[Federal Register Volume 67, Number 146 (Tuesday, July 30, 2002)]
[Proposed Rules]
[Pages 49280-49284]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-19158]
=======================================================================
-----------------------------------------------------------------------
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: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service proposes to amend its
regulations to add black carp (Mylopharyngodon piceus) to the list of
injurious fish, mollusks, and crustaceans. This listing would have the
effect of prohibiting the importation of any live animal or viable egg
of the black carp into the United States. The best available
information indicates that this action is necessary to protect the
interests of human beings, and wildlife and wildlife resources from the
purposeful or accidental introduction and subsequent establishment of
black carp populations into ecosystems of the United States. As
proposed, live black carp or viable eggs could be imported only by
permit for scientific, medical, educational, or zoological purposes, or
without a permit by Federal agencies solely for their own use; permits
would also be required for the interstate transportation of live black
carp or viable eggs currently held in the United States for scientific,
medical, educational, or zoological purposes. The proposal would
prohibit interstate transportation of live black carp or viable eggs,
currently held in the United States, for any other purpose.
DATES: Comments must be submitted on or before September 30, 2002.
ADDRESSES: Comments may be mailed or sent by fax to the Chief, Division
of Environmental Quality, U.S. Fish and Wildlife Service, 4401 North
Fairfax Drive, Suite 322, Arlington, VA 22203,
[[Page 49281]]
FAX (703) 358-1800. You may send comments by electronic mail (email)
to: BlackCarp@fws.gov. See the Public Comments Solicited section below
for file format and other information about electronic filing.
FOR FURTHER INFORMATION CONTACT: Kari Duncan, Division of Environmental
Quality, Branch of Invasive Species at (703) 358-2464 or
kari_duncan@fws.gov.
SUPPLEMENTARY INFORMATION:
Background
The purpose of this proposal is to prevent the accidental or
intentional introduction of black carp and the possible subsequent
establishment of populations of these fish in the wild.
In February 2000 the Fish and Wildlife Service 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. The petition was based
upon State concerns about the potential impacts of black carp on native
freshwater mussels and snails in the Mississippi River basin.
Description of the Proposed 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 law, the Secretary of
the Interior is authorized to prescribe by regulation those wild
mammals, wild birds, fish (including mollusks and crustaceans),
amphibians, reptiles, and the offspring or eggs of any of the
foregoing, which are injurious to human beings, to the interests of
agriculture, horticulture, or forestry, or to the wildlife or wildlife
resources of the United States. The lists of injurious wildlife species
are at 50 CFR 16.11-16.15. If black carp are determined to be
injurious, then as with all listed injurious animals, 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 without a permit solely for their own use, upon filing a
written declaration with the District Director of Customs and the U.S.
Fish and Wildlife Service Inspector at the port of entry. In addition,
no live black carp, progeny thereof, or viable eggs acquired under
permit could be sold, donated, traded, loaned, or transferred to any
other person or institution unless such person or institution has a
permit issued by the Director of the U.S. Fish and Wildlife Service.
The interstate transportation of any live black carp or viable eggs
currently held in the United States for any purposes not permitted
would be prohibited.
Biology
Black carp, also known as snail carp, Chinese black carp, black
amur, Chinese roach, or black Chinese roach, is a freshwater fish that
inhabits lakes and lower reaches of large, fast moving rivers. 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 China, parts of far eastern Russia, and possibly northern
Vietnam. Several published records of black carp from Taiwan and Japan
likely represent introductions.
Black carp typically grow to more than 3 feet in length and weigh,
on average, 33 pounds. They reportedly can reach 5 feet in length and
weigh up to 150 pounds. Individuals of the species are known to live to
at least 15 years of age.
Black carp reach maturity from 6 to 11 years of age. They reproduce
annually. Spawning occurs in their natural range when water
temperatures are at least 65.5 deg.F, water levels are rising, and
mollusks are available. 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 129,000 to 1.18 million eggs each year, depending on
body size.
Black carp feed on zooplankton and fingerlings when small. As
adults, powerful crushing teeth permit the black carp to crush the
thick shells of large mollusks. Reports indicate that the fish can
usually handle any food item that it can get into its mouth. In some
instances, the fish is able to crack the edge of a shell, extract soft
parts, and then spit out shell fragments. A four year old black carp
was shown to eat, on average, 3-4 pounds of mussels per day.
Young black carp are difficult to distinguish from young grass carp
(Ctenopharyngodon idella). Adults may be distinguished externally by
the color and the more cylindrical form of the body, and internally by
the pharyngeal teeth.
Available information indicates that black carp are currently being
maintained in research and fish production facilities in Arkansas,
Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, and Texas.
This species originally entered the United States in the early 1970s as
``contaminant'' in imported grass carp stocks. The black carp were
imported from Asia and were sent to a private fish farm in Arkansas.
The second introduction of black carp into the United States occurred
in the early 1980s for yellow grub control and as a food fish. The
species was also imported by a Mississippi fish farmer during the early
1980s and by a fish farm operation in Missouri during the period 1986-
1988.
Need for Proposed Rule--Environmental Consequences
Factors That Contribute to Injuriousness
The likelihood of release or escape of black carp is high.
Currently, the predominant use of black carp in the United States is
for biological control of snails that are an intermediate host in the
life cycle of a trematode that affects catfish being farmed for human
consumption. Ninety-five percent of the catfish farms in production are
located in the Southeastern United States. 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
catfish farms. The first and only known introduction of black carp into
a natural waterway occurred during a flood event. These fish were
thought to be triploid (sterile through chromosome number manipulation)
and the species has not been found in the wild. Additional risks of
release associated with fish farming include movement of live carp from
farm ponds to natural waterways via predatory birds and mammals, or
escape from aquaculture facilities. Black carp are farm-raised in
aquaculture facilities throughout Asia and Eastern Europe for human
consumption. If black carp becomes popular for human consumption in the
United States and farmed on a larger scale, the associated risks of
release would be similar to that described above. However, the risks
would be of greater magnitude, as the black carp would be stocked at
the aquaculture facilities at a higher rate than they are currently
stocked for biological control purposes.
If black carp escaped, or were released into the wild, they would
likely survive and/or become established with or without reproduction.
Moreover, released black carp would likely spread throughout the United
States since no known limiting factors would preclude them from
becoming established in U.S.
[[Page 49282]]
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. This carp feeds on aquatic snails and mussels that
are similar to those locally abundant in many of our rivers. The grass
carp (Ctenopharyngodon idella), a close Asian relative with similar
reproductive requirements, has expanded into all of the lower 48 States
except Montana and Vermont since its introduction into Arkansas and
Alabama in 1963.
At all life stages, black carp will compete for food with native
species. As discussed above in the Biology section, the fish grow to
lengths greater than 1 meter and can weigh up to 150 pounds. The
literature indicates that 4-year-old black carp eat 3-4 pounds of
mollusks per day. 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. Based on their
feeding habits, black carp, if introduced or established, are likely to
have a considerable impact on native mussel and snail populations.
Native fish (redear sunfish, pumpkinseed sunfish, freshwater drum,
snail bullhead, copper redhorse, river redhorse, robust redhorse, and
several catfish and sucker species); turtles (sawbacks and musk
turtles); birds, including waterfowl (Everglades snail kite, scaup, and
canvasback); and vertebrates, such as racoons, otters, and muskrats,
are likely to be affected through competition for food.
Although their potential to cause habitat destruction, such as that
associated with Cyprinid species, is low, black carp could impact
stream communities where snails play an important role as grazers of
attached algae. Algae mats could develop and upset the natural balance
of wildlife habitats if snail populations become depressed.
Black carp host many parasites and flukes, as well as bacterial and
viral diseases that are likely to infect sport, food, or threatened and
endangered fish species. 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). Because black
carp carry a diverse fauna of parasites, the potential for the transfer
of pathogens is high.
The likelihood and magnitude of effect on threatened and endangered
species is high. Black carp are molluscivores (mussel and snail
feeders) and have the potential to negatively affect threatened and
endangered mollusks, fish, turtles, and birds that rely on mollusks as
a food source. 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 (69 species are federally listed as threatened or
endangered) are vulnerable to extinction or already extinct. Our
Nation's freshwater snail diversity is about 600 species or about 15
percent of the world's diversity of this faunal group.
Based on the food habits and habitat preferences of the black carp,
it is likely to invade the habitat, feed on, and further threaten most
of the federally listed freshwater mussels and about one-third of the
federally listed aquatic snails. Black carp are likely to also further
threaten numerous other potential candidates for Federal protection.
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 the fish are affected by black carp.
The establishment of black carp populations in the Mississippi
drainages has the potential to reduce mollusk populations to levels
that would require listing of the mollusks and the other animals that
depend on mollusks for food.
The introduction or establishment of black carp may have negative
impacts on humans primarily from the loss of native aquatic mollusk
biodiversity and bio-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
The ability and effectiveness of measures to prevent escape or
establishment are low. Most available protective measures available to
prevent escape of black carp from aquaculture facilities are expected
to be cost-prohibitive to initiate and maintain. Even with protective
measures in place, it is unlikely they would eliminate risks of
accidental escape from facilities. Those facilities that are located in
floodplains and susceptible to natural storm events are particularly
vulnerable. The ability to eradicate or control black carp populations
depends on where they are found. If established in large lakes or river
systems, eradication and/or control of black carp is expected to be
nearly impossible and they would likely become permanent members of the
fish community. Additionally, controlling the spread of pathogens once
they have been introduced in the wild is practically impossible.
No good tools are currently available to manage established black
carp populations. Chemicals are the best option, but their use on a
large scale is prohibitively expensive, can cause mortality to non-
target fish and aquatic species, are not accepted by the public, and
must be repeatedly used. 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.
Since effective measures to eradicate, manage, or control the
spread of black carp once they are established are not currently
available, the ability to rehabilitate or recover ecosystems disturbed
by the species is low. Significant risks associated with black carp
release relate to endangerment and extinction of native mussels and
snails. Re-establishment of extirpated mussel and snail populations, if
biologically possible, would be labor and cost intensive and would
depend on eradication of black carp within the habitat of the mussels
and snails.
While triploidy and sterility may impede breeding of black carp in
the natural environment, non-breeding populations are likely to still
have significant negative impacts on natural systems. While triploid
black carp may not be able to reproduce, allowing black carp in
commerce still presents problems. First and foremost, 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, the
current methods of producing triploidy fish do not ensure that all of
the fish are triploid and testing each fish would be cost-prohibitive;
therefore, reproductively active fish will be found in otherwise
triploid lots of fish. Finally, black carp will feed on native mollusks
regardless of their reproductive ability. As described above, black
carp eat 3-4 pounds of mussels per day and can live in excess of 15
years. Therefore, non-breeding populations of black carp are likely to
have significant negative
[[Page 49283]]
impacts on native snail and mussel populations.
Because black carp are likely to escape or be released into the
wild; are likely to survive or become established if escaped or
released; are likely to spread since there are no known limiting
factors; are likely to compete with native species for food; may serve
as intermediate hosts for and/or transmit parasites to native species;
are likely to feed on native mollusks, which is likely to negatively
affect native mollusks, as well as the native fish, turtles, and birds
that rely on mollusks as a food source; and because it will be
difficult to prevent, eradicate, manage, or control the spread of black
carp; it will be difficult to rehabilitate or recover ecosystems
disturbed by the species; and because non-breeding populations of black
carp are likely to have significant negative impacts on native snail
and mussel populations, the Service finds black carp to be injurious to
the interests of human beings and the wildlife and wildlife resources
of the United States.
Required Determinations
Currently we have approval from OMB to collect information under
OMB control number 1018-0092. This approval expires July 31, 2004. We
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless we display a currently valid OMB
control number.
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget has determined that this rule is not a
significant regulatory action.
(a) This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of the government. A cost-benefit and
economic analysis is not required. Catfish producers are the entities
most likely to be affected by this rule. However, catfish producers
have alternative means of control for snail infestation of catfish
ponds. Chemical control with such items as hydrated lime, copper
sulfate, and aquatic herbicides greatly reduces the snail population
and, in conjunction with biological control, can eliminate snail
infestation during the production of catfish. The elimination of the
use of black carp as the biological control agent will allow an
increase in the non-marketability of some of the catfish. The estimated
maximum loss is expected to be less than $9 million per year for the
affected catfish producers.
(b) This rule will not create inconsistencies with other agencies.
This rule pertains only to regulations promulgated by the 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 or obligations of their recipients.
This rule does not affect entitlement programs. This rule is aimed at
regulating the importation and movement of a non-indigenous species
that has the potential to cause significant economic and other impacts
on natural resources that are the trust responsibility of the Federal
Government.
(d) This rule does not raise novel legal or policy issues. No
previous listings of wildlife as injurious in the past have caused
legal or policy problems.
This rule will not have a significant economic effect on a
substantial number of small entities as defined under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). A Regulatory Flexibility
Analysis is not required. Accordingly, a Small Entity Compliance Guide
is not required. No individual small industry within the United States
will be significantly affected if black carp importation and interstate
transport is prohibited.
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule will not have
an annual effect on the economy of $100 million or more. The black carp
is not commercially traded in the United States. No recreational
fishery exists for this species. Two firms currently produce and sell
black carp, and the Fish and Wildlife Service believes that black carp
production is a small part of these businesses so they should not be
significantly affected by this rule. As a result, the regulation of
this species will only affect catfish farmers that are infected with
the yellow grub. Since about 1.5 percent of catfish farmers have
permits to use the black carp as a biological control measure for
snails in farm ponds, we do not expect that this rule will have a
substantial impact on U.S. catfish producers. Alternative control
measures for snail infestation are available, and more are being
researched and developed. This rulemaking will have the effect of
protecting commercial shellfish fisheries as well as endangered and
threatened mollusks in the Mississippi watershed from the introduction
of black carp. The black carp would devastate many shellfish resources
if it escaped from catfish ponds and entered a waterway. This
rulemaking, by protecting the environment from the spread of a non-
native species that would likely devastate local mollusk populations,
will indirectly work to sustain the economic benefits enjoyed by
numerous small establishments.
This rule will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Substitute control mechanisms for the
control of yellow grubs are available, although they may not be as
economical as the use of black carp. The six catfish farms using black
carp for snail control account for approximately 1.5 percent of total
U.S. catfish production. Under the worst case that all catfish produced
at these farms was not marketable, the affected catfish would only
amount to 1.5 percent of the annual U.S. production. This small impact
would not appreciably affect costs or prices to consumers. Since
alternative control methods are available, the economic effect is not
expected to be significant. Six firms out of nearly 300 would have a
slight increase in production cost.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. The
Service has determined and certifies pursuant to the Unfunded Mandates
Reform Act that this rulemaking will not impose a cost of $100 million
or more in any given year on local or State governments or private
entities, and 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.
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. This rule will not impose significant requirements or
limitations on private property use.
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on States,
in 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.
In accordance with Executive Order 12988, the Office of the
Solicitor has
[[Page 49284]]
determined that the rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Executive
Order. The proposed 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.
We have reviewed this rule in accordance with the criteria of the
National Environmental Policy Act and our Departmental Manual in 516
DM. This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. An environmental impact
statement/assessment is not required. The action is categorically
excluded under the Department's NEPA procedures (516 DM 2, Appendix
1.10), which apply to policies, directives, regulations, and guidelines
of an administrative, legal, technical, or procedural nature; or the
environmental effects of which are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will be
subject later to the NEPA process, either collectively or case-by-case.
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.
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. Because this proposal
is intended to prevent the accidental or intentional introduction of
black carp and the possible subsequent establishment of populations of
these fish in the wild, it is not a significant regulatory action under
Executive Order 12866 and is not expected to significantly affect
energy supplies, distribution, and use. Therefore, this action is a not
a significant energy action and no Statement of Energy Effects is
required.
This proposed rule solicits economic, biologic, or other
information concerning black carp. The information will be used to
determine if the species is a threat, or potential threat, to those
interests of the United States delineated above, and thus warrants
addition to the list of injurious fish in 50 CFR 16.13.
Public Comments Solicited
Please send comments to Chief, Division of Environmental Quality,
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 322,
Arlington, VA 22030. Comments may be hand delivered or faxed to (703)
358-1800. If you submit comments by e-mail, please submit comments as
an ASCII file format and avoid the use of special characters and
encryption. Please include ``Attn: [RIN 1018-AG70]'' and your name and
return address in your e-mail message. Please note that this email
address will be closed at the termination of this public comment
period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish us for to withhold your name and/or address, you must
state this prominently at the beginning of your comment. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
List of Subjects in 50 CFR Part 16
Fish, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
Accordingly, we propose to amend part 16, subchapter B, of Chapter
I, Title 50 of the Code of Federal Regulations as set forth below.
PART 16--[AMENDED]
1. The authority citation for part 16 continues to read as follows:
Authority: 18 U.S.C. 42.
2. Amend Sec. 16.13 by revising paragraph (a)(2) to read as
follows:
Sec. 16.13 Importation of live or dead fish, mollusks, and
crustaceans, or their eggs.
(a) * * *
(2) The importation, transportation, or acquisition of any live
fish or viable eggs of the walking catfish, family Clariidae; live
mitten crabs, genus Eriochei, or their viable eggs; live mollusks,
veligers, or viable eggs of zebra mussels, genus Dreissena; and any
live black carp (Mylopharyngodon piceus) or their viable eggs, is
prohibited except as provided under the terms and conditions set forth
in Sec. 16.22.
* * * * *
Dated: July 18, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-19158 Filed 7-29-02; 8:45 am]
BILLING CODE 4310-55-P