4874 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Rules and Regulations

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 bismuthtin 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 bismuthtin 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
Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Rules and Regulations 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 twentythree comment letters. Of these

comment letters, thirteen were from

individuals and ten from nongovernmental 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 gamefarm 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 gamefarm 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.
4876 Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 / Rules and Regulations

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:

§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