        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 665
        [Docket No. 060724200-6200-01;I.D. 071106G]
        RIN 0648-AT94
        Fisheries in the Western Pacific; Western Pacific Bottomfish and Seamount Groundfish Fisheries; Guam Bottomfish Management Measures

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed Rule; request for comments.

          SUMMARY:
          This proposed rule would implement Amendment 9 to the Fishery Management Plan for Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (FMP), which would prohibit large vessels, i.e., those 50 ft (15.2 m) or longer, from fishing for bottomfish in Federal waters within 50 nm (92.6 km) around Guam, and would establish Federal permitting and reporting requirements for these large bottomfish fishing vessels. The proposed rule is intended to maintain viable bottomfish catch rates by small vessels in the fishery, to sustain participation by smaller vessels in the fishery, to maintain traditional patterns of the bottomfish supply to local Guam markets, and to provide for the collection of adequate fishery information for effective management.

          DATES:
          Comments on the proposed rule must be received by September 22, 2006.

          ADDRESSES:
          You may submit comments, identified by 0648-AT94, by any of the following methods:
          • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • E-mail: AT94Guam@noaa.gov. Include 0648-AT94 in the subject line of the message.
          • Mail or Hand Delivery: William L. Robinson, Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to William L. Robinson (see ADDRESSES), or by e-mail to David_Rostker@omb.eop.gov, or faxed to 202-395-7285.

          FOR FURTHER INFORMATION CONTACT:
          Robert Harman, NMFS PIR, 808-944-2271.

        SUPPLEMENTARY INFORMATION:
        The bottomfish fishery operating in Federal waters around Guam is managed under the Fishery Management Plan for the Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (FMP). Aside from restrictions on the use of certain destructive fishing methods that apply to the bottomfish fisheries throughout the western Pacific region, the bottomfish fishery in Federal waters around Guam is mostly unregulated at this time. Potential developments in the fishery, however, led the WPFMC to recommend the proposed management measures.
        The Guam-based small-boat bottomfish fishery is a mix of subsistence, recreational, and limited commercial fishing, particularly in the summer months when weather conditions are calm. There are currently three primary sources of fisheries-dependent fisheries data for Guam: a boat-based and shoreline-based creel surveys conducted by staff of the Division of Aquatic and Wildlife Resources (DAWR), a voluntary fish dealer trip ticket invoice system coordinated by DAWR staff, and a voluntary data collection system established and coordinated by the Guam Fishermen's Cooperative with data submitted to and processed by DAWR staff.
        The boat-based creel survey is a systematic random sampling of boat-based participation island-wide and creel intercept interviews at the three most frequently-used access points, namely Agana Boat Basin, Agat Marina, and Merizo Pier. Vessel launching ramps are available at each of these sites, but marina slippage is only available at the Agana and Agat sites. The vast majority of fishing activity on Guam occurs from vessels launched from trailers for single day trips and the vast majority of all charter fishing occurs out of Agana and Agat marinas.
        Creel survey sampling frequency and methodology have fluctuated and have been modified slightly over the years as budgets, staff, and data requirements have changed, but have been fairly standard since the early 1980s. Sampling typically has been done on at least two week days and two weekend days each month, at each of the three listed ports, and interviews have been conducted for all fishing methods encountered. The charter fishery is sampled simultaneously with the small vessel fisheries, but the data are handled as a separate stratum within the data processing and reporting systems. Sampling does not include the primarily foreign longline fleet operating out of the Apra Harbor commercial port, or the short-lived and now inactive larger vessel commercial bottomfish fishing ventures.
        In general, data from the sampling programs are expanded to annual or quarterly estimates of catch, effort, and species composition by method of fishing. In recent years there have been about 10,000-13,000 boat-based fishing trips per year (CV <10%), with about one third of those using the bottom fishing method (shallow and deep combined). Estimated catches fluctuate even more, e.g., 400,000+ to 800,000+ lb with bottomfish catches being about 60,000-85,000 lb (CV <20%). As with all surveys, the more infrequent or rare an event, the lower the sample size, and the wider the estimated range of error.
        The second type of data available for the Guam fisheries is based on a voluntary “trip ticket” invoice system created by the NMFS Western Pacific Fisheries Information Network (WPacFIN), Guam Division of Aquatic and Wildlife Resources (DAWR), and the Guam Fishermen's Cooperative (Coop) in the early 1980s. This system was designed to monitor the commercial sales of fish (purchases made directly from fishermen) by fish dealers, stores, and markets. The number of vendors participating in the program has fluctuated over the years as new vendors have come and gone, but the Coop has maintained its participation and dominance in volume of purchases throughout the time series. Invoices collected through this system record only the purchase of fish offered for sale to participating dealers, so do not reflect the purchases made by non-participating dealers, stores, etc., or the portions of catches retained by fishermen for consumption or other purposes. Over the years, the annual estimated percentage coverage of the total fish sales by Guam's fishermen that has been captured by the voluntary dealer reporting system has ranged from 55% to 90%.

        The third and newest (about one year old) fisheries data collection system on Guam is a voluntary data collection system sponsored and primarily conducted by the Guam Fishermen's Coop in conjunction with WPacFIN, DAWR, and WPFMC staff. This project consists of two main data collection tools, one to collect vessel-level background fisheries participation data, and one to capture more detailed trip-level data on total catch, effort, species composition, and disposition of catch. All Coop members were asked to participate. In addition, through a series of outreach efforts, non-members were also encouraged to participate whenever possible. The trip-level form collects very similar data to the DAWR creel survey interviews, except for individual fish lengths. When fishermen sell fish to the Coop, the invoice number is recorded on the trip form, as well as the details of catch not sold. Two of the main purposes of this data collection process are to augment the DAWR creel survey interviews and to better document total catch and effort by fishermen who sell portions of their catch. This data collection system is still in its infancy and should gain acceptance by a greater percentage of Guam's fishermen, especially for the non-Coop member fishing sector.
        Based on the current FMP reporting and management requirements, these data collection programs can provide adequate information about Guam's inshore bottomfish fisheries that are conducted by smaller vessels. Thus, the proposed rule does not intend to establish additional data collection requirements on smaller vessels.

        There is a potential component of Guam's bottomfish fishery in which fishermen in relatively large vessels (i.e., greater than 50 ft or 15.2 m in length) target deep-slope fish species, particularly onaga (longtail red snapper, or flame snapper, Etelis coruscans). This fishery is currently non-existent, but several vessels have operated in the past. The fish were caught on offshore banks in Federal waters, landed at Guam's commercial port, and rather than entering the local market, exported by air to foreign markets, especially Japan. The activity occurred on some or all of Guam's southern banks, including Galvez, 11-Mile, Santa Rosa, White Tuna, and Baby Banks. Most of the vessels fishing on these southern banks targeted the shallow-water bottomfish complex, but some targeted the deep-water complex. The banks to the north of Guam, including Rota Bank, and far to the west of Guam, including Bank A, appear not to have been fished at this time.
        The potential for large-vessel bottomfish fishing activity to resume on the offshore banks prompted concerns about fishery information being inadequate for effective management, the potential for small-vessel catch rates to decline to non-viable levels, threats to sustained participation by smaller vessels in the fishery, and disruptions to traditional patterns of supply of bottomfish products to the local market.
        This amendment has the following objectives:
        • To ensure that adequate information is routinely collected for the large-vessel export-oriented bottomfish fishery taking place in Federal waters around Guam;
        • To maintain adequate opportunities for small-scale commercial, recreational, and subsistence bottomfish fishermen in Federal waters around Guam;
        • To provide for sustained community participation by smaller vessels in the Guam bottomfish fishery; and
        • To encourage consistent availability of fresh, locally caught deepwater bottomfish products to Guam consumers.
        After considering a wide range of management options, including many options suggested by the public during a public scoping process, the WPFMC analyzed the likely effects of four management alternatives, as follows:
        1. No action;
        2. Federal permits and logbook requirements for large vessels, i.e., 50 ft (15.2 m) or longer, that land bottomfish management unit species in Guam, and a closure of all Federal waters within 50 nm (92.6 km) of Guam to bottomfish fishing by large bottomfish vessels;
        3. A landing limit for onaga of 250 lb (113.4 kg) per trip for fishing trips in Federal waters around Guam; and
        4. A limited access program for the bottomfish fishery in Federal waters around Guam.
        The WPFMC recommended to NMFS to implement the measures in preferred Alternative 2 (large vessel permits, reporting, and closed area). Alternative 2 is expected to maintain the opportunity for viable bottomfish catch rates for smaller vessels, sustained community participation by smaller vessels, and local supply of fresh bottomfish, but it would decrease the opportunity for large-scale vessels to harvest bottomfish at well-known banks and require them to search elsewhere for new bottomfish grounds. However, taking no action could lead to greatly reduced bottomfish populations and catch rates within the fishing range of Guam's small-vessel fleet if the large-vessel fishery and associated concerns were to develop. Economic, social, and cultural costs would be high for the small-vessel fishery, which does not have the range or capacity to travel to more distant seamounts to obtain higher bottomfish catch rates.The WPFMC rejected Alternative 1 (no action) because of the risks it brings in terms of maintaining viable bottomfish catch rates, providing for sustained community participation by smaller vessels in the fishery, and maintaining a consistent availability of locally caught fish to the Guam market.
        The WPFMC did not recommend Alternative 3 (250 lb or 113.4 kg trip limit for onaga) because, although it would likely help achieve the management objectives, it would encourage high-grading of onaga by fish quality, resulting in greater onaga bycatch than under other alternatives, and it might needlessly inhibit fishery efficiency in the waters beyond the range of small vessels of the Guam bottomfish fishery.
        Alternative 4 (limited access program) would provide more complete fishery information than Alternative 2 (through vessel logbooks for all participants) and provide more finely-tuned and adjustable control over total bottomfish fishing effort and the distribution of fishing effort by vessel size. The WPFMC did not recommend Alternative 4, however, because its advantages would come at greater cost than Alternative 2, at least in the short term. These greater costs would include those associated with administration, enforcement, and monitoring, compliance on the part of fishery participants, and a likelihood of individuals being denied the opportunity to participate in the fishery. Given the problem being addressed, and that existing data collection programs can provide adequate information about Guam's inshore bottomfish fisheries that are conducted by smaller vessels, these costs do not appear to be justified at this time.
        While Alternative 2 is expected to succeed in achieving the objectives of the action, it is difficult to predict to what extent. For example, it is possible that the type of fishery development this action is aimed at curbing (i.e., large-scale, export-oriented fishing) would take place on more or less the same scale under Alternative 2 (e.g., using vessels less than 50 ft or 15.2 m in length) as it would under the no-action scenario. In that case, further management action might be needed in the future if the large vessel fishery and associated concerns were to develop.

        Public comments are being solicited on the FMP amendment through the end of the comment period stated in the Announcement of Availability. The Announcement of Availability was published on July 24, 2006 (71 FR 41770), and the comment period ends on September 22, 2006. Public comments on the proposed rule must be received by the end of the comment period on the FMP amendment, as published in the Announcement of Availability, to be considered in the approval/disapproval decision on the amendment. All comments received by the end of the comment period on the amendment, whether specifically directed to the amendment or to the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received by close of business on the last day of the comment period, not postmarked or otherwise transmitted by that date.

        An Environmental Assessment (EA) was prepared for this amendment. Copies of the FMP, Amendment 9, and the EA, Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA) may be obtained from William L. Robinson (see ADDRESSES).
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements will be submitted to OMB for approval. The public reporting burden for these requirements is estimated to be 30 min for a new permit application, and 5 min for completing a fishing logbook each day. Each estimate includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

        Public comment is sought regarding whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility, the accuracy of the burden estimate, ways to enhance the quality, utility, and clarity of the information to be collected, and ways to minimize the burden of the collection of information, including through the use of automated information technology. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to William L. Robinson (see ADDRESSES), by e-mail to David_Rostker@omb.eop.gov, or fax 202-395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number.
        An IRFA was prepared that describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of why the action is being considered, the objectives and legal basis for the action, and a description of the action, may be found at the beginning of this section.
        The Small Business Administration defines a commercial fishing business as a small entity if annual gross receipts are less than $4.0 million. All bottomfish vessels impacted by this rulemaking are considered to be small entities under this definition. Therefore, there are no economic impacts resulting from disproportionality between large and small vessels. A summary of the analysis follows.
        Number of Affected Small Entities
        The proposed alternative is expected to potentially impact as many as 1-3 bottomfish vessels of length greater than 50 ft (15.2 m) that have previously operated, but are not currently operating, in Federal waters within 50 nm (92.6 km) of Guam. Alternative 3, which would implement a trip limit on onaga, alternative 4, which would implement limited access, and the no- action alternative 1 would impact 100-300 bottomfish vessels operating in Federal waters around Guam, regardless of their size.
        Duplicating, Overlapping, and Conflicting Federal Rules
        To the extent practicable, it has been determined that there are no Federal rules that may duplicate, overlap, or conflict with the proposed rule.
        Effects of the Proposed Rule on Small Entities
        All alternatives considered in this action would implement permitting, recordkeeping, and reporting requirements for vessels engaged in the fishery. Costs associated with obtaining permits and keeping and reporting information in logbooks would be minimal, as described below.
        No-Action Alternative 1
        The no-action alternative would be economically preferable to large vessels when compared to the proposed alternative, and would be economically preferable to all vessels when compared to alternative 3. However, because of the risks it brings in terms of maintaining viable bottomfish catch rates, providing for sustained participation by smaller vessels in the fishery, and maintaining a consistent availability of locally caught fish to the Guam market, this alternative has been determined to not be consistent with National Standards 1, 4, and 8 of the Magnuson- Stevens Fishery Conservation and Fishery Management Act and was not chosen.
        Proposed Alternative 2
        Because data on costs and revenues for the large-vessel component of the fishery are not available, impacts to the profitability of the 1-3 vessels that could potentially be impacted by this rulemaking cannot be directly estimated. Implementation of the rule would require the affected vessels to search elsewhere for new bottomfish grounds, to relocate to the Northern Mariana Islands (NMI) to engage in deepwater trips for bottomfish at the islands and banks north of Saipan, or to change gear and enter another fishery. Regardless of their choice, it is likely that these vessels would experience adverse economic impacts in the form of reductions in potential profitability under this proposed rule. The extent of the impacts would depend on the opportunity costs of each individual vessel relative to the profits previously earned in the bottomfish fishery off of Guam.
        Alternative 3
        As in the case of the proposed alternative, without comprehensive information on vessel cost and revenues, the effects on individual vessel profitability from implementation of a 250-lb trip limit for onaga cannot be estimated with confidence. According to the Expanded Offshore Creel Survey in 2004, about 300-400 individual boats participated in the Guam bottomfish fishery, catching about 7,000 lb of onaga, and fisherman received an average price of just less than $5.00/lb for onaga.
        Trip limits would likely not have a beneficial economic impact on vessels engaged in this fishery, but the negative impact would vary among individual vessels depending upon their average catch of onaga and their overall profit margins from harvesting operations. If a vessel typically caught less than the trip limit, there would be no economic impact. However, if a vessel typically caught greater than the trip limit there would be an economic loss exacerbated by the added expense of culling and discarding the overage catch of onaga. Size of vessel is not an accurate basis to measure profit margins, i.e., it would not be correct to assume that smaller vessels have smaller profit margins and would be impacted to a greater extent than larger vessels from implementation of a trip limit.

        Although a large proportion of the Guam bottomfish fishing fleet would be subject to the 250-pound trip limit on onaga, it would actually affect only a small proportion of the fleet. It would directly affect the fishing behavior of only those fishery participants that have both the capacity and the interest to land more than 250 lb of onaga during a single fishing trip. The precise number of entities capable of landing this amount of onaga is not known, but it is probably less than half of the 300 to 400 vessels that have reported BMUS landings in Guam in each of the last few years. Based on anecdotal reports that the members of the Guam Fishermen's Cooperative Association have agreed among themselves to land no more than 250 pounds of onaga per trip, the number of entities interested in landing this amount of onaga is probably no more than a few. These few “large commercial enterprises” probably overlap to a large extent with the “large-vessel” small entities that would be affected under Alternative 2.
        Like Alternative 2, the 250-pound trip limit on onaga of Alternative 3 would constrain the ability of large commercial enterprises (rather than large vessels, per se) to operate in the Guam bottomfish fishery. The responses of directly affected small entities to the measure and the economic effects on them would therefore be of the same type as those described for Alternative 2. Which of the two alternatives would be more constraining in terms of the economic efficiency of fishing operations is not possible to predict. The trip limit would apply to fishing anywhere in the EEZ around Guam, not just within 50 nm of shore, so in that sense it would be more constraining than Alternative 2. It is not known whether Alternative 3 would result in the economic viability of any affected entities being put at substantial risk.
        Alternative 4
        For the reasons discussed above, profitability measures cannot be estimated for this alternative. Vessels that would not qualify for a limited access permit would face the same adverse economic impacts as those displaced from the fishery under the proposed alternative. By avoiding the adverse stock and crowding effects associated overcapitalized fisheries, those vessels that would qualify would be expected to benefit economically from this measure by maintaining or improving profitability in a stable economic environment.
        The criteria that would be used to determine who and how many participants would be eligible for permits have not been formulated, so it is not possible to rigorously predict how fishery participants would respond or how they would be affected. The limited access program would be designed in such a way as to achieve specified management objectives (success being subject to the availability of information needed for program design), presumably including those objectives already specified in the FMP. Given that FMP Objective 5 is to “maintain existing opportunities for rewarding experiences by small-scale commercial, recreational, and subsistence fishermen, including native Pacific islanders,” the program would presumably be designed so as to minimize the adverse impacts on existing participants, particularly small-scale participants, possibly at the expense of large participants. Any short-term adverse economic effects of Alternative 4 would therefore probably be felt by largely the same entities as those that would be adversely affected under Alternatives 2 and 3, and their responses and the economic effects on them would therefore be of the same type as those described for Alternatives 2 and 3. Which of the three would be more constraining in terms of the economic efficiency of fishing operations is not known. It is not known whether Alternative 4 would result in the economic viability of any affected entities being put at substantial risk.

          List of Subjects in 50 CFR Part 665

        Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaii, Hawaiian natives, Northern Mariana Islands, Pacific Remote Island Areas, Reporting and recordkeeping requirements.

          Dated: August 8, 2006.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 665 is proposed to be amended as follows:

          PART 665—FISHERIES IN THE WESTERN PACIFIC

        1. The authority citation for part 665 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq.

        2. In § 665.12, add the definition of “Guam bottomfish permit” and revise the definition of “Large vessel” as follows:

          § 665.12
          Definitions.

            Guam bottomfish permit means the permit required by § 665.61(a)(4) to use a large vessel to fish for, land, or transship bottomfish management unit species shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area.

            Large vessel means, as used in §§ 665.22, 665.37, 665.38, 665.61, 665.62, and 665.70, any vessel equal to or greater than 50 ft (15.2 m) in length overall.

        3. In § 665.13, revise paragraph (f)(1) to read as follows:

          § 665.13
          Permits and fees.

          (f) Fees. (1) PIRO will not charge a fee for a permit issued under subpart D or F of this part, for a Ho'omalu Zone limited access permit, or for a Guam bottomfish permit issued under § 665.61.

          4. In § 665.14, revise paragraph (a) to read as follows:

          § 650.14
          Reporting and recordkeeping.
          (a) Fishing record forms. The operator of any fishing vessel subject to the requirements of §§ 665.21, 665.41, 665.61(a)(4), 665.81, or 665.602 must maintain on board the vessel an accurate and complete record of catch, effort, and other data on report forms provided by the Regional Administrator. All information specified on the forms must be recorded on the forms within 24 hr after the completion of each fishing day. The original logbook form for each day of the fishing trip must be submitted to the Regional Administrator within 72 hr of each landing of management unit species. Each form must be signed and dated by the fishing vessel operator.

        5. In § 665.61, revise paragraph (a)(1) and add paragraph (a)(4) to read as follows:

          § 665.61
          Permits.
          (a) Applicability. (1) The owner of any vessel used to fish for bottomfish management unit species in the Northwestern Hawaiian Islands Subarea or Guam Subarea must have a permit issued under this section and the permit must be registered for use with the vessel.

          (4) A fishing vessel of the United States must be registered for use under a Guam bottomfish permit if that vessel is a large vessel and is used to fish for, land, or transship bottomfish management unit species shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area.

        6. In § 665.62, add paragraphs (f), (g), and (h) to read as follows:

          § 665.62
          Prohibitions.

          (f) Use a large vessel that does not have a valid Guam bottomfish permit registered for use with that vessel to fish for, land, or transship bottomfish management unit species shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area in violation of § 665.61(a).
          (g) Use a large vessel to fish for bottomfish management unit species within the Guam large vessel bottomfish prohibited area, as defined in § 665.70(b).
          (h) Land or transship, shoreward of the outer boundary of the Guam subarea of the bottomfish fishery management area, bottomfish management unit species that were harvested in violation of § 665.62(g).

        7. Under subpart E, add a new § 665.70 to read as follows:

          § 665.70
          Bottomfish fishery area management.
          (a) Large vessel bottomfish prohibited area. A large vessel of the United States may not be used to fish for bottomfish management unit species in any large vessel bottomfish prohibited area as defined in paragraph (b) of this section.
          (b) Guam large vessel bottomfish prohibited area (Area GU- 1). The large vessel bottomfish prohibited area around Guam means the waters of the US EEZ surrounding Guam that are enclosed by straight lines connecting the following coordinates in the order listed:

              Point
              N. lat.
              W. long.

              GU-1-A
              14° 23′ 43″
              144° 27′ 36″

              GU-1-B
              14° 10′
              144° 11′

              GU-1-C
              13° 50′
              143° 52′

              GU-1-D
              13° 17′
              143° 46′

              GU-1-E
              12° 50′
              143° 54′

              GU-1-F
              12° 30′
              144° 14′

              GU-1-G
              12° 25′
              144° 51′

              GU-1-H
              12° 35′
              144° 15′

              GU-1-I
              12° 57′
              145° 33′

              GU-1-J
              13° 12′
              145° 43′

              GU-1-K
              13° 29′44″
              145° 48′ 27″

              GU-1-A
              14° 23′ 43″
              144° 27′ 36″

      [FR Doc. E6-13269 Filed 8-11-06; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 20
        [Docket No. FWS-HQ-MB-2015-0073; FF09M21200-178-FXMB1231099BPP0]
        RIN 1018-BB06
        Migratory Bird Hunting; Approval of Corrosion-Inhibited Copper Shot as Nontoxic for Waterfowl Hunting

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; availability of draft environmental assessment.

          SUMMARY:
          Having completed our review of the application materials for corrosion-inhibited copper shot, the U.S. Fish and Wildlife Service (hereinafter Service or we) proposes to approve the shot for hunting waterfowl and coots. We have concluded that this type of shot left in terrestrial or aquatic environments is unlikely to adversely affect fish, wildlife, or their habitats. Approving this shot formulation would increase the nontoxic shot options for hunters.

          DATES:

          Electronic comments on this proposal or on the draft environmental assessment via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on September 14, 2017. Comments submitted by mail must be postmarked no later than September 14, 2017.

          ADDRESSES:

            Document Availability. You may view the application and our draft environmental assessment by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-HQ-MB-2015-0073.
          • Request a copy by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

            Written Comments: You may submit comments on the proposed rule or the associated draft environmental assessment by either one of the following two methods:
          • Federal eRulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-HQ-MB-2015-0073.
          • U.S. mail or hand delivery: Public Comments Processing, Attention: FWS-HQ-MB-2015-0073; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS: BPHC, Falls Church, VA 22041-3803.

          We will not accept email or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information that you provide.

          FOR FURTHER INFORMATION CONTACT:
          Ron Kokel, Division of Migratory Bird Management, at 703-358-1967.

        SUPPLEMENTARY INFORMATION:
        Background

        The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-712 and 16 U.S.C. 742 a-j) implements 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 most migratory bird species from take, except as permitted under the Act, which authorizes the Secretary of the Interior to regulate take of migratory birds in the United States. Under this authority, we control the hunting of migratory game birds through regulations at 50 CFR part 20. We prohibit the use of shot types other than those listed in the Code of Federal Regulations (CFR) at 50 CFR 20.21(j) for hunting waterfowl and coots and any species that make up aggregate bag limits.
        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 types of shot for waterfowl hunting that are not toxic to migratory birds or other wildlife when ingested. We have approved nontoxic shot types and coatings and added them to the migratory bird hunting regulations at 50 CFR 20.21(j). We continue to review shot types and coatings submitted for approval as nontoxic following a process set forth at 50 CFR 20.134.
        We addressed lead poisoning in waterfowl in an environmental impact statement (EIS) 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 nontoxic shot candidates for approval. We are obligated to review applications for approval of alternative shot types as nontoxic for hunting waterfowl and coots.

        Many hunters believe that some nontoxic shot types compare poorly to lead and may damage some shotgun barrels. A small and decreasing percentage of hunters have not complied with nontoxic shot regulations. Allowing use of additional nontoxic shot types may encourage greater hunter compliance and participation with nontoxic shot requirements and discourage the use of lead shot. The use of nontoxic shot for waterfowl hunting increased after the ban on lead shot (Anderson et al. 2000), but we believe that compliance would continue to increase with the availability and approval of other nontoxic shot types. Increased use of nontoxic shot will enhance protection of migratory waterfowl and their habitats. More important is that the Service is obligated to consider all complete nontoxic shot applications submitted to us for approval.
        Application

        Environ-Metal, Inc., of Sweet Home, Oregon, seeks approval of corrosion-inhibited copper shot as nontoxic. We evaluated the impact of approval of this shot type in a draft environmental assessment (see ADDRESSES, above, for information on viewing a copy of the draft environmental assessment). The data from Environ-Metal, Inc., indicate that the shot's coating will essentially eliminate copper exposure in the environment and to waterfowl if the shot is ingested. We believe that this type of shot will not pose a danger to migratory birds, other wildlife, or their habitats.
        We have reviewed the shot under the criteria in Tier 1 of the nontoxic shot approval procedures at 50 CFR 20.134 for permanent approval of shot and coatings as nontoxic for hunting waterfowl and coots. We propose to amend 50 CFR 20.21(j) to add the shot to the list of those approved for waterfowl and coot hunting. Details on the evaluations of the shot can be found in the draft environmental assessment.
        Corrosion-Inhibited Copper Shot
        Corrosion-inhibited copper shot (CIC shot) consists of commercially pure copper that has been surface-treated with benzotriazole (BTA) to obtain insoluble, hydrophobic films of BTA-copper complexes (CDA 2009). These films are very stable; are highly protective against copper corrosion in both salt water and fresh water; and are used extensively to protect copper, even in potable water systems. Other high-volume applications include deicers for aircraft and dishwasher detergent additives, effluents of which may be directly introduced into municipal sewer systems, indicative of the exceptionally low environmental impact of BTA. “The corrosion-inhibiting effectiveness of BTA-copper complex coating, based on actual testing conducted by the applicants and by others, is substantial.”
        Shot Coating and Test Device
        CIC shot will have an additional coating that will fluoresce under ultraviolet light. The coating is applied by a proprietary process, and coats the shot so that the layers of coating are visible through the translucent shotshell. The coating is environmentally safe and is very long-lasting in the shotshells. The sole purpose of fluorescent-coating CIC shot is to provide a portable, non-invasive and affordable field detection method for use by law enforcement officers to identify this non-magnetic shot type as approved for waterfowl and coot hunting.
        ECO PigmentsTM, manufactured exclusively by DayGlo, Inc. (Cleveland, OH), are thermoplastic fluorescent powders free of formaldehyde, heavy metals, azo compounds, perfluorooctanoic acid, aromatic amines, regulated phthalates, bisphenol A (BPA), polyaromatic hydrocarbons, substance of very high concern (SVHC) chemicals, and California Proposition 65 chemicals. The pigments were originally developed for use as brightly colored “markers” to be mixed with aerially applied, fire-retardant chemicals used in forest fire suppression, because they are more “environmentally friendly” than even the relatively inert iron-oxide powders formerly applied. They are globally approved for a wide variety of uses, including textile dyes, paints, and toys. Environ-Metal, Inc., anticipates applying coatings approximately 0.001-inch thick, a value which is calculated to add about 0.13 percent by weight to the mass of a #4-size copper shot.
        Environ-Metal, Inc., will apply the pigment to metallic shot using a proprietary process to create a thin, adherent coating of a tough, resilient, fluorescent substance. The coating is visually detectable through the wall of a shotshell when ultraviolet light is applied to the exterior of the shell. To further aid field detection, after application of the nontoxic ultraviolet (UV) pigment to CIC shot, the shot is loaded into an uncolored (“clear”) hull, with a unique inner shot wad printed with the manufacturer and shot material type.

        Law enforcement officers who have reason to suspect that a non-magnetic shotshell may contain unapproved shot (e.g., toxic lead) need only shine the UV light on the side of the translucent shell, which will be marked by Environ-Metal, Inc., as containing copper, to determine the presence or absence of a visible glow emitted by the shot coating.

        Although the shot coating is inherently water-proof, it is further protected against environmental degradation by being sealed within two layers of polyethylene plastic—the wad and the hull or shell. Environ-Metal, Inc., has stated that “potential fading of the thermoplastic UV dye could not become significant until after both of the enveloping polyethylene cylinders had become embrittled/cracked by excessive exposure to direct sunlight, a condition which would essentially render the shotshell useless.”
        Positive Effects for Migratory Waterfowl Populations
        Allowing use of additional nontoxic shot types may encourage greater hunter compliance and participation with nontoxic shot requirements and discourage the use of lead shot. Furnishing additional approved nontoxic shot types and nontoxic coatings likely would further reduce the use of lead shot. Thus, approving additional nontoxic shot types and coatings would likely result in a minor positive long-term impact on waterfowl and wetland habitats.
        Unlikely Effects on Endangered and Threatened Species
        The impact on endangered and threatened species of approving corrosion-inhibited copper shot would be very small, but positive. Corrosion-inhibited copper shot is highly unlikely to adversely affect animals that consume the shot or habitats in which it might be used. We see no potential significant negative effects on endangered or threatened species due to approval of the shot type.

        Further, we annually obtain a biological opinion pursuant to section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), prior to establishing the annual migratory bird hunting regulations. The migratory bird hunting regulations promulgated as a result of this annual consultation remove and alleviate chances of conflict between migratory bird hunting and endangered and threatened species.
        Beneficial Effects on Ecosystems
        Previously approved shot types have been shown in test results to be nontoxic to the migratory bird resource, and we believe that they cause no adverse impact on ecosystems. There is concern, however, about noncompliance with the prohibition on lead shot and potential ecosystem effects. The use of lead shot has a negative impact on wetland ecosystems due to the erosion of shot, causing sediment/soil and water contamination and the direct ingestion of shot by aquatic and predatory animals. Though we believe noncompliance is of concern, approval of the shot type would have little impact on the resource, except the small positive impact of reducing the rate of noncompliance.
        Cumulative Impacts
        We foresee no negative cumulative impacts if we approve this shot type for waterfowl hunting. Its approval could help to further reduce the negative impacts of the use of lead shot for hunting waterfowl and coots. We believe the impacts of the approval for waterfowl hunting in the United States should be positive.
        Public Comments

        You may submit information concerning this proposed rule or the draft environmental assessment by one of the methods listed in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Information and supporting documentation that we receive in response to this proposed rule will be available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 5275 Leesburg Pike, Falls Church, VA.
        Required Determinations
        Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs
        This proposed rule is considered to be an Executive Order (E.O.) 13771 deregulatory action (82 FR 9339, February 3, 2017) because it would approve an additional type of nontoxic shot in our regulations at 50 CFR part 20.
        Regulatory Planning and Review (Executive Orders 12866 and 13563)
        Executive Order 12866 provides that OIRA will review all significant rules. OIRA has determined that this rule is not significant.
        Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions).
        SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action would not have a significant economic impact on a substantial number of small entities. The rule would allow small entities to improve their economic viability. However, the rule would not have a significant economic impact because it would affect only two companies. We certify that because this rule would not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.
        This rule is not a major rule under the SBREFA (5 U.S.C. 804 (2)).
        a. This rule would not have an annual effect on the economy of $100 million or more.
        b. This rule would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, Tribal, or local government agencies; or geographic regions.

        c. This rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

        Unfunded Mandates Reform Act

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we have determined the following:
        a. This rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the proposed rule would not affect small government activities in any significant way.
        b. This rule would not produce a Federal mandate of $100 million or greater in any year. It would not be a “significant regulatory action” under the Unfunded Mandates Reform Act.
        Takings
        In accordance with E.O. 12630, this proposed rule would not have significant takings implications. A takings implication assessment is not required. This proposed rule does not contain a provision for taking of private property.
        Federalism
        This proposed rule does not have sufficient Federalism effects to warrant preparation of a federalism summary impact assessment under E.O. 13132. It would not interfere with the ability of States to manage themselves or their funds.
        Civil Justice Reform
        In accordance with E.O. 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.
        Paperwork Reduction Act of 1995 (PRA)

        This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). OMB has approved our collection of information associated with applications for approval of nontoxic shot (50 CFR 20.134) and assigned OMB Control Number 1018-0067, which expires March 31, 2020. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
        National Environmental Policy Act

        Our draft environmental assessment is part of the administrative record for this proposed rule. In accordance with the National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.) and part 516 of the U.S. Department of the Interior Manual (516 DM), approval of corrosion-inhibited copper shot and fluoropolymer coatings would not have a significant effect on the quality of the human environment, nor would it involve unresolved conflicts concerning alternative uses of available resources. Therefore, preparation of an environmental impact statement is not required.
        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), E.O. 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian Tribes and have determined that there are no potential effects. This rule would not interfere with the ability of Tribes to manage themselves or their funds or to regulate migratory bird activities on Tribal lands.
        Energy Supply, Distribution, or Use (E.O. 13211)
        E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule would not be a significant regulatory action under E.O. 12866, nor would it significantly affect energy supplies, distribution, or use. This action would not be a significant energy action, and no Statement of Energy Effects is required.
        Compliance With Endangered Species Act Requirements

        Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “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” (16 U.S.C. 1536(a)(2)). We have concluded that this proposed rule would not affect listed species.
        Clarity of the Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (a) Be logically organized;
        (b) Use the active voice to address readers directly;
        (c) Use clear language rather than jargon;
        (d) Be divided into short sections and sentences; and
        (e) Use lists and tables wherever possible.

        If you feel that we have not met these requirements, please send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

          List of Subjects in 50 CFR Part 20
          Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.

        Proposed Regulation Promulgation
        For the reasons discussed in the preamble, we propose to amend part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations as follows:

          PART 20—MIGRATORY BIRD HUNTING

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

          Authority:
           Migratory Bird Treaty Act, 40 Stat. 755, 16 U.S.C. 703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Public Law 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

        2. Amend § 20.21 paragraph (j)(1) by:
        a. Adding a table entry for “Corrosion-inhibited copper”, immediately following the entry for “Copper-clad iron”; and
        b: Revising the first table note.
        The addition and revision read as follows:

          § 20.21
          What hunting methods are illegal?

          (j)(1) * * *

              Approved shot type *
              Percent composition by weight
              Field testing device **

              *         *         *         *         *         *         *

              Corrosion-inhibited copper
              ≥99.9 copper with benzotriazole and thermoplastic fluorescent powder coatings
              Ultraviolet Light.

              *         *         *         *         *         *         *

            * Coatings of copper, nickel, tin, zinc, zinc chloride, zinc chrome, fluoropolymers, and fluorescent thermoplastic on approved nontoxic shot types also are approved.

          Dated: August 8, 2017.
          Todd D. Willens,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2017-17175 Filed 8-14-17; 8:45 am]
       BILLING CODE 4333-15-P