95-20462. Migratory Bird Hunting; Decision on the Conditional Approval of Bismuth-Tin Shot as Nontoxic for the 1995-96 Season  

  • [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
    
    
    
    
    
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    Fish and Wildlife Service
    
    
    
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    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.
    
    -----------------------------------------------------------------------
    
    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
    
    

Document Information

Effective Date:
9/1/1995
Published:
08/18/1995
Department:
Fish and Wildlife Service
Entry Type:
Rule
Action:
Final rule.
Document Number:
95-20462
Dates:
This rule becomes effective on September 1, 1995.
Pages:
43314-43316 (3 pages)
RINs:
1018-AD41
PDF File:
95-20462.pdf
CFR: (1)
50 CFR 20.21