[Federal Register Volume 67, Number 146 (Tuesday, July 30, 2002)]
[Proposed Rules]
[Pages 49280-49284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19158]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 16

RIN 1018-AG70


Injurious Wildlife Species; Black Carp (Mylopharyngodon piceus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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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: [email protected]. 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 
[email protected].

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