Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations 37459

Order 12988 on Civil Justice Reform and CFR part 83, published on December 22, of the class with sufficient accuracy, will not unduly burden the federal court 2005 (70 FR 75950), is confirmed as and a description of the evaluation system. HHS adverse decisions may be final with the folling changes: methods and information upon which reviewed in United States District these findings are based; and Courts pursuant to the APA. HHS has PART 83—[AMENDED] * * * * * attempted to minimize that burden by I 1. The authority citation for part 83 (e) The NIOSH report under providing petitioners an opportunity to continues to read as follows: paragraph (d) of this section shall be seek administrative review of adverse completed within 180 calendar days of decisions. HHS has provided a clear Authority: 42 U.S.C. 7384q; E.O. 13179, 65 the receipt of the petition by NIOSH. FR 77487, 3 CFR, 2000 Comp., p. 321. legal standard it will apply in The procedure for computing this time considering petitions. This rule has Subpart B—Definitions period is specified in § 83.5(c). In been reviewed carefully to eliminate addition, the computing of 180 calendar drafting errors and ambiguities. § 83.5 [Amended] days shall not include any days during G. Executive Order 13132 (Federalism) I 2. Amend § 83.5 by removing which the petitioner may be revising the paragraph (k) and redesignating petition to remedy deficiencies HHS has reviewed this rule in paragraphs (l) through (p) as paragraphs identified by NIOSH under § 83.11(a) or accordance with Executive Order 13132 (k) through (o), respectively. (b), nor shall it include any days during regarding federalism, and has which the petitioner may request a determined that it does not have Subpart C—Procedures for Adding review of a proposed finding under ‘‘federalism implications.’’ The rule Classes of Employees to the Cohort § 83.11(c) or during the conduct of such does not ‘‘have substantial direct effects a review under § 83.11(d). on the states, on the relationship I 3. Amend § 83.11 as follows: Dated: March 16, 2007. between the national government and I A. By revising the section heading. the states, or on the distribution of I B. By replacing the term ‘‘submission’’ Michael O. Leavitt, power and responsibilities among the with the term ‘‘petition’’ in paragraphs Secretary, Department of Health and Human various levels of government.’’ (a) through (d) and (f). Services. I H. Executive Order 13045 (Protection of C. By replacing the phrases ‘‘7 Editorial Note: This document was calendar days’’ and ‘‘7 day period’’ with received in the Office of the Federal Register Children From Environmental, Health on July 3, 2007. Risks and Safety Risks) ‘‘30 calendar days’’ and ‘‘30-day period’’, respectively, in paragraph (c). [FR Doc. E7–13233 Filed 7–9–07; 8:45 am] In accordance with Executive Order I D. By replacing ‘‘8 calendar days’’ BILLING CODE 4163–18–P 13045, HHS has evaluated the with ‘‘31 calendar days’’ in paragraph environmental health and safety effects (e). of this rule on children. HHS has I E. By adding a new paragraph (g) to DEPARTMENT OF THE INTERIOR determined that the rule would have no read as follows: effect on children. Fish and Wildlife Service § 83.11 What happens to petitions that do I. Executive Order 13211 (Actions not satisfy all relevant requirements under 50 CFR Part 16 Concerning Regulations That §§ 83.7 through 83.9? Significantly Affect Energy Supply, * * * * * RIN 1018–AT29 Distribution, or Use) (g) A petitioner whose petition has Injurious Wildlife Species; Silver Carp been found not to satisfy the In accordance with Executive Order (Hypophthalmichthys molitrix) and requirements for a petition under either 13211, HHS has evaluated the effects of Largescale Silver Carp paragraph (d) or (e) of this section may this rule on energy supply, distribution (Hypophthalmichthys harmandi) or use, and has determined that the rule submit to NIOSH a new petition for the will not have a significant adverse effect identical class of employees at any time AGENCY: Fish and Wildlife Service, on them. thereafter on the basis of new Interior. information not provided to NIOSH in ACTION: Final rule. J. Effective Date the original petition. In such a case, the The Secretary has determined, petitioner is required to fully re-address SUMMARY: The U.S. Fish and Wildlife pursuant to 5 U.S.C. 553(d)(3), that there all the requirements of §§ 83.7–83.9 in Service (Service or we) adds all forms of is good cause for this rule to be effective the petition. live silver carp (Hypophthalmichthys immediately to eliminate legal I 4. Amend § 83.13 by revising molitrix), gametes, viable eggs, and inconsistencies between new statutory paragraph (d)(4) and adding paragraph hybrids; and all forms of live largescale requirements under 42 U.S.C. 7384l and (e) to read as follows: silver carp (Hypophthalmichthys 7384q and regulatory requirements harmandi), gametes, viable eggs, and under 42 CFR part 83 and to make the § 83.13 How will NIOSH evaluate petitions, hybrids to the list of injurious fish, implementation of the new statutory other than petitions by claimants covered mollusks, and crustaceans under the requirements feasible. under § 83.14? Lacey Act. The best available * * * * * information indicates that this action is List of Subjects in 42 CFR Part 83 (d)(4) A summary of the findings necessary to protect the interests of Government employees, Occupational concerning the adequacy of existing human beings, and wildlife and wildlife safety and health, Nuclear materials, records and information for resources, from the purposeful or Radiation protection, Radioactive reconstructing doses for individual accidental introduction, and subsequent materials, Workers’ compensation. members of the class under the methods establishment, of silver carp and of 42 CFR part 82 specifying, for each largescale silver carp populations in Text of the Rule class defined in the report, whether ecosystems of the United States. Live I For the reasons discussed in the NIOSH finds that it is feasible to silver carp and largescale silver carp, preamble, the interim rule amending 42 estimate the radiation doses of members gametes, viable eggs, and hybrids can be

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES 37460 Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations

imported only by permit for scientific, wildlife, but provided no additional to ascertain if there were any additional medical, educational, or zoological information. Similar comments were data pertinent to the analyses required purposes, or without a permit by grouped into issues; these issues and by various laws and executive orders Federal agencies solely for their own our responses to each are presented relating to the Federal rulemaking use; permits will also be required for the below. process. Inclusion of these nine interstate transportation of live silver or Comments Received on the Proposed questions has in no way delayed the largescale silver carp, gametes, viable Rule process of adding silver and largescale eggs, or hybrids currently within the silver carp to the list of injurious United States. Interstate transportation Issue: One commenter stated that wildlife. permits may be issued for scientific, there is currently no market for silver Issue: One commenter stated that the medical, educational, or zoological carp; very few silver carp are in culture proposed rule contained repetition of purposes. (for maintenance of stocks) or use. unnecessary facts and that many However, there is great potential for DATES: This rule is effective August 9, assumptions were made without silver carp use in aquaculture within 2007. scientific research. Arkansas and Mississippi by utilizing Response: The Service has reviewed FOR FURTHER INFORMATION CONTACT: Kari an enclosed system that would prevent the proposed rule to reduce repetition in Duncan, Chief, Branch of Invasive escape of silver carp. The potential for the final rule. Research has been Species at (703) 358–2464 or silver carp use in the United States has _ conducted on silver carp impacts and kari [email protected]. not been fully realized. due to the similarities between silver SUPPLEMENTARY INFORMATION: Response: This rule will prohibit the carp and largescale silver carp, we feel importation and interstate transport of that reasonable extrapolations of Background live silver carp, gametes, viable eggs, potential impacts have been made. In October 2002, the U.S. Fish and and hybrids, which will in no way affect Issue: A few commenters stated that Wildlife Service (Service or we) the use of silver carp in States where penalties for injurious wildlife should received a petition signed by 25 they already exist. be increased. members of Congress representing the Issue: One aquaculture industry group Response: Penalties for violations of Great Lakes region to add silver, stated that there is no meaningful role the Lacey Act are set by Congress. bighead, and black carp to the list of of silver carp in cleaning ponds and injurious wildlife under the Lacey Act tanks for southern U.S. aquaculture Peer Review (18 U.S.C. 42). A follow-up letter to the producers and that there would be little We asked scientists who have original petition had seven additional or no economic impact associated with knowledge of fisheries biology or Legislator signatures that supported the this rule. However, they also noted that invasive species to provide peer review petition. the natural invasion of silver carp will of the proposed rule during the public continue into waters of other States, comment period. The peer reviewers Summary of Previous Actions whether the proposed rule is enacted or had a few technical comments and The Service published a Federal not. The comment stated that, given the suggestions; however, all concluded that Register notice of inquiry on silver carp existing conditions and circumstances the data and analyses used in the (68 FR 43482–43483, July 23, 2003), and of silver carp, listing these species will proposed rule were appropriate and the provided a 60-day public comment do little or nothing to address the conclusions drawn were clear and period. We received 31 comments in problems stated in the proposed rule. concise. Additionally, peer reviewers total, but 12 of these did not address the Listing would not address the real provided additional documentation of issues raised in the notice of inquiry. problem of preventing the spread of potential impacts to native species. This We considered the information naturally occurring populations; States information has been incorporated into provided in the 19 relevant comments. already have the authority to address the final rule. Most of the comments supported the these problems, so Federal intervention Description of the Final Rule addition of silver carp to the list of does not seem necessary. injurious wildlife, but provided no Response: The Service agrees that this The regulations contained in 50 CFR additional information. One commenter rulemaking will not address the part 16 implement the Lacey Act (18 noted that silver carp have no ecological impacts of silver carp already U.S.C. 42) as amended. Under the terms commercial value, but was concerned in the environment. This rulemaking is of the injurious wildlife provisions of that listing would hinder control and intended to prevent or delay the the Lacey Act, the Secretary of the management. One commenter asked us introduction of silver carp into Interior is authorized to prohibit the to delay listing until a risk assessment waterbodies where they do not currently importation and interstate could be completed. Biological synopses exist, which will help protect native transportation of species designated by and risk assessments were completed species. Many States have requested the Secretary as injurious. Injurious for silver and largescale silver carp. A Federal intervention because the States wildlife are those species, offspring, and proposed rule to add all forms of live only have authority to regulate eggs that are injurious to wildlife or silver and largescale silver carp to the possession within State boundaries. wildlife resources, to human beings, or list of injurious fishes under the Lacey Issue: A few commenters stated that to the interests of forestry, horticulture, Act was published on September 5, they did not understand why nine or agriculture of the United States. Wild 2006 (71 FR 52305); the comment questions were included in the mammals, wild birds, fish, mollusks, period on the proposed rule closed on proposed rule. These commenters crustaceans, amphibians, and reptiles November 6, 2006. We received 97 believe that asking those questions has are the only organisms that can be comments on the proposed rule. In total, delayed the rulemaking. In addition, added to the injurious wildlife list. The the Service received 116 pertinent they expressed concern with the length lists of injurious wildlife are at 50 CFR letters during the public comment of time it takes to add species to the list 16.11–16.15. periods. Most of the 116 letters received of injurious wildlife. By adding all forms of live silver carp urged the Service to list silver and Response: Nine questions were and largescale silver carp, including largescale silver carp as injurious included in the proposed rule in order hybrids, to the list of injurious wildlife,

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations 37461

their importation into, or transportation For additional information on the Silver carp have survived, have between, States, the District of biology, use, history and pathways of become established in river systems, Columbia, the Commonwealth of Puerto introduction into the United States for and have been reproducing in natural Rico, or any territory or possession of silver and largescale silver carp, please waters of the United States since at least the United States by any means refer to the proposed rule published in 1995. Because silver carp can occupy whatsoever is prohibited, except by the Federal Register on September 5, lakes, there is serious concern that this permit for zoological, educational, 2006 (71 FR 52305). species will further expand its range medical, or scientific purposes (in beyond riverine environments and into accordance with permit regulations at Factors That Contribute to lake environments including the Great 50 CFR 16.22), or by Federal agencies Injuriousness for Silver Carp Lakes. If introduced, it is highly likely without a permit solely for their own Introduction and Spread that silver carp will establish use. Federal agencies who wish to reproducing populations in other major The major pathway for introduction of import silver carp or largescale silver river systems, such as the Potomac/ silver carp in the United States was carp for their own use must file a Chesapeake, Columbia, and importation for biological control of written declaration with the District Sacramento/San Joaquin Delta. In their plankton in aquaculture ponds and Director of Customs and the U.S. Fish native range, juveniles and adults are sewage lagoons. The pathway that led to and Wildlife Service Inspector at the also found in lakes, reservoirs, and the presence of this species in open port of entry. No live silver carp or canals where they grow well, but waters of the United States was likely largescale silver carp, progeny thereof, probably cannot spawn and recruit escape from these facilities. Subsequent viable eggs, or hybrids imported or without access to an appropriate transported under permit may be sold, escapes and the mixture of silver carp riverine habitat. donated, traded, loaned, or transferred with other species that were stocked Hybrids to any other person or institution unless likely contributed to the expansion of such person or institution has a permit the species’ range, along with natural Hybridization of silver carp with issued by the U.S. Fish and Wildlife reproduction. native fishes is not known to be Service. The interstate transportation of Other probable pathways that may aid possible, but silver carp are known to any live silver carp or largescale silver the spread of existing populations of hybridize and produce viable offspring carp, gametes, viable eggs, or hybrids silver carp include connected with both bighead carp (H. nobilis), a currently held in the United States for waterways, contamination of pond- nonnative species also present in the any purpose is prohibited without a grown baitfishes with silver carp, ballast Mississippi River basin, and largescale permit. Any regulation pertaining to the water release, release or escape from silver carp, a species not yet known to possession or use of silver carp and livehaulers that support commercial be in the United States. Bighead carp × largescale silver carp within States fisheries, or spread by commercial silver carp and the reciprocal cross are continues to be the responsibility of fishers themselves. fertile. Bighead carp × silver carp are each State. Silver carp are difficult to handle and common in parts of the United States. transport because of their propensity to The presence of large numbers of wild- Biology jump when disturbed. As a result, there spawned hybrids implies that bighead The commonly named silver carp has been very little culture of silver carp and silver carp often spawn in the same belongs to the family Cyprinidae, with in the United States since 1985, and place at the same time in United States the species name of they are not being cultured waters. Silver carp × bighead hybrids Hypophthalmichthys molitrix. Silver commercially at this time. However, adversely impact food availability for carp are native to Asia (China and should culture of silver carp resume, a native species due to the size they attain Eastern Siberia), from about 54 °N potential pathway for introduction and the amount of food they eat. southward to 21 °N. Silver carp are would be escape or release from a Hybrids with largescale silver carp primarily phytoplanktivores, but are facility or during the transport and sale would likely adversely affect food highly opportunistic, eating of live fish in retail markets. availability for native species as well. phytoplankton, zooplankton, bacteria, Silver carp are likely to be spread Hybridization may also be possible and detritus. Silver carp are well when juveniles are collected by cast net with grass carp, but hybridization with established throughout much of the for use as live baitfish. Silver carp common carp (Cyprinus carpio) is Mississippi River Basin, and its range is juveniles are very similar in appearance unlikely because the spawning locations expanding in that basin. to shad, and anglers sometimes catch and behaviors of the two genera are so The commonly named largescale young silver carp and use them as live different. silver carp (or southern silver carp or bait. Release of live bait has been Vietnamese carp) also belongs to the identified as a source for more than 100 Potential Effects on Native Species family Cyprinidae, with the species introductions of fishes beyond their Silver carps’ food consumption rate is name of Hypophthalmichthys natural range in the United States. high, but widely variable. Fry at the harmandi. Largescale silver carp are Although adult and market-sized silver smallest size class consumed up to native to fresh waters of northern carp are fragile and do not survive 140% of their body weight daily; 63 mg Hainan Island, China, and the Red collection and transport well, fingerling fingerlings consumed just more than (Hong Ha) River of northern Vietnam silver carp are less susceptible to 30% and 70–166 mg fingerlings from subtropical to tropical (21–22 °N). mortality due to handling stress. consumed 63% of their body weight. The species does not occur naturally on Silver carp, caught as bycatch, may be Adult silver carp have been shown to the Chinese mainland. Largescale silver sold as fillets or to live fish markets. consume 8.8 kilograms (kg) of food per carp feed on phytoplankton and prefer Another potential pathway for further year, with 90% of the consumption slow-moving, plankton-rich open introductions is the intentional release occurring during the three warmest waters. There is no indication that this of silver carp through animal rights months of the year. species has been imported into or activism or prayer release (the Silver carp are quite tolerant of broad introduced into the open waters of ceremonial release of a fish in honor of water temperatures from 4 °C to 40 °C. United States. the one that will be eaten). Silver carp can grow quickly (20 to 30

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES 37462 Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations

kg in 5 to 8 years), and large adults can gizzard shad and emerald shiner, competition for food and habitat by the reach over 1.2 meters in length and 50 scientists have indicated that fishes and introduction and establishment of silver kg in weight. Silver carp are difficult to birds that prey on these species would carp. age, but have been reported to live 15– likely also be negatively affected. Adult Habitat requirements, springs and 20+ years. silver carp are too large to be preyed on small streams, of the remaining listed The reproductive potential of silver by almost any native predator. Young fishes and mussels would probably carp is high and increases with body silver carp have likely been preclude any detectable effects as it is size. It has been estimated that silver incorporated into the diets of unlikely that silver carp could survive carp weighing 3.18 to 12.1 kg can piscivorous birds and fishes to some in such small bodies of water. produce 145,000–5,400,000 eggs. Silver degree, but the extent of this predation Adverse effects of established carp mature anywhere from 3–8 years, is not known. Ecosystem balance is populations of silver carp on and males usually mature one year likely to be modified if silver carp endangered and threatened fishes would earlier than females. The same female populations become large enough to most likely be through direct may spawn twice during one growing dominate other planktivorous fish competition for food resources, season. Silver carp exhibit a prolonged species. The most likely negative effect particularly phytoplankton and, to a spawning period, into late summer or would be an alteration of fish lesser extent, zooplankton, in the water early fall, in the United States. community structure through column during the larval stage. Potential Due to the large size, fast growth rate, competition for food. for direct predation and injury of high food consumption rate and high Silver carp have been shown to have drifting fertilized eggs and larvae of reproductive potential of silver carp, major effects on nutrient cycling and native fishes also exists. The fact that competition for food and habitat with have had adverse effects on primary silver carp can become extremely native planktivorous fishes and with productivity, which could alter food abundant and reach a very large size post-larvae and early juveniles of most webs and ultimately alter nutrient and (> 1 m in length) in rivers, lakes, and native fishes is likely high. Since nearly energy cycling in aquatic communities. reservoirs increases the probability of a all larvae and juvenile fishes are There is evidence of nutrient negative impact on aquatic ecosystems planktivorous and based on other overloading in waters where silver carp they invade as high densities of silver demonstrated impacts, it is highly likely have been introduced. Excrement from carp decrease food availability for native that silver carp are adversely affecting silver carp has been found to increase species. Mussels are also filter feeders many native fishes in the Mississippi levels of certain nutrients, some which but live partly or totally buried in the River Basin, particularly in waters cannot be consumed by other animals in substrate; their association with the where food may become limited, though the digested form or may be harmful, benthic environment means that they long-term studies have not yet been which has led to a net decrease in food would be less likely to be affected by conducted. Affected native species resources available in several studies. filter-feeding silver carp. Nevertheless, include paddlefish (Polyodon spathula), Recent studies on the effects of silver changes in the fish community structure bigmouth buffalo (Ictiobus cyprinellus), carp on toxin-producing blue-green caused by silver carp are likely to have gizzard shad (Dorosoma cepedianum), algae indicate that certain species of adverse effects on abundance and emerald shiner (Notropis atherinoides), blue-green algae are often controlled by availability of host fishes required for and threadfin shad (Dorosoma silver carp, but that other species are mussel reproduction, which may result petenens). It is highly likely silver carp often enhanced, particularly those like in a decline of native mussels. would adversely affect fishes in the Microcystis aeruginosa that have a Habitat Degradation Great Lakes basin or other watersheds, mucosal covering that inhibits digestion if they establish. by silver carp. These organisms can pass There is low risk of silver carp Paddlefish, native to the Mississippi alive through the digestive tract and, in causing direct habitat degradation or River Basin and Gulf of Mexico river the process, acquire nutrients that can destruction, although the presence of drainages from east Texas to Alabama, later be used for growth and cell silver carp is sometimes associated with is a large river fish that has declined in division. Additionally, M. aeruginosa decreased water clarity, which may also abundance in recent years because of has been shown to produce more toxins impact benthic chemistry and overharvest and habitat alteration. Like in the presence of filter feeding fishes, community structure. The effect of these the silver carp, paddlefish uses plankton especially silver carp. Once established, fishes on nutrients, sediment re- as its primary food source, so silver carp these fish are likely to cause shifts in the suspension (which can stimulate or hybrids would directly compete with food web and compete with other plankton growth), and decreasing paddlefish for food throughout most of zooplanktivorous fishes and fish larvae dissolved oxygen varies. Excrement the paddlefish’s range. Other fishes, for food. Changes in the community from silver carp, which can equal their such as buffalos or shads, use both structure towards smaller size plankton body weight in 10 days, has organically plankton and aquatic invertebrates as may have negative effects on fishes enriched lake bottoms and altered the food. While these fishes are currently native to the United States that subsist benthic macroinvertebrate community more common than paddlefish, they on larger zooplankton. structure. may be at risk if silver carp, silver × Adverse effects of silver carp on some However, due to the impacts listed largescale silver carp hybrids, or silver threatened and endangered freshwater above, it is highly likely that silver carp × bighead hybrids establish and reduce mussels and fishes are likely to be would have adverse effects on plankton. Gizzard shad are a primary moderate to high. There are currently designated critical habitats of threatened forage base for predacious fishes and 116 fishes and 70 mussels on the and endangered species. There are important to the ecology of Midwestern Federal List of Endangered and currently 60 species of fishes and 18 rivers; thus, the likely competition with Threatened Wildlife. Because silver carp mussels with designated critical habitat. silver carp in these waters is cause for have the same habitat requirements as Of those, at least 26 inhabit lakes or concern. approximately 40 fishes and 25 mussels reaches of streams large enough to Because silver carp are likely to currently on the endangered or support silver carp. Therefore, dense negatively affect important threatened species list, these listed populations of silver carp are likely to planktivorous forage fishes such as the species will likely be impacted by affect the critical habitats upon which

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations 37463

the threatened and endangered species of the host. The most probable pathway U.S. waterways unless they are found in depend. of introduction was by the release of unconnected waterbodies. infected baitfishes. As the introduced Potential Pathogens Potential Control range of silver carp grows in U.S. Many species of parasites and waters, silver carp will likely spread the The ability to control spread of bacterial diseases occur in silver carp. parasite and a number of native fishes, established populations depends on The only viral disease agent of silver particularly, but not limited to, their access to open waterways and carp found in the literature is cyprinids, percids, and centrarchids, riverine habitat to spawn. Barriers may Rhabdovirus carpio, the causative agent will likely become hosts of the Asian help control the spread of silver carp for spring viraemia of carp (SVC), a carp tapeworm. from the Mississippi River basin into systemic, acute, and highly contagious the Great Lakes or other waterbodies, infection that is known to cause Some disease-causing agents harbored but barriers could also negatively affect mortality in native fishes. Silver carp by silver carp pose health risks to migratory native fishes. There are still are susceptible to many diseases caused humans. The psychotropic pathogen several pathways by which silver carp by parasitic protozoans and trematodes, Listeria monocytogenes has been found from established populations in the and several crustacean parasites, such as in market and fish farm samples of Mississippi River Basin might be moved anchor worm (Lernaea bhadraensis), silver carp. Clostridium botulinum was to new waterbodies, such as the have also been reported from silver found in 1.1% of fresh and smoked Potomac River or Columbia River, and carp. samples of silver carp from the become established. Although there have been studies of Mazandaran Province in Iran. The Due to the extensive established range disease-causing agents of silver carp, toxigenic fungi Aspergillus flavus, of silver carp in the Mississippi River none have investigated the transfer of Alternaria, Penicillium, and Fusarium Basin, conventional control methods are these pathogens from silver carp to were found from silver carp and from not feasible to reduce established native fishes of the United States. pond water in which they were raised populations. Massive fishing efforts However, two parasites known to infect at a fish farm in northern Iran. In utilizing netting and electrofishing may silver carp are a threat to native North addition, live Salmonella spp. can be be effective in reducing populations, but American fishes, including cyprinids: found in silver carp for at least 14 days many non-target fish species would also The gill-damaging Lernaea cyprinacea, after transfer to clean water, and silver be killed. Justifying the expense of such known as anchorworm (this parasite is carp, therefore, should be considered as efforts would require a large commercial also known to affect salmonids and a potential carrier for Salmonella (S. demand, which does not currently exist, eels), and Bothriocephalus typhimumium). nor is likely given the jumping behavior acheilognathi, known as Asian carp Impacts to Humans of silver carp that makes fishing tapeworm. The Asian carp tapeworm, difficult. Selective removal of silver initially introduced into U.S. waters Silver carp in the United States cause carp is possible given their location in from grass carp, has infected native substantial impacts to the health and the water column, but water trawling threatened and endangered fishes welfare of human beings who use could also remove other non-target fish (including the yaqui chub (Gila waterways infested with silver carp. such as paddlefish. purpurea), beautiful shiner, (Cyprinella There are numerous reports of injuries The large and growing range of silver formosa), yaqui topminnow to humans and damage to boats and carp in U.S. waterways makes chemical (Poeciliopsis occidentalis sonoriensis), boating equipment because of the control of established populations colorado pikeminnow (Ptychocheilus jumping habits of silver carp in the highly unlikely, both physically and lucius), and humpback chub (G. cypha)) vicinity of moving motorized watercraft. fiscally. Use of chemical treatments, and fishes of concern such as the Some reported injuries include cuts such as rotenone, would be expensive, roundtail chub (G. robusta), a candidate from fins, black eyes, broken bones, only locally effective, and would for Federal listing as a threatened or back injuries, and concussions. Silver negatively affect all fishes and endangered fish and listed as carp also cause property damage invertebrates, not just the target carp. At endangered by Colorado, in five States. including broken radios, depth finders, present, there is no method known to When infected baitfish were released fishing equipment, and antennae. Some substantially reduce established into Lake Mead, the tapeworm was vessels have been retrofitted with a populations of silver carp. Eradication is spread to two endangered fishes, virgin Plexiglas pilot’s cab as protection not possible with presently available spinedace (Lepidomeda mollispinis) and against jumping silver carp. technology. woundfin minnow (Plagopterus argentissimus) in Utah and Nevada. Factors That Reduce or Remove Recovery of Disturbed Sites Approximately 90% of large juvenile Injuriousness for Silver Carp Because the ability to eradicate this and adult humpback chubs in the Little Detection and Response species is low, there is little likelihood Colorado River are infected with this for rehabilitation or recovery of cestode. The Asian carp tapeworm has If silver carp were introduced or ecosystems disturbed by this species. been reported from more than 40 other spread into new U.S. waters, it is Additionally infested waterways allow cyprinid fishes and fishes of other unlikely that the introduction would be connections to unpopulated sites. orders. Silver carp are hosts of this discovered until the numbers were high Utilizing sterile silver carp would do parasite, but suffer minimal adverse enough to impact wildlife and wildlife little to reduce or remove injuriousness effects from it. As hosts of this resources. Widespread surveys of as the present range of establishment in tapeworm, silver carp have the potential waterways are not conducted to the Mississippi River Basin is too to spread it to native fishes, beyond the establish species’ presence lists. Delay extensive for this option to reduce five States where it has already been in discovery would limit the ability and current silver carp populations in this found (Arizona, Colorado, Nevada, New effectiveness to rapidly respond to the area. The use of daughterless fish Mexico, and Utah). This is a parasite introduction and prevent establishment technology (introducing sterile males to that erodes mucus membranes and of new populations. It is unlikely that produce unviable eggs) may reduce intestinal tissues, often leading to death silver carp could be eradicated from populations, but this would take many

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES 37464 Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations

years before it would reduce numbers of • Silver carp are negatively impacting largescale silver carp is possible if fish where they currently exist. humans; imported from regions with populations Research is being conducted on the use • It would be difficult to eradicate or of H. harmandi. Another possible of pheromones to control carp, but it is reduce large populations of silver carp, introduction pathway, should largescale years from demonstrating effectiveness or recover ecosystems disturbed by the silver carp or their hybrids be imported in natural waters and mass production. species; and for culture, would be sale of live These technologies might be useful to • There are no potential ecological individuals in food fish markets. prevent establishment of silver carp in benefits for U.S. waters from the Likelihood of spread of largescale new areas. introduction of silver carp. silver carp, should they be introduced, would be high in subtropical and Potential Pathogens Factors That Contribute to tropical river systems of the United Injuriousness for Largescale Silver States. Hybrid largescale silver carp × Silver carp are host to many parasites Carp and bacterial diseases that are or could silver carp, however, would have high be a threat to native North American Potential Introduction and Spread potential to live in much of the temperate United States. Because fishes. If silver carp transfer pathogens To our knowledge, the largescale largescale silver carp can occupy and to native fish, the ability and silver carp has not been imported into reproduce in reservoirs, they could also effectiveness to control these transfers the United States. Within its native live in lakes. The same is likely true for would be very low because silver carp range, largescale silver carp occur in and native fishes share the same habitat. hybrids. Young largescale silver carp or subtropical to tropical climates, which any hybrids captured by anglers for use Potential Ecological Benefits for exist in parts of the United States. as live bait would be a pathway that Introduction Therefore, should pure largescale silver could lead to numerous future carp be introduced to U.S. waters, its introductions of these species. The ability of silver carp to effectively potential range would likely include filter particles and reliance on subtropical waters such as those present Hybrids phytoplankton for much of its diet led in southern Florida, southern Texas, to research into their effectiveness as a Hybridization with native fishes is not and Hawaii. believed to be possible, but largescale biological control agent for The growth rate of largescale silver silver carp are known to hybridize and phytoplankton in wastewater systems carp is greater than that of silver carp. to produce viable offspring with silver and other ponds. There is conflicting The reproductive capability is expected carp and possibly bighead carp, both of data concerning the benefit of using to be similar to that of silver carp, which are present in U.S. waters. silver carp to control excess nutrients. though largescale silver carp reach Largescale silver × silver carp hybrids Regardless of their effect on increasing sexual maturity at a younger age than are tolerant of a temperate climate (ca. or decreasing phytoplankton and silver carp so they will spawn earlier. 42–46° N). (45° N is a latitude that zooplankton abundance, studies have In culture situations, silver carp has parallels the border between New York consistently shown that filter feeding by hybridized with largescale silver carp. State and Ontario, Canada). Therefore, silver carp shifts the species The hybrids did not grow as quickly as these hybrids would likely be capable of composition of these communities to largescale silver carp but exceeded the surviving and probably establishing smaller species. Silver carp have been growth rate of silver carp. Largescale throughout much of the United States observed to cause nuisance algal blooms × silver carp silver carp hybrids were where suitable waters exist. Largescale through a trophic cascade. Scientists introduced in Kazakhstan where they silver carp grow faster than silver carp believe that the removal of larger became established. The climate of but hybrids do not grow as quickly as zooplankton and phytoplankton by Kazakhstan is temperate; thus, pure largescale silver carp. It is highly foraging silver carp may result in × largescale silver carp silver carp likely that any largescale silver carp stimulating growth of smaller species. hybrids are more cold-tolerant than pure hybrids would directly compete with Conclusion largescale silver carp. The faster growth native species for food and habitat. rate of these hybrids than pure silver In summary, the Service finds all carp and the increased palatability of Potential Effects on Native Species forms of live silver carp, including largescale silver carp compared to silver Largescale silver carp consume gametes, viable eggs and hybrids, to be carp may conceivably stimulate interest primarily planktonic food sources. It is injurious to wildlife and wildlife in culturing either the hybrids or pure unknown if largescale silver carp feed resources of the United States and to the largescale silver carp in the United more heavily on phytoplankton than interests of human beings because: States. Because hybrids can tolerate zooplankton, but their hybrids with • Silver carp are highly likely to temperate climates, they have the silver carp would likely show a spread from their current established potential to be cultured in many preference for phytoplankton. Some range to new waterbodies in the United southern States and would have a wider adults may weigh 20–30 kg. The rapid States; potential range where they could growth and high fat content of this fish • Silver carp are highly likely to establish in the United States. has made it the most cultured species compete with native species, including Escape from containment, as has for food in Vietnam. Largescale silver threatened and endangered species, for happened with silver carp, would carp and hybrids are highly likely to food and habitat; provide a pathway for release of compete for food with other • Silver carp have the potential to largescale silver carp into natural waters planktivorous native fishes and with carry pathogens and transfer them to of the United States. Should this fish or post-larvae and early juveniles of most native fish; its hybrids be released into natural native fishes should they become • Silver carp are likely to develop waters, connected waterways would established in the United States. dense populations that will likely affect become a secondary pathway for spread. Fishes most likely to be affected are critical habitat for threatened and Because of the morphological similarity those species whose diet is endangered species and could further between this species and silver carp, predominantly plankton including imperil other native fishes and mussels; stock contamination of silver carp by paddlefish (Polyodon spathula), native

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations 37465

to the Mississippi River Basin and Gulf threatened species list, these listed grass, and black carps are known to host of Mexico river drainages from east species in tropical or subtropical areas the Asian carp tapeworm Texas to Alabama, buffalos (Ictiobus will likely be impacted by the (Bothriocephalus acheilognathi), but it spp.), or shads (Dorosoma spp.). Given introductions of largescale silver carp is unknown whether largescale silver × that these fish may already be through competition for food and silver carp host this species. Since competing with bighead and silver carps habitat. However, the habitat largescale silver carp are very similar to in some areas, the presence of largescale requirements, springs and small silver carp, they likely can host the silver carp would increase food streams, of the remaining listed fishes Asian carp tapeworm and infected fish, competition and increase the likelihood and mussels would probably preclude if introduced to U.S. waters, could of negative impacts to native species. any detectable effects as it is unlikely spread it to native fishes. Potential for direct predation and that largescale silver carp or their Potential Impacts to Humans injury of drifting fertilized eggs and hybrids would survive in such small larvae of fishes exists. Mussels are also bodies of water. The potential impact on the health filter feeders but live partly or totally It is likely that largescale silver carp and welfare of humans from largescale buried in the substrate; they would be and highly likely that their hybrids with silver carp or any hybrids is unknown. less likely to be affected by water silver carp would have adverse effects Because largescale silver carp remain column filter-feeding largescale silver on designated critical habitats of deep in the water column during carp. Nevertheless, changes in the fish threatened and endangered species. daylight hours and swim toward the community structure caused by There are currently 60 species of fishes surface at night to feed on plankton, largescale silver carp would likely have and 18 mussels with designated critical they may be less prone to jumping than adverse effects on abundance and habitat. At least 26 fishes and mussels silver carp in response to sounds of boat availability of host fishes required for with critical habitat inhabit lakes or engines during daytime. However, if mussel reproduction. reaches of streams large enough to largescale silver × carp hybrids display There are other possible, but less support hybrids of largescale silver carp the jumping behavior of pure silver likely, effects that may cascade through and silver carp. Largescale silver carp carp, their potential to injure humans any aquatic ecosystem with an and their hybrids have the potential to could be considerable. established population of largescale alter food webs and ultimately alter Factors That Reduce or Remove silver carp. Nutrient levels are a concern nutrient and energy cycling in aquatic Injuriousness for Largescale Silver because there is evidence of overloading communities. The most likely effect Carp of nutrients in waters into which silver would be an alteration of fish carp have been introduced, and the community structure through Detection and Response same may apply to largescale silver carp competition for food. Fishes and If largescale silver carp were or their hybrids. mussels that are determined to be introduced into U.S. waters, it is Competition for habitat between candidates for listing under the unlikely that the introduction would be largescale silver carp and native species Endangered Species Act would likewise discovered until the numbers were high is likely high, especially in large rivers, be at risk. enough to impact wildlife and wildlife lakes, and reservoirs. Because they are Native species may be placed in resources. Widespread surveys of planktivorous, the potential of danger of extinction as a result of the waterways are not conducted to largescale silver and any hybrids to introduction or establishment of establish species’ presence lists. Delay cause habitat degradation or destruction largescale silver carp if pure stock in discovery would limit the ability and is low as is direct predation on native became established in subtropical or effectiveness to rapidly respond to the mammals, birds, amphibians, reptiles, tropical waters in the United States. introduction and prevent establishment. mollusks or other live, non-aquatic However, there is a higher risk for animals. negative impacts to native fishes from Potential Control Additional adverse impacts on native largescale silver carp hybrids. Large If largescale silver carp were to escape wildlife, wildlife resources, and populations of largescale silver carp or and become established in natural ecosystem balance are likely few, except hybrids would likely alter native fish waters, management of established for fishes. Ecosystem balance would community structures, ultimately populations would be highly unlikely likely be modified if populations of resulting in decline of native mussels both physically and fiscally. Some largescale silver carp or any hybrids since many rely on native host fishes for control might be possible with massive become large enough to dominate reproduction. The fact that largescale fishing efforts using nets, but this is planktivorous fish species. silver carp have the potential to become unlikely to stem range expansion. There Because largescale silver carp may abundant and reach a very large size would have to be substantial survive and become established and (> 1 m in length) in rivers, lakes, and commercial demand to justify the compete with native fishes, there is no reservoirs increases the probability of a expense of such efforts. acceptable escape or release threshold negative impact on aquatic ecosystems Chemicals or selective removal may for largescale silver carp or their should largescale silver carp be be used to manage populations in hybrids. introduced and become established. localized areas. However, selective Adverse effects of largescale silver removal of largescale silver carp would carp on selected threatened and Potential Pathogens be difficult because they remain in endangered freshwater mussels and The potential for largescale silver carp deeper waters during daylight hours fishes would be expected to be moderate to transfer pathogens is largely when such removal efforts would to high. There are currently 116 fishes unknown. No detailed studies of probably occur. Pheromones may be a and 70 mussels on the Federal List of disease-causing agents of largescale viable option to limit spread; this Endangered and Threatened Wildlife. silver carp have been found, but at least possibility is under investigation for Because largescale silver carp have the three trematode parasites (Dactylogyrus silver carp, and may have applicability same habitat requirements as harmandi, D. hypophthalmichthys, D. to largescale silver carp. approximately 40 fishes and 25 mussels chenthushenae) are known to infect However, research into this control currently on the endangered or largescale silver carp. Bighead, silver, method is in early stages.

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES 37466 Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations

Because no evidence exists that • Largescale silver carp would likely This rule will not have an annual largescale silver carp have been carry pathogens that could be economic effect of $100 million or more imported or released into U.S. waters, transferred to native fish; or adversely affect an economic sector, triploidy or induced sterility could • Largescale silver carp and hybrids productivity, jobs, the environment, or potentially reduce injuriousness. are likely to compete with native other units of the government. A brief However, these processes are costly, species, including threatened and assessment to clarify the costs and time-consuming, and not 100% effective endangered species, for food and benefits associated with this rule so there is potential for triploid habitat; follows. largescale silver carp to cause harm if • Largescale silver carp could they were released. develop dense populations that would Costs Incurred It would be difficult to control the likely affect critical habitat for Silver Carp spread of largescale silver carp to new threatened and endangered species and locations except, perhaps, by use of are highly likely to negatively impact We expect this rule to have minimal electric, acoustic, physical and other native fishes and mussels; costs. Silver carp are not cultured in the types of barriers. At present, there is no • Largescale silver carp have been United States, nor do we believe that method known to substantially reduce shown to hybridize with silver carp, a they are imported or exported. populations of introduced fishes in U.S. nonnative species already established in Currently, there are some commercial waterways. It is highly unlikely that the United States, and would likely fisheries for silver carp in the largescale silver carp could be have a larger range than pure largescale Mississippi, Missouri, and Illinois eradicated from U.S. waterways, should silver carp; rivers. Usually, commercial fishermen they be introduced, unless they are • Largescale silver carp hybrids with are catching silver carp as bycatch, found in unconnected waterbodies. silver carp may display jumping which can account for up to 50 percent behavior that could injure humans; of the catch. Silver carp are not Recovery of Disturbed Sites • If largescale silver carp were favorable because of their jumping Although there is no evidence that introduced into the United States, it habits and because they are less this species has been introduced or would be extremely difficult to prevent desirable by the consumer. In Missouri, targeted for introduction into the United their spread and to control populations many of the fishermen do not primarily States, the lack of available methods to in natural waters; target Asian carp (bighead and silver detect, eradicate or control introduced • It would be difficult to eradicate or carp) because the price received is low populations indicates that should reduce large populations of largescale ($0.10-$0.15 per pound). Instead, they largescale silver carp be introduced, silver carp and to recover ecosystems fish for bighead and silver carp when rehabilitation or recovery of ecosystems disturbed by the species; and other species or opportunities are disturbed by this species would be • There are no potential ecological unavailable. Many fishermen do not highly unlikely. benefits from the introduction of distinguish between bighead carp and largescale silver carp for U.S. waters. Potential Pathogens silver carp. The potential for largescale silver carp Required Determinations Data for the silver carp fishery are or any hybrids to infect native fishes Paperwork Reduction Act (44 U.S.C. limited. According to public comments with pathogens is largely unknown. 3501 et seq.) received, small commercial fisheries for Should such transfers prove viable, the silver carp exist in Illinois, Iowa, and This rule contains potential ability and effectiveness to control the Kentucky. Table 1 shows commercial information collection activity for FWS spread of pathogens to native fishes fishery landings and value in Iowa and Form 3–200–42, Import/Acquisition/ would be low. Illinois in 2003. Compared to the total Transport of Injurious Wildlife. commercial harvest and value, Asian Potential Ecological Benefits for Completion of this form would be carp represented 11 percent of landings Introduction necessary to apply for a permit to and 6 percent of value in 2003. Because import, or transport across State lines, There are no potential ecological Illinois does not distinguish between any live silver or largescale silver carp, benefits for introduction of largescale bighead carp and silver carp in its gametes, viable eggs, or hybrids for silver carp or any hybrids in natural annual report, we are unable to scientific, medical, educational, or waters of the United States. determine the magnitude of silver carp zoological purposes. The Service landings for the entire area. For Iowa, Conclusion already has approval from the Office of silver carp represented less than 1 In summary, the Service finds all Management and Budget (OMB) to percent of total landings. In 2005, silver forms of live largescale silver carp, collect information for this special use carp represented less than 1 percent of including gametes, viable eggs and permit under OMB control number commercial landings in Kentucky and hybrids, to be injurious to the wildlife 1018–0093. This approval expires July less than one-tenth of commercial and wildlife resources of the United 31, 2007. The Service may not conduct landings in Louisiana (public States and to the interests of human or sponsor, and a person is not required comments, J. Gassett 25 Oct 2006 and J. beings because: to respond to, a collection of Roussel 6 Nov 2006). • Largescale silver carp are likely to information unless it displays a escape or be released into the wild if currently valid OMB control number. The majority of the silver carp catch imported into the United States; is sold as round weight. In Illinois, • Largescale silver carp are highly Regulatory Planning and Review fishermen can sell silver carp as long as likely to survive, become established, (a) In accordance with the criteria in they are not transported live once the and spread in tropical or subtropical Executive Order 12866, OMB has fish are taken off the water. No impacts areas of the United States if they escape designated this rule as a significant are expected to the silver carp market or are released; regulatory action. because they are not delivered live.

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations 37467

TABLE 1.—2003 COMMERCIAL FISHERY LANDINGS AND VALUE IN IOWA AND ILLINOIS

Illinois 1 Iowa 2,3 Total

Total Commercial Harvest (lbs) ...... 6,385,473 2,242,997 8,628,470 Asian Carp* ...... 900,497 15,774 916,271 Silver Carp ...... 3,828 3,828 Total Commercial Value ($) ...... $1,334,467 $496,765 $1,831,232 Asian Carp* ...... $99,055 $1,735 $100,790 Silver Carp ...... $421 $421 * Asian carp includes bighead carp and silver carp. The value for Asian carp and silver carp in Iowa is based on the average $0.11/lb received, which is the same as Illinois. 1 Illinois Department of Natural Resources. 2005. 2003 Commercial Catch Report. Brighton, Illinois. 2 Personal communication, Gene Jones, Iowa Department of Natural Resources. 3 Iowa Department of Natural Resources. 2003. Fisheries Management Section 2003 Completion Reports. Des Moines, Iowa.

The market for live silver carp in U.S. United States, particularly those that Service under the Lacey Act. No other markets is unknown and no public rely heavily on plankton as a food agencies are involved in these comments received reported a U.S. resource. regulations. market for live silver carp. It is possible Thus, this rule will protect native (c) This rule will not materially affect that silver carp are inadvertently fish, and the recreational and entitlements, grants, user fees, loan shipped along with live bighead carp. commercial fisheries associated with programs, or the rights and obligations However, most live haulers will not native fish. In terms of recreational of their recipients. This rule does not haul live silver carp because the fish do fisheries, benefits would accrue due to affect entitlement programs. This rule is not transport well. Furthermore, the (1) consumer surplus generated from aimed at regulating the importation and consumer prefers bighead carp to silver fishing native fish and (2) fishing- movement of nonindigenous species carp. Because only sales of live silver related expenditures such as food, that cause or have the potential to cause carp would be regulated by this lodging, and equipment. In terms of significant economic and other impacts rulemaking, we do not expect any commercial fisheries, benefits would on natural resources that are the trust impacts to commercial fishermen unless accrue due to the revenue from fishing responsibility of the Federal they are transporting live silver carp native fish, which are more valuable Government. across State lines for processing. While than silver carp. The timeline for when (d) OMB has determined that this rule the exact impact is unknown, we expect these benefits would accrue depends on raises novel legal or policy issues. it to be minimal. the potential spread and impacts of Regulatory Flexibility Act silver carp. The extent of benefits to Largescale Silver Carp recreational and commercial fisheries is Under the Regulatory Flexibility Act There is no known use for largescale unknown. (as amended by the Small Business silver carp in the United States or Regulatory Enforcement Fairness Act import or export of the species into or Largescale Silver Carp (SBREFA) of 1996), whenever a Federal from the United States. We do not know There have been no reports that agency publishes a notice of rulemaking of any future plans to use largescale largescale silver carp are in the United for any proposed or final rule, it must silver carp in the United States. During States. However, native fish populations prepare and make available for public the public comment period, no are likely to decline if largescale silver comment a regulatory flexibility comments reported largescale silver carp were to establish populations in analysis that describes the effect of the carp being used. Therefore, we do not the United States. With this rule, we rule on small entities (i.e., small expect the rule to add largescale silver reduce the risk of the introduction and businesses, small organizations, and carp to the list of injurious wildlife to establishment of largescale silver carp small government jurisdictions) (5 have any costs. (or any hybrids) in U.S. watersheds. U.S.C. 601 et seq.). However, no Benefits Accrued Thus, this rule protects native fish and regulatory flexibility analysis is required the recreational and commercial if the head of an agency certifies that the Silver Carp fisheries associated with native fish. In rule would not have a significant Within several waters of the Midwest, terms of recreational fisheries, benefits economic impact on a substantial silver carp comprise a percentage of the would accrue due to the continued (1) number of small entities. Thus, for a commercial catch as bycatch (non-target consumer surplus generated from regulatory flexibility analysis to be species). This may be negatively fishing native fish and (2) fishing- required, impacts must exceed a impacting revenue for commercial related expenditures such as food, threshold for ‘‘significant impact’’ and a fishermen because silver carp are not as lodging, and equipment. In terms of threshold for a ‘‘substantial number of valuable as the native species that are commercial fisheries, benefits would small entities.’’ See 5 U.S.C. 605(b). targeted. accrue due to the continued revenue SBREFA amended the Regulatory Furthermore, it is possible that silver from fishing native fish. The extent of Flexibility Act to require Federal carp populations will be delayed or not benefits to recreational and commercial agencies to provide a statement of the become established in new watersheds fisheries is unknown because it depends factual basis for certifying that a rule (Columbia Basin, Chesapeake Basin, and on the introduction and subsequent would not have a significant economic Sacramento-San Joaquin Delta) with establishment of largescale silver carp impact on a substantial number of small similar attributes as the Mississippi populations in the United States. entities. River Basin as a result of this (b) This rule will not create This rulemaking may impact a small rulemaking. Silver carp are likely to inconsistencies with other Federal number of fishermen selling live silver compete with native fish for food, agencies’ actions. This rule pertains carp. The number of fishermen targeting causing declines in native fishes in the only to regulations promulgated by the silver carp is unknown. Because the

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES 37468 Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations

market for live silver carp is also introduction and spread of nonnative meets the requirements of sections 3(a) unknown, we are unable to estimate the species and will indirectly work to and 3(b)(2) of the Executive Order. The degree of impact of this rulemaking. We sustain the economic benefits enjoyed rule has been reviewed to eliminate expect this rulemaking to have a by numerous small establishments drafting errors and ambiguity, was minimal effect on commercial fishermen connected with recreational and written to minimize litigation, provides selling live silver carp because many commercial fishing. a clear legal standard for affected live haulers do not transport live silver (b) Will not cause a major increase in conduct rather than a general standard, carp. We do not expect this rulemaking costs or prices for consumers, and promotes simplification and burden to affect aquaculture because silver carp, individual industries, Federal, State, or reduction. largescale silver carp, or any hybrids are local government agencies, or not being cultured in the United States geographic regions. National Environmental Policy Act at this time. (c) Does not have significant adverse We have prepared environmental Many small businesses within the effects on competition, employment, assessments (EAs) in conjunction with retail trade industry (such as hotels, gas investment, productivity, innovation, or this rulemaking, and have determined stations, taxidermy shops, bait and the ability of U.S.-based enterprises to that this rulemaking is not a major tackle shops, etc.) may benefit from compete with foreign-based enterprises. continued recreational fishing without Federal action significantly affecting the impacts from silver carp, largescale Unfunded Mandates Reform Act quality of the human environment silver carp, or any hybrids. Furthermore, In accordance with the Unfunded within the meaning of section 102(2)(C) small businesses associated with Mandates Reform Act (2 U.S.C. 1501 et of the National Environmental Policy commercial fishing (fishermen, seq.), this rule does not impose an Act (NEPA of 1969 (42 U.S.C. 4321 et wholesalers, and retailers) will also unfunded mandate on State, local, or seq.)). No comments on the draft benefit from continued commercial tribal governments or the private sector environmental assessments were fishing without impacts from silver of more than $100 million per year. The received. For copies of the final EAs, carp, largescale silver carp, or any rule would not prohibit intrastate contact the individual identified above hybrids. We do not know the extent to transport or any use of silver carp or in the section FOR FURTHER INFORMATION which these small businesses will largescale silver carp within State CONTACT, or access the documents at continue to benefit. However, we expect boundaries. Any regulations concerning http://www.fws.gov/contaminants/ANS/ this benefit to be distributed across the use of silver carp or largescale silver ANSInjurious.cfm. various watersheds, and so we do not carp within individual States will be the Adding silver carp and largescale expect that the rule will have a responsibility of each State. The rule silver carp to the list of injurious significant economic effect (benefit) on does not have a significant or unique wildlife is intended to prevent their a substantial number of small entities in effect on State, local, or tribal further introduction and establishment any region or nationally. governments or the private sector. A into natural waters of the United States Therefore, we certify that this rule statement containing the information in order to protect native fishes, the will not have a significant economic required by the Unfunded Mandates survival and welfare of wildlife and effect on a substantial number of small Reform Act is not required. wildlife resources, and the health and entities as defined under the Regulatory Takings welfare of humans. Not listing silver Flexibility Act (5 U.S.C. 601 et seq.). An carp as injurious may allow for an initial or final Regulatory Flexibility In accordance with Executive Order expansion to States where they are not Analysis is not required. Accordingly, a 12630, the rule does not have significant already found, thus increasing the risk Small Entity Compliance Guide is not takings implications. A takings of their escape and establishment in required. For the reason described implication assessment is not required. new areas due to accidental release and, below, no individual small industry This rule would not impose significant perhaps, intentional release. Their within the United States will be requirements or limitations on private establishment is negatively impacting significantly affected if silver carp or property use. native fish, wildlife, and humans. Silver largescale silver carp importation is Federalism carp are established throughout much of prohibited. the Mississippi River Basin. Releases of In accordance with Executive Order silver carp into natural waters of the Small Business Regulatory Enforcement 13132, the rule does not have significant United States are likely to occur again, Fairness Act Federalism effects. A Federalism and the species is likely to become The rule is not a major rule under 5 assessment is not required. This rule established in additional U.S. U.S.C. 804(2), the Small Business would not have substantial direct effects waterways, threatening native fish Regulatory Enforcement Fairness Act. on States, in the relationship between populations, wildlife, and wildlife This rule: the Federal government and the States, resources dependent on phytoplankton, (a) Does not have an annual effect on or on the distribution of power and zooplankton, bacteria, and detritus, and the economy of $100 million or more. responsibilities among the various impacting human health. Silver carp is in limited commercial levels of government. Therefore, in trade in the United States and primarily accordance with Executive Order 13132, Largescale silver carp are not known as fillets; the largescale silver carp is not we determine that this rule does not to be in the United States, but if known to be imported or present in the have sufficient Federalism implications introduced to natural waters, they United States. Silver carp are likely to to warrant the preparation of a would likely impact the welfare and negatively affect many native fishery Federalism Assessment. survival of native fish and wildlife, as resources if they continue to spread in well as the health and welfare of the United States. The largescale silver Civil Justice Reform humans. In addition, largescale silver carp could devastate many native In accordance with Executive Order carp are visually similar to silver carp fishery resources if it is introduced to 12988, the Office of the Solicitor has and can readily hybridize with silver U.S. waterways. This rulemaking will determined that the rule does not carp, so they would be difficult to protect the environment from the unduly burden the judicial system and distinguish from silver carp.

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / Rules and Regulations 37469

Government-to-Government distribution, and use. Therefore, this I 2. Amend § 16.13 as follows: Relationship With Tribes action is a not a significant energy I a. By removing the word ‘‘and’’ at the In accordance with the President’s action, and no Statement of Energy end of paragraph (a)(2)(iii); Effects is required. memorandum of April 29, 1994, I b. By removing the period at the end ‘‘Government-to-Government Relations References Cited of paragraph (a)(2)(iv)(BB) and adding in with Native American Tribal its place ‘‘; and’’ ; and Governments’’ (59 FR 22951), Executive A complete list of all references used I c. By adding a new paragraph (a)(2)(v) Order 13175, and 512 DM 2, we have in this rulemaking is available upon to read as set forth below. evaluated potential effects on Federally request from the Branch of Invasive recognized Indian tribes and have Species (see the FOR FURTHER § 16.13 Importation of live or dead fish, determined that there are no potential INFORMATION CONTACT section). mollusks, and crustaceans, or their eggs. effects. This rule involves the List of Subjects in 50 CFR Part 16 (a) * * * importation and interstate movement of all forms of live silver carp, largescale Fish, Imports, Reporting and (2) * * * silver carp, gametes, viable eggs, and recordkeeping requirements, (v) Any live fish, gametes, viable eggs, hybrids. We are unaware of trade in Transportation, Wildlife. or hybrids of the species silver carp, these species by Tribes. I For the reasons discussed in the Hypophthalmichthys molitrix, and preamble, the U.S. Fish and Wildlife largescale silver carp, Effects on Energy Service amends part 16, subchapter B of Hypophthalmichthys harmandi. On May 18, 2001, the President issued Chapter I, Title 50 of the Code of * * * * * Executive Order 13211 on regulations Federal Regulations, as set forth below. that significantly affect energy supply, Dated: May 18, 2007. distribution, and use. Executive Order PART 16—[AMENDED] Todd Willens, 13211 requires agencies to prepare Acting Assistant Secretary for Fish and Statements of Energy Effects when I 1. The authority citation for part 16 Wildlife and Parks. undertaking certain actions. This rule is continues to read as follows: [FR Doc. E7–13371 Filed 7–9–07; 8:45 am] not expected to affect energy supplies, Authority: 18 U.S.C. 42. BILLING CODE 4310–55–P

VerDate Aug<31>2005 15:13 Jul 09, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\10JYR1.SGM 10JYR1 rmajette on PROD1PC64 with RULES