[Senate Report 111-181]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 366
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-181

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  TO AMEND SECTION 42 OF TITLE 18, UNITED STATES CODE, TO PROHIBIT THE 
          IMPORTATION AND SHIPMENT OF CERTAIN SPECIES OF CARP

                                _______
                                

                  May 5, 2010.--Ordered to be printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1421]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 1421) to amend section 42 of title 18, 
United States Code to prohibit the importation and shipment of 
certain species of carp, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill, do pass.

                    General Statement and Background

    S. 1421 was introduced by Sen. Carl Levin on July 9, 2009 
and has seven co-sponsors. This bill would amend the Lacey Act 
to add the bighead carp of the species Hypophthalmichthys 
nobilis to the list of injurious species, found in 18 U.S.C. 
Sec. 42(a)1.
    Asian carp, including the bighead carp, were introduced to 
control algae in aquaculture ponds. The fish is now established 
in the Ohio, Mississippi and Missouri Rivers, likely as a 
result of escape from aquaculture facilities. Since the 
Mississippi River is connected to the Great Lakes by canal, 
bighead carp threaten to infest the Great Lakes. Currently, the 
U.S. Army Corps of Engineers operates an electric dispersal 
barrier to prevent these invasive fish from moving between the 
Mississippi and the Great Lakes.
    In November of 2009, the researchers from the Corps of 
Engineers and the University of Notre Dame found DNA samples of 
the Asian carp in the Great Lakes vicinity, suggesting movement 
of the species past the barrier. State officials fear that the 
presence of the species could lead to rapid establishment in 
the Great Lakes waterways and to significant impacts on the 
Great Lakes sport and commercial fishing industries.
    The bighead carp is extremely prolific and can exceed 4 
feet in length and 100 pounds. They consume significant amounts 
of plankton daily, starving out smaller and less aggressive 
competitors and threatening species prized by anglers and 
commercial fishers. Given the probability of the establishment 
of the species in United States waterways, the United States 
Fish and Wildlife Service has called for the inclusion of the 
Asian carp to the list of injurious animals prohibited from 
being traded in interstate commerce or imported into the United 
States.

                     Objectives of the Legislation

    Amends the Lacey Act to include the bighead carp of the 
species Hypophthalmichthys nobilis to the list of injurious 
species that are prohibited from being traded in interstate 
commerce or imported into the United States.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 provides that this Act may be cited 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

    Section 2 amends the Lacey Act to add the bighead carp of 
the species Hypophthalmichthys nobilis to the list of injurious 
species that are prohibited from being traded in interstate 
commerce or imported into the United States.

                          Legislative History

    S. 1421 was introduced on July 9, 2009 by Senator Carl 
Levin (D-MI). The bill was referred to the Committee on 
Environment and Public Works. On December 10, 2009, the full 
Environment and Public Works Committee met to consider the 
bill. The bill was ordered reported favorably without amendment 
by voice vote.

                                Hearings

    On December 3, 2009, the Water and Wildlife Subcommittee of 
the Senate Environment and Public Works Committee held a 
legislative hearing on multiple wildlife and invasive species 
bills, including S. 1421. The Deputy Director of the U.S. Fish 
and Wildlife Service as well as representatives of the 
Association of Fish and Wildlife Agencies and The Nature 
Conservancy testified in support of the legislation.

                             Rollcall Votes

    The Committee on Environment and Public Works met to 
consider S. 1421 on December 10, 2009. The bill was ordered 
favorably reported by voice.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee finds that S. 1421 
does not create any additional regulatory burdens, nor will it 
cause any adverse impact on the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee noted that the Congressional 
Budget Office has found, ``the costs of the mandates would fall 
well below the annual thresholds established in UMRA for 
intergovernmental and private-sector mandates ($70 million and 
$141 million, respectively, in 2010, adjusted annually for 
inflation).''

               Congressional Budget Office Cost Estimate

                                                   January 4, 2010.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1421, 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.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1421--Asian Carp Prevention and Control Act

    S. 1421 would make it a federal crime to import or ship 
bighead carp (a type of Asian carp), unless the importer has 
obtained permission from the U.S. Fish and Wildlife Service 
(USFWS) to import the fish for scientific, medical, 
educational, or zoological reasons. CBO estimates that 
implementing S. 1421 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.
    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 S. 1421 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 and would be 
subject to the availability of appropriated funds.
    Because those prosecuted and convicted under S. 1421 could 
be subject to criminal fines, the federal government might 
collect additional revenues 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.
    By prohibiting the importation and interstate transport of 
bighead carp without a permit, the bill would impose 
intergovernmental and private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA). The cost to public and 
private entities, such as zoos or research centers, would be 
the expense of obtaining permits. USFWS regulations prohibit 
the agency from charging permit fees to state, local, or tribal 
entities, so the cost to intergovernmental entities would be 
solely administrative. The fee for a private entity would be 
$25 or $100, depending on the activity being authorized. The 
cost of the mandate to those ineligible for a permit, including 
private importers, fish farmers, retailers, shippers, and 
owners of those fish, would be the forgone net income from no 
longer being able to sell or transport the fish across state 
lines.
    Based on information from USFWS and industry experts about 
permits and the value of shipments, sales, and imports of such 
fish, CBO estimates that the costs of the mandates would fall 
well below the annual thresholds established in UMRA for 
intergovernmental and private-sector mandates ($70 million and 
$141 million, respectively, in 2010, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs), Melissa Merrell (for 
intergovernmental impacts), and Amy Petz (for private-sector 
impacts). The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

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TITLE 18--CRIMES AND CRIMINAL PROCEDURE

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    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 
bighead carp of the species Hypophthalmichthys nobilis; 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.

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