Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 61

Author

The primary author of this final rule

is Mr. J. Allen Ratzlaff, Asheville Field

Office, U.S. Fish and Wildlife Service,

330 Ridgefield Court, Asheville, North

Carolina 28806 (704/665–1195, Ext.

229).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, is amended as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.12(h) is amended by

adding the following, in alphabetical

order under flowering plants, to the List

of Endangered and Threatened Plants, to

read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family name Status When listed Critical

habitat

Special

rules Scientific name Common name

Flowering plants:

* * * * * * *

Arabis

perstellata.

Rock cress ............. U.S.A. (KY, TN) ..... Brassicaceae ......... E 570 NA NA

* * * * * * *

Dated: December 12, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94–32267 Filed 12–30–94; 8:45 am]

BILLING CODE 4310–55–M

50 CFR Part 20

RIN 1018–AC66

Migratory Bird Hunting; Decision on

the Conditional Approval of BismuthTin Shot as Nontoxic for the 1994–95

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 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 essentiallypure 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 steelshot and lead-shot control groups and

statistical analyses of all data from each

test. Test 1 is a short-term, 30-day acute
62 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

toxicity study using commerciallyavailable 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 noninvasive 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 noninvasive 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
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 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 penreared 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 bismuthtin 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.
64 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

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:

§ 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