02-19158. 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, FAX [phone]. You may send comments by electronic mail (email) to: [e-mail]. 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 [phone] or [e-mail].

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°N to about 51°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°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. 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 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 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 [phone]. 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 § 16.13 by revising paragraph (a)(2) to read as follows:

§ 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 § 16.22.

* * * * *

Dated: July 18, 2002.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.