[Federal Register Volume 65, Number 236 (Thursday, December 7, 2000)]
[Rules and Regulations]
[Pages 76886-76888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30957]



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Part VII





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Temporary Approval of Tin Shot as Nontoxic for 
Hunting Waterfowl and Coots During the 2000-2001 Season; Final Rule

Federal Register / Vol. 65 , No. 236 / Thursday, December 7, 2000 / 
Rules and Regulations

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DEPARTMENT OF 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 2000-2001 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) amends 50 
CFR 20.21(j) to grant temporary approval of tin shot as nontoxic for 
hunting waterfowl and coots during the 2000-2001 season only. Acute 
toxicity studies revealed 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. The tin shot application was submitted by the International 
Tin Research Institute, Ltd. (ITRI) of Uxbridge, Middlesex, England.

DATES: This rule takes effect on December 7, 2000.

ADDRESSES: Copies of the Environmental Assessment are available by 
writing to the Chief, Division of Migratory Bird Management, U.S. Fish 
and Wildlife Service, 4401 N. Fairfax Dr., Suite 634, Arlington, VA 
22203.

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. 742 a-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 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 rule is to allow the hunting public to 
temporarily use tin shot for hunting waterfowl and coots during the 
2000-2001 hunting season only. Accordingly, we 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 amend 
Sec. 20.21(j) to allow temporary use of tin shot (99.9 percent tin, 
with 1 percent residual lead) as nontoxic shot for waterfowl and coot 
hunting during the 2000-2001 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, tungsten-polymer, 
and tungsten-matrix shot are approved as nontoxic. 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 7.3 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). 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. On 
September 25, 2000 (65 FR 57586) we published results from ITRI's 
reproductive/chronic toxicity study which revealed no adverse effects 
of tin shot on adult mallards, 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 2000-2001 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 2000-2001 season until a 
reliable and acceptable field detection method is developed and is 
readily available to law enforcement personnel.
    As stated previously, this rule amends 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.
    In the amendatory language of the proposed rule published on 
September 25, 2000 (65 FR 57588), we incorrectly stated the chemical 
composition of tungsten-iron shot as 55 parts tungsten and 45 parts 
iron. The correct composition is 40 parts tungsten and 60 parts iron.

Public Comments and Responses

    The September 25, 2000, proposed rule published in the Federal 
Register (65 FR 57586) invited public comments from interested parties. 
We indicated that the public comment period had been shortened to 30 
days to expedite the availability of tin shot to hunters during the 
current hunting season (65 FR 57587). The DATES section of the

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proposed rule incorrectly stated that public comments should be 
submitted no later than November 24, 2000, instead of October 24, 2000. 
On October 23, 2000, we published a notice in the Federal Register to 
correct the closing date for comments (65 FR 63225). We received three 
comments during the comment period.
    ITRI expressed their appreciation for extension of temporary 
approval of tin shot, which will facilitate development of a field 
detection device. The Wisconsin Department of Natural Resources did not 
support granting temporary approval of tin shot at this time, due to 
the lack of a noninvasive field detection device to distinguish tin 
from lead shot. A private individual inquired whether or not ITRI 
manufactures tin shot, and whether the Service possessed any specific 
tin shot which it proposes to approve as nontoxic. The individual also 
opposed the approval of tin shot due to the low density of tin; which 
the individual believes will increase the incidence of crippling of 
waterfowl. Finally, the individual recommended that Service revise its 
nontoxic shot approval process to incorporate a lethality component.
    Service Response: We understand the concern of wildlife agencies 
regarding the lack of a noninvasive field detection device. ITRI is 
currently developing such a device, and granting temporary approval of 
tin shot for an additional year will facilitate completion of such 
development. However, tin shot shells currently on the market clearly 
are labeled as such, which will aid in field detection. We reiterate 
that we will not consider either additional temporary approvals, or 
final approval, of tin shot beyond the 2000-2001 season until a 
reliable and acceptable field detection method is developed and is 
readily available to law enforcement personnel.
    With regard to whether or not ITRI manufactures tin shot, there is 
no requirement for an applicant for nontoxic shot approval to 
physically manufacture the shot themselves. ITRI submitted a five pound 
sample of the candidate shot with its original application. Because tin 
shot is 99.9 percent tin, it is essentially a generic tin shot and its 
nontoxic characteristic is not dependent on the manufacturer. With 
regard to the ballistic performance of tin shot, the density of tin 
shot (approximately 7.3 g/cm\3\) is only slightly less than that of 
approved steel shot (7.9 g/cm\3\). Previously, we reviewed the 
ballistic performance of steel shot versus lead shot, and concluded 
that steel shot was suitable for hunting waterfowl (U.S. Fish and 
Wildlife Service 1976, 1986). As with any shot type, we recommend that 
hunters restrict shooting to shorter distances to reduce crippling and 
maximize the number of waterfowl that are retrieved. We solicited 
public input on our proposed revision to the nontoxic shot approval 
process on January 26, 1996 (61 FR 2470). We received no public 
comments requesting that a lethality component be incorporated in the 
revised approval process. Finally, we note that tin shot has already 
been approved as nontoxic for hunting waterfowl in Canada.

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.
U.S. Fish and Wildlife Service. 1976. Final Environmental Impact 
Statement: Proposed use of steel shot for hunting waterfowl in the 
United States. Department of the Interior. Washington, DC. 276pp.
U.S. Fish and Wildlife Service. 1986. Final Supplemental 
Environmental Impact Statement: Use of lead shot for hunting 
migratory birds in the United States. Department of the Interior. 
Washington, DC. 549pp.
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 an Environmental Assessment (EA) for 
temporary approval of tin shot in October, 2000. Based on review and 
evaluation of the information contained in the EA, we have determined 
that amending 50 CFR 20.21(j) to provide temporary approval of tin shot 
as nontoxic for waterfowl and coot hunting during the 2000-01 season 
would not be a major Federal action that would significantly affect the 
quality of the human environment within the meaning of section 
102(2)(c) of the National Environmental Policy Act of 1969. 
Accordingly, the preparation of an Environmental Impact Statement on 
this action is not required. 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 have completed a Section 7 
consultation under the ESA for this rule. The result of our 
consultation under Section 7 of the ESA is 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 approves 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 five 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. This rule has 
not been reviewed by the Office of Management and Budget (OMB) review 
under Executive Order 12866.

Executive Order 12866

    This 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 rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the rule 
clearly stated? (2) Does the rule contain technical language or jargon 
that interferes with its clarity? (3) Does the format of the rule 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Would the rule be easier to understand 
if it were divided into more (but shorter) sections? (5) Is the 
description of the rule in the

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SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rule? What else could we do to make the rule easier 
to understand?

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 10/31/2003) 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 Act

    We have determined and certify pursuant to the Unfunded Mandates 
Reform 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

    We, in promulgating this 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 rule, authorized by 
the Migratory Bird Treaty Act, does not have significant takings 
implications and does not affect any constitutionally protected 
property rights. This 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 rule will 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. This rule does 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, 
this regulation does not have significant federalism effects and does 
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.

Effective Date

    Under the APA (5 U.S.C. 551-553) our normal practice is to publish 
policies with a 30-day delay in effective date. But in this case, we 
are using the ``good cause'' exemption under 5 U.S.C. 553(d)(3) to make 
this policy effective upon publication for the following reasons: This 
rule relieves a restriction and, in addition, it is not in the public 
interest to delay the effective date of this rule. It is in the best 
interest of small retailers who have stocked tin shot for the current 
season. The Services believes another nontoxic shot option likely will 
improve hunter compliance, thereby reducing the amount of lead shot in 
the environment.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    Accordingly, we 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) introductory 
text and adding paragraph (j)(1) 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 (40 parts tungsten: 60 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: November 24, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-30957 Filed 12-06-00; 8:45 am]
BILLING CODE 4310-55-P