[Federal Register Volume 70, Number 162 (Tuesday, August 23, 2005)]
[Rules and Regulations]
[Pages 49194-49197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16720]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AT87
Migratory Bird Hunting; Approval of Iron-Tungsten-Nickel Shot as
Nontoxic for Hunting Waterfowl and Coots
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; availability of Final Environmental Assessment and
Finding of No Significant Impact.
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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
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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,
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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.
0
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]
0
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.
0
2. Section 20.21 is amended by revising paragraph (j)(1) to read as
follows:
Sec. 20.21 What hunting methods are illegal?
* * * * *
(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
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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.
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* * * * *
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