76886 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Rules and Regulations

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.

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 § 20.21 pertains to prohibited types

of shot. We amend § 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/cm3, 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

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Rules and Regulations 76887

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/cm3) is only

slightly less than that of approved steel

shot (7.9 g/cm3). 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

76888 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Rules and Regulations

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:

§ 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 § 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 § 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]

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