Migratory Bird Hunting; Decision on the Conditional Approval of Bismuth-Tin Shot as Nontoxic for the 1995-96 Season

Part III

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 20

Migratory Bird Hunting; Decision on the Conditional Approval of

Bismuth-Tin Shot as Nontoxic for the 1995-96 Season; Proposed Rule

Proposed Rules

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AC66

Migratory Bird Hunting; Decision on the Conditional Approval of

Bismuth-Tin Shot as Nontoxic for the 1995-96 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

this proposed rule to amend Section 20.21(j) and provide for the

conditional approval of bismuth-tin shot for the 1995-96 migratory bird

hunting season. Concluded acute toxicity studies, ongoing toxicity

reproductive studies undertaken by the Bismuth Cartridge Company, and

other pertinent materials indicate that bismuth-tin shot is nontoxic

when ingested by waterfowl.

DATES: Comments on this proposal must be received by July 14, 1995.

ADDRESSES: Written comments should be sent to: Chief, Office of

Migratory Bird Management, U.S. Fish and Wildlife Service, ms 634

ARLSQ, 1849 C Street NW., Washington D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, or Keith

Morehouse and Pete Poulos, Staff Specialists, Office of Migratory Bird

Management, (703/358-1714).

smuth-tin shot for the 1994-95

hunting season only. For a complete review of the bismuth-tin shot

application and review process, refer to the Supplementary Information

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

This proposed regulatory action is now taken to further amend

Section 20.21(j) to extend the conditional approval for bismuth-tin

shot to the 1995-96 hunting season. This is based on a request made to

the Fish and Wildlife Service by the Bismuth Cartridge Company on March

20, 1995. Results of the concluded 30-day acute toxicity test and

progress made by the Bismuth Cartridge Company in their current

reproductive toxicity testing are viewed as justification for extending

conditional approval into the next hunting season.

The reproductive toxicity test is being conducted by Dr. Glenn

Sanderson and follows a testing protocol reviewed and approved by the

Service, with technical assistance provided by the Branch of

Environmental Contaminants Research of the Patuxent Environmental

Service Center. The general outline of the reproductive toxicity test

given below is not a complete description of the testing protocol, but

gives the basic outline of the test procedures being conducted:

The test consists of 60 male and 60 female mallards and uses No.

4 lead, steel, and candidate (bismuth-tin) shot. Males and females

will be paired randomly and divided into four groups that will be

dosed with lead, steel, bismuth-tin, and sham dosed. After diet and

light manipulation, birds will be brought into breeding condition.

Nests will be checked twice daily with recorded data including

clutch initiation, number of eggs laid, egg fertility, egg

hatchability, and number of ducklings produced. Eggs collection will

continue until 21 uncracked eggs have been collected or until 150

days have elapsed. Eggs will be place in an incubator and after

hatching, ducklings will be examined for signs of intoxication and

illness

ests will be checked twice daily with recorded data including

clutch initiation, number of eggs laid, egg fertility, egg

hatchability, and number of ducklings produced. Eggs collection will

continue until 21 uncracked eggs have been collected or until 150

days have elapsed. Eggs will be place in an incubator and after

hatching, ducklings will be examined for signs of intoxication and

illness. Blood will be collected with hematocrits determined and the

blood analyzed. Livers, kidneys, and gonads from adults will be

examined for gross and microscopic lesions, and analyzed for major

elements found in the candidate shot and for major essential and

trace elements. Livers and kidneys will be collected from ducklings

and will be examined for gross and microscopic lesions, and analyzed

for major elements contained in the candidate shot and for major

essential and trace elements. Blood, liver, kidneys, and gonads will

be analyzed by ICP for calcium, potassium, magnesium, zinc, copper,

tin, iron, and any metal other than Bismuth or lead. Bismuth and

lead in the livers, kidneys, and gonads, and blood will be analyzed

by graphite furnace atomic absorption spectrometry.

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. 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. The Service is eager to consider these other

materials for approval as nontoxic, and does not feel constrained to

limit nontoxic shot options.

Resistance to the use of steel shot, however, is undoubtedly

creating an unknown level of noncompliance with the requirement to use

nontoxic shot for waterfowl and coot hunting

candidate shot materials that could be approved

for use as nontoxic shot. The Service is eager to consider these other

materials for approval as nontoxic, and does not feel constrained to

limit nontoxic shot options.

Resistance to the use of steel shot, however, is undoubtedly

creating an unknown level of noncompliance with the requirement to use

nontoxic shot for waterfowl and coot hunting. Although compliance with

the use of nontoxic shot has increased moderately over the last few

years, the Service believes that this level of compliance may continue

to increase with the use of bismuth-tin shot in conjunction with the

use of adequate field testing equipment by law enforcement personnel.

In summary, this rule extends conditional approval for the use of

bismuth-tin shot for waterfowl and coot hunting to the 1995-96 season.

Additionally, the applicant, wishing to obtain final unconditional

approval for bismuth-tin shot as nontoxic, is required to obtain

season-by-season approval until successfully completing the remaining

tests required by 50 CFR section 20.134.

One additional standard will be applied to the unconditional

approval of bismuth-tin shot. Since bismuth is a by-product of the

smelting of iron, copper, and tin, it is not surprising that traces of

lead may be present in bismuth-tin shot. The Service has initiated

discussion with the Branch of Environmental Contaminants Research at

the Patuxent Environmental Science Center to determine the maximum

environmentally acceptable level of lead in bismuth-tin shot. Once this

maximum level is determined, it will be stated in any regulation

granting unconditional approval for the use of bismuth-tin shot. It

will be the Service's position that any bismuth-tin shot manufactured

with lead levels exceeding those stated in the regulation will be

considered toxic and therefore, illegal

e the maximum

environmentally acceptable level of lead in bismuth-tin shot. Once this

maximum level is determined, it will be stated in any regulation

granting unconditional approval for the use of bismuth-tin shot. It

will be the Service's position that any bismuth-tin shot manufactured

with lead levels exceeding those stated in the regulation will be

considered toxic and therefore, illegal.

We are encouraged by the progress that has been made to develop a

noninvasive field testing device to assist law enforcement personnel in

detecting the use of illegal shot. However, those devices currently

available still appear to need refinement. We are hopeful that

additional development and testing is planned since noninvasive

enforcement

is an important component in the approval of any alternative shot

material. Service law enforcement personnel will be asked to assess any

noninvasive field testing equipment on the market to determine their

utility and accuracy. Final unconditional approval, if otherwise

proper, would be contingent upon the development and availability of a

noninvasive field testing shot device.

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 indicated under the caption ADDRESSES. 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 conditional use of bismuth-tin an nontoxic shot

for the 1995-96 waterfowl hunting season would not be a major Federal

action that would significantly affect the quality of the human

environment.

Endangered Species Act Considerations

w 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 conditional use of bismuth-tin an nontoxic shot

for the 1995-96 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 ``ensure 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 * * *.'' Consequently, the Service will initiate

Section 7 consultation under the ESA for this proposed rulemaking to

legalize, on a conditional basis, the use of bismuth-tin shot for

hunting waterfowl and coots during the 1995-96 seasons. When completed,

the results of the Service's consultation under Section 7 of the ESA

may be inspected by the public in, and will be available to the public

from, the Office of Migratory Bird Management, at the address in the

ADDRESSES section.

Regulatory Flexibility Act, Executive Order 12866, and the

Paperwork Reduction Act

n shot for

hunting waterfowl and coots during the 1995-96 seasons. When completed,

the results of the Service's consultation under Section 7 of the ESA

may be inspected by the public in, and will be available to the public

from, the Office of Migratory Bird Management, at the address in the

ADDRESSES section.

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.

Authorship: The primary author of this proposed rule is Peter G.

Poulos, 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 proposed to be amended as follows:

PART 20--[AMENDED]

1. The authority citation for Part 20 continues to read as follows:

Authority: Migratory Bird Treaty Act (July 3, 1918), as amended

(16 U.S.C. 701-711); the Fish and Wildlife Improvement Act of 1978

(November 8, 1978); as amended, (16 U.S.C. 712); and the Fish and

Wildlife Act of 1956 (August 8, 1956), as amended, (16 U.S.C. 742 a-

d and e-j).

d to be amended as follows:

PART 20--[AMENDED]

1. The authority citation for Part 20 continues to read as follows:

Authority: Migratory Bird Treaty Act (July 3, 1918), as amended

(16 U.S.C. 701-711); the Fish and Wildlife Improvement Act of 1978

(November 8, 1978); as amended, (16 U.S.C. 712); and the Fish and

Wildlife Act of 1956 (August 8, 1956), as amended, (16 U.S.C. 742 a-

d and e-j).

2. Section 20.21 is amended by revising paragraphs (j) introductory

text and (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 ([nominally] 97-3

percent, respectively) shot or such shot approved as nontoxic by the

Director pursuant to procedures set forth in Sec. 20.134.

Provided that:

(1) * * *

(2) Bismuth-tin shot is legal as nontoxic shot only during the

1995-96 season.

Dated: June 5, 1995.

George T. Frampton,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 95-14513 Filed 6-13-95; 8:45 am]

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