[Federal Register Volume 65, Number 186 (Monday, September 25, 2000)]
[Proposed Rules]
[Pages 57586-57588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24543]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AH67


Migratory Bird Hunting; Temporary Approval of Tin Shot as 
Nontoxic for Hunting Waterfowl and Coots During the 2000-01 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) proposes to 
grant temporary approval of tin shot as nontoxic for hunting waterfowl 
and coots during the 2000-2001 season. Acute toxicity studies reveal no 
adverse effects over a 30-day period on mallards (Anas platyrhynchos) 
dosed with tin shot. Reproductive/chronic toxicity testing over a 150-
day period indicated that tin administered to adult mallards did not 
adversely affect them or the offspring they produced. Tin shot is 
produced by the International Tin Research Institute, Ltd. (ITRI) of 
Uxbridge, Middlesex, England.

DATES: Comments on the proposed rule must be received no later than 
November 24, 2000.

ADDRESSES: Comments may be sent to the Chief, Division of Migratory 
Bird Management (DMBM), U.S. Fish and Wildlife Service, 1849 C Street, 
NW., ms 634-ARLSQ, Washington, DC 20240. The public may inspect 
comments during normal business hours in Room 634, Arlington Square 
Building, 4401 N. Fairfax Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Jon Andrew, Chief, Division of 
Migratory Bird Management, (703) 358-1714.

SUPPLEMENTARY INFORMATION: The Migratory Bird Treaty Act of 1918 (Act) 
(16 U.S.C. 703-712 and 16 U.S.C. 
742a-j) implements migratory bird treaties between the United States 
and Great Britain for Canada (1916 and 1996 as amended), Mexico (1936 
and 1972 as amended), Japan (1972 and 1974 as amended), and Russia 
(then the Soviet Union, 1978). These treaties protect certain migratory 
birds from take, except as permitted under the Act. The Act authorizes 
the Secretary of the Interior to regulate take of migratory birds in 
the United States. Under this authority, the Fish and Wildlife Service 
controls the hunting of migratory game birds through regulations in 50 
CFR part 20.
    The purpose of this proposed rule is to allow the hunting public to 
use tin shot for hunting migratory birds. Accordingly, we are proposing 
to amend 50 CFR 20.21, which describes illegal hunting methods for 
migratory birds. Paragraph (j) of Sec. 20.21 pertains to prohibited 
types of shot. We are proposing to amend Sec. 20.21(j) to allow the use 
of tin shot (99.9 percent tin with 1 percent residual lead) as nontoxic 
shot for waterfowl and coot hunting for the 2000-01 hunting season 
only.
    Since the mid-1970s, we have sought to identify shot that does not 
pose a significant toxic hazard to migratory birds or other wildlife. 
Currently, only steel, bismuth-tin, tungsten-iron, and tungsten-polymer 
shot are approved as nontoxic. On September 5, 2000 (65 FR 53936) we 
published a final rule that grants permanent approval to tungsten-
matrix shot. We previously granted temporary approval for tin shot 
during the 1999-2000 hunting season (August 19, 1999; 64 FR 45400). 
Compliance with the use of nontoxic shot has increased over the last 
few years (Anderson et al. 2000). We believe that compliance will 
continue to increase with the approval and availability of other 
nontoxic shot types.
    ITRI's candidate shot is made from commercially pure tin; no 
alloying or other alterations are intentionally made to the chemical 
composition of the shot. This shot material has a density of 
approximately 7.29 g/cm\3\, and is 99.9 percent tin, with a low level 
of iron pickup due to the steel production equipment. The tin shot 
application from ITRI contains a description of the shot, a 
toxicological report (Thomas 1997), results of a 30-day toxicity study 
(Wildlife International, Ltd. 1998), and results of a 150-day 
reproductive/chronic toxicity study (Gallagher et al. 2000). The 
toxicological report incorporates known toxicity information (a 
synopsis of acute and chronic toxicity data for mammals and birds, 
potential for environmental concern, and toxicity to aquatic and 
terrestrial invertebrates, amphibians and reptiles) and information on 
environmental fate and transport (shot alteration, environmental half-
life, and environmental concentration). On August 19, 1999 (64 FR 
45400) we published a detailed literature review on toxicity, 
environmental fate, and known effect of tin on birds, as well as 
results from ITRI's 30-day toxicity testing of tin shot.
    ITRI's chronic toxicity/reproductive study revealed no adverse 
effects when mallards were dosed with eight No. 4 size tin shot and 
monitored over a 150-day period (Gallagher et al. 2000). At initiation 
of the test (day 0), and on days 31, 60, and 90, 21 male and 22 female 
adult mallards were orally dosed with eight No. 4 tin shot. On the same 
days,

[[Page 57587]]

22 male and 22 female adult mallards were dosed with eight No. 4 steel 
shot (negative control group). An additional 4 male and 4 female 
mallards were dosed with a single No. 4 lead shot (positive control 
group). Two lead-dosed birds (1 female, 1 male) died from lead 
toxicosis on day 10 and 17, respectively, during the study; whereas no 
mortalities occurred in the other test groups. Biochemical results from 
blood samples collected during tests revealed no biologically 
meaningful treatment-related differences between the tin group and the 
steel shot control group. Low, but measurable levels of tin were found 
in the testes of males from the steel shot group and in the livers and 
femurs of both males and females from the tin group. Additionally, low, 
but measurable, levels of tin were found in the liver and gonads of 
offspring from the steel group and in gonads of offspring from the tin 
group. For all treatment groups, mean levels of tin were below the 
limit of detection in egg yolks and whites. Liver and kidney tissues 
collected for examination revealed no treatment-related abnormalities.
    No significant differences occurred in egg production, fertility, 
or hatchability of eggs from birds dosed with tin when compared to 
steel-dosed ducks. No differences occurred in survival or body weight 
of ducklings from ducks dosed with tin when compared to ducklings from 
steel-dosed ducks. Blood measurements of ducklings from tin-dosed ducks 
were similar to measurements from ducklings from steel-dosed ducks. 
Overall, results of the 150-day study indicated that tin shot 
repeatedly administered to adult mallards did not adversely affect 
them, or the offspring they produced.

Nontoxic Shot Approval

    The nontoxic shot approval process contains a tiered review system 
and outlines three conditions for approval of shot types. The first 
condition for nontoxic shot approval is toxicity testing. Based on the 
results of the toxicological report and the toxicity tests discussed 
above, we conclude that tin shot does not pose a significant danger to 
migratory birds or other wildlife.
    The second condition for approval is testing for residual lead 
levels. Any shot with lead levels equal to or exceeding 1 percent will 
be considered toxic and, therefore, illegal. We have determined that 
the maximum environmentally acceptable level of lead in any nontoxic 
shot is trace amounts of 1 percent, and incorporated this requirement 
in the new approval process. ITRI has documented that tin shot meets 
this requirement.
    The third condition for approval involves law enforcement. In the 
August 18, 1995, Federal Register (60 FR 43314), we indicated our 
position that a noninvasive field detection device to distinguish lead 
from other shot types was an important component of the nontoxic shot 
approval process. At that time, we stated that final approval of 
bismuth-tin shot would be contingent upon the development and 
availability of a noninvasive field detection device (60 FR 43315). We 
incorporated a requirement for a noninvasive field detection device in 
the revised nontoxic shot approval process published on December 1, 
1997 (62 FR 63608); 50 CFR 20.134(b)(6). A field detection method to 
distinguish tin shot from lead currently is being developed by ITRI. 
Granting temporary approval for tin shot during the 2000-01 hunting 
season will facilitate completion of development of such a device. 
However, we will not consider either additional temporary approvals, or 
final approval, of tin shot beyond the 2000-01 season until a reliable 
and acceptable field detection method is developed and is readily 
available to law enforcement personnel.
    As stated previously, this proposed rule would amend 50 CFR 
20.21(j) by temporarily approving tin shot as nontoxic for hunting 
waterfowl and coots during the 2000-2001 hunting season only. It is 
based on the toxicological report, acute toxicity study, and the 
reproductive/chronic toxicity study submitted by ITRI. Results of these 
studies indicate the absence of any deleterious effects of tin shot 
when ingested by captive-reared mallards. The comment period for the 
proposed rule has been shortened to 30 days. This time frame will make 
it possible for tin shot, if temporarily approved, to be available for 
use by hunters during the 2000-01 hunting season. This will increase 
the number of nontoxic shot options available to hunters.

References

Anderson, W.L., S.P. Havera, and B.W. Zercher. 2000. Ingestion of 
lead and nontoxic shotgun pellets by ducks in the Mississippi 
Flyway. J. Wildl. Manage. 64:848-857.
Gallagher, S.P., J.B. Beavers, R. Van Hoven, M. Jaber. 2000. Pure 
tin shot: A chronic exposure study with the mallard including 
reproductive parameters. Wildlife International, Ltd. Project No. 
476-102. Easton, Maryland. 322pp.
Thomas, V.G. 1997. Application for approval of tin shot as non-toxic 
for the hunting of migratory birds. 26 pp.
Wildlife International, Ltd. 1998. Tin shot: An oral toxicity study 
with the mallard. Project No. 476-101. 158 pp.

NEPA Consideration

    In compliance with the requirements of section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the 
Council on Environmental Quality's regulation for implementing NEPA (40 
CFR 1500-1508), we prepared a draft Environmental Assessment (EA) for 
temporary approval of tin shot in August, 2000. The EA is available to 
the public at the location indicated under the ADDRESSES caption.

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 Federal agencies 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 * * *'' We are completing a Section 7 
consultation under the ESA for this proposed rule. The result of our 
consultation under Section 7 of the ESA will be available to the public 
at the location indicated under the ADDRESSES caption.

Regulatory Flexibility 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. This rule proposes to approve an additional type of 
nontoxic shot that may be sold and used to hunt migratory birds; this 
rule would provide one shot type in addition to the existing four that 
are approved. We have determined, however, that 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. We anticipate no dislocation or 
other local effects, with regard to hunters and others.

Executive Order 12866

    This proposed rule is not a significant regulatory action subject 
to Office of Management and Budget (OMB) review under Executive Order 
12866. OMB makes the final determination under E.O. 12866.
    We invite comments on how to make this proposed rule easier to 
understand,

[[Page 57588]]

including answers to questions such as the following: (1) Are the 
requirements in the proposed rule clearly stated? (2) Does the proposed 
rule contain technical language or jargon that interferes with its 
clarity? (3) Does the format of the proposed rule (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the proposed rule be easier to understand if it were 
divided into more (but shorter) sections? (5) Is the description of the 
proposed rule in the SUPPLEMENTARY INFORMATION section of the preamble 
helpful in understanding the proposed rule? What else could we do to 
make the proposed rule easier to understand? Send a copy of any 
comments that concern how we could make this proposed rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. You may 
also e-mail the comments to this address: [email protected]

Paperwork Reduction Act

    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. We have examined this regulation 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501) and found it 
to contain no information collection requirements. However, we do have 
OMB approval (1018-0067; expires 08/30/2000; renewal submitted) for 
information collection relating to what manufacturers of shot are 
required to provide to us for the nontoxic shot approval process. For 
further information, see 50 CFR 20.134.

Unfunded Mandates Reform

    We have determined and certify pursuant to the Unfunded Mandates 
Reform Act, 2 U.S.C. 1502, et seq., that this proposed 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

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

Takings Implication Assessment

    In accordance with Executive Order 12630, this proposed rule, 
authorized by the Migratory Bird Treaty Act, does not have significant 
takings implications and does not affect any constitutionally protected 
property rights. This proposed rule will not result in the physical 
occupancy of property, the physical invasion of property, or the 
regulatory taking of any property. In fact, this proposed rule allow 
hunters to exercise privileges that would be otherwise unavailable; 
and, therefore, reduces restrictions on the use of private and public 
property.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the Migratory Bird Treaty Act. These rules do not have a substantial 
direct effect on fiscal capacity, change the roles or responsibilities 
of Federal or State governments, or intrude on State policy or 
administration. Therefore, in accordance with Executive Order 13132, 
these regulations do not have significant federalism effects and do not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible 
effects on Federally recognized Indian tribes and have determined that 
there are no effects.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.
    Accordingly, we propose to amend part 20, subchapter B, chapter 1 
of Title 50 of the Code of Federal Regulations as follows:

PART 20--[AMENDED]

    1. The authority citation for part 20 continues to read as follows:

    Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.

    2. Section 20.21 is amended by revising paragraph (j) to read as 
follows:


Sec. 20.21  What hunting methods are illegal?

* * * * *
    (j) While possessing shot (either in shotshells or as loose shot 
for muzzleloading) other than steel shot, or bismuth-tin (97 parts 
bismuth: 3 parts tin with 1 percent residual lead) shot, or tungsten-
iron (55 parts tungsten: 45 parts iron with 1 percent residual lead) 
shot, or tungsten-polymer (95.5 parts tungsten: 4.5 parts Nylon 6 or 11 
with 1 percent residual lead) shot, or tungsten-matrix (95.9 parts 
tungsten: 4.1 parts polymer with 1 percent residual lead) shot, or tin 
(99.9 percent tin with 1 percent residual lead) shot, or such shot 
approved as nontoxic by the Director pursuant to procedures set forth 
in Sec. 20.134, provided that this restriction applies only to the 
taking of Anatidae (ducks, geese, [including brant] and swans), coots 
(Fulica americana) and any species that make up aggregate bag limits 
during concurrent seasons with the former in areas described in 
Sec. 20.108 as nontoxic shot zones, and further provided that:
    (1) Tin shot (99.9 percent tin with 1 percent residual lead) is 
legal as nontoxic shot for waterfowl and coot hunting for the 2000-2001 
hunting season only.
    (2) [Reserved]

    Dated: September 13, 2000
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-24543 Filed 9-22-00; 8:45 am]
BILLING CODE 4310-55-P