[Federal Register Volume 72, Number 201 (Thursday, October 18, 2007)]
[Rules and Regulations]
[Pages 59019-59035]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5141]


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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.

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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

[[Page 59020]]

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 peer-reviewed 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

[[Page 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 sub-

[[Page 59022]]

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[reg]-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

[[Page 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. Red-rimmed melania has an 
operculum that keeps chemicals from penetrating and killing it. Only 
black carp eat the red-rimmed 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 time-consuming 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

[[Page 59024]]

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.

[[Page 59025]]

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 cost-prohibitive.'' 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.

[[Page 59026]]

    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 
third-party 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 peer-reviewed 
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

[[Page 59027]]

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[deg] N to about 51[deg] 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 [deg]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-year-old 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 fish-eating 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

[[Page 59028]]

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 self-reported 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[supreg] 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[supreg]-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[supreg]-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

[[Page 59029]]

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 x 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 
x 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

[[Page 59030]]

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. Re-establishment 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 non-native 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

[[Page 59031]]

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[reg] 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[reg] 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 cost-efficient 
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

[[Page 59032]]

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
----------------------------------------------------------------------------------------------------------------
                                                                                     Moderate
                                                                   Low estimate      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
----------------------------------------------------------------------------------------------------------------


[[Page 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       $483,000-$9.9
                                   million.            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

[[Page 59034]]

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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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.

0
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]

0
1. The authority citation for part 16 continues to read as follows:

    Authority: 18 U.S.C. 42.

0
2. Amend Sec.  16.13 as follows:
0
a. By removing the word ``and'' at the end of paragraph (a)(2)(iv)(BB);
0
b. By removing the period at the end of paragraph (a)(2)(v) and adding 
in its place ``; and''; and
0
c. By adding a new paragraph (a)(2)(vi) to read as set forth below.


Sec.  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