[House Report 109-585]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-585

======================================================================



 
                 ASIAN CARP PREVENTION AND CONTROL ACT

                                _______
                                

 July 20, 2006.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3049]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3049) to amend section 42 of title 18, United States 
Code, popularly known as the Lacey Act, to add certain species 
of carp to the list of injurious species that are prohibited 
from being imported or shipped, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Vote of the Committee............................................     3
Committee Oversight Findings.....................................     3
New Budget Authority and Tax Expenditures........................     3
Congressional Budget Office Cost Estimate........................     3
Performance Goals and Objectives.................................     5
Constitutional Authority Statement...............................     5
Section-by-Section Analysis and Discussion.......................     5
Changes in Existing Law Made by the Bill, as Reported............     5
Markup Transcript................................................     7

                          Purpose and Summary

    H.R. 3049, the ``Asian Carp Prevention and Control Act,'' 
addresses the growing problem of non-native species of Asian 
carp entering the Mississippi River System and the Great Lakes. 
The bill amends 18 U.S.C. Sec. 42, popularly known as the 
``Lacey Act,'' to add four species of Asian carp to the list of 
injurious species that are prohibited from being imported into 
or shipped within the United States.

                Background and Need for the Legislation

    Since the 1970s, three species of non-native Asian carp 
(silver, bighead, and black carp) have been imported into the 
United States for use in aquaculture facilities as fish food 
and as a biological control for excessive aquatic plants, 
algae, nutrients, and snails. These fish consume large amounts 
of food and grow quickly, reaching up to 50 inches in length 
and 100 pounds. \1\
---------------------------------------------------------------------------
    \1\ Dan Egan, Intruders at the Gate, Milwaukee Journal Sentinel, 
Dec. 25, 2004, available at http://www.jsonline.com/story/
index.aspx?id=286806.
---------------------------------------------------------------------------
    All three species have escaped captivity and have entered 
into the Mississippi River Basin. Because bighead and silver 
carp first escaped in the 1980s, they have established 
reproducing populations that have begun to migrate northward to 
the upper Mississippi and Illinois Rivers. In some areas, they 
have become the most abundant fish species, out-competing 
native fish for food, and becoming entangled in and destroying 
commercial fishing nets. In addition, boaters have been injured 
by silver carp, which are highly sensitive to noise and 
frequently jump out of the water in response to nearby outboard 
motors. Bighead and silver carp are currently limited to the 
Mississippi River. However, these fish have been reported as 
close as 40 miles from Lake Michigan. \2\
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
    The initial escape of black carp was first documented in 
1994, when approximately 30 black carp (reportedly sterile) 
escaped into the Missouri River (which feeds into the 
Mississippi River) during a flood at an aquaculture facility. 
Since then, four incidents of escaped black carp have been 
documented in Louisiana, Missouri, and Illinois. Currently, it 
is not believed that black carp are reproducing in the wild. 
However, if black carp become established, they threaten to 
decimate native snail and mussel populations, many of which are 
threatened or endangered, given their voracious feeding habits. 
It is estimated that a 4-year-old black carp consumes an 
average of 3-4 pounds of mussels each day. Also, fish species 
that rely on these same invertebrate prey may suffer, including 
endangered and threatened sturgeon. \3\
---------------------------------------------------------------------------
    \3\ Jesse Garza, Invasive Fish Could Threaten Watershed, Milwaukee 
Journal Sentinel, Aug. 23, 2005, available at http://www.jsonline.com/
story/index.aspx?id=350484.
---------------------------------------------------------------------------
    If Asian carp reach the Great Lakes, they will threaten 
fisheries in the Great Lakes, an industry that has been valued 
at between $4-7 billion. This is an ecosystem already de-
stabilized by the introduction of over 180 non-native species, 
including the sea lamprey and zebra mussel. Asian carp could 
potentially strip the system of prey at the base of the food 
web, devastating nearly all native fish. To prevent Asian carp 
from entering the Great Lakes, an electrical barrier has been 
built in the Chicago Sanitary and Shipping Canal, which is the 
only water connection between the Mississippi River and Great 
Lakes Basin. However, as Chicago Mayor Richard M. Daley 
explained in submitted testimony at a hearing last November 
before the House Committee on Resources' Subcommittee on 
Fisheries and Oceans, the electrical barrier is not sufficient 
and additional steps must be taken to prevent the spread of 
Asian carp. \4\
---------------------------------------------------------------------------
    \4\ Oversight Hearing on the Growing Problem of Invasive Asian Carp 
in the Great Lakes and Mississippi River System Before the Subcomm. On 
Fisheries and Oceans of the H. Comm. on Resources, 109th Cong. (2005) 
(submitted testimony of Richard Daley, Mayor, City of Chicago).
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
3049.

                        Committee Consideration

    On March 29, 2006, the Committee met in open session and 
ordered favorably reported the bill H.R. 3049 without an 
amendment by voice vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were no recorded votes during the committee consideration of 
H.R. 3049.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3049, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 21, 2006.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3049, the ``Asian 
Carp Prevention and Control Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                          Donald B. Marron.
                                            Acting Director

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 3049--Asian Carp Prevention and Control Act.
    H.R. 3049 would make it a Federal crime to import or ship 
four species of carp--black, bighead, silver, and largescale 
silver--unless the importer has obtained permission from the 
U.S. Fish and Wildlife Service to import the fish for 
scientific, medical, educational, or zoological reasons. CBO 
estimates that implementing H.R. 3049 would have no significant 
cost to the Federal Government. Enacting the bill could affect 
direct spending and revenues, but CBO estimates that any such 
effects would not be significant. H.R. 3049 contains no 
intergovernmental mandates as defined in the Unfunded Mandates 
Reform Act (UMRA) and would impose no significant costs on 
State, local, or tribal governments.
    H.R. 3049 would impose a private-sector mandate, as defined 
in UMRA, on entities that import or ship certain varieties of 
Asian carp. Based on information from industry and government 
sources, CBO estimates that the direct cost of complying with 
the mandate would be small and fall below the annual threshold 
for private-sector mandates established in UMRA ($128 million 
in 2006, adjusted annually for inflation). The bill would add 
certain species of carp to the list of injurious species that 
are currently prohibited from being imported or shipped. The 
cost of the mandate would be the loss of net income from not 
being able to import or ship those fish. According to 
government and industry sources, the value of shipments and 
imports is very small relative to UMRA's threshold.
    Because the bill would establish a new offense, the Federal 
Government would be able to pursue cases that it otherwise 
would not be able to prosecute. CBO expects that H.R. 3049 
would apply to a relatively small number of offenders, however, 
so any increase in costs for law enforcement, court 
proceedings, or prison operations would not be significant. Any 
such costs would be subject to the availability of appropriated 
funds.
    Because those prosecuted and convicted under H.R. 3049 
could be subject to criminal fines, the Federal Government 
might collect additional fines if the legislation is enacted. 
Criminal fines are recorded as revenues, deposited in the Crime 
Victims Fund, and later spent. CBO expects that any additional 
revenues and direct spending would not be significant because 
of the small number of cases likely to be affected.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for Federal costs), who can be reached at 226-2860, 
and Paige Piper/Bach (for the private-sector impact), who can 
be reached at 226-2940. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
Rule XIII of the Rules of the House of Representatives, 
H.R.3049, is intended to reduce the increase in population and 
the migration of harmful non-native species of Asian carp.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in art. I, Sec. 8, of the Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title.
    This section provides for the short title of the bill as 
the ``Asian Carp Prevention and Control Act.''
Section 2. Addition of Species of Carp to the List of Injurious Species 
        that are Prohibited from being Imported or Shipped.
    This section amends 18 U.S.C. Sec. 42(a)(1) to include the 
black carp, the bighead carp, the silver carp, and the 
largescale silver carp to the list of injurious species. 
Injurious species are those species (and offspring and eggs) 
that are injurious to the interests of human beings, 
agriculture, horticulture, forestry, wildlife, or wildlife 
resources of the United States. If a species is listed as 
injurious, importation and interstate transfer of these fish is 
prohibited unless authorized through a permit from the U.S. 
Fish and Wildlife Service. Special permits may be granted for 
scientific, educational, medical, or zoological purposes. 
Intrastate transport or possession of these species within 
States is not prohibited unless expressly prohibited by that 
State. The penalty for violating this provision of the Lacey 
Act includes fines or imprisonment for not more than six 
months.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--CRIMES

           *       *       *       *       *       *       *


CHAPTER 3--ANIMALS, BIRDS, FISH, AND PLANTS

           *       *       *       *       *       *       *


Sec. 42. Importation or shipment of injurious mammals, birds, fish 
                    (including mollusks and crustacea), amphibia, and 
                    reptiles; permits, specimens for museums; 
                    regulations

  (a)(1) The importation into the United States, any territory 
of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, or any possession of the United 
States, or any shipment between the continental United States, 
the District of Columbia, Hawaii, the Commonwealth of Puerto 
Rico, or any possession of the United States, of the mongoose 
of the species Herpestes auropunctatus; of the species of so-
called ``flying foxes'' or fruit bats of the genus Pteropus; of 
the zebra mussel of the species Dreissena polymorpha; of the 
black carp of the species Mylopharyngodon piceus; of the 
bighead carp of the species Hypophthalmichthys nobilis; of the 
silver carp of the species Hypophthalmichthys molitrix; of the 
largescale silver carp of the species Hypophthalmichthys 
harmandi; and such other species of wild mammals, wild birds, 
fish (including mollusks and crustacea), amphibians, reptiles, 
brown tree snakes, or the offspring or eggs of any of the 
foregoing which the Secretary of the Interior may prescribe by 
regulation to be injurious to human beings, to the interests of 
agriculture, horticulture, forestry, or to wildlife or the 
wildlife resources of the United States, is hereby prohibited. 
All such prohibited mammals, birds, fish (including mollusks 
and crustacea), amphibians, and reptiles, and the eggs or 
offspring therefrom, shall be promptly exported or destroyed at 
the expense of the importer or consignee. Nothing in this 
section shall be construed to repeal or modify any provision of 
the Public Health Service Act or Federal Food, Drug, and 
Cosmetic Act. Also, this section shall not authorize any action 
with respect to the importation of any plant pest as defined in 
the Federal Plant Pest Act, insofar as such importation is 
subject to regulation under that Act.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, MARCH 29, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pursuant to notice, I now call up the bill H.R. 3049, the 
``Asian Carp Prevention and Control Act,'' for purposes of 
markup and move its favorable recommendation to the House. 
Without objection, the bill will be considered as read and open 
for amendment at any time.
    [The bill, H.R. 3049, follows:]

    
    
    Chairman Sensenbrenner. The chair recognizes himself for 5 
minutes to explain the bill.
    Today we are considering H.R. 3049, the ``Asian Carp 
Prevention and Control Act,'' a bill authored by my colleague 
from Wisconsin, Mr. Green, to prohibit the importation and 
interstate shipment of four species of Asian carp.
    In the 1980's, several non-native species of Asian carp 
escaped captivity in Arkansas and made their way into the 
Mississippi River. Dubbed ``the underwater lawn mower,'' these 
enormous fish have become a menace to native species and their 
habitat. Asian carp can grow to over 4 feet long and over 100 
pounds, leaving little or no food supply for other fish. Now 
these pests are moving upstream toward the Great Lakes, 
threatening the food supply of sport fish, such as the yellow 
perch, walleye, and smallmouth bass, and threatening fishermen 
as well.
    The Milwaukee Journal Sentinel reports that Asian carp have 
been known to jump as high as 15 feet, hurtling into fishing 
boats and, in one instance, breaking a commercial fisherman's 
nose. In a series of articles, the Journal has chronicled the 
threat posed to native ecosystems by Asian carp. I ask 
unanimous consent to include these articles in the Committee 
report.
    Without objection, so ordered.
    [The information follows:]

    
    
    Chairman Sensenbrenner. H.R. 3049 amends the Lacey Act to 
designate four species of Asian carp as injurious fish. This 
designation prohibits the importation and interstate shipment 
of Asian carp unless a permit is issued by the U.S. Fish and 
Wildlife Service. The penalty for illegally importing or 
shipping Asian carp is a fine or imprisonment of up to 6 
months.
    This bill is supported by Members on both sides of the 
aisle, including the Ranking Member from Michigan, Mr. Conyers. 
It is also supported by over a dozen Great Lakes environmental, 
angling, and recreational organizations. I hope my colleagues 
will join me in favorably reporting this bill and recognize the 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Mr. Chairman, I am pleased to rise in support 
of the measure and join yourself and the gentleman from 
Wisconsin, Mr. Green, in what we think is an important 
environmental step forward.
    The Great Lakes currently holds 90 percent of the Nation's 
fresh water, making them one of the most important natural 
resources in our country. The Great Lakes also provide a major 
source of transportation for many Americans, and economic 
activity within the region accounts for more than half of the 
Nation's output. Fishing alone in the Great Lakes generates 
over $2.5 billion in tackle sales, provides employment for more 
than 66,000 workers, and creates a total economic output 
greater than $7.5 billion.
    Considering the tremendous role that the Great Lakes 
provide in this country, it is essential that they be protected 
from the influx of Asian carp, which have proven to damage 
aquatic environment and often displace native fish populations 
through their rapid growth and enormous size, as has been 
described. If left unchecked, there is no doubt that they will 
have a huge negative impact on the ecosystem and many valuable 
fish populations currently now found in the Great Lakes region.
    The measure before us today seeks to prevent this problem 
from becoming a reality by adding Asian carp to the list of 
prohibited wildlife under the provisions on the Lacey Act. By 
updating the Lacey Act to include Asian carp, we effectively 
establish a permanent ban on their importation and 
transportation across State lines.
    I am also pleased that the environmental organizations are 
all united in support of this measure. I hope it will gain the 
unanimous support of the Members of the Committee.
    I return any unused time.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Without objection, all Members may introduce opening statements 
in the record at this point.
    [The prepared statement of Mr. Green follows:]

  Prepared Statement of the Honorable Mark Green, a Representative in 
                  Congress from the State of Wisconsin

    I want to begin by thanking Chairman Sensenbrenner for including my 
legislation, H.R. 3049, the ``Asian Carp Prevention and Control Act,'' 
in today's mark-up. I applaud and appreciate your leadership in moving 
this issue forward. I also want to thank Ranking Member Conyers for his 
cosponsorship of the legislation. As is evident by this bill's strong 
bipartisan support, protecting the Great Lakes is absolutely non-
partisan.
    H.R. 3049 is a straightforward piece of legislation that is 
critical to protecting the Great Lakes from one of its most significant 
threats--Asian carp. My legislation addresses this threat by adding 
four species of non-native Asian carp as ``injurious wildlife'' under 
the Lacey Act. An ``injurious wildlife'' listing would prohibit the 
importation and interstate transportation of the carp.
    As many of you know, the Great Lakes represent the largest 
freshwater system on the planet. It boasts a dazzling array of 
wildlife, supports billions of dollars in industry, and has been a 
source of pride for the millions of Americans who live along their 
shores. However, to put it bluntly, the Asian carp is an invasive 
species that threatens to unravel the Great Lakes' fragile ecosystem.
    When I look at the biology of Asian carp, which have been slowly 
moving up the Mississippi River since their escape from aquaculture 
facilities in the 1980s, what I see terrifies me. Asian carp have the 
proven ability to quickly take over and dominate an ecosystem. Asian 
carp can grow to over 50 inches in length, weigh 110 pounds and produce 
up to 1.2 million eggs per year. To support their tremendous size, they 
have a voracious appetite, consuming 6 to 20 percent of their body 
weight a day.
    This obviously spells trouble for the scores of native fish we know 
and love in the Great Lakes and other parts of the country. The Asian 
carp could devastate the Great Lakes' multi-billion dollar fishing 
industry--destroying the fragile ecosystem in the process. We must act 
swiftly, while there's still some time left.
    Like so many concerned observers--from sportsmen and commercial 
fishermen to conservationists--I have been frustrated with the slow 
pace of protecting the Great Lakes from invasive species--especially 
the Asian carp. As you may know, the U.S. Fish & Wildlife Service 
(Service) is authorized to designate species as ``injurious wildlife'' 
under the Lacey Act. Unfortunately, like a number of other species 
awaiting consideration by the Service, the Asian carp petitions have 
lingered for years, all while the carp continue to encroach on the 
Great Lakes.
    Last November, I was fortunate enough to participate in a House 
Resources Subcommittee on Fisheries and Oceans hearing on the threat 
posed by Asian carp. At this hearing, the Service's expert witness 
testified that ``the conclusion reached by the scientists that 
conducted the risk assessments is that black, silver and bighead carp 
pose unacceptable risks to freshwater resources in the U.S. and to the 
economies they support.''
    While this conclusion would lead one to believe that the Service 
would be moving to expeditiously list the Asian carp, when I inquired 
about the Service's timeline for completing their work, I was told that 
one did not exist.
    I have not found an expert who thinks we will be able to eradicate 
Asian carp from the Great Lakes once a reproducing population is 
established in the lakes. Although I appreciate the Service's efforts, 
these dangerous species won't wait for the petition process to run its 
course.
    The good news is that it is not too late to take preventative 
action. That is why it is essential that we pass H.R. 3049 and close an 
avenue to introduction.
    Finally, as I mentioned earlier, there is broad support behind this 
legislation throughout the Great Lakes delegation. I have also heard 
from Mayor Daley in Chicago, a number of environmental and conservation 
groups and the Great Lakes Fishery Commission. I also want to once 
again thank Charlie Henriksen, President of the Wisconsin Commercial 
Fisheries Association, who last year came out to Washington to give a 
first hand account of his concerns about Asian carp and how it could 
impact his livelihood.
    Again, thank you Chairman Sensenbrenner for holding this mark-up. I 
am hopeful today will be an important step in helping reduce the risk 
of Asian carp from entering the Great Lakes.

    Chairman Sensenbrenner. Are there amendments?
    Are there amendments?
    If there are no amendments----
    A reporting quorum is not present. Without objection, the 
previous question is ordered on the motion to report the bill 
favorably.
    [Intervening business.]
    Chairman Sensenbrenner. A reporting quorum is present. The 
chair will take up the motion to report H.R. 3049, the Asian 
Carp bill, favorably. Those in favor of the motion to report 
the bill favorably will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. The motion to 
report favorably is agreed to. Without objection, the staff is 
directed to make any technical and conforming changes and all 
Members will be given 2 days, as provided by the House rules, 
in which to submit additional dissenting, supplemental, or 
minority views.

                                  
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