Migratory Bird Hunting; Extension of Decision on the Conditional Approval of Bismuth-Tin Shot as Nontoxic for the 1996-97 Season

SUMMARY: The U.S. Fish and Wildlife Service (Service) is amending

Section 20.21(j) and approving bismuth-tin shot as nontoxic for the

1996-97 migratory bird hunting season. 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 rule becomes effective on September 1, 1996.

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 has approval by the Service as nontoxic. The Service believes

approval for other suitable candidate shot materials as nontoxic shot

is feasible. The Service is eager to consider these other materials for

approval as nontoxic.

The nontoxic shot requirement 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

increase 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 would be conditional; and 3) the

evidence presented in the record, i.e., the application from the

Bismuth Cartridge Company. The petition acknowledged the responsibility

of the Bismuth Cartridge Company to complete all nontoxic shot approval

tests outlined in 50 CFR 20.134. Final regulations published in the

Federal Register [(January 3, 1995, (60 FR 61) and August 18, 1995, (60

FR 43314)] provide 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 within

the January 3, 1995, Federal Register (60 FR 61).

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 has been provided with evidence of completion of the

conditions for approval that were previously established. First, a

series of toxicity tests demonstrating bismuth-tin shot as nontoxic to

waterfowl was necessary. The Service reviewed and approved the employed

testing protocol, with technical assistance provided by the National

Biological Service (NBS).

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 control animals (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 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 sacrificed. 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 reproductive toxicity test is a chronic dosage study which

includes assessment of reproduction, fertility rates, and egg

hatchability. Researchers record egg weight, shell thickness, and

content analysis. For ducklings, researchers record body weight, sex

ratios, blood and organ analysis. The reproductive test ran

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 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 will consider any bismuth-tin shot manufactured with lead

levels equal to or exceeding 1 percent 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 (60 FR

43314), the Service indicated it would establish a maximum level for

residual lead. The Service, in consultation with the NBS, determined

the maximum environmentally acceptable level of lead in bismuth-tin

shot is trace amounts or <1 percent and is incorporating this

requirement into the final rule.

Finally, enforcement is an important component in the approval of

any alternative shot material. In the August 18, 1995, Federal Register

(60 FR

[[Page 42493]]

43314), the Service indicated 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 assessed these devices

determining them to be accurate and useful.

This rule amends 50 CFR 20.21(j) by extending the conditional

approval on bismuth-tin shot as nontoxic for the 1996-97 migratory bird

hunting season. It is based on the original request made to the Service

by the Bismuth Cartridge Company on October 21, 1993, and subsequent

toxicity testing. Results of the acute, chronic, and reproductive

toxicity tests undertaken for the Bismuth Cartridge Company document

the apparent absence of any deleterious effects of bismuth-tin shot

when ingested by captive-reared mallards.

Public Comment

The Service, by this rule, is approving for one season (1996-1997)

the use of bismuth-tin shot for waterfowl hunting without the standard

notice for public comment. As required by the Administrative Procedure

Act (5 U.S.C. 553(b)), the Service has found that the notice and public

procedure required by the APA are impracticable, unnecessary, and

contrary to the public interest for the following reasons: 1) At each

stage of testing bismuth-tin shot has been shown to be non-toxic. 2)

This approval is for one season only. 3) Bismuth-tin shot has been

approved the last two years for one season each as a result of the

public process that included public notices in the Federal Register and

opportunities for comment. 4) Providing a third comment period at this

time would preclude the availability of a proven alternative nontoxic

shot for a significant portion of the upcoming hunting seasons. 5) The

Service is simultaneously publishing a proposed rule that would finally

approve bismuth-tin shot as nontoxic without season limitation and is

providing the standard notice and opportunity for comment on that

proposed final action, thereby providing the public procedure required

by the APA on this issue.

Effective Date

Under the APA (5 U.S.C. 553 (d)) the Service waives the 30 day

period before the rule becomes effective and establishes September 1,

1996, as the effective date. This rule relieves a restriction and, in

addition, it is not in the public interest to delay the effective date

of this rule. During the two prior public comment periods for

conditional approval the Service received 386 comments. Of these, 360

were in favor of approving bismuth-tin shot for hunting waterfowl and

coots with 26 opposed. The opposition felt that the incomplete toxicity

tests and no noninvasive field detection device should delay the rule.

These two objections are now remedied satisfactorily. It is in the best

interest of migratory birds and their habitats to extend the

conditional approval on bismuth-tin shot as nontoxic for the 1996-97

migratory bird hunting season. It is in the best interest of the

hunting public to provide them an additional legal option for hunting

waterfowl and coots for the 1996-97 season, which begins on September

1, 1996. It is in the best interest of small retailers who have stocked

bismuth-tin shot for the coming season. The Services believes another

nontoxic shot option likely will improve hunter compliance, thereby

reducing the amount of lead shot in the environment.

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 game-farm 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

game-farm 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 in July, 1996. This EA is available to the public at the

Office of Migratory Bird Management, U.S. Fish and Wildlife Service, ms

634-ARLSQ, 1849 C Street NW., Washington D.C. 20240. Based on review

and evaluation of the information in the EA, the Service determined the

action to amend 50 CFR 20.21(j) to extend conditional approval on

bismuth-tin shot as nontoxic for 1996-97 migratory bird 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) of 1972, as amended

(16 U.S.C. 1531 et seq.), 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 ...'' The Service completed a Section 7

consultation under the ESA for this rule. The result of the Service's

consultation under Section 7 of the ESA is available to the public

through, the Office of Migratory Bird Management, U.S. Fish and

Wildlife Service, ms 634--ARLSQ, 1849 C Street NW., Washington D.C.

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 or governmental

jurisdictions. The Service determined 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. 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

[[Page 42494]]

(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 Reform

The Service has determined and certifies pursuant to 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 rule, has determined that these

regulations meet the applicable standards provided in Sections 3(a) and

3(b)(2) of Executive Order 12988.

Authorship

The primary author of this rule is Cynthia M. Perry, Office of

Migratory Bird Management.

List of Subjects in 50 CFR Part 20

Exports, Hunting, Imports, Reporting and record keeping

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: 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 the introductory text of

paragraph (j) and paragraph (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 (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 I82Sec. 20.134. Provided that:

* * * * *

(2) Bismuth-tin shot (97 parts bismuth: 3 parts tin with <1 percent

residual lead) is legal as nontoxic shot for the 1996-97 migratory bird

hunting season.

Dated: August 1, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 96-20725 Filed 8-14-96; 8:45 am]

BILLING CODE 4310-55-F