingested bismuth alloy shot on 
game-farm mallards (Revised Final Report). Report to Peterson 
Publishing Company by the Univ. Illinois, Ill. Nat. Hist. Survey. 
Champaign, IL. 113pp.

NEPA Consideration

    In compliance with 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), the Service prepared an Environmental 
Assessment in July, 1996. This EA is available to the public at the 
Office of Migratory Bird Management, U.S. Fish and Wildlife Service, ms 
634-ARLSQ, 1849 C Street NW., Washington D.C. 20240. Based on review 
and evaluation of the information in the EA, the Service determined the 
action to amend 50 CFR 20.21(j) to extend conditional approval on 
bismuth-tin shot as nontoxic for 1996-97 migratory bird 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) of 1972, as amended 
(16 U.S.C. 1531 et seq.), 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 ...'' The Service completed a Section 7 
consultation under the ESA for this rule. The result of the Service's 
consultation under Section 7 of the ESA is available to the public 
through, the Office of Migratory Bird Management, U.S. Fish and 
Wildlife Service, ms 634--ARLSQ, 1849 C Street NW., Washington D.C. 
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 or governmental 
jurisdictions. The Service determined this rule will have no effect on 
small entities since the approved shot merely will supplement nontoxic 
shot already in commerce and available throughout the retail and 
wholesale distribution systems. The Service anticipates no dislocation 
or other local effects, with regard to hunters and others. This rule 
was not subject to Office of Management and Budget

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(OMB) review under Executive Order 12866. The Service has examined this 
regulation under the Paperwork Reduction Act of 1995 and found it to 
contain no information collection requirements.

Unfunded Mandates Reform

    The Service has determined and certifies pursuant to the Unfunded 
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not 
impose a cost of $100 million or more in any given year on local or 
State government or private entities.

Civil Justice Reform - Executive Order 12988

    The Service, in promulgating this rule, has determined that these 
regulations meet the applicable standards provided in Sections 3(a) and 
3(b)(2) of Executive Order 12988.

Authorship

    The primary author of this rule is Cynthia M. Perry, Office of 
Migratory Bird Management.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and record keeping 
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: 16 U.S.C. 703-711; 16 U.S.C. 712 and 16 U.S.C. 742 a-
j.
    2. Section 20.21 is amended by revising the introductory text of 
paragraph (j) and paragraph (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 (97 parts 
bismuth: 3 parts tin with <1 percent residual lead) shot or such shot 
approved as nontoxic by the Director pursuant to procedures set forth 
in I82Sec. 20.134. Provided that:
* * * * *
    (2) Bismuth-tin shot (97 parts bismuth: 3 parts tin with <1 percent 
residual lead) is legal as nontoxic shot for the 1996-97 migratory bird 
hunting season.

    Dated: August 1, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-20725 Filed 8-14-96; 8:45 am]
BILLING CODE 4310-55-F