[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Rules and Regulations]
[Pages 4874-4876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2333]



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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; Approval of Bismuth-Tin Shot as Nontoxic for 
Waterfowl and Coots Hunting; and Temporary Approval of Tungsten-Iron as 
Nontoxic for 1997-98 Season; Final Rule and Proposed Rule

  Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Rules 
and Regulations  

[[Page 4874]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AD94


Migratory Bird Hunting; Approval of Bismuth-Tin Shot as Nontoxic 
for Hunting Waterfowl and Coots

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife Service (Service) is approving 
bismuth-tin shot as nontoxic for hunting waterfowl and coots. 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 final rule takes effect March 3, 1997.

ADDRESSES: Director (FWS/MBMO), U.S. Fish and Wildlife Service, 
Department of the Interior, ms 634--ARLSQ, 1849 C Street NW., 
Washington, D.C. 20240.

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 is approved by the Service as nontoxic. The Service believes 
approval for other suitable candidate shot materials as nontoxic is 
feasible. The Service is eager to consider these other materials for 
approval as nontoxic shot.
    The requirement to use nontoxic shot 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 escalate 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 is conditional; and 3) the evidence 
presented in the record, i.e., the application from the Bismuth 
Cartridge Company. The petition acknowledges responsibility of the 
Bismuth Cartridge Company to complete all the nontoxic shot approval 
tests outlined in 50 CFR 20.134. Final regulations published in the 
Federal Registers (January 3, 1995 [60 FR 61] and August 18, 1995 [60 
FR 43314]) provided for 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 in the January 3, 1995, Federal Register.
    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 saw completion of several conditions prior to this 
final approval of bismuth-tin shot as nontoxic. First, a series of 
three toxicity tests in accordance with the requirements of 50 CFR 
20.134 demonstrating that bismuth-tin is nontoxic to waterfowl is 
necessary. The Service reviewed and approved the employed testing 
protocol with technical assistance provided by the National Biological 
Service (now the Biological Resources Division of the U.S. Geological 
Survey).
    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 a placebo (control)(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 the results of the 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 sacrificing. 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 third stage of testing was the completion of a reproductive 
toxicity/chronic dosage study which includes assessment of 
reproduction, fertility rates, and egg hatchability. For eggs, 
researchers record weight, shell thickness, and content analysis. For 
ducklings, researchers record body weight, sex ratios, blood and organ 
analysis. This test runs 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 
results 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 considers any bismuth-tin shot manufactured with lead levels 
equal to or exceeding 1 percent to be 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, the 
Service indicated that it would establish a maximum level for residual 
lead. The Service, in consultation with the NBS, determined the maximum 
environmentally acceptable level of lead

[[Page 4875]]

in bismuth-tin shot is trace amounts or <1 percent and is incorporating 
that requirement into the final rule.
    The third condition of approval involves enforcement. In the August 
18, 1995, Federal Register, the Service indicates 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, using these devices, determined them to be 
accurate and useful in determining bismuth-tin from lead.
    This rule amends 50 CFR 20.21(j) by approving bismuth-tin shot for 
use in hunting waterfowl and coots. It is based on the original request 
made to the Service by the Bismuth Cartridge Company on October 21, 
1993, and the results of the acute, chronic, and reproductive toxicity 
tests undertaken for the Bismuth Cartridge Company which document the 
apparent absence of any deleterious effects of bismuth-tin shot when 
ingested by captive-reared mallards.

Public Comment and Responses

    The August 15, 1996, proposed rule published in the Federal 
Register (61 FR 42495) invited comments from interested parties. The 
closing date for receipt of all comments was October 15, 1996. During 
this 60-day comment period, the Service received twenty-three comment 
letters. Of these comment letters, thirteen were from individuals and 
ten from non-governmental organizations. All comment letters expressed 
support for the final rule approving bismuth-tin as nontoxic for 
hunting waterfowl and coots. The individuals wrote of ``unqualified 
support for unconditional approval'', to ``encourage permanent 
approval'' and that ``bismuth is a viable alternative.'' The 
organizations wrote, ``As conservationists, we are moving in the right 
direction as proven by lead shot being eliminated'' and ``...appreciate 
the opportunity to have more choices for nontoxic shot.''; that bismuth 
``...having the performance of lead but without the toxicity will help 
all concerned''; and ``The availability of an additional non-toxic shot 
is of great importance not only to our waterfowl hunters, but also to 
the future of the waterfowl resource.''

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 (EA) in July 1996. Copies of this EA are available to the 
public by writing to the Office of Migratory Bird Management at the 
address indicated under the caption ADDRESSES. After review and 
evaluation of the information in the Environmental Assessment, the 
Service determined that the final action to amend 50 CFR 20.21(j) to 
allow use of bismuth-tin shot as nontoxic for hunting waterfowl and 
coots 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 in part that, each Federal agency 
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 final rule which stated: 
``. . . final approval of bismuth-tin shot for hunting waterfowl and 
coots is not likely to adversely effect threatened, endangered, 
proposed and candidate species.'' The result of the Service's 
consultation under Section 7 of the ESA are public documents and are 
available for public inspection in the Division of Endangered Species 
and the Office of Migratory Bird Management, U.S. Fish and Wildlife 
Service, Arlington Square, 4401 N. Fairfax Drive, Arlington, Virginia.

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, however, that this final 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 (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

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

[[Page 4876]]

    Authorship: The primary author of this proposed rule is Cynthia 
M. Perry, 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 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 paragraph (j) 
introductory text and removing and reserving 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 20.134, provided that:
* * * * *
    Dated: January 24, 1997.
George T. Frampton,
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. 97-2333 Filed 1-30-97; 8:45 am]
BILLING CODE 4310-55-F