Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 59019 

PART 62—[AMENDED] 

■ 1. The authority citation for part 62 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart VV—Virginia 

■ 2. Section 62.11610 is amended by 

adding paragraph (d) to read as follows: 

§ 62.11610 Identification of plan. 

* * * * * 

(d) On June 20, 2005, the 

Commonwealth of Virginia submitted 

changes to its 111(d) Plan. The changes 

consist of amendments to 9 VAC 5, 

Chapter 40, Part II, Article 13, Sections 

5–40–1660, 5–40–1670 (definitions of 

Agreement (removed), Cross recovery 

furnace (revised), Neutral sulfite 

semichemical pulping operation 

(added), New design recovery furnace 

(added), Pulp and paper mill (added), 

Semichemical pulping process (added), 

Straight kraft recovery furnace (revised), 

Total reduced sulfur (revised)), 5–40–

1690, 5–40–1750, 5–40–1770B. and C., 

5–40–1780D., and 5–40–1810. The State 

effective date is April 1, 1999. 

[FR Doc. E7–20597 Filed 10–17–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 222 

[Docket No. FRA–2007–27285, Notice No. 

2] 

RIN 2130–AB86 

Use of Locomotive Horns at HighwayRail Grade Crossings; Technical 

Amendments to Appendix D 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Direct final rule; confirmation of 

effective date. 

SUMMARY: On August 9, 2007, FRA 

published a direct final rule in the 

Federal Register which made technical 

amendments to Appendix D of 49 CFR 

Part 222. As reflected in DOT Docket 

No. FRA–2007–27285, FRA did not 

receive any comments or requests for an 

oral hearing on the direct final rule. 

Therefore, FRA is issuing this document 

to confirm that the direct final rule took 

effect on October 9, 2007, the date 

specified in the rule. 

DATES: The direct final rule published at 

72 FR 44790, August 9, 2007, is 

confirmed effective October 9, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Ronald Ries, Office of Safety, Mail Stop 

25, FRA, 1120 Vermont Avenue, NW., 

Washington, DC 20590 (telephone: (202) 

493–6299); or Kathryn Shelton, Office of 

Chief Counsel, Mail Stop 10, FRA, 1120 

Vermont Avenue, NW., Washington, DC 

20590 (telephone: (202) 493–6038). 

SUPPLEMENTARY INFORMATION: Pursuant 

to FRA’s direct final rulemaking 

procedures set forth at 49 CFR 211.33, 

FRA is issuing this document to inform 

the public that it has not received any 

comments or requests for an oral 

hearing on the direct final rule that was 

published in the Federal Register on 

August 9, 2007 (72 FR 44790). The 

direct final rule made technical 

amendments to Appendix D of 49 CFR 

Part 222 to update information 

contained in the appendix and inform 

the public of the most recent value of 

the Nationwide Significant Risk 

Threshold. As no comments or requests 

for an oral hearing were received by 

FRA, this document informs the public 

that the effective date of the direct final 

rule remains as October 9, 2007, the 

date specified in the rule. 

Privacy Act 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78) or you may visit http:// 

DocketsInfo.dot.gov. 

Issued in Washington, DC, on October 15, 

2007. 

Grady C. Cothen, Jr., 

Deputy Associate Administrator for Safety 

Standards and Program Development. 

[FR Doc. E7–20605 Filed 10–17–07; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 16 

RIN 1018–AG70 

Injurious Wildlife Species; Black Carp 

(Mylopharyngodon piceus) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (Service or we) adds all forms of 

live black carp (Mylopharyngodon 

piceus), gametes, viable eggs, and 

hybrids to the list of injurious fish 

under the Lacey Act. By this action, the 

Service prohibits the importation into or 

transportation between the continental 

United States, the District of Columbia, 

Hawaii, the Commonwealth of Puerto 

Rico, or any territory or possession of 

the United States of live black carp, 

gametes, viable eggs, and hybrids. The 

best available information indicates that 

this action is necessary to protect the 

interests of wildlife and wildlife 

resources from the purposeful or 

accidental introduction and subsequent 

establishment of black carp in the 

ecosystems of the United States. Live 

black carp, gametes, viable eggs, and 

hybrids can be imported only by permit 

for scientific, medical, educational, or 

zoological purposes, or without a permit 

by Federal agencies solely for their own 

use. Interstate transportation of live 

black carp, gametes, viable eggs, and 

hybrids currently held within the 

United States will be allowed only by 

permit. Interstate transportation permits 

may be issued for scientific, medical, 

educational, or zoological purposes. 

DATES: This rule is effective for all forms 

of live black carp on November 19, 

2007. 

FOR FURTHER INFORMATION CONTACT: Kari 

Duncan, Chief, Branch of Invasive 

Species, Division of Environmental 

Quality, at (703) 358–2464 or 

kari_duncan@fws.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

In February 2000, the U.S. Fish and 

Wildlife Service (Service or we) 

received a petition from the Mississippi 

Interstate Cooperative Resources 

Association (MICRA) to list the black 

carp (Mylopharyngodon piceus) under 

the injurious wildlife provision of the 

Lacey Act (18 U.S.C. 42). The petition 

was based upon concerns about the 

potential impacts of black carp on 

native freshwater mussels and snails in 

the Mississippi River basin. In October 

2002, the Service received a petition 

signed by 25 members of Congress 

representing the Great Lakes region to 

add black, bighead, and silver carp to 

the list of injurious wildlife under the 

Lacey Act. A follow-up letter identified 

seven additional Legislators who 

supported the petition. 

Summary of Previous Actions 

On June 2, 2000, we published in the 

Federal Register (65 FR 35314) an 

advance notice of proposed rulemaking 

(ANPR) to seek comments on whether or 

not we should propose to list black carp 


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59020 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 

as injurious under the Lacey Act. The 

comment period on the ANPR was open 

for 60 days, until August 1, 2000. 

During that comment period, we 

received 124 comments. We considered 

those comments in our development of 

a proposed rule to add all forms of live 

black carp to the list of injurious fishes 

under the Lacey Act, which we 

published in the Federal Register on 

July 30, 2002 (67 FR 49280). We opened 

the public comment period on the 

proposed rule for 60 days, until 

September 30, 2002. We received 82 

comments on the proposed rule. On 

June 4, 2003, in an effort to gather more 

economic and ecological information on 

our proposed action, we reopened the 

public comment period on the proposed 

rule for an additional 30 days, until 

August 4, 2003 (68 FR 33431). We 

received 21 comments during the 

reopened comment period. On August 

30, 2005, we published in the Federal 

Register (70 FR 51326) a document 

announcing the availability of the draft 

environmental assessment and draft 

economic analysis, including the initial 

regulatory flexibility analysis, for the 

proposed rule, and seeking public 

comments on those draft documents and 

on listing only the diploid (fertile) form 

of black carp. The public comment 

period for this August 30, 2005, 

document was originally 60 days, 

ending October 31, 2005; however on 

October 27, 2005, we published a 

document (70 FR 61933) extending the 

comment period by an additional 45 

days, until December 16, 2005. During 

the 105-day comment period, we 

received 89 comments. Therefore, in 

total, the Service received 316 

comments during the four public 

comment periods. 

We reviewed all comments we 

received for substantive issues and 

information regarding the injurious 

nature of black carp. Many States and 

conservation organizations support 

listing diploid and triploid black carp. 

Aquaculture industry groups and fish 

production facility owners do not 

support listing triploid black carp, but 

most are amenable to listing diploid 

black carp. We have grouped similar 

comments into issues; we present these 

issues and our responses below. 

Comments Received on the Proposed 

Rule 

Many comments provided specific 

black carp scientific and economic data 

pertaining to use and alternatives to use, 

distribution, impacts, spread, level of 

risk of introduction, diploid and triploid 

fish, certification of triploid fish, and 

the potential effects of an injurious 

listing. We appreciate the information 

and data provided and have considered 

it in preparing our final determination 

to add live black carp, gametes, viable 

eggs, and hybrids to the list of injurious 

fishes under the Lacey Act. 

Issue: Many respondents expressed 

concern about the potential negative 

impacts of black carp to mussels, the 

cultured pearl industry, snails, and 

water quality; declines in trust resources 

(imperiled mussels, birds, turtles, and 

fish) if black carp are introduced and 

the cascading impacts to tourism and 

recreation in local economies; costs to 

control black carp; and costs to 

eradicate (and mitigate impacts of) black 

carp from U.S. waters once introduced. 

Response: The Service agrees with the 

respondents’ comments on these issues. 

The biological characteristics of black 

carp and their potential to be injurious 

to the U.S. wildlife and wildlife 

resources are the bases for our decision 

to add live black carp to the list of 

injurious fishes under the Lacey Act. 

The likelihood or feasibility of 

eradication from natural waters due to 

a lack of tools, regardless of cost, was 

considered in our evaluation and is part 

of the basis for this final rule. Since 

eradication is highly unlikely, 

mitigation for impacts would be 

extremely difficult. 

Issue: Many respondents expressed 

concern about the establishment of 

black carp in new areas through 

adjacent waterways, and about the 

ability of facilities to contain triploid or 

diploid black carp within their ponds 

due to the challenges of preventing 

release due to filter clogs, during levee 

problems, and during floods. These 

respondents felt that black carp would 

inevitably escape into U.S. waters. 

Response: Based on the Service’s 

finding, the ability and effectiveness of 

measures to prevent escape or 

establishment are low, and this issue is 

part of the basis for this final rule. 

Issue: Several respondents stated that 

the ecological impacts of black carp are 

difficult to predict. 

Response: The Lacey Act directs the 

Service to look at the injury or potential 

injury caused by a species when we are 

making a listing determination. Once we 

have determined that a species meets 

the standard of injuriousness under the 

Act, we must take the appropriate action 

to add it to the list of injurious wildlife. 

While the specific impacts of black carp 

(locations or species) are difficult to 

predict, black carp have had negative 

impacts on mollusk populations in 

similar habitats in other countries. Such 

impacts to mollusks are highly likely to 

occur in the United States. In addition, 

there are potential negative impacts to 

other species, such as fish, turtles, and 

nutrient cycles, if algae mats develop in 

the absence of filter-feeding mollusks. 

Issue: Several respondents noted that 

the efficiency of black carp in 

controlling snails in culture ponds 

foreshadows the probable efficiency of 

black carp in eating mollusks in the 

wild. 

Response: We agree; black carp are 

prolific eaters and are highly specialized 

to eat mollusks. Where mollusks are 

available, black carp will feed almost 

exclusively on them, and in similar 

quantities, whether the carp are diploid 

or triploid fish. 

Issue: One respondent stated that it 

makes little difference what a species 

might do after it escapes and becomes 

entrenched in the wild if there is little 

or no threat that it will escape in the 

first place; with no threat, there is no 

need for rule. 

Response: The Service disagrees with 

this comment. The impacts caused by 

an introduced species vary based on the 

life history of the introduced species, 

the level of infestation, and the impacts 

it causes on native wildlife and wildlife 

resources. 

Furthermore, it may take many years 

to realize the full impacts of the 

introduction of aquatic species on 

wildlife and wildlife resources. We 

believe that preventing the introduction 

and spread of nonnative species is more 

cost-effective than trying to control an 

established invader. The recent captures 

of diploid and triploid black carp from 

the wild, perhaps dating back 10 years, 

confirm that black carp are escaping or 

being released into the environment. 

Additionally, there are numerous 

examples from other countries where 

black carp have become established in 

habitats similar to those found in the 

United States. 

Issue: A few respondents stated that 

there is no evidence of impacts to native 

mussels and snails because there are no 

black carp in the wild. Additionally, 

several commenters noted that black 

carp have been in the United States for 

30 years and haven’t been found in the 

wild. 

Response: While black carp were first 

imported in the 1980s, they weren’t 

widely used and transported until the 

late 1990s. The first black carp found in 

the wild was in 2003; several more have 

been captured from natural waters of the 

United States since then. The potential 

risks of harm to native mollusks from 

black carp have been presented in peerreviewed scientific research. This 

research, combined with the presence of 

black carp captured in natural waters of 

the United States, provides evidence 

sufficient to demonstrate that black carp 


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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 59021 

will escape into the wild and injure 

native mussels and snails. 

Issue: Several commenters stated that 

black carp impacts are strictly 

dependent on the number of fish 

present and that a few triploids would 

not have a considerable impact on 

native snails and mussels; hundreds of 

thousands would, but that would 

happen only if fertile diploid black carp 

would establish breeding populations. 

Response: Given that the black carps’

diet consists primarily of mollusks, we 

find that non-breeding black carp are 

highly likely to have negative impacts 

on native mussels and snails, 

particularly in local areas. Triploid 

black carp, which can live 15 or more 

years, could have a considerable impact 

on local mollusk populations, as they 

feed almost exclusively on these types 

of organisms, including those 

designated as threatened and 

endangered species under the 

Endangered Species Act, and they 

would compete with native fish for 

food. Even a few introduced black carp 

could impact mollusk populations in 

local areas, as they have been shown to 

be effective at eating nearly all of the 

mollusks where they have been stocked. 

Issue: Many respondents expressed 

concern that listing triploid and diploid 

black carp could result in unintended 

adverse environmental impacts. 

Restricting interstate transport of 

triploid black carp will create an 

incentive for States without farmers 

skilled in triploid technologies to 

produce, sell, and distribute greater 

numbers of fertile diploid black carp for 

use within States without a triploid 

supply, which would increase the 

chance of release of reproducing adults. 

Because producing diploids is easier, a 

final rule prohibiting importation and 

interstate transport of triploid and 

diploid black carp could result in 

greater numbers of fertile black carp 

being distributed in the United States. 

Response: The Service acknowledges 

that by adding triploid and diploid 

black carp to the list of injurious 

wildlife, thereby prohibiting their 

importation and interstate transport, the 

risk of more diploids being utilized 

exists. However, the States regulate the 

fish allowed to be used in facilities 

within their State boundaries and could 

assess the acceptable level of 

environmental and economic risks of 

diploid carp in their permitting 

processes. Several States that currently 

import triploid black carp from 

Arkansas do possess diploids and could 

potentially produce triploids or diploids 

for use within State boundaries. We 

believe that prohibiting interstate 

transportation and importation of black 

carp by listing black carp as injurious 

under the Lacey Act is our best means 

of limiting the range expansion of that 

species. 

Issue: Similarly, a few respondents 

expressed concerns regarding the 

potential for increased use of diploid 

black carp in Mississippi. They stated 

that by prohibiting interstate 

transportation of triploid and diploid 

black carp, catfish farmers in 

Mississippi would be forced to stock 

diploid black carp. Some Mississippi 

farmers possess diploid broodstock but 

have never spawned triploid black carp 

and may be unable for technical reasons 

to produce enough triploids for use by 

farmers in Mississippi. 

Response: The Service shares this 

concern, and we hope that States will 

implement alternative control methods. 

In addition to the 5 years that have 

elapsed since our publication of the 

proposed rule, the effective date of the 

final rule is delayed 30 days after the 

date of its publication in the Federal 

Register, a delay which will assist 

industry and States in preparing for the 

effects resulting from the 

implementation of the final rule. Having 

found that black carp are injurious to 

the wildlife and wildlife resources of 

the United States, the Service has 

received no facts that would justify 

delaying the effective date of the final 

rule beyond the 30 days provided by 

law. 

Issue: Some commenters expressed 

concern about being held responsible 

under the Lacey Act if black carp were 

inadvertently transported across state 

lines. 

Response: Once the final rule is 

effective, any interstate transport 

without a valid permit of live black carp 

across state lines is a violation of the 

Lacey Act. The Service recognizes that 

there are situations where a person or 

company may inadvertently transport 

black carp across state lines, such as 

when transporting juvenile grass carp, 

which can be difficult to distinguish 

from juvenile black carp, or when 

transporting catfish to processing plants. 

The Service would welcome the 

opportunity to work with those affected 

by this rule to help develop best 

management practices and Hazard 

Analysis and Critical Control Point 

(HACCP) plans that may be 

implemented as a means of preventing 

the inadvertent transport of live black 

carp. The Service focuses its resources 

on investigating and prosecuting those 

who act without taking steps to comply 

with the law. 

In addition, this rule prohibits the 

transportation of live black carp, 

gametes, and viable eggs. Transportation 

of dead black carp across state lines 

would not be a violation of law. 

Issue: Several commenters relayed 

their concern about statements 

regarding parasite transmission from 

black carp and stated that there is no 

evidence that black carp are likely to 

infect other species with exotic diseases, 

serve as intermediate hosts, or otherwise 

transfer parasite diseases more so than 

any other fish species already present in 

natural systems. Parasites are irrelevant 

because not a single new disease 

organism has been linked to black carp 

imported in the last 25 years. A listing 

based on potential parasites does not 

make sense, because there is no disease 

inspection for any fish. In addition, 

black carp are more likely to reduce 

disease incidence in other fish species 

by controlling snails that may spread 

disease. 

Response: While no new pathogen 

introductions are known to be attributed 

to black carp in the United States, 

Spring Viremia of Carp virus was 

recently discovered in the United States 

from other carps; if infected, black carp 

introduced to the wild could spread this 

virus. New importations of black carp 

for use as diploid broodstock could 

introduce new pathogens, but this is 

unlikely, as black carp are not currently 

imported. While it is possible that black 

carp may reduce disease incidence in 

other fish species by controlling snails 

that may spread disease, this possibility 

is extremely remote and unlikely 

outside of the context of aquaculture 

facilities because of the low probability 

of black carp locating and consuming a 

sufficient amount of disease-carrying 

snails in open waters to prevent the 

spread of disease to other fish species. 

Issue: One commenter stated that the 

Service has no evidence that black carp 

serve as hosts for any parasite that 

infects humans, and that black carp 

would help break the parasite cycle if 

any existed. In addition, the commenter 

stated that black carp have been used to 

successfully control the snail host for 

Schistosoma problem in humans. 

Response: Because black carp feed 

heavily on mollusks, the species serves 

as a reservoir host to many mollusk 

parasites, but black carp likely remains 

immune from the effects of the parasites 

and diseases. In certain parts of China, 

black carp have served as host to the 

Chinese liver fluke (Clonorchis 

sinensis), which causes Clonorchiasis, 

one of the most severe food-borne 

parasitic diseases of humans in China. 

Black carp have been reportedly used to 

successfully control snail hosts for 

Schistosoma in humans, which is a 

tropical and subtropical snail-borne 

disease that is most prevalent in subVerDate Aug<31>2005 14:36 Oct 17, 2007 Jkt 214001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\18OCR1.SGM 18OCR1

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59022 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 

Saharan Africa as well as the Middle 

East, South America, Southeastern Asia, 

southern China, and the Caribbean. 

According to the World Health 

Organization and the U.S. Centers for 

Disease Control, this disease does not 

occur in the United States, although a 

U.S. citizen may contract the disease 

while traveling. 

Issue: Several respondents asked if 

black carp would enter the upper 

reaches of tributaries where threatened 

and endangered mussels exist since they 

‘‘inhabit lakes and lower reaches of 

large, fast moving rivers’’ (67 FR 49280). 

Response: Black carp have the ability 

to populate many different habitat types 

where there is a viable food source, 

including the upper and middle reaches 

of rivers, lakes, and reservoirs. Many 

species of mollusks inhabit lakes and 

lower reaches of rivers, in addition to 

upper tributaries, so those species are at 

risk if black carp are introduced. 

Issue: Based on our statement that 

native fish would have to compete with 

black carp for food, one commenter 

asked why native fish species are not 

currently wiping out native mussels. 

Response: Black carp will eat 

mollusks if they are available, as black 

carp are highly adapted to eat primarily 

mussels and snails. Many native 

molluscivore fish do not feed as 

exclusively on mussels and snails as 

black carp. Black carp are generally 

known as feeding specialists with 

respect to mollusks, but there is a risk 

to other potential prey species if 

mollusks become limited. Black carp 

may switch, as they do in Asia, to eating 

crayfishes and other crustaceans, many 

of which are already imperiled in U.S. 

waters. Black carp have a larger gape 

width than most native molluscivores 

and pose a greater threat to a wide 

variety of native mussels and snails. 

There are no known native fish with 

black carp’s combination of size, 

morphology, and diet. Consequently, 

black carp could put a whole new suite 

of species not currently subject to fish 

predation at considerable risk and thus 

change ecosystem function by altering 

the existing food web. 

The 1993 Office of Technology 

Assessment review of the impacts of 

non-native species introductions 

concluded that such introductions 

‘‘have had profound environmental 

consequences, exacting a significant toll 

on U.S. ecosystems.’’ There is perhaps 

no clearer indication of the disruption 

of ecosystem function than the 

endangerment or extinction of one of its 

component species. Published reviews 

of the factors cited in native fish species 

extinctions and endangerment found 

that non-native fish introductions were 

second only to habitat alteration. More 

recent publications suggest that in some 

waters non-native fish introductions 

may in fact be an even stronger driver 

of extinction and population decline 

than habitat alteration. 

Issue: One respondent noted that the 

discussion of population abundance of 

native freshwater mussels must address 

the allowed commercial harvest of 

mussels over the years. 

Response: States regulate their 

commercial harvests of freshwater 

mussels to promote sustainable mussel 

populations. For example, a State may 

restrict the size or the species of mussels 

that are harvested to ensure a viable 

breeding population in a given bed. 

When predation of mussels from black 

carp is discussed, we assume that 

freshwater mussel populations are 

regulated by States for sustainable 

commercial harvest, where allowed. 

Issue: One commenter asked what it 

would cost the Service to control black 

carp if they invaded rivers with 

endangered mollusks because the 

Endangered Species Act would mandate 

actions to prevent extinction. 

Response: The Service has not 

developed an estimate for what it would 

cost to control black carp in rivers. 

Currently, there are no effective 

methods available to control black carp 

in river systems, without considerable 

damage to other species and drinking 

water. We believe that control would be 

very costly in terms of the negative 

impacts of control methods to non-target 

species, as well as the costs of the 

methods. Recovery plans that are 

developed for threatened and 

endangered species include actions that 

restore species and their habitats to 

viable levels, analyze and reduce or 

remove threats to those species, and 

ensure that those species do not decline 

in status. If control of black carp was 

identified as a means to recover a 

species, we would work with partners to 

develop and implement control 

methods, if possible. 

Issue: Many respondents stated that 

there is no control method comparable 

to the effectiveness of black carp in 

controlling parasites. Only black carp 

and shoreline treatments of lime and/or 

copper sulfate/citric acid are effective. 

Response: We acknowledge that, by 

themselves, black carp may be more cost 

effective than any other single control 

method. Research has shown that 

copper sulfate and hydrated lime are 90 

percent or more effective in controlling 

snails in ponds. In addition, several 

native fish species or their hybrids are 

still being evaluated as alternatives to 

black carp, and some have been shown 

to be moderately effective at controlling 

snails, although not as effective as black 

carp alone. Researchers have noted that 

a combination of biological and 

chemical controls may be most effective, 

as there are instances (high vegetation, 

for example) where black carp cannot 

completely control snails. 

Issue: One commenter noted that 

copper sulfate has not been very 

effective at controlling snails in hybrid 

striped bass ponds. 

Response: We appreciate all data 

provided. 

Issue: Several respondents stated that 

the Food and Drug Administration has 

not approved any chemicals that can 

reduce snail populations to the point 

that snail-borne diseases are no longer a 

serious threat to fish ponds. Because no 

one has been able to find a native fish 

to replace black carp, black carp are the 

only means of protection against these 

parasites. 

Response: The Service disagrees with 

this statement. There are several 

effective chemical treatments to reduce 

snails in fish ponds; within certain 

water quality parameters, copper sulfate 

and hydrated lime have been shown to 

be more than 90 percent effective in 

killing snail populations. Bayluscide- 

M 70% WP is a chemical treatment 

(EPA Reg. No. 75394–1) that can be used 

to eliminate snails from ponds after a 

severe infestation when the pond 

production is a total loss, in order to 

restock catfish. Several fish species have 

been shown to consume snails, though 

not as effectively as black carp, 

including redear sunfish and hybrid 

redear sunfish. We believe that a 

combination of biological and chemical 

methods may be more effective at snail 

control than any one treatment 

approach. 

Issue: One commenter stated that the 

State-run fish production facilities of 

Iowa, Kansas, Missouri, Montana, 

Nebraska, North Dakota, and South 

Dakota—which use prophylactic 

procedures, such as periodic pond 

draining—have not reported any 

problems with parasites. 

Response: We appreciate all 

information provided. 

Issue: Several respondents asked us to 

consider the take of protected birds 

infected with adult flukes, or to provide 

funding for the costs associated to rid 

flukes from these birds with a vaccine 

if black carp are listed as injurious, 

since the American white pelican and 

perhaps a few other bird species are a 

host for the fluke and spread it to open 

waters through defecations. 

Response: Although American white 

pelicans and most other native bird 

species are protected by the Migratory 

Bird Treaty Act (16 U.S.C. 703–712), our 


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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 59023 

Regional Migratory Bird Permit Offices 

do, in some cases, issue depredation 

permits to individuals experiencing 

economic losses caused by fish-eating 

birds at aquaculture facilities. However, 

it is not our policy to issue depredation 

permits for the take of migratory birds 

to reduce the occurrence of parasites. To 

learn more about migratory bird 

permits, go to: http://www.fws.gov/ 

policy/724fw2.html. It is not the 

Service’s mission to provide funds for 

commercial enterprises to reduce the 

occurrence of parasites. 

Issue: Several respondents noted that 

the catfish industry needs black carp to 

control Bolbophorus, not to control the 

yellow grub. 

Response: We recognize that there 

was confusion regarding the identity of 

the parasite causing problems in 

channel catfish, hybrid striped bass, and 

some baitfish ponds at the time we 

published the proposed rule (July 30, 

2002, 67 FR 19280). Bolbophorus 

damnificus is listed later in this 

document as the primary parasite 

impacting catfish farms for which these 

farms may or do utilize black carp, 

although yellow grub (Clinostomum 

marginatum) has also impacted catfish 

facilities. Black carp are used to control 

yellow grub in hybrid striped bass and 

baitfish farms. 

Issue: One commenter noted that 

there is a new host for Bolbophorus, a 

yet unidentified snail (perhaps 

Drepanotrema sp.) that was discovered 

in July 2003 in Arkansas catfish ponds 

and is not affected by copper sulfate. 

Response: We acknowledge there may 

be other snail vectors for Bolbophorus. 

We have no information on this new 

snail or its potential impacts. 

Issue: Several commenters noted that 

a snail, the red-rimmed melania 

(Melanoides tuberculata), has been 

found in at least 14 States and is a host 

for Centrocestus formosanus. Redrimmed melania has an operculum that 

keeps chemicals from penetrating and 

killing it. Only black carp eat the redrimmed melania; redear sunfish and 

freshwater drum will not eat this snail. 

Bayluscide would work, but cannot be 

used on farms that produce food fish. 

Response: We understand that there 

are other trematode parasites that are of 

concern to commercial aquaculture 

production. The Service is also 

concerned about the impacts of those 

parasites on native species. However, 

the focus of this evaluation was on the 

injuriousness or potential injuriousness 

of all forms of black carp on the wildlife 

and wildlife resources of the United 

States. 

Issue: Several respondents noted that, 

in addition to pelicans, there are other 

bird hosts of the snail trematodes. 

Response: Research to date indicates 

that the American white pelican 

(Pelecanus erythrorhynchos) is the final 

host of Bolbophorus damnificus, while 

yellow grub is carried by the Great blue 

heron (Ardea herodias). 

Issue: One respondent noted that 

hybrid striped bass farms are 

particularly dependent on black carp for 

control of the yellow grub (Clinostomum 

complanatum), which kills fingerlings 

and reduces adult marketability; that 

approximately 80 percent of fingerlings 

are protected from yellow grub by black 

carp; and that prior to importation of 

black carp in the early 1990s, it was 

common for a farm to lose as much as 

50 percent of fingerlings to yellow grub. 

Response: We note that C. 

marginatum is now the recognized 

species for yellow grub. Yellow grub 

impacts hybrid striped bass, and black 

carp may be the most effective single 

option to control the grub; however, 

other combinations of methods may be 

more effective than black carp. 

Issue: Several respondents stated that 

the proposed rule ignores or is in direct 

opposition to the 1996 and 2001 U.S. 

Geological Survey (USGS) ‘‘Risk 

Assessment on Black Carp’’ that the 

Service helped prepare. The Service was 

asked to withdraw the proposed rule 

and instead implement the seven 

recommendations set forth in the 1996 

and 2001 risk assessments. 

Response: The purpose of creating the 

Aquatic Nuisance Species Task Force 

(ANSTF) Working Group, which drafted 

the 1996 ‘‘Risk Assessment on Black 

Carp,’’ was to evaluate the generic risk 

process methodology that was being 

developed for the ANSTF and to 

provide insights needed to adjust or 

correct the generic methodology. USGS 

led this Working Group. None of the 

black carp risk assessments were 

initiated or developed as injurious 

wildlife evaluation documents. The 

Service conducts its own evaluation to 

determine if a species meets the 

definition of injuriousness, and we used 

information that was relevant to the 

black carp injurious wildlife evaluation 

from the 1996 and 2001 USGS biological 

synopses and risk assessments and other 

sources. Because our authority allows us 

to regulate the importation and 

interstate transportation of listed 

injurious wildlife species, the Service 

did not request or endorse the 

development of the management 

recommendations for a regulatory 

process. The Service has contributed to 

implementing several of the 

management options identified in the 

1996 and 2001 reports, and the options 

provided in all of the reports were 

considered in the rulemaking process. 

We also note that due to increased 

trematode infestations, the use of black 

carp has increased since the 1996 and 

2001 recommendations were developed. 

The eight recommendations from the 

Black Carp Working Group that were 

provided in addition to the 1996 risk 

assessment are listed below, with our 

responses. Note that at the time of the 

1996 Working Group, black carp were in 

limited use for only yellow grub 

(Clinostomum sp.) infestations. 

(1) All 100-percent black carp 

(exclusive of brood stock) must be 

certified triploids. 

Service comment: We have not been 

provided documentation that each State 

requires the use of certified triploids in 

culture ponds. 

(2) Brood stock must be restricted to 

and maintained in aquaculture facilities 

where the probability of escape or 

flooding is essentially zero. 

Service comment: We leave intrastate 

regulation of brood stock to the States. 

Interstate transport of black carp is 

prohibited under the Lacey Act. 

(3) Develop a mechanism for verifying 

the location and distribution of all live 

black carp (diploids and triploids). 

Service comment: To our knowledge, 

States that allow the use of black carp 

are not tracking the locations of black 

carp stockings, nor are they aware of the 

exact number of black carp stocked at 

any given time. This would be a timeconsuming and difficult task to develop 

and maintain, and the Service does not 

believe that tracking black carp stocking 

is an effective way to protect the 

wildlife and wildlife resources of the 

United States from black carp. 

(4) Research to date suggests that 

black carp may not be particularly 

efficient in controlling snail populations 

in U.S. aquaculture facilities. Further 

use of black carp, experimental or 

otherwise, for testing their effectiveness 

in the control of disease-carrying snails, 

such as the yellow grub (Clinostomum 

sp.), must be restricted to triploid 

individuals. 

Service comment: A great amount of 

new and revised data has been 

generated since the 1996 and 2001 

biological synopses and risk 

assessments were conducted. Black carp 

have been found to be effective in 

controlling snails and are the preferred 

snail control in many catfish, hybrid 

striped bass, and other facilities. Some 

States restrict black carp use to 

triploids, while others permit diploids 

and triploids. 

(5) Release of triploid black carp into 

any streams, lakes, or reservoirs should 


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be prohibited until there is additional 

research demonstrating that any such 

introduction will be beneficial (i.e., 

effective in controlling zebra mussels 

and Asian clams) and will not cause 

significant harm to native mussel and 

snail populations. 

Service comment: States have the 

authority to regulate releases of black 

carp. We do not believe that triploid (or 

diploid) black carp should ever be 

stocked in open waters. In its 2005 

biological synopsis and risk assessment 

on black carp, USGS updated the 

potential impacts of black carp and 

indicated that both the diploid and 

triploid forms would be expected to 

consume large quantities of mollusks. 

(6) Black carp as a pathway for 

disease should be further investigated. 

Until this is done, no additional stocks 

of black carp should be brought into the 

country unless additional precautions 

are taken (water changes, only healthy 

fish that have been inspected by a 

veterinarian, etc.). 

Service comment: The Service is 

concerned about the pathogens that may 

be introduced through black carp 

importations or spread. We are not 

aware of any recent importations of 

black carp into the United States. The 

U.S. Department of Agriculture (USDA), 

Animal and Plant Health Inspection 

Service, recently published an interim 

rule restricting importations of certain 

species that may carry Spring Viraemia 

of Carp virus, but USDA did not include 

import restrictions on black carp. 

(7) Produce an identification guide to 

distinguish black carp from native and 

other nonindigenous fishes to reduce 

any risk of misidentification. For 

example, if black carp do become more 

common in U.S. aquaculture, there is a 

risk that the species would be 

unintentionally introduced as ‘‘grass 

carp’’ to some areas. 

Service comment: We provided 

funding to the U.S. Geological Survey 

(USGS) to produce an identification 

guide; this guide was completed by 

USGS and distributed by the Service 

and USGS in 2005. 

(8) Establish a quality assurance and 

education program for the above 

recommendations. 

Service comment: We believe that 

educational programs, best management 

practices, and quality assurance 

programs should be developed by those 

entities that use black carp to ensure 

adherence to the recommendations 

identified in the risk assessments. 

Issue: One commenter asked which 

recommendations from the 1996 final 

report are being implemented by various 

States. 

Response: The Service does not have 

information from all 50 States as to 

which recommendations identified in 

the 1996 risk assessment are being 

implemented. 

Issue: Several respondents stated that 

the proposed rule should have 

discussed the risks of diploid and 

triploid black carp independently. Risks 

to mussels are substantially different, 

and regulation should distinguish 

between the actions and risks of 

diploids versus triploids. 

Response: We analyzed the 

environmental impact of these two 

alternatives in the environmental 

assessment and determined that there 

are unacceptable risks to native wildlife 

and wildlife resources from both diploid 

and triploid black carp. While the 

introduction of diploid black carp to 

U.S. waters would likely have greater 

impacts in perpetuity on native 

mollusks, long-lived triploid black carp 

can also have substantial impacts, 

particularly in local areas where they 

could decimate mollusk populations. 

Where mollusks are available, black 

carp will feed almost exclusively on 

them, and in similar quantities, whether 

they are diploid or triploid fish. 

Issue: Several respondents stated that 

the proposed rule overestimates the risk 

of black carp escape and establishment. 

Response: We considered the risks of 

triploid and diploid black carp 

separately in the environmental 

assessment, but we did not see the need 

to discuss them separately in the rule. 

Black carp, whether diploid or triploid, 

have the potential to feed on large 

quantities of freshwater mussels and 

snails before they die of old age. We do 

not believe the risk of black carp escape 

and establishment was overestimated, 

particularly in light of ongoing captures 

of black carp from natural waters of the 

United States. 

Issue: One commenter noted that the 

use of the term ‘‘established’’ implies a 

breeding population of black carp and 

that the risk assessment (1996) states 

that ‘‘assuming that there are no escapes 

* * * [it is] unlikely that a breeding 

population of black carp would become 

established in open U.S. waters.’’

Response: The 1996 risk assessment 

does state that ‘‘Assuming that there are 

no escapes of diploid individuals from 

breeding stocks (and no unauthorized 

shipments and subsequent releases or 

stockings of diploids), it is unlikely that 

a breeding population of black carp 

would become established in open U.S. 

waters.’’ However, the updated 2005 

Nico et al. biological synopsis and risk 

assessment also states that ‘‘black carp, 

whether introduced individuals or a 

reproducing population, could pose a 

serious threat to many of the remaining 

populations of endangered and 

threatened mollusks,’’ and ‘‘because of 

their size and feeding habits, black carp 

have the potential to impact individual 

species of mollusks, hastening the 

decline of imperiled species.’’

Furthermore, the 2005 document states 

that ‘‘there are now confirmed records 

of black carp in the wild and the 

increased frequency of captures, 

particularly of diploid individuals, 

suggest that a wild population may 

already be established in the Mississippi 

River basin.’’

Due to the black carps’ longevity, size, 

and feeding habits, we believe that the 

introduction of individuals or 

populations of black carp in the United 

States is highly likely to hasten the 

decline of mollusk species. 

Issue: One commenter stated that only 

triploid black carp are currently used for 

snail control in the United States and 

that these sterile fish are only allowed 

in Arkansas, Mississippi, and Missouri; 

about 30–50,000 black carp are utilized 

in any given year. 

Response: We appreciate all data 

provided. We do note that North 

Carolina imports triploid black carp as 

well. If black carp are used at all, we 

hope that all States require the stocking 

of only certified triploid black carp; 

however, the Service has not been 

provided documentation from each 

State to that effect. 

Issue: Several commenters stated that 

there is no case where the use of 

triploids has prevented the eventual 

escape and proliferation of exotic fishes. 

Response: For this decision, we did 

not conduct a thorough evaluation of 

the effectiveness of triploidy in other 

fishes. Our analysis focused on the 

injuriousness or potential injuriousness 

of all forms of black carp. 

Issue: Several respondents stated that 

juvenile black carp that have not yet 

reached an age to be ploidy evaluated 

have likely escaped from fish ponds. 

Consequently, diploid, as well as 

triploid, black carp have likely escaped 

into the wild. 

Response: The Service acknowledges 

this possibility and also recognizes that 

industry has several safety measures in 

place to try to minimize escapes from 

ponds. 

Issue: Several commenters stated that 

is incorrect to state or imply that the 

triploid grass carp program is a failure, 

because grass carp are found in natural 

waters due to a history of early 

introductions and intentional stockings 

of diploids and triploids. 

Response: We do not view our 

Triploid Grass Carp Inspection and 

Certification Program as a failure. 


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Presence of diploid and triploid grass 

carp in the United States is a 

combination of widespread intentional 

introductions for weed control and 

establishment of feral populations due 

to unintentional introduction or escape. 

Grass carp were widely distributed 

throughout the United States during the 

1970s prior to the establishment of our 

Triploid Grass Carp Inspection and 

Certification Program, and stockings 

continue. Feral grass carp were reported 

from open river systems during the 

1970s. It was not until 1983 that a 

private fish hatchery in Arkansas 

produced the first triploid grass carp on 

a commercially viable scale. In 1985, the 

Service established a triploid grass carp 

ploidy inspection program to aid States 

that wished to receive only triploid 

grass carp. The triploid certification 

program for grass carp is completely 

voluntary, and the purpose of the 

program is to assure State agencies that 

no diploids will be shipped to these 

States within the confidence limits (95 

percent confidence protocol) of the 

program. Juvenile black carp look very 

similar to juvenile grass carp, and there 

is high likelihood of misidentification of 

the two species. In addition, black carp 

could establish and thrive in the United 

States in habitats similar to those 

utilized by grass carp. 

Issue: A number of commenters stated 

that the current methods of producing 

triploid fish do not ensure all fish are 

triploid; there is a range of effectiveness 

of induction procedures. 

Response: We have received 

comments from many people agreeing 

that current induction methods do not 

produce 100 percent triploid lots of fish; 

the ranges provided to the Service were 

from 60 percent to near 95 percent. 

Issue: Several commenters noted that 

there is no evidence in the literature 

that triploid black carp are reverting to 

diploids and that the reproductive 

potential of triploid black carp is 

essentially zero. 

Response: The peer-reviewed studies 

that have been conducted for triploidy 

in grass carp have not been done on 

black carp. We recognize that grass carp 

and black carp are similar animals, but 

we cannot assume the applicability of 

grass carp studies for black carp. To 

date, functional sterility has not been 

confirmed in triploid black carp. While 

the reproductive potential of triploid 

black carp was evaluated, the focus of 

our injurious wildlife evaluation was on 

the injuriousness or potential 

injuriousness of all forms of black carp 

on wildlife and wildlife resources of the 

United States. 

Issue: One respondent stated that the 

proposed rule was written to mislead 

readers concerning the situation facing 

fish farmers, because it doesn’t include 

available information on current uses of 

black carp and the need for this fish. 

Response: The Service did not write 

the proposed rule to mislead readers; we 

used the most accurate information that 

was available when we wrote the 

proposed rule. The Service has also 

provided four opportunities for public 

comment in an effort to gain the best 

available scientific and economic 

information. In this final rule, we have 

used additional and new information 

provided during the last 4 years, since 

the proposed rule was published. 

Issue: One respondent noted that 

black carp have been in the United 

States for 30 years and are not a popular 

food fish. If there was potential to raise 

them for food, farmers would have 

begun raising them by now. Further, if 

States are restricted to triploids, raising 

black carp as food fish would be even 

less likely due to the cost of raising 

triploid fish. 

Response: We appreciate the 

information provided and note that if 

we were not listing black carp as 

injurious wildlife, anyone could raise 

black carp for any purpose, if 

regulations allow it. The Service 

received information that canned black 

carp were preferred over tuna in blind 

taste tests. 

Issue: Numerous industry 

respondents asked the Service to 

consider listing only diploid black carp, 

not triploid black carp. 

Response: We considered the 

alternative of listing only diploid black 

carp and specifically asked for comment 

and data on this alternative in the 

August 30, 2005, to December 16, 2005, 

public comment period (70 FR 51326). 

Our decision to list diploid and triploid 

black carp as injurious wildlife under 

the Lacey Act is based solely on the 

biological characteristics of the fishes 

and the need to protect our native 

wildlife and wildlife resources. We have 

substantial scientific data that describes 

the harm that black carp cause when 

introduced outside of their native range 

and are likely to cause if populations are 

introduced in U.S. waters. 

Issue: Many respondents expressed 

concern about enforcement challenges 

for distinguishing triploids and 

incidental transport of black carp in 

other fish shipments, because it is 

difficult to distinguish them from 

juvenile grass carp. 

Response: Because diploid and 

triploid black carp look identical, we 

agree it would be difficult for law 

enforcement to distinguish between the 

two. At various life stages, black carp 

could be mistaken for grass carp and 

moved to new waters. We considered 

this concern in our evaluation. 

Issue: Many respondents expressed 

concern about introductions of black 

carp to new waters from contamination 

of baitfish or bait buckets. 

Response: The Service is also 

concerned about black carp being 

moved to new areas through bait bucket 

transfers. We considered this concern in 

our evaluation. 

Issue: Several commenters noted that 

the proposed rule will not result in the 

destruction of existing broodstock, and 

reproductively viable black carp will 

continue to be held within the borders 

of Arkansas and Mississippi, where they 

will continue to be spawned for 

aquaculture use within each respective 

State’s borders. The proposed rule will 

in no way impact intrastate movement 

of black carp. 

Response: The Service agrees with 

these comments. An injurious wildlife 

listing prohibits importation and 

interstate transport of a species. Any 

regulation pertaining to the possession 

or use of black carp within States 

continues to be the responsibility of 

each State. Each State has the right to 

determine if the fish remain legal within 

that State’s borders. Assuming black 

carp are legal in a given State, owners 

retain the right to possess the fish and 

to use them in any legal way according 

to State laws. 

Issue: Several commenters stated that 

the proposed rule was in error when 

stating that testing individual fish to 

verify triploidy is not economically 

feasible. Testing individual fish is the 

industry standard for grass carp. 

Response: The Service acknowledges 

that under the current program 

protocols, producers test every fish for 

ploidy status prior to certification 

sampling. However, the Service protocol 

for certifying triploid grass carp is to test 

a subsample (120 of 1,500 or more fish) 

of the entire lot of fish, not to test every 

fish, unless specifically requested and 

reimbursed by a recipient or the 

producer. We do not feel the proposed 

rule was in error when it stated that 

‘‘testing each fish would be costprohibitive.’’ Costs would increase if 

each fish were individually tested for 

certification. Some respondents 

indicated that due to increased costs, 

they would buy less expensive diploids 

rather than paying more for certified 

triploids. Given the increased cost of 

testing each fish, chemical control 

methods might be more cost effective. 

Issue: Several respondents stated that 

the ‘‘Industry’’ is willing to pay for 

certification of triploid black carp so 

that no Federal cost would be 

associated. 


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Response: While the Service is 

pleased to hear some industry members 

would be willing to pay for certification 

of triploid black carp, we do not have 

the authority to require certification of 

triploid black carp. We sincerely hope 

all users of black carp are currently 

paying producers to obtain certified 

triploid black carp, regardless of a 

requirement from a Federal agency. 

Issue: Several commenters stated that 

all States that allow the use of black 

carp (Arkansas, Florida, Louisiana, 

Mississippi, Missouri, North Carolina, 

Oklahoma, and Texas) require triploid 

certification. 

Response: The Service has not been 

provided data from each State showing 

that they require triploid certification in 

order for a use permit to be issued. As 

previously mentioned, we evaluated the 

alternative of not adding triploid black 

carp to the list of injurious wildlife, but 

the data indicated that both triploid and 

diploid black carp are injurious or 

potentially injurious to the wildlife and 

wildlife resources of the United States. 

Issue: A number of commenters asked 

the Service to reinstate the triploid 

black carp certification program. 

Concerns over potential environmental 

impacts could be ameliorated by a 

mandated sterile triploid black carp 

program. In addition, the Service was 

asked to allow reputable hatcheries to 

maintain diploid carp, but to restrict 

sale of black carp to triploids with 

quality control, inspection, and thirdparty certification. 

Response: During the period that the 

Service inspected black carp for ploidy 

status (1993–1999), there was voluntary 

participation by fish farmers in the 

certification; not every farm participated 

and bought the more expensive 

triploids. Those inspections were 

discontinued after the Service was 

petitioned to list black carp as injurious 

under the Lacey Act, and we do not 

intend to re-initiate black carp triploid 

certifications. The effectiveness of any 

triploid certification program is 

dependent upon effective inspection, 

certification, and enforcement programs 

that prevent the intentional or 

unintentional shipment of diploid 

individuals as triploids. To date, 

functional sterility has not been 

confirmed in triploid black carp. We 

have not been provided documentation 

by each State that allows use of black 

carp showing that State requires testing 

and certification of every black carp as 

triploid. The process could be required 

by States prior to permitting the use of 

black carp. 

The triploid certification program for 

grass carp is completely voluntary, and 

the purpose of the program is to assure 

States that, within the limits of the 

program, no diploids will be shipped to 

their States. Based on scientific 

investigations published in peerreviewed literature, triploid grass carp 

are functionally sterile. However, the 

triploid induction process is less than 

100-percent effective, resulting in 

diploid and triploid grass carp that must 

be correctly identified and separated. 

Issue: Several commenters asked the 

Service to conduct an environmental 

assessment. 

Response: The Service conducted an 

environmental assessment on the 

impact to the environment of three 

alternatives to listing black carp as an 

injurious species. The final 

environmental assessment and the 

‘‘finding of no significant impact’’

(FONSI) can be obtained at http:// 

www.fws.gov/contaminants/Issues/ 

InvasiveSpecies.cfm. 

Issue: On August 29, 2007, the Service 

received a ‘‘request for correction’’

under the Information Quality Act 

(IQA). As provided for in OMB’s 

government-wide Information Quality 

Guidelines, we have elected to use the 

existing, parallel process to reply (i.e., 

we are responding to the substance of 

the request in this response to 

comments). 

Response: The primary concerns 

raised in the IQA request and the 

information proposed for correction had 

already been provided to the Service 

during the three comment periods 

associated with the proposed rule, the 

draft economic analysis, the initial 

regulatory flexibility analysis, and the 

draft environmental assessment. Thus 

this information had already been 

considered, and in many cases 

incorporated, during preparation of our 

final listing determination, final 

economic analysis, Final Regulatory 

Flexibility Analysis, and final 

environmental assessment. The key 

issues raised included economic 

impacts associated with trematode range 

expansion; economic impacts to the 

hybrid striped bass industry; our 

estimates of black carp use; 

distributional impacts; black carp 

consumption rates; and average catfish 

price per pound. The final economic 

analysis addresses the potential 

trematode range expansion with the 

impacts of a 20 percent annual increase 

for 10 years. The economic impacts of 

restricting black carp use in the hybrid 

striped bass industry are analyzed with 

a wide range of potential acres affected 

due to the uncertainty of the amount of 

use of black carp in striped bass 

production. The Service reviewed the 

range of estimates of acreage using black 

carp to control trematodes and settled 

on the most reliable source for the final 

economic analysis. Black carp 

consumption of 3–4 pounds of mollusks 

per day was supported by research 

findings and therefore was used in the 

final economic analysis. The long-term 

average price per pound of catfish of 70 

cents per pound was used for the final 

economic analysis. After all information 

received during the public comment 

periods was incorporated into the final 

economic analysis, the total economic 

effect for catfish ranged from $30.5 to 

$37.7 million dollars for a 10-year 

present value. The few additional 

details raised in the request that had not 

been raised explicitly within the context 

of public comment did not suggest the 

need for additional changes to our 

analysis. 

Peer Review 

We asked three scientists who have 

knowledge of fisheries biology or 

invasive species to provide peer review 

of the proposed rule (67 FR 49280, July 

30, 2002). The three peer reviewers had 

a few technical comments, which we 

incorporated into this final rule. All 

three peer reviewers concluded that the 

data and analyses we used in the 

proposed rule were appropriate and the 

conclusions we drew were logical and 

reasonable. 

Description of the Final Rule 

The regulations contained in 50 CFR 

part 16 implement the Lacey Act (18 

U.S.C. 42), as amended. Under the terms 

of the injurious wildlife provisions of 

the Lacey Act, the Secretary of the 

Interior is authorized to prohibit the 

importation and interstate 

transportation of species designated by 

the Secretary as injurious. Injurious 

wildlife are those species, offspring, and 

eggs that are injurious to wildlife and 

wildlife resources, to human beings, and 

to the interests of forestry, horticulture, 

or agriculture of the United States. Wild 

mammals, wild birds, fish, mollusks, 

crustaceans, amphibians, and reptiles 

are the only organisms that can be 

added to the injurious wildlife list. The 

lists of injurious wildlife are at 50 CFR 

16.11–16.15. 

By adding all forms of live black carp, 

gametes, viable eggs, and hybrids to the 

list of injurious wildlife, their 

importation into, or transportation 

between, States, the District of 

Columbia, the Commonwealth of Puerto 

Rico, or any territory or possession of 

the United States by any means 

whatsoever is prohibited, except by 

permit for zoological, educational, 

medical, or scientific purposes (in 

accordance with permit regulations at 

50 CFR 16.22), or by Federal agencies 


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without a permit solely for their own 

use. Federal agencies who wish to 

import live black carp, gametes, viable 

eggs, and hybrids for their own use must 

file a written declaration with the 

District Director of Customs and the 

U.S. Fish and Wildlife Service Inspector 

at the port of entry. The interstate 

transportation of any live black carp, 

gametes, viable eggs, and hybrids 

currently held in the United States for 

any purpose is prohibited without a 

permit. No live black carp, gametes, 

viable eggs, or hybrids imported or 

transported under permit may be sold, 

donated, traded, loaned, or transferred 

to any other person or institution unless 

such person or institution has a permit 

issued by the U.S. Fish and Wildlife 

Service. Any regulation pertaining to 

the possession or use of live black carp, 

gametes, viable eggs, and hybrids within 

States continues to be the responsibility 

of each State. 

Biology and Natural History 

Black carp, a Cyprinid species also 

known as snail carp, black amur, or 

Chinese roach, is a freshwater fish that 

inhabits lakes and primarily lower 

reaches of large, fast-moving rivers and 

associated backwaters, including canals 

and reservoirs. Black carp can often 

exceed 1 meter (m) in length and weigh, 

on average, 15 kg (33 pounds). They 

reportedly can reach 1.5 m (5 feet) or 

more total length and weigh 70 kg (150 

pounds) or more. In certain culture 

situations, black carp exhibit their most 

rapid increase in body length during 

ages 1 and 2 years, and their most rapid 

rate increase in body weight during ages 

3 and 4 years. Fish stocked at lengths of 

around 13–15 cm have attained weights 

of nearly 4 kg after only 1 year. 

Individuals of the species are known to 

live to at least 15 years of age. 

Black carp coloration varies from 

black to dark brown to greenish black on 

top and yellow to whitish on the 

underside. Pharyngeal (throat) teeth 

typically form a single row of 4 or 5 

large molar-shaped teeth on each of 

their two arches. The size, number, and 

shape of the teeth change with age. 

Black carp adults and larger juveniles 

superficially appear very similar to grass 

carp (Ctenopharyngodon idella). Adult 

black carp may be distinguished from 

grass carp externally by the color and 

the more cylindrical form of the body, 

and internally by the pharyngeal teeth. 

Small juvenile black carp are more 

difficult to distinguish from young grass 

carp. 

Native Range 

The species inhabits most major 

drainages of eastern Asia from about 22° 

N to about 51° N latitude. The natural 

range of black carp includes much of the 

eastern half of China, parts of far eastern 

Russia, and possibly northern Vietnam. 

Published records of black carp from 

Taiwan and Japan likely represent 

introductions. 

Habitat Use 

Black carp typically inhabit the 

middle and bottom parts of the water 

column. Because of their large size, 

adults face few, if any, predators, 

though their drifting eggs and larvae are 

consumed by small fishes. 

Reproduction and Growth 

Black carp usually reach sexual 

maturity from 6 to 11 years of age, but 

can mature as young as 3 years of age. 

Males usually mature a year earlier than 

females. They reproduce annually in 

riverine environments. Pond-reared 

black carp can be induced to spawn two 

to three times a year. In their natural 

range, spawning occurs in late spring 

and summer, with water temperatures 

ranging from 20–30 °C and rising water 

levels. They spawn upstream in rivers 

and their eggs drift downstream. The 

eggs are carried by currents into 

floodplain lakes, smaller streams, and 

channels with little to no current. 

Female black carp produce 1–3 million 

eggs each year, depending on body size. 

Growth rates are dependent on food 

quantity and quality; black carp can 

weigh as much as 5 kg in 3 years. Black 

carp grow slowly if mollusks are not 

included in their diet. 

Diet and Feeding Habits 

Black carp feed on zooplankton and 

fingerlings when young. Larger 

juveniles and adult black carp are 

bottom feeders that almost exclusively 

eat mollusks (mussels and snails) when 

available, but can eat insects, shrimp, 

commercial fish feeds and macrophytes 

(aquatic plants). As adults, powerful 

teeth permit the black carp to crush the 

thick shells of large mollusks. Although 

black carp reportedly have small 

mouths for their size, they attain sizes 

and gape (mouth) widths much larger 

than most native mollusk-eating fish. 

Gape width increases with body length. 

Reports indicate that the fish can 

usually handle any food item that it can 

get into its mouth. Rates of consumption 

are varied in the literature, but a 4-yearold black carp was shown to eat, on 

average, 3 to 4 pounds of zebra mussels 

per day in pond culture. 

History of Introduction and Use in the 

United States 

Black carp originally entered the 

United States in 1973 as a 

‘‘contaminant’’ in imported grass carp or 

other Chinese carp stocks. Black carp 

appear very similar to grass carp, 

specifically in terms of body size and 

shape, position and size of fins, and 

position and size of the eyes. Juveniles, 

in particular, are difficult to distinguish 

from young grass carp. The second 

introduction of black carp into the 

United States occurred in the early 

1980s in Southeast fish production 

ponds for biological control of yellow 

grub (Clinostomum marginatum), a 

trematode parasite, and as a potential 

food fish. Black carp have become more 

commonly used and transported since 

the first importations, particularly in the 

late 1990s. 

The predominant use of black carp in 

the United States is for biological 

control of snails that are intermediate 

hosts in the life cycle of several 

parasites, which affect cultured channel 

catfish (Ictalurus punctatus), hybrid 

striped bass (Morone saxatilis crossed 

with M. chrysops), and some baitfish 

(fathead minnow (Pimephales 

promelas), for example). Yellow grub is 

a parasite that infects fish, and can 

cause economic losses to baitfish and 

hybrid striped bass farmers. The life 

cycle of the grub involves snails and 

fishes as intermediate hosts and fisheating birds as final hosts. A second 

trematode parasite, Bolbophorus 

damnificus (previously reported to be B. 

confusus), has also appeared in snails in 

channel catfish culture ponds, primarily 

in 1999, but does not infect hybrid 

striped bass. Fathead minnows have 

been shown to carry B. damnificus and 

another Bolbophorus species, named 

‘‘type 2’’; this second species appears to 

infect hybrid striped bass. Mild active 

trematode infections reduce production 

by reducing feed consumption and 

increasing susceptibility to other 

bacterial infections or diseases. Fully 

developed metacercariae (parasite stage) 

does not appear to compromise the 

growth performance and health status of 

fish. Deleterious effects of B. damnificus 

are associated with the penetration of 

the parasite and the initial stages of 

encystment. Research has shown that 

once infected fish are removed from the 

source of the infection, chronic B. 

damnificus infections do not affect the 

growth potential of channel catfish or 

increase their susceptibility to Enteric 

Septicemia of Catfish (ESC). 

Black carp have been or are currently 

being maintained in research and fish 

production facilities in at least 

Arkansas, Florida, Iowa, Louisiana, 

Mississippi, Missouri, North Carolina, 

Oklahoma, and Texas. According to data 

reported to the U.S. Geological Survey, 

as of 2005, black carp have been caught 


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from natural waters in Missouri, Illinois, 

Louisiana, and Arkansas. 

As early as 1994, black carp 

fingerlings were delivered with catfish 

into the State of Missouri. In 2000, black 

carp were identified in a dealer’s bait 

fish load. At least 300–400 were 

delivered in one week alone, which 

were distributed to and sold by bait 

stores throughout the State. Hundreds of 

young black carp were also accidentally 

included in shipments of live baitfish 

sent from Arkansas to bait dealers in 

Missouri as early as 1994. 

There is a report of approximately 30 

black carp escaping into open waters of 

the United States in the Osage River 

(Missouri River drainage) in April 1994, 

though this report is disputed by the 

facility owner. The first black carp 

reported captured from the wild was in 

March 2003 from Horseshoe Lake, 

Illinois. Analysis indicated that the fish 

was a 4-year-old triploid, and thus 

could not have escaped in 1994. A 9- 

year old black carp was captured in 

lower Red River, Louisiana, in April 

2004 by a commercial fisher; testing of 

eye fluid indicated the fish was likely 

diploid. A 7-year-old black carp was 

captured in the lower Red River, 

Louisiana, in May 2004; this fish was 

also likely diploid. In June 2004, one 

black carp was collected in the 

Mississippi River near Lock and Dam 24 

in Clarksville, Missouri; ploidy testing 

of this specimen was not possible. 

Another black carp was also collected 

from the main channel of the 

Mississippi River in Louisiana, near 

Simmesport in July 2004. The 

commercial fisher who captured the 

specimen sold it as a grass carp. In 

August 2004, a diploid black carp was 

collected from the Atchafalaya River at 

Simmesport, Louisiana. On April 5, 

2005, a black carp was found in the 

White River, just north of DeVall’s Bluff, 

Arkansas; the fish was sold before 

ploidy could be tested. The source of 

the introduction of these wild-caught 

fish is unknown. 

These records include only selfreported documentations of black carp 

found in the wild; other escapes and 

captures in the wild may have occurred 

but have not been reported. Recent 

reports indicate that commercial fishers 

working in the Atchafalaya River basin 

have been catching 8 to 15 black carp 

per year, of unknown ploidy, since the 

early 1990s. It is not known whether 

black carp are reproducing in the wild; 

it is difficult to capture small, juvenile 

fish, especially when numbers are low 

as they would be for a new introduction. 

However, the continued captures of 

adult black carp in Louisiana and in 

other parts of the Mississippi River 

basin suggest that the species is 

reproducing and may be established. 

Diploid and Triploid Black Carp 

Black carp can either be triploids 

(presumed sterile) or diploids (capable 

of reproduction). Triploid fish are 

created by adding an additional 

chromosome set (3 total) to induce 

sterility. Triploidy is one management 

tool to prevent reproduction and control 

populations in stocked fish. Externally, 

triploid fish are indistinguishable from 

diploid fish. Fish farmers have been 

successful in inducing triploidy in both 

black carp and grass carp. Triploids can 

be distinguished from diploids by 

testing the red blood cells. 

Fish ploidy (the number of sets of 

chromosomes in a cell or an organism) 

is most commonly tested during 

aquaculture production with a particle 

size analyzer (i.e., Coulter Counter

with channelyzer), which usually tests 

the red blood cell volume to determine 

if a fish is triploid or diploid. This 

method provides a rapid, relatively easy 

determination of ploidy. However, the 

size of blood cells differs naturally and 

there may be overlap between the size 

of diploid and triploid blood cells. 

Ploidy can also be tested using flow 

cytometry, one of the techniques having 

the greatest accuracy, which measures 

the amount of DNA in a blood or tissue 

cell. This method is more expensive and 

sample preparation takes longer. 

Alternatives to Black Carp 

In addition to black carp, snail 

populations in fish production ponds 

may be controlled by hydrated lime, 

copper sulfate, weed control, 

Bayluscide-M 70% WP, crayfish, and 

potentially some native fish species. 

However, chemical treatment for snails 

can be limited in some areas, because 

chemical agents can be detrimental to 

fish or can have decreased effectiveness 

due to wind, temperature conditions, 

water chemistry, and pond size. 

Clearing of aquatic plants has been 

found to be effective in reducing snail 

numbers, but is time consuming in 

large-scale operations. Bayluscide-M 

70% WP can be used as a molluscicide 

in aquaculture ponds, but fish from 

treated ponds cannot be harvested for 12 

months. Also, Bayluscide-M 70% WP 

is toxic to fingerlings and cannot be 

used near other sensitive fish species, 

such as paddlefish. 

Black carp are used as a biological 

control because they eat infected snails 

in ponds but are not susceptible to the 

trematode. Controlling the trematodes 

by using black carp is preferable to other 

methods available for aquaculture 

producers. Other fishes that are 

indigenous to the United States, 

including the redear sunfish, redear 

hybrids, the pumpkinseed sunfish, and 

the freshwater drum, hold potential to 

be used for snail control in aquaculture 

ponds. 

Potential Range in the United States 

Where food is available, the black 

carp’s range (survival and/or 

reproduction) in the United States 

would likely include most of the major 

tributaries of the large river systems, 

including the lower and upper 

Mississippi, Tennessee, White and Red 

in Arkansas, Sacramento/San Joaquin, 

Columbia, Snake, South Atlantic Gulf, 

and Great Lakes. 

Factors That Contribute to 

Injuriousness 

Introduction and Spread 

The likelihood of release or escape of 

black carp is high. Diploid and triploid 

black carp have been found in the wild. 

Currently, the predominant use of black 

carp in the United States is for 

biological control of snails that are 

intermediate hosts in the life cycle of a 

trematode that affects fish being farmed 

for human consumption (channel 

catfish) or to be stocked in waters 

(hybrid striped bass), and that use has 

increased since the late 1990s. To a 

lesser extent, black carp are used to 

control snails in baitfish production 

ponds. Ninety-five percent of the catfish 

farms in production are located in the 

southeastern United States. The most 

likely source of introduction of black 

carp is through human movement. 

Much of the Mississippi River delta 

region is at moderate to high risk of 

natural disaster, including tornados, 

floods, and hurricanes. A natural 

disaster in the Southeast region is likely 

to result in the release of black carp 

from fish farms through flooding. An 

additional, though lower, risk of release 

associated with fish farming includes 

the movement of live black carp from 

farm ponds to natural waterways via 

predatory birds and mammals. Black 

carp are farm-raised in aquaculture 

facilities throughout Asia and Eastern 

Europe for human consumption. If black 

carp become popular for human 

consumption in the United States and 

are farmed on a larger scale, the 

associated risks of release would be 

similar to those described above. 

However, the risks would be of greater 

magnitude, as the black carp would be 

stocked at aquaculture facilities at a 

higher rate than they are currently 

stocked for biological control purposes. 

If black carp were introduced into the 

wild, they would likely survive or 


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become established with or without 

reproduction. Moreover, black carp 

would likely spread throughout the 

large rivers of the United States, because 

no known limiting factors would 

preclude them from becoming 

established in U.S. waters. The black 

carp, a native of most Pacific drainages 

in eastern Asia, inhabits large river and 

lake habitats at the same latitudes as the 

United States and feeds on aquatic 

snails and mussels that are similar to 

those locally abundant in many of our 

rivers. 

At various life stages, black carp 

could be mistaken for grass carp and 

moved to new waters through 

misidentification. They also could be 

moved to new areas through baitfish 

sales or bait bucket transfers. 

Hybrids 

Under artificial conditions, black carp 

have been crossed, with limited success, 

with grass carp, silver carp, bighead 

carp, common carp, and black bream 

(Megalobrama terminalis), but natural 

hybridization with other Asian carps 

has not been documented. Researchers 

have reported that offspring resulting 

from female black carp × male grass carp 

had pharyngeal teeth resembling those 

of black carp, but the pharyngeal teeth 

formula of hybrids was found to be 

highly variable. Teeth of hybrid 

individuals from the female grass carp 

× male black carp cross differed 

significantly from those of both parents. 

In these fish, the teeth were broad like 

that of black carp, but there was a small 

hook in the crown. Because of the 

variation, researchers could not predict 

what the type of feeding behavior and 

diet the hybrids would have in nature. 

Feeding habits of hybrids might be 

similar to those of pure black carp, thus 

eating primarily mollusks, or they might 

be closer to those of pure grass carp, 

consuming primarily aquatic vegetation, 

but the outcome of hybridization is 

unpredictable. 

Potential Effects on Native Species 

At all life stages, black carp will 

compete with native species for food. 

The fish can grow to lengths greater 

than 1 meter and could weigh from 30 

to 150 pounds, depending upon age and 

food availability. Within their native 

range, black carp feed on species that 

are similar to our native mollusk 

species. Black carp are also known to 

eat freshwater shrimp, crawfish, and 

insects. Daily intake of food could be as 

high as 20 percent of body weight. 

Based on their feeding habits, black 

carp, if introduced or established, are 

highly likely to have a considerable 

impact on native mussel and snail 

populations. Entire beds of mussels may 

be very vulnerable to heavy predation 

by black carp. Mollusks are a food 

source for a variety of native animals, 

including fishes (redear sunfish, 

pumpkinseed sunfish, freshwater drum, 

snail bullhead, copper redhorse, river 

redhorse, robust redhorse, and several 

catfish and sucker species); river and 

lake turtles (sawbacks (Graptemys spp.) 

and musk turtles (Sternotherus spp.), 

including several that are Federally 

listed as endangered or threatened (G. 

flavimaculata, G. oculifera and S. 

depressus); birds (Everglades snail kite, 

scaup, limpkin, and canvasback); and 

mammals (raccoons, otters, and 

muskrats). Reduced mollusk abundance 

would result in reduced availability of 

food for those animals, and thus 

decrease biodiversity. 

Although black carp reportedly have 

small mouths for their body size, they 

attain sizes much larger than most 

native mollusk-eating fish. There are no 

known native fish with the same 

combination of size, morphology, and 

diet. Consequently, black carp could put 

a whole new suite of species not 

currently subject to fish predation at 

substantial risk and thus considerably 

change ecosystem function by altering 

the existing food web. 

Habitat Degradation 

Although their potential to cause 

habitat destruction is low, black carp 

would likely impact stream 

communities where snails play an 

important role as grazers of attached 

algae and mussels act as filters for 

phytoplankton. Reduction of snail and 

mussel populations in those ecosystems 

would likely facilitate production of 

algae mats that may upset the natural 

balance of wildlife habitats. 

Potential Pathogens 

Black carp host many parasites and 

flukes, as well as bacterial and viral 

diseases that are likely to infect sport, 

food, or fish species on the Federal List 

of Endangered and Threatened Wildlife. 

They may also be immune, or serve as 

intermediate hosts, to the many 

parasites that use mollusks as 

intermediate hosts (some of which are 

harmful to humans). Black carp that are 

already in the United States pose little 

to no risk for introducing new 

pathogens, but any new imports could 

carry new pathogens. Black carp have 

been used to successfully control snail 

hosts for Schistosoma in humans, which 

according to the World Health 

Organization and the U.S. Centers for 

Disease Control does not occur in the 

United States, though a U.S. citizen may 

contract the disease while traveling. 

Potential Impacts to Threatened and 

Endangered Wildlife 

The likelihood and magnitude of 

effects of black carp on threatened and 

endangered species is high. As 

molluscivores, black carp have the 

potential to negatively affect threatened 

and endangered mollusks, fish, turtles, 

and waterfowl that rely on mollusks as 

a food source. Locally, introduced black 

carp, whether diploid or triploid, could 

severely deplete mollusk populations 

and further imperil the 106 mussels and 

snails designated as threatened or 

endangered under the Endangered 

Species Act (ESA). The United States, 

particularly the Southeast, has one of 

the world’s most diverse aquatic 

mollusk faunas. Currently, about 300 

taxa of freshwater mussels are 

recognized nationwide, and nearly 67 

percent of this fauna are vulnerable to 

extinction or already extinct. Seventy 

species of the 297 mussels native to the 

United States are designated as 

endangered or threatened species under 

the ESA, and many other species have 

declined in abundance and distribution. 

Our nation’s freshwater snail diversity 

is about 600 species, or about 15 

percent, of the world’s diversity of this 

faunal group. Nearly 10 percent of all 

freshwater snails are extinct, and 25 

freshwater snails are designated as 

threatened or endangered under the 

ESA in the United States. The rate of 

imperilment of snails exceeds every 

other major animal group in North 

America, even freshwater mussels, due 

to dam construction, other habitat 

alterations, and pollution. 

Based on their food habits, habitat 

preferences, and longevity, black carp 

could become established with or 

without reproduction in the habitat 

supporting most of the federally 

protected freshwater mussels and about 

one-third of the federally protected 

freshwater snails. Black carp are likely 

to also further threaten numerous other 

potential candidates for Federal 

protection. The establishment of black 

carp populations, with or without 

reproduction, particularly in the 

Mississippi drainages, has the potential 

to reduce mollusk populations to levels 

that would necessitate protection under 

the ESA for additional mollusks and 

other animals that depend on mollusks 

for food. Since many freshwater 

mollusks require a fish as an 

intermediate host for reproduction, the 

mussels that require native fishes to 

reproduce are likely to rapidly decline 

if their fish hosts are affected by black 

carp. 

Even a few introduced black carp 

could impact mollusk populations in 


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local areas, as they have been shown to 

be effective at eating nearly all of the 

mollusks where they have been stocked. 

Freshwater mollusks play an important 

ecological role in maintaining the health 

of aquatic ecosystems. 

To date, freshwater mollusks in the 

United States have not experienced the 

introduction of a nonindigenous 

invasive species in the form of a direct 

predator. Presence of diploid or triploid 

black carp could pose a serious threat to 

many of the remaining populations of 

endangered and threatened mollusks. 

Many species of native mollusk-eating 

fishes do not feed as exclusively on 

mussels and snails as black carp. Black 

carp are feeding specialists, but there is 

a risk that if mollusks become limited, 

black carp may switch to eating 

crayfishes and other crustaceans, many 

of which are imperiled. Black carp have 

a larger gape width than most native 

mollusk-eating fishes and pose a greater 

threat to native mussels and snails. The 

introduction of individuals or large 

populations of black carp in the 

Mississippi River could hasten the 

decline of mollusk species in the 

Mississippi River basin due to the black 

carp’s longevity, size, and feeding 

habits. Entire beds of mussels may be 

very vulnerable to heavy predation by 

black carp. 

Since some States allow diploid use 

of black carp, a reproducing population 

could become established in U.S. 

waters, thereby imperiling recovery of 

native freshwater mollusks that are 

designated as threatened or endangered 

species under the ESA and potentially 

degrading habitat for native fishes. 

Several States and the U.S. Fish and 

Wildlife Service are currently 

implementing programs to recover 

imperiled mollusk populations. 

Other 

The introduction or establishment of 

black carp may have negative impacts 

on humans primarily from the loss of 

native aquatic mollusk biodiversity and 

abundance. Freshwater mollusks play 

an important ecological role in 

maintaining the health of aquatic 

ecosystems. These losses would affect 

the aesthetic, recreational, and 

economic values currently provided by 

native mollusks and healthy 

ecosystems. Educational values would 

also be diminished through the loss of 

biodiversity and ecosystem health. 

Black carp also have the potential to 

negatively affect the cultured pearl 

industry through predation on 

commercial mussel species. 

Factors That Reduce or Remove 

Injuriousness 

Potential Introduction and Spread 

Structural measures designed to 

prevent the escape or establishment of 

black carp in U.S. waters have proven 

to be ineffective, as black carp have 

been found in the wild. Most protective 

measures available to prevent escape of 

black carp from aquaculture facilities 

are expensive to install and maintain. 

Even with protective measures in place, 

it is unlikely these measures would 

eliminate risks of accidental escape 

from facilities; those facilities that are 

located in floodplains and susceptible to 

natural storm events are particularly 

vulnerable. 

Detection and Response 

Since widespread surveys of U.S. 

waterways are not conducted to 

establish species’’ presence, barring a 

sporadic capture, it is unlikely that the 

existence of black carp would be 

discovered until the numbers were high 

enough to impact wildlife and wildlife 

resources. A delay in discovery would 

limit the ability and effectiveness to 

rapidly respond to the introduction and 

prevent establishment. It is highly 

unlikely that black carp could be 

eradicated from U.S. waterways, should 

they be introduced, unless they are 

found in unconnected waterbodies. 

Potential Control 

The ability to eradicate or control 

black carp populations depends on 

where they are found. If established in 

large lakes or river systems, eradication 

or control of black carp would be highly 

unlikely, and they would likely become 

permanent members of the fish 

community. No effective and feasible 

tools are currently available to manage 

black carp or other nonindigenous fish 

species, should they be introduced into 

river systems. Chemical piscicides are 

the best available option to reduce fish 

numbers, but their use on a largescale is 

prohibitively expensive, can cause 

mortality to non-target fish and aquatic 

species, is usually not accepted by the 

public, and requires repeated 

treatments. Chemicals rarely kill every 

fish, and not all life stages are equally 

susceptible to chemicals. Additionally, 

some areas cannot be effectively treated 

due the size of the area, the distribution 

of the target species, and the effects on 

the non-target species, for example. 

Mollusk recovery programs require 

habitat restoration and removal of 

threats to the continued survival of the 

species. Re-establishment of extirpated 

mussel and snail populations, if 

biologically possible, is labor and cost 

intensive and would depend on 

eradication of black carp within the 

habitat of the mussels and snails. 

Recovery of Disturbed Sites 

Since effective measures to eradicate, 

manage, or control the spread of black 

carp once they are established with or 

without reproduction are not currently 

available, the ability to rehabilitate or 

recover ecosystems disturbed by the 

species is low. Significant risks 

associated with black carp escape relate 

to endangerment and local extinction of 

native mussels and snails. Reestablishment of extirpated mussel and 

snail populations, if biologically 

possible, is labor and cost intensive and 

would depend on prior eradication of 

black carp within the habitat. 

Potential Pathogens 

There is little to no risk of new 

pathogens being spread by black carp, 

unless new fish are imported. 

Controlling the spread of pathogens 

once black carp have been introduced in 

the wild is impracticable as each 

infected fish would need to be captured 

to prevent spread. It would be highly 

unlikely that each infected fish could be 

captured. Further, the pathogen may 

have already been passed on to other 

fish species by the time the infected 

black carp have been discovered. 

Potential Ecological Benefits for 

Introduction 

There is little, if any, ecological 

benefit from the introduction of black 

carp into open waters of the United 

States. While there are benefits to 

farmed fish from black carp 

introduction into aquaculture facilities, 

we have determined there are no 

ecological benefits to black carp 

introduction into natural waters of the 

United States. The introduction of black 

carp in open waters might provide a 

potential ecological benefit to native 

wildlife and wildlife resources if black 

carp could selectively consume nonnative invasive mollusks, such as zebra 

mussels, without consuming native 

mollusks. However, there is no 

scientific evidence to support the notion 

that black carp would selectively prey 

on non-native invasive mollusks in 

open waters, and little evidence that 

they are capable of feeding on aggregate 

zebra mussels. The introduction of black 

carp in open waters might theoretically 

provide a potential ecological benefit to 

native wildlife by consuming snails that 

spread disease to other fish species, a 

function that black carp perform in 

aquaculture facilities such as fish 

ponds. However, outside of the context 

of aquaculture, the possibility of black 


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carp locating and consuming a sufficient 

amount of disease-carrying snails to 

prevent the spread disease to other fish 

species is too remote and unlikely to be 

identified as a benefit. 

Risk of Use of Triploid Black Carp 

We have received conflicting 

information on the effectiveness of 

triploidy induction techniques for black 

carp; some indicate effectiveness as high 

as 85–98 percent, while others 

experienced induction resulting in 

approximately 60 percent triploid fish 

lots. In general, and primarily for other 

fish species, the literature indicates that 

triploidy induction techniques usually 

do not produce 100 percent triploid 

fish. 

As previously mentioned, fish ploidy 

(the number of sets of chromosomes in 

a cell or an organism) is most commonly 

tested during aquaculture production 

with a particle size analyzer (i.e., 

Coulter Counter with channelyzer), 

which usually tests the red blood cell 

volume to determine if it a fish is 

triploid or diploid. Ploidy can also be 

tested using flow cytometry, which 

measures the amount of DNA in a blood 

or tissue cell. This method is more 

expensive and sample preparation takes 

longer. As in all analytical techniques, 

rigid protocols must be observed to 

ensure that one can distinguish between 

triploid and diploid fish. If cell volume 

overlaps between diploid and triploid 

fish, then there may be an inherent error 

in the methodology. While testing red 

blood cell volume has been shown to be 

effective in verifying ploidy status in 

other fish (90 to 93.8 percent for 

saugeyes), it has not been shown to be 

100 percent effective for black carp. 

Research conducted at the USGS’

Columbia Environmental Research 

Center demonstrated that the 

aquaculture industry standard for 

determining ploidy (i.e., the Coulter 

Counter method) classified 1,000 black 

carp as triploid, but 2 of them were 

found to be diploid using flow 

cytometry. Followup sampling 

produced similar results and additional 

research is ongoing. 

A small percentage of triploid fish 

produce functional sperm, but if 

spawning occurred, it is reported as 

highly unlikely that viable embryos 

would be produced (0.17 percent for 

grass carp). Other research, however, 

has shown that young have been 

produced. Extensive research has been 

conducted on triploid production of 

grass carp; that same level of research 

has not been conducted to validate that 

the grass carp methodology can be 

transferred to black carp. 

While triploidy may impede breeding 

of black carp in the natural 

environment, non-breeding populations 

are still likely to have substantial 

negative impacts. Triploid black carp, 

which can live to be 15 or more years, 

can compete with native fish for food 

and locally prey on mollusks and 

fingerlings, including those designated 

as threatened and endangered species 

under the ESA. 

While triploid black carp may not be 

able to reproduce, allowing black carp 

in commerce still presents problems. 

First, in order to have black carp for 

sale, someone must have reproducing 

pairs of the fish, which means that 

reproductively active fish could escape. 

Second, not all States require the use of 

certified triploids, so reproductively 

active fish could be found in otherwise 

triploid lots of fish. Finally, black carp 

will feed on native mollusks regardless 

of their reproductive capabilities. Black 

carp, whether diploid or triploid, have 

the potential to feed on large quantities 

of freshwater mussels and snails and 

have negative impacts on local native 

snail and mussel populations before 

they die of old age. 

Conclusion 

In summary, the Service finds all 

forms of live black carp, including 

gametes, viable eggs and hybrids, to be 

injurious to the interests of wildlife and 

wildlife resources of the United States 

because: 

• Triploid and diploid black carp 

have escaped or been released into the 

wild; 

• Black carp are highly likely to 

survive in U.S. waterways; 

• Black carp are likely to spread 

because there are no known limiting 

factors; 

• Black carp are highly likely to 

compete with native species, including 

threatened and endangered species, for 

food; 

• Black carp are highly likely to feed 

on native mollusks, which is likely to 

negatively affect mollusks, as well as the 

native fish, turtles, and birds that rely 

on mollusks as a food source; 

• It will be highly unlikely to prevent, 

eradicate, manage, or control the spread 

of black carp; 

• It will be highly unlikely that 

ecosystems disturbed by the species 

would be rehabilitated or recovered; 

• Non-breeding populations of black 

carp are likely to have substantial 

negative impacts on native snail and 

mussel populations, and 

• There are no potential ecological 

benefits for U.S. waters from the 

introduction of black carp. 

Required Determinations 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) 

This rule contains potential 

information collection activity for FWS 

Form 3–200–42, Import/Acquisition/ 

Transport of Injurious Wildlife. 

Completion of this form would be 

necessary to apply for a permit to 

import, or transport across State lines, 

any live black carp, gametes, viable 

eggs, or hybrids for scientific, medical, 

educational, or zoological purposes. The 

Service already has approval from the 

Office of Management and Budget 

(OMB) to collect information for this 

special use permit under OMB control 

number 1018–0093. This approval has 

been submitted to OMB for renewal. We 

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. 

Regulatory Planning and Review 

(a) In accordance with the criteria in 

Executive Order 12866, OMB has 

designated this rule as a significant 

regulatory action. The following 

analysis presents summary impacts 

associated with the final rule. For the 

detailed economic analysis, refer to 

http://www.fws.gov/contaminants/ANS/ 

ANSInjurious.cfm or contact the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

Black carp are not marketed as a 

foodfish, nor are they exported by U.S. 

farmers. However, they are used by the 

aquaculture industry to control 

trematodes in fish ponds. Because 

numbers of domestic black carp 

broodstock are adequate, the 

aquaculture industry does not currently 

import black carp from sources outside 

the United States and most likely will 

not resume imports. 

Costs Incurred 

The implementation of this final rule 

will affect the importation and interstate 

transport of live black carp, gametes, 

viable eggs, and hybrids. Costs will 

increase for those businesses that can no 

longer use black carp to control snail 

populations. For aquaculture facilities 

in States with no in-State source of live 

black carp, they will no longer be able 

to import black carp to manage snail 

populations. If farmers cannot use black 

carp, they will use the most costefficient treatment that is suitable to 

their pond conditions (i.e., chemical 

control, native species as biological 

control, or a combination). Affected 

businesses are limited to those that (1) 

use black carp, (2) are located in a State 


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59032 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 

that permits the use of black carp and 

does not produce black carp, and (3) 

produce black carp and ship black carp 

across State lines. States that do not 

allow the possession of any black carp 

include Alabama, Illinois, Indiana, 

Montana, New York, Ohio, and 

Tennessee. Businesses located in these 

States will not be affected. Furthermore, 

because black carp are produced within 

Arkansas, businesses located in that 

State will not incur additional costs, 

unless businesses inadvertently 

transport black carp across State lines 

and incur Lacey Act penalties. 

To quantify the costs of listing diploid 

and triploid black carp as injurious 

wildlife on the aquaculture industry, the 

impacts on net revenue were estimated. 

Net revenue is the difference between 

the amount that farmers receive for their 

product and the costs incurred to 

produce that product. Impacts were 

quantified for the catfish and hybrid 

striped bass industries. Due to the lack 

of available data, the potential impacts 

to the baitfish industry were not 

estimated. 

As noted by Tucker et al. (2004), 

‘‘economic losses resulting from 

infectious diseases are difficult to 

quantify because record keeping varies 

among farmers and many diseases go 

unreported.’’ Estimating the potential 

impacts associated with adding black 

carp to the list of injurious species 

required a number of assumptions for 

the catfish, hybrid striped bass, and 

baitfish industries due to the 

uncertainties related to trematode 

outbreaks and the use of black carp to 

control those outbreaks. To account for 

these uncertainties, the economic 

analysis explored a variety of potential 

scenarios that may occur. The scenario 

with the maximum potential impact for 

each industry is presented below. 

For the catfish industry, a number of 

assumptions were necessary. Assuming 

that (1) 4.1 percent of catfish farms use 

black carp, (2) demand for black carp 

will continue to increase 20 percent 

annually for the foreseeable future, (3) 

Arkansas continues producing triploid 

black carp, and (4) Alabama continues 

to prohibit black carp, then the 

estimated annualized lost net revenues 

will range between $22,061 and 

$454,201. Discounted at 3 percent, the 

10-year present value impact will range 

between $483,000 and $9.9 million. 

Discounted at 7 percent, the 10-year 

present value impact will range between 

$391,000 and $8.0 million. 

For the hybrid striped bass industry, 

the number of farms using black carp is 

unknown. Therefore, estimates were 

developed for three potential scenarios, 

including 10 percent, 26 percent, and 50 

percent of hybrid striped bass farms 

using black carp. Due to limited data 

availability, the hybrid striped bass 

analysis assumes all States will be 

affected. Therefore, the impacts may be 

overestimated. Assuming (1) demand for 

black carp will increase 20 percent 

annually for the foreseeable future, and 

(2) 50 percent of hybrid striped bass 

farms use black carp, estimated 

annualized lost net revenues will be 

approximately $1.9 million. To 

calculate the present value for a 10-year 

time period, the social discount rates of 

3 percent and 7 percent are applied per 

OMB guidance. Discounted at 3 percent, 

the 10-year present value impact to 

hybrid striped bass farms will be 

approximately $15.8 million. 

Discounted at 7 percent, the 10-year 

present value impact to hybrid striped 

bass farms will be approximately $12.9 

million. 

In addition to any increased losses 

associated with trematode outbreaks, 

farmers inadvertently shipping live 

black carp across State lines could face 

penalties for Lacey Act violations. The 

penalty for a Lacey Act violation is not 

more than 6 months in prison and a fine 

of not more than $5,000 for an 

individual and not more than $10,000 

for an organization. The number of 

farmers that may inadvertently ship live 

black carp across State lines is 

unknown. 

Businesses that produce black carp for 

sale across State lines will lose revenue 

from a smaller black carp market 

because they will no longer be able to 

ship across State lines. The potential 

impact is dependent on a variety of 

factors including the size of the market 

across State lines, the potential for 

businesses to increase production of 

black carp, and the potential for 

businesses to increase production of 

other species. Assuming the incidence 

of trematode outbreaks will increase at 

a rate of 20 percent per year, the impact 

to businesses producing black carp 

depends on whether they would have 

the capacity to increase black carp 

production. If businesses have the 

capacity to increase black carp 

production, then they would lose any 

potential increase in future revenue 

related to an increase in future demand 

for black carp. However, when the 

market for black carp is reduced due to 

this rule, businesses may also choose to 

increase production of other species. 

Thus, the response to a smaller black 

carp market is unknown, and the 

impacts to these businesses are 

uncertain. 

Benefits Accrued 

While not entirely eliminating black 

carp as a threat to wildlife and wildlife 

resources, this final rule will reduce the 

pathways and chances for black carp 

being unintentionally introduced into 

river systems and tributaries. This 

analysis does not estimate the decreased 

probability of unintentional 

introduction, or the decreased 

probability of a black carp population 

becoming established. The quantified 

benefits of this rule focus on the 

replacement costs of freshwater 

mussels, as they may be impacted the 

most from black carp predation. While 

other mollusks would be at risk, specific 

damages for them will not be modeled 

due to a lack of relevant data. It is 

important to note that calculating the 

replacement costs for mussels does not 

fully value their benefits to the 

ecosystem, use values, and non-use 

values. It simply attempts to show the 

lost value of the mussels through their 

estimated replacement costs. Ecosystem 

benefits are not quantified. 

The replacement costs outlined by the 

American Fisheries Society are 

composed of production costs, 

restocking costs, and administration 

costs. Table 1 shows the avoided 

replacement costs to native mussel 

populations if only one triploid black 

carp is prevented from unintentional 

introduction. 

TABLE 1.—10-YEAR BENEFITS IF ONE BLACK CARP ESCAPEMENT IS PREVENTED

Low estimate Moderate 

estimate High estimate 

Nominal value .............................................................................................................................. $279,000 $325,000 $372,000 

7 percent discount rate (present value) ...................................................................................... 210,000 245,000 280,000 

3 percent discount rate (present value) ...................................................................................... 245,000 286,000 327,000 


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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 59033 

Summary Impacts 

The table below summarizes the costs 

and benefits that are detailed in the 

above sections. These impacts are 

shown as 10-year impacts, discounted at 

7 percent and 3 percent. 

TABLE 2.—SUMMARY OF ECONOMIC IMPACTS

10-year present value impacts 

7 percent discount 3 percent discount 

Costs: 

Catfish Industry ................................................................................ $391,000–$8.0 million ................... $483,000–$9.9 million. 

Hybrid Striped Bass Industry ........................................................... $12.9 million .................................. $15.8 million. 

Baitfish Industry ................................................................................ Unknown ........................................ Unknown. 

Benefits (per each escape prevented) 

Freshwater Mussels ................................................................................ $210,000–$280,000 ....................... $245,000–$327,000. 

(b) This rule will not create 

inconsistencies with other Federal 

agencies’ actions. This rule pertains 

only to regulations promulgated by the 

U.S. Fish and Wildlife Service under the 

Lacey Act. No other agencies are 

involved in these regulations. 

(c) This rule will not materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. This rule does not 

affect entitlement programs. This rule is 

aimed at regulating the importation and 

movement of nonindigenous species 

that have the potential to cause 

significant economic and other impacts 

on natural resources that are the trust 

responsibility of the Federal 

government. 

(d) OMB has determined that this rule 

raises novel legal or policy issues. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996), whenever a Federal 

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) (5 

U.S.C. 601 et seq.). However, no 

regulatory flexibility analysis is required 

if the head of an agency certifies that the 

rule would not have a significant 

economic impact on a substantial 

number of small entities. Thus, for a 

regulatory flexibility analysis to be 

required, impacts must exceed a 

threshold for ‘‘significant impact’’ and a 

threshold for a ‘‘substantial number of 

small entities.’’ See 5 U.S.C. 605(b). A 

regulatory flexibility analysis was 

prepared to accompany this rule. Please 

refer to http://www.fws.gov/ 

contaminants/ANS/ANSInjurious.cfm 

for the document. Our responses to 

comments we received on the initial 

regulatory flexibility analysis are 

included in the final regulatory 

flexibility analysis. 

Channel catfish, hybrid striped bass, 

and baitfish producers that use black 

carp will be affected by this rule. Only 

some businesses in certain states will be 

affected by this rulemaking. Affected 

businesses are limited to those that (1) 

use black carp, and (2) are located in a 

State that permits the use of black carp 

and does not produce black carp. States 

that do not allow the possession of any 

black carp include Alabama, Illinois, 

Indiana, Montana, New York, Ohio, and 

Tennessee. Businesses located in these 

States will not be affected. Furthermore, 

businesses located in Arkansas will not 

incur additional snail-control costs 

because black carp are produced within 

the State. Businesses located in 

Arkansas or other States producing 

black carp for sale in States that do not 

produce black carp may experience 

reduced revenues because black carp 

will be prohibited from sale in interstate 

commerce. An evaluation of these 

reduced revenues was not performed 

because businesses located in these 

States did not provide information 

relevant to such an evaluation. Farmers 

inadvertently shipping live black carp 

across State lines could face penalties 

for Lacey Act violations. The penalty for 

a Lacey Act violation is not more than 

6 months in prison and a fine of not 

more than $5,000 for an individual and 

not more than $10,000 for an 

organization. 

It is beyond the scope of this analysis 

to determine the likelihood of a 

business inadvertently shipping black 

carp. 

The U.S. Small Business 

Administration defines a ‘‘small 

business’’ as one with annual revenue 

that meets or is below the established 

size standard, which is $750,000 for 

‘‘Finfish Farming and Fish Hatcheries’’

businesses (NAICS 112511). The most 

recent data detailing business revenue 

for aquaculture farms comes from the 

1998 Census of Aquaculture. The 

Census determined that approximately 

89 percent of catfish farms, 97 percent 

of baitfish farms, and 91 percent of 

hybrid striped bass farms had sales of 

less than $750,000 annually. These 

percentages are extrapolated to the year 

2006 to determine the number of small 

businesses affected by this rule. 

For the catfish industry, the number 

of affected small businesses will 

increase from 28 farms in 2007, to 146 

farms in 2016. This impact represents 

between 3 percent and 14 percent of 

catfish farms nationwide. Depending on 

the severity of the trematode infestation, 

individual farms may lose between $700 

to $14,400 in annual net revenue. 

Depending on the severity of the 

infestation, there is potential that some 

catfish farms may close if they cannot 

use black carp to control losses. Catfish 

farms with severe infestations may not 

be able to cover the costs of production. 

Though unverified, according to public 

comments received, a few farms have 

closed due to severe trematode 

infestations. The number of farms that 

may close as a result of listing black 

carp is uncertain. 

The nationwide use of black carp in 

hybrid striped bass farms is unknown. 

The only information available is that 

26 percent of North Carolina hybrid 

striped bass producers use black carp to 

control snails. To account for this 

uncertainty, the hybrid striped bass 

analysis presented a range of potentially 

affected acreage: 10 percent, 26 percent, 

and 50 percent. An assumption that 50 

percent of hybrid striped bass farms use 

black carp results in 163 small hybrid 

striped bass farms being impacted. In 

the short run (2007 to 2011), the annual 

impact will be about $5,857 per farm. In 

the long run (2012 to 2016), the annual 


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59034 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 

impact will be about $16,279 per farm. 

The estimated net revenue impacts are 

presented in nominal dollars. 

Depending on the severity of the 

infestation, there is potential that some 

hybrid striped bass farms may go out of 

business. The number of hybrid striped 

bass farms that may close is uncertain. 

Adequate data for the baitfish 

industry were not available to estimate 

the impact of listing black carp. The 

number of baitfish farms that use black 

carp for biological control and the 

impacts of trematode infestations are 

unknown, so impacts on small baitfish 

businesses cannot be estimated. 

Depending on the severity of the 

infestation, there is potential that some 

baitfish farms may go out of business. 

The number of baitfish farms that may 

close is uncertain. 

Our responses to comments we 

received on the draft economic analysis 

are attached to the final economic 

analysis. Please refer to http:// 

www.fws.gov/contaminants/ANS/ 

ANSInjurious.cfm for the final economic 

analysis. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

(a) Does not have an annual effect on 

the economy of $100 million or more. 

The 10-year present value of net 

revenue losses to the catfish and hybrid 

striped bass industries are estimated to 

range between $3.0 million and $21.0 

million discounted at 7 percent and 

between $3.6 million and $25.8 million 

discounted at 3 percent. Due to the limit 

of detailed data for the hybrid striped 

bass industry, this analysis did not 

account for farms in Arkansas and 

Alabama not being impacted, which 

would cause our estimate to be inflated. 

Furthermore, data for the baitfish 

industry were unavailable so the 

potential impacts were not quantified, 

and that estimate may be 

underestimated. In addition to the 

losses associated with trematode 

outbreaks, farmers inadvertently 

shipping live black carp across State 

lines could face penalties for Lacey Act 

violations. The penalty for a Lacey Act 

violation is not more than 6 months in 

prison and not more than a $5,000 fine 

for an individual and not more than a 

$10,000 fine for an organization. 

(b) Will not cause a major increase in 

costs or prices for consumers; 

individual industries; Federal, State, or 

local government agencies; or 

geographic regions. If farmers cannot 

use black carp, they will use the most 

cost-efficient treatment that is suitable 

to their pond conditions. Depending on 

pond or tank conditions, it is assumed 

that operators will choose to treat their 

ponds with hydrated lime, redear 

sunfish, or copper sulfate. It is unknown 

which treatment operators will choose. 

Costs will increase for those businesses 

that can no longer use black carp to 

control snail populations. There is 

potential that some businesses may go 

out of business. The number of farms 

that may close is uncertain. There will 

most likely not be a major increase for 

consumers in the cost of catfish. The 

increase for consumers in costs of 

hybrid striped bass and baitfish is 

unknown. 

(c) Does 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. 

Farmers without an in-State source of 

triploid black carp will no longer have 

the option to use black carp to manage 

snail populations. The use of chemicals 

or other snail-eating fish, or some 

combination of chemical and biological 

control, will still be available to farmers 

to help mitigate losses, depending on 

pond conditions. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), this rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule would not prohibit intrastate 

transport or any use of black carp within 

State boundaries. Any regulations 

concerning the use of black carp within 

an individual State is the responsibility 

of that State. The rule does not have a 

significant or unique effect on State, 

local, or tribal governments or the 

private sector. A statement containing 

the information required by the 

Unfunded Mandates Reform Act is not 

required. 

Takings 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

This rule would not impose significant 

requirements or limitations on private 

property use. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. This rule 

would not have substantial direct effects 

on States, on the relationship between 

the Federal government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

we determine that this rule does not 

have sufficient Federalism implications 

to warrant the preparation of a 

Federalism Assessment. 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

that it meets the requirements of 

sections 3(a) and 3(b)(2) of the Executive 

Order. The rule has been reviewed to 

eliminate drafting errors and ambiguity, 

was written to minimize litigation, 

provides a clear legal standard for 

affected conduct rather than a general 

standard, and promotes simplification 

and burden reduction. 

National Environmental Policy Act 

We have prepared an Environmental 

Assessment (EA) in conjunction with 

this rulemaking, and have determined 

that this rulemaking is not a major 

Federal action significantly affecting the 

quality of the human environment 

within the meaning of section 102(2)(C) 

of the National Environmental Policy 

Act (NEPA) of 1969 (42 U.S.C. 4321 et 

seq.). Responses to comments received 

on the draft EA are attached to the final 

EA. For a copy of the EA, contact the 

individual identified above in the 

section FOR FURTHER INFORMATION

CONTACT, or access the document at 

http://www.fws.gov/contaminants/ANS/ 

ANSInjurious.cfm. 

This action is being taken to protect 

the natural resources of the United 

States. Adding diploid and triploid 

black carp to the list of injurious 

wildlife is intended to prevent this 

species’ further introduction and 

establishment in the natural waters of 

the United States by prohibiting their 

importation and interstate transport, 

and thereby protect wildlife and 

wildlife resources of the United States. 

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), Executive 

Order 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 involves the 

importation and interstate movement of 

all forms of live black carp, gametes, 


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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations 59035 

eggs, and hybrids. We are unaware of 

trade in this species by Tribes. 

Effects on Energy 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

not expected to affect energy supplies, 

distribution, and use. Therefore, this 

action is a not a significant energy 

action, and no Statement of Energy 

Effects is required. 

References Cited 

A complete list of references used in 

this rulemaking is available upon 

request from the Branch of Invasive 

Species (see the FOR FURTHER

INFORMATION CONTACT section). 

List of Subjects in 50 CFR Part 16 

Fish, Imports, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

■ For the reasons discussed in the 

preamble, the U.S. Fish and Wildlife 

Service amends part 16, subchapter B of 

Chapter I, Title 40 of the Code of 

Federal Regulations as set forth below. 

PART 16—[AMENDED] 

■ 1. The authority citation for part 16 

continues to read as follows: 

Authority: 18 U.S.C. 42. 

■ 2. Amend § 16.13 as follows: 

■ a. By removing the word ‘‘and’’ at the 

end of paragraph (a)(2)(iv)(BB); 

■ b. By removing the period at the end 

of paragraph (a)(2)(v) and adding in its 

place ‘‘; and’’; and 

■ c. By adding a new paragraph 

(a)(2)(vi) to read as set forth below. 

§ 16.13 Importation of live or dead fish, 

mollusks, and crustaceans, or their eggs. 

(a) * * * 

(2) * * * 

(vi) Any live fish, gametes, viable 

eggs, or hybrids of the species black 

carp, Mylopharyngodon piceus. 

* * * * * 

Dated: October 12, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–5141 Filed 10–17–07; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 071011590–7591–01] 

RIN 0648–XD38 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule. 

SUMMARY: The Assistant Administrator 

for Fisheries (AA), NOAA, announces 

temporary restrictions consistent with 

the requirements of the Atlantic Large 

Whale Take Reduction Plan’s 

(ALWTRP) implementing regulations. 

These regulations apply to lobster trap/ 

pot and anchored gillnet fishermen in 

an area totaling approximately 841 nm2

(2,885 km2), southeast of Machias, 

Maine, for 15 days. The purpose of this 

action is to provide protection to an 

aggregation of northern right whales 

(right whales). 

DATES: Effective beginning at 0001 hours 

October 20, 2007, through 2400 hours 

November 3, 2007. 

ADDRESSES: Copies of the proposed and 

final Dynamic Area Management (DAM) 

rules, Environmental Assessments 

(EAs), Atlantic Large Whale Take 

Reduction Team (ALWTRT) meeting 

summaries, and progress reports on 

implementation of the ALWTRP may 

also be obtained by writing Diane 

Borggaard, NMFS/Northeast Region, 

One Blackburn Drive, Gloucester, MA 

01930. 

FOR FURTHER INFORMATION CONTACT: 

Diane Borggaard, NMFS/Northeast 

Region, 978–281–9300 x6503; or Kristy 

Long, NMFS, Office of Protected 

Resources, 301–713–2322. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

Several of the background documents 

for the ALWTRP and the take reduction 

planning process can be downloaded 

from the ALWTRP Web site at http:// 

www.nero.noaa.gov/whaletrp/. 

Background 

The ALWTRP was developed 

pursuant to section 118 of the Marine 

Mammal Protection Act (MMPA) to 

reduce the incidental mortality and 

serious injury of three endangered 

species of whales (right, fin, and 

humpback) due to incidental interaction 

with commercial fishing activities. In 

addition, the measures identified in the 

ALWTRP would provide conservation 

benefits to a fourth species (minke), 

which are neither listed as endangered 

nor threatened under the Endangered 

Species Act (ESA). The ALWTRP, 

implemented through regulations 

codified at 50 CFR 229.32, relies on a 

combination of fishing gear 

modifications and time/area closures to 

reduce the risk of whales becoming 

entangled in commercial fishing gear 

(and potentially suffering serious injury 

or mortality as a result). 

On January 9, 2002, NMFS published 

the final rule to implement the 

ALWTRP’s DAM program (67 FR 1133). 

On August 26, 2003, NMFS amended 

the regulations by publishing a final 

rule, which specifically identified gear 

modifications that may be allowed in a 

DAM zone (68 FR 51195). The DAM 

program provides specific authority for 

NMFS to restrict temporarily on an 

expedited basis the use of lobster trap/ 

pot and anchored gillnet fishing gear in 

areas north of 40° N. lat. to protect right 

whales. Under the DAM program, 

NMFS may: (1) Require the removal of 

all lobster trap/pot and anchored gillnet 

fishing gear for a 15-day period; (2) 

allow lobster trap/pot and anchored 

gillnet fishing within a DAM zone with 

gear modifications determined by NMFS 

to sufficiently reduce the risk of 

entanglement; and/or (3) issue an alert 

to fishermen requesting the voluntary 

removal of all lobster trap/pot and 

anchored gillnet gear for a 15-day period 

and asking fishermen not to set any 

additional gear in the DAM zone during 

the 15-day period. 

A DAM zone is triggered when NMFS 

receives a reliable report from a 

qualified individual of three or more 

right whales sighted within an area (75 

nm2 (139 km2)) such that right whale 

density is equal to or greater than 0.04 

right whales per nm2 (1.85 km2). A 

qualified individual is an individual 

ascertained by NMFS to be reasonably 

able, through training or experience, to 

identify a right whale. Such individuals 

include, but are not limited to, NMFS 

staff, U.S. Coast Guard and Navy 

personnel trained in whale 

identification, scientific research survey 

personnel, whale watch operators and 

naturalists, and mariners trained in 

whale species identification through 

disentanglement training or some other 

training program deemed adequate by 

NMFS. A reliable report would be a 

credible right whale sighting. 


yshivers on PROD1PC62 with RULES