ACTION:
Final rule; availability of Final Environmental Assessment and Finding of No Significant Impact.
SUMMARY:
The U.S. Fish and Wildlife Service (we, us, or USFWS) approves shot formulated of 62 percent iron, 25 percent tungsten, and 13 percent nickel as nontoxic for waterfowl and coot hunting in the United States. We assessed possible toxicity effects of the Iron-Tungsten-Nickel (ITN) shot, and determined that it is not a threat to wildlife or their habitats, and that further testing of ITN shot is not necessary. We have prepared a Final Environmental Assessment and a Finding of No Significant Impact in support of this decision.
This rule also corrects an error and adds clarity to the list of currently approved nontoxic shot types.
DATES:
This rule takes effect on September 22, 2005.
ADDRESSES:
The Final Environmental Assessment for approval of ITN shot and the associated Finding of No Significant Impact are available from the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610. You may call 703-358-1825 to request copies.
The complete file for this rule is available, by appointment, during normal business hours at the same address. You may call 703-358-1825 to make an appointment to view the files.
FOR FURTHER INFORMATION CONTACT:
Dr. George T. Allen, Division of Migratory Bird Management, 703-358-1714.
SUPPLEMENTARY INFORMATION:
Background
The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-711) and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712) implement 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 the Soviet Union, 1978). These treaties protect certain migratory birds from take, except as permitted under the Acts. The Acts authorize the Secretary of the Interior to regulate take of migratory birds in the United States. Under this authority, the U.S. Fish and Wildlife Service controls the hunting of migratory game birds through regulations in 50 CFR part 20.
Deposition of toxic shot and release of toxic shot components in waterfowl hunting locations are potentially harmful to many organisms. Research has shown that ingested spent lead shot causes significant mortality in migratory birds. Since the mid-1970s, we have sought to identify shot types that do not pose significant toxicity hazards to migratory birds or other wildlife. We addressed the issue of lead poisoning in waterfowl in an Environmental Impact Statement in 1976, and again in a 1986 supplemental EIS. The 1986 document provided the scientific justification for a ban on the use of lead shot and the subsequent approval of steel shot for hunting waterfowl and coots that began that year, with a complete ban of lead for waterfowl and coot hunting in 1991. We have continued to consider other potential candidates for approval as nontoxic shot. We are obligated to review applications for approval of alternative shot types as nontoxic for hunting waterfowl and coots.
We received an application from ENVIRON-Metal, Inc. of Sweet Home, Oregon, for approval of Iron-Tungsten-Nickel shot formulated as 62 percent iron, 25 percent tungsten, and 13 percent nickel by weight for waterfowl and coot hunting. We reviewed the shot under the criteria in Tier 1 of the revised nontoxic shot approval procedures contained in 50 CFR 20.134 for permanent approval of shot as nontoxic for hunting waterfowl and coots. We amend 50 CFR 20.21(j) to add ITN shot to the list of the approved types of shot for waterfowl and coot hunting.
On May 6, 2005, we published a proposed rule to approve ITN as a nontoxic shot type (70 FR 23954). The application for the approval of ITN shot included information on chemical characterization, production variability, use, expected production volume, toxicological effects, environmental fate and transport, and evaluation, and the proposed rule included this information, a comprehensive evaluation of the likely effects of each shot, and an assessment of the affected environment.
The Director of the U.S. Fish and Wildlife Service has concluded that the spent shot material will not pose a significant danger to migratory birds or other wildlife or their habitats, and therefore approves the use of Iron-Tungsten-Nickel shot as nontoxic for hunting waterfowl and coots.
We received one comment in response to the proposed rule. However, the commenter did not raise any issues that caused us to reconsider our proposed approval of ITN shot as nontoxic. Neither manufacturing the shot nor firing shotshells containing the shot will alter the metals or increase their susceptibility to dissolving in the environment.
ENVIRON-Metal estimates that the volume of ITN shot used hunting migratory birds in the United States will be approximately 200,000 pounds (90,719 kilograms) during the first year of sale, and perhaps 500,000 pounds (227,000 kg) per year thereafter.
This rule also corrects the formulation of Tungsten-Tin-Bismuth (TTB) shot. We inadvertently left out the iron in the TTB formulation in our August 9, 2004, approval of the shot type (69 FR 48163).
The listing of approved nontoxic shot types is also changed to provide more consistent naming of approved shot types. The shot types are now named and listed by the predominant metals in the alloys.
Cumulative Impacts
We foresee no negative cumulative impacts from approval of this nontoxic shot type. Approval of a shot type that contains only metals already approved as nontoxic will not additionally impact the human environment.
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), though all of the metals in this shot type have been approved in higher concentrations in other shot types and are not likely to pose adverse toxicity effects on fish, wildlife, their habitats, or the human environment, we prepared a Draft Environmental Assessment for this action, on which we received no comments. We have completed the Final Environmental Assessment for approval of ITN shot as nontoxic.
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 concluded that because all of the metals in this shot type have been approved in higher concentrations in other shot types and should not be available to biota due to use of ITN shot, this action will not affect endangered or threatened species. A Section 7 consultation under the ESA for this rule is not needed.
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 types 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 or others.
Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule does not impose an unfunded mandate of more than $100 million per year or have a significant or unique effect on State, local, or tribal governments or the private sector because it is the Service's responsibility to regulate the take of migratory birds in the United States. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; it will only affect availability of the approved nontoxic shot type. Finally, because this rule only affects approval of this nontoxic shot type, it will not have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
Executive Order 12866
This rule is not a significant regulatory action subject to Office of Management and Budget (OMB) review under Executive Order 12866. This rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. No other Federal agency has any role in regulating nontoxic shot for migratory bird hunting. The action is consistent with the policies and guidelines of other Department of the Interior bureaus. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients because it has no mechanism to do so. This action will not raise novel legal or policy issues because the Service has already approved several other nontoxic shot types.
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. OMB has approved collection of information from shot manufacturers for the nontoxic shot approval process, and has assigned control number 1018-0067, which expires on December 31, 2006. For further information, see 50 CFR 20.134.
Unfunded Mandates Reform
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.
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 determined that this rule has no effects on Federally recognized Indian tribes.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons discussed in the preamble, we amend part 20, subchapter B, chapter I 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; 16 U.S.C. 742a-j; Pub. L. 106-108.
2. Section 20.21 is amended by revising paragraph (j)(1) to read as follows:
§ 20.21
(j)(1) While possessing loose shot for muzzle loading or shotshells containing other than the following approved shot types.
Approved shot type
Percent composition by weight
bismuth-tin
97 bismuth, 3 tin.
iron (steel)
iron and carbon.
iron-tungsten (2 types)
60 iron, 40 tungsten and 78 iron, 22 tungsten.
iron-tungsten-nickel
62 iron, 25 tungsten, 13 nickel.
tungsten-bronze
51.1 tungsten, 44.4 copper, 3.9 tin, 0.6 iron.
tungsten-matrix
95.9 tungsten, 4.1 polymer.
tungsten-nickel-iron
50 tungsten, 35 nickel, 15 iron.
tungsten-polymer
95.5 tungsten, 4.5 Nylon 6 or 11.
tungsten-tin-bismuth
49-71 tungsten, 29-51 tin; 0.5-6.5 bismuth, 0.8 iron.
tungsten-tin-iron-nickel
65 tungsten, 21.8 tin, 10.4 iron, 2.8 nickel.
Dated: July 26, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-16720 Filed 8-22-05; 8:45 am]
BILLING CODE 4310-55-P