[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Rules and Regulations]
[Pages 61-64]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32214]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 20
RIN 1018-AC66
Migratory Bird Hunting; Decision on the Conditional Approval of
Bismuth-Tin Shot as Nontoxic for the 1994-95 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 the use of bismuth-tin for the remainder of the 1994-1995
migratory bird hunting season. Toxicity studies undertaken by the
Bismuth Cartridge Company and other pertinent materials indicate that
bismuth-tin shot is nontoxic to waterfowl when ingested.
EFFECTIVE DATE: This rule becomes effective January 3, 1995.
FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, or Keith
Morehouse, Staff Specialist, Office of Migratory Bird Management
(MBMO), U.S. Fish and Wildlife Service, 634 ARLSQ, 1849 C St. NW,
Washington D.C. 20240 (703/358-1714).
SUPPLEMENTARY INFORMATION: The Service published a proposed regulation
in the Federal Register on August 22, 1994 (59 FR 43088) 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 proposed 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 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
20.134.
The current petition for rulemaking follows two previous
applications to the Service for final approval, one dated October 21,
1993, and the other dated December 30, 1993. The Service replied that
the applications were deficient because the bismuth-based shot material
had not been adequately tested. Preliminary toxicity testing by the
applicants had been with essentially-pure bismuth only. Thus, there was
not adequate scientific data (either available or provided with the
application) covering toxicity of the material to be loaded into
shotshells. The Service pledged in both replies, however, to work with
the applicants to process the applications in as timely a fashion as
possible.
In response to the Bismuth Cartridge Company's petition of June 14,
1994, the Service proposed (59 FR 43088) the interim conditional
approval of bismuth-tin shot based on what was known about the toxicity
of bismuth and on the agreement by the Bismuth Cartridge Company to
conduct and complete the 30-day acute toxicity test as described in 50
CFR 20.134.
For bismuth, there are three especially recent and relevant studies
that support this proposal. The three studies include Sanderson and
Anderson (1994), Ringelman et al. (1992), and Sanderson et al. (1992).
A complete description of these studies can be found in the proposed
rule (59 FR 43088). In addition, test results with tin include those by
Grandy et al. (1968) in which there were no deaths associated with
mallards dosed with tin shot. Positive results from the acute toxicity
test (Sanderson et al. 1994) (just concluded) and the other toxicity
information (cited above) suggest that a temporary conditional approval
for bismuth-tin can be provided without significant risk to migratory
bird resources. The Service believes it has sufficient flexibility in
the regulations to approach approval of shot in a step manner.
The toxicity analysis procedures (50 CFR 20.134) consist of three
tests which represent the three major categories of toxic effects:
short-term periodic exposure, chronic exposure under adverse
environmental conditions, and the impact of chronic exposure on
reproduction. Tests include both steel-shot and lead-shot control
groups and statistical analyses of all data from each test. Test 1 is a
short-term, 30-day acute [[Page 62]] toxicity study using commercially-
available duck food and including blood tests and organ analysis. Test
2 is a chronic 14-week toxicity test in cold weather using a
nutritionally-deficient diet, and test 3 is a chronic-dosage study that
includes reproductive assessment using a commercially-available duck
food diet. For bismuth-tin shot to achieve interim conditional
approval, results from test 1 (30-day acute toxicity) must show a
finding of nontoxicity to waterfowl. Unconditional final approval will
result when the second and third tests are concluded with a finding of
nontoxicity.
The Bismuth Cartridge Company contracted with Dr. Glen Sanderson,
Center for Wildlife Ecology, Illinois Natural History Survey, to
conduct the 30-day (short-term) acute toxicity study. Results from the
test indicate that bismuth-tin is not toxic when ingested by waterfowl.
As stated in the proposed rule of August 22, 1994 (59 FR 43088), ``. .
. this concluding work will be completed before any final rulemaking .
. .'' Having received these test results and final report, the Service
now issues this final rule providing interim conditional approval to
the use of bismuth-tin shot for the remainder of the 1994-1995
migratory bird hunting season.
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. Ingestion of spent lead shot has long been identified
as a source of significant mortality in migratory birds. The Service
first addressed the issue of lead poisoning in waterfowl in a 1976
environmental impact statement (EIS), and later readdressed the issue
in a 1986 supplemental EIS. The latter provided the scientific
justification for the ban on the use of lead shot for hunting waterfowl
and coots that was begun in 1986 and completed in 1991. 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.
In summary, this rule provides interim conditional approval for the
use of bismuth-tin shot for waterfowl and coot hunting only for the
1994-1995 hunting season. Further approval will be granted only upon
satisfactory completion of the remaining tests required by the Service
and the regulations at 50 CFR 20.134, and upon availability of a field
detection device to address law enforcement concerns.
Public Comments
The August 22 proposed rule invited comments from interested
parties. Closing date for receipt of all comments was September 21,
1994. During this 30-day comment period, the Service received 351
comments. These comments consisted of 2 from Flyway Councils, 5 from
Federal agencies, 19 from State fish and wildlife agencies, 23 from
other organizations, and 302 from individuals, including a letter
signed by 33 Congressmen. A brief summary of those comments is as
follows:
The Mississippi and Pacific Flyway Councils both opposed the
proposal. The Mississippi Council cited incomplete toxicity testing,
enforcement problems caused by lack of a simple field identification
technique and the timing of the approval. The Pacific Council stated
that ``this expedient action abandons the hard-fought standards set for
waterfowling ammunition, fails to consider impacts on law enforcement
and education programs, and unnecessarily sets a precedent for special
exemptions.''
Four of the Federal agency comments were submitted by law
enforcement personnel and opposed the action, primarily on the basis of
enforcement problems caused by lack of a non-invasive field method to
distinguish bismuth-tin from lead. They suggested further that
approving bismuth-tin will provide an additional opportunity for those
using lead to go undetected. Comments reiterated the need for the
development of a cheap, easy non-invasive field test to distinguish
between bismuth-tin and lead. The Canadian Wildlife Service appeared to
endorse the action with a statement that the conditional approval of
bismuth shot would be consistent with actions taken in Canada. Bismuth
is apparently considered nontoxic in Canada since the comment indicated
that toxic shot is defined as anything containing more than one percent
lead.
Nineteen comments were received that represented 18 States (2
comments from Maryland). Of the 19 comments, 6 endorsed the proposal,
13 opposed it. Opposition came from Arkansas, Colorado, Delaware,
Indiana, Kentucky, Minnesota, Missouri, Montana, Washington, and
Wisconsin. These comments also raised the issue of enforcement
difficulties, incomplete toxicity testing, and concern about timing
(delay approval until 1995-96 hunting season). Support for this action
came from Louisiana, Maryland, Mississippi, Nevada, and New Jersey.
Organizations were represented by 23 comments. Of the 23 comments,
21 endorsed the proposal and 2 (McGraw Wildlife Foundation and National
Wildlife Federation) opposed it. Opposition was based mainly on
concerns that ``shortcuts'' were being taken on testing procedures for
toxicity and that the process was ``moving too fast.'' Support came
from Ontario Federation of Anglers & Hunters, Safari Club
International, Arkansas Wildlife Federation, International Association
of Fish and Wildlife Agencies, Congressional Sportsman Foundation,
National Rifle Association, South Carolina Waterfowl Association, The
Wildlife Legislative Fund of America, Catahoula Lake Conservation Club,
Alabama Waterfowl Association, Inc., California Waterfowl Association,
Sporting Shooters' Association of Australia (Inc.), New Jersey State
Federation of Sportsman's Clubs, Inc., Michigan United Conservation
Clubs, Ducks Unlimited, The American Outdoorsman Hunting Club,
International Joint Commission--Great Lakes, ASARCO, Inc., Smoking
Barrel Duck Club, The Bismuth Cartridge Company, and the Sportsman's
Council of Central California.
Individuals submitted 302 comments with 299 favoring the action and
only 3 opposing it. The comments favoring the approval of bismuth-tin
were, in fact, generally anti-steel, restating opposition to steel shot
due to such factors as crippling loss and gun-barrel damage. The
consensus expressed support of anything that could replace steel.
Response to Comments
Opposition to the regulation focused on 3 major areas: enforcement,
toxicity testing, and timing.
1. Enforcement--Concern was expressed in the comments that there is
no simple procedure to distinguish bismuth-tin shot from lead shot in
the field, creating a burden on law enforcement personnel. The Service
recognizes this difficulty and acknowledges that a prescribed field
testing method (short of exposing the shot through invasive inspection)
to determine shot composition should ideally be in place before
approval. In fact, field methods are currently being developed to
address this concern. Since resistance to steel shot is promoting a
climate for noncompliance, however, it is important to provide an
alternative to steel shot that could give the public greater choice
during this interim period and improve hunter compliance, thereby
reducing the amount of lead shot being used. In addition, increased
hunter use of this alternative shot could benefit upland habitats,
through the diminished use of [[Page 63]] lead shot in those areas. The
Service believes that by offering alternatives to steel shot, a climate
of compliance will be promoted, not reduced, and that this is a
reasonable approach to take while field testing techniques are being
developed.
2. Toxicity Testing--Comments expressed concern that testing is
incomplete and that testing procedures, clearly defined by regulation
are not being followed. The Service stresses that there have been no
actions relative to this process outside compliance with 50 CFR 20.134.
The Service believes, however, that the regulatory process is
sufficiently flexible to provide the opportunity for interim
conditional approval of alternatives to steel shot. The applicant has
demonstrated a good faith effort to comply with the regulatory
procedures defined for toxicity testing and there appears to be no
information suggesting a hazard to migratory birds. The Service
believes this flexibility can be exercised. The procedures described in
50 CFR 20.134 are in place and interim conditional approval is being
granted only after completion of the 30-day acute toxicity test and an
independent review of the test results. In addition, the Service has
clearly stated that only interim conditional approval has been given
and the Bismuth Cartridge Company must still complete all remaining
toxicity tests before unconditional final approval is granted for the
use of bismuth-tin shot.
3. Timing--Concern was expressed that the hunting season will have
begun if/when bismuth-tin shot is approved.The Service regrets that the
conditional approval of bismuth-tin had to be delayed until after the
start of the 1994-95 hunting season. Although an earlier approval date
would have been preferred, the Service was obligated to wait until the
acute toxicity tests, analysis of data, and review of the results were
completed. The fact that the season has already begun is not considered
an adequate justification to delay approval, especially considering the
effort put forth to complete the testing and review process as quickly
as possible. It was determined that the ``inconvenience'' of approving
the use of bismuth-tin shot after the start of the hunting season was
outweighed by the opportunity for the hunting public to use bismuth-
tin, even if few days remained in the 1994-95 season.
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. Surv.,
Champaign, IL. 64 pp. + tables.
Sanderson, G.C. and W.L. Anderson. 1994. Toxicity and reproductive
effects of ingested bismuth alloy shot and effects of embedded
bismuth alloy, lead, and iron shot on game-farm mallards. 3rd Prog.
Rpt., Ill. Nat. Hist. Surv., Champaign, IL. 14 pp. + tables.
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.
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 listed above. 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
interim conditional use of bismuth-tin as nontoxic shot for the 1994-95
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 ``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 . . .''
Toxicity testing conducted by the Bismuth Cartridge Company
indicates that bismuth-tin is nontoxic to the environment; therefore,
no adverse impact on endangered and threatened species is anticipated.
Pursuant to section 7 of the ESA, MBMO sought review and concurrence
that this action ``is not likely to adversely affect'' threatened,
endangered, proposed, and category 1 species. Based on review and
evaluation of the toxicity testing and other available information, the
Service determined that no adverse impact on endangered and threatened
species would result from the proposed action. The results of this
review may be inspected by the public in, and will be available to the
public from, the Office of Migratory Bird Management, U.S. Fish and
Wildlife Service, Department of the Interior, Washington, DC 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 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 (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 50 CFR
20.21(j), by restricting permission to use bismuth-tin for the 1994-95
season. Because this rule relieves a restriction, and the current
hunting season ends on February 28, 1995, the Service has determined
that there is good cause to establish the effective date of this rule
as the date of publication in the Federal Register, as authorized under
5 U.S.C. 553(d) (1 and 3).
Authorship
The primary author of this final rule is Peter G. Poulos, Office of
Migratory Bird Management. [[Page 64]]
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, as amended (16 U.S.C. 703
et seq.)
2. Section 20.21 is amended by revising paragraph (j) 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 Section 20.134.
Provided that:
(1) 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 Section 20.108 as nontoxic shot
zones, and
(2) Bismuth-tin shot is legal as nontoxic shot only during the
1994-95 season.
Dated: December 22, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife.
[FR Doc. 94-32214 Filed 12-30-94; 8:45 am]
BILLING CODE 4310-55-P
