Importation, exportation, and transportation of wildlife: Injurious wildlife Silver carp and largescale silver carp,
[Federal Register: September 5, 2006 (Volume 71, Number 171)]
[Proposed Rules]
[Page 52305-52316]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se06-10]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 16
RIN 1018-AT29
Injurious Wildlife Species; Silver Carp (Hypophthalmichthys molitrix) and Largescale Silver Carp (Hypophthalmichthys harmandi)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; notice of availability of environmental documents.
SUMMARY: The U.S. Fish and Wildlife Service proposes to add all forms (diploid and triploid) of live silver carp (Hypophthalmichthys molitrix), gametes, eggs, and hybrids; and all forms (diploid and triploid) of live largescale silver carp (Hypophthalmichthys harmandi), gametes, eggs, and hybrids to the list of injurious fish, mollusks, and crustaceans under the Lacey Act. This listing would have the effect of prohibiting the importation and interstate transportation of any live animal, gamete, viable egg, or hybrid of the silver carp and largescale silver carp, without a permit in limited circumstances. 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 silver carp and largescale silver carp populations in ecosystems of the United States.
DATES: Comments must be submitted on or before November 6, 2006.
ADDRESSES: You may submit comments, identified by RIN number 1018-AT29, by any of the following methods:
E-mail: silvercarp@fws.gov. Include ``RIN number 1018- AT29'' in the subject line of the message. See the Public Comments Solicited section below for file format and other information about electronic filing.
Fax: (703) 358-1800.
Mail/Hand Delivery/Courier: Chief, Branch of Invasive Species, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 322, Arlington, VA 22203.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name and Regulatory Information Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Erin Williams, Branch of Invasive Species, at erin_williams@fws.gov, or (703) 358-2034.
SUPPLEMENTARY INFORMATION:
Background
In October 2002, the U.S. Fish and Wildlife Service (Service) received a petition signed by 25 members of Congress representing the Great Lakes region to add bighead, silver, and black carp to the list of injurious wildlife under the Lacey Act (18 U.S.C. 42). A follow-up letter to the original petition had seven additional Legislator signatures that support the petition. The Service published a Federal Register notice of inquiry on silver carp (68 FR 43482-43483, July 23, 2003) and provided a 60-day public comment period. We received 31 comments in total, but 12 of these did not address the issues raised in the notice of inquiry. We considered the information provided in the 19 relevant comments. Most of the comments supported the addition of silver carp to the list of injurious wildlife. One commenter noted that silver carp have no commercial value, but was concerned that listing would hinder control and management. One commenter asked us to delay listing until a risk assessment could be completed. Biological synopses and risk assessments were compiled for silver and largescale silver carp.
Under the terms of the injurious wildlife provisions of the Lacey Act, the Secretary of the Interior is authorized to prohibit the importation and interstate transportation of species designated by the Secretary as injurious. Injurious wildlife are defined as those species and offspring and eggs that are injurious to wildlife and wildlife resources, to human beings, and to the interests of forestry, horticulture, or agriculture of the United States. Wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, and reptiles are the only organisms that can be added to the injurious wildlife list.
Species listed as injurious (including their gametes or eggs) may not be imported into the United States or transported between States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States by any means without a permit issued by the Service. Permits may be granted for the importation or transportation of
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injurious wildlife and their offspring or eggs for bona fide scientific, medical, educational, or zoological purposes. A listing would not prohibit intrastate transport or possession of species within States, where not prohibited by the State. Any regulation pertaining to the use of species within States would continue to be the responsibility of each State.
Public Participation
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 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.
This proposed rule solicits economic, biological, or other information on adding all forms of live silver and largescale silver carp, and hybrids, to the list of injurious wildlife. The data will be used to determine if these species are a threat, or potential threat, to those interests of the United States delineated above, and thus warrant addition to the list of injurious fish in 50 CFR 16.13.
We are soliciting public comments and supporting data, to gain additional information, on this proposed rule to add all forms of live silver and largescale silver carp, gametes, eggs, and hybrids, to the list of injurious wildlife under the Lacey Act. We specifically seek comment on the following questions:
(1) What regulations does your State have pertaining to the use, transport, and/or production of silver or largescale silver carp?
(2) How many silver carp are currently in culture or used to control algae in ponds, in how many and which States? Please provide the number of silver carp, if any, permitted within each State.
(3) What would it cost to eradicate silver carp or largescale silver carp individuals and/or populations, or similar nonnative populations, if found?
(4) What are the costs of implementing propagation, recovery, and restoration programs for native fish or other native species? What State-listed species would be impacted by the introduction of silver or largescale silver carp?
(5) What is the economic value of commercial fisheries that have been or could be impacted by silver or largescale silver carp?
(6) How many fishermen sell live silver carp?
(7) What are the annual sales and landings for live and/or dead silver carp? What is the magnitude of the commercial market for live silver carp, if any?
(8) What is the consumer surplus generated from fishing for native fish or fishing-related expenditures such as food, lodging, and equipment? What is the ex-vessel revenue from fishing for native fish that are more valuable than silver carp?
(9) What is the economic value of baitfish industries in each State? How would the presence of wild silver carp affect baitfish imports or exports within a State?
Description of the Proposed Rule
The regulations contained in 50 CFR part 16 implement the Lacey Act as amended. Under the terms of that law, the Secretary of the Interior is authorized to prohibit by regulation certain activities involving wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, reptiles, and the offspring or eggs of any of the foregoing that 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 to 16.15. By adding all forms of live silver carp and largescale silver carp, gametes, eggs and hybrids to the list of injurious wildlife, their importation into the United States, and 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 would be 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. Federal agencies who wish to import silver or largescale silver carp for their own use must file a written declaration with the District Director of Customs and the U.S. Fish and Wildlife Service Inspector at the port of entry. No live silver carp or largescale silver carp, progeny thereof, viable eggs or hybrids imported or transported under a 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 U.S. Fish and Wildlife Service. The interstate transportation of all forms of live silver carp or largescale silver carp, gametes, viable eggs or hybrids currently held in the United States for any purpose would be prohibited without a permit.
This action is being considered in order to protect the welfare and survival of native wildlife and wildlife resources and the health and welfare of human beings from the potential negative impacts of silver carp and largescale silver carp by adding them to the list of injurious wildlife and preventing their importation and interstate movement.
Each State can regulate the transportation and possession of silver carp and largescale silver carp within its State boundaries, but States are not able to prohibit the importation into the United States or the interstate transportation of these species. If one State allows the use of either species, and if either species is introduced to natural waters that are connected to other States' waterbodies, the silver or largescale silver carp could be introduced to a State that prohibits their use or possession, potentially impacting that State's natural resources. Many States are asking the Federal Government to prohibit the importation and interstate transportation of silver carp and have submitted letters of support for the addition of silver carp to the list of injurious wildlife. They are concerned that interstate transportation, through trucking accidents or exchange of hauling water, could result in the introduction of silver carp into State waters where they do not exist and are prohibited by State law. In addition, they are concerned that if their importation into the United States is still allowed, silver carp could become established in new waterways where they do not currently exist through human movement. The evaluation of injuriousness follows the biology and natural history summary sections for each species.
Silver Carp
Biology and Natural History
The commonly named silver carp belongs to the family Cyprinidae, with the species name of Hypophthalmichthys molitrix. The silver carp is a deep-bodied fish with scale counts typically ranging from 85 to 108. Adult coloration is typically gray-
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black along its top with upper sides olive-green that grade to silver along its side and stomach. Fins are dark and without true spines. Large adults can reach over 1.2 meters (m) in length and 50 kilograms (kg) in weight. The gill rakers of silver carp are unique and form a highly specialized filtering apparatus.
The silver carp is a freshwater species that can live in slightly brackish waters. Silver carp occur naturally in a variety of freshwater habitats including large rivers and warm water ponds, lakes, and backwaters that receive flooding or are otherwise connected to large rivers. They also have been introduced to ponds, lakes, reservoirs, and canals where they grow well, but may not spawn and recruit without access to an appropriate riverine habitat. Silver carp usually occupy the upper and middle layers of the water column and are quite tolerant of broad water temperatures: from 4 [deg]C to 40 [deg]C.
Silver carp can be distinguished from all native North American cyprinids, except the golden shiner, by the presence of a well- developed ventral keel. It can be distinguished from the golden shiner in having very small scales (lateral line scales 85-108) compared to the golden shiner (39-51). Silver carp have only four pharyngeal teeth per side in a single row while the golden shiner has five on each side in a single row.
Small silver carp may resemble shad (Dorosoma species). Of the nine established nonindigenous cyprinids in the United States, the silver carp is most similar to bighead carp. The silver carp is also very similar to largescale silver carp, a species which is not known to be in the United States.
Though they are considered a deep water, schooling species, in the Missouri River these fish generally stay between 1 and 5 m deep and are rarely observed on the surface until disturbed. Once disturbed, silver carp often swim rapidly near the surface creating a characteristic large wake and regularly jump out of the water, particularly in response to outboard motors.
Hybrids
Hybridization between closely related species of cyprinids (e.g., species of the genus Hypophthalmichthys) is not unusual. Silver carp are known to hybridize and to produce viable offspring with both bighead (Hypophthalmichthys nobilis) and largescale silver carps. Hybrids of silver and bighead carps are often used in aquaculture in other countries. Both crosses (bighead carp x silver carp and the reciprocal cross) are fertile. Hybrids of bighead and silver carps often strongly resemble one or the other of the parent species.
Bighead carp x silver carp are common in parts of the United States and are likely to be the result of wild spawning, not escapement of artificially induced hybrids because neither silver carp nor the hybrids are known to be in use in aquaculture in the United States. Five percent of the adult Hypophthalmichthys caught in the lower Missouri River in 2004 were hybrids. Hybridization between closely related cyprinid fishes occurs most commonly where a species has been introduced; hybridization between cyprinids typically occurs when members of related species share similar spawning habitat, behavior, and season because of the loss of environmental cues that inhibit hybridization behavior. The presence of large numbers of wild-spawned hybrids implies that bighead and silver carps often spawn in the same place at the same time in United States waters. Although there has been moderate success in artificially producing hybrids of Hypophthalmichthys spp. and common carp (Cyprinus carpio), the spawning locations and behaviors of the two genera are so different that production of wild hybrids would be unlikely.
Habitat Use
Silver carp in the Missouri River occupy primarily low-velocity water 1 to 5 m deep in all months of the year and use low-velocity sections of Missouri River tributaries. Adult silver carp aggregate in pool habitats to overwinter. Preliminary research indicates that silver carp in the Missouri River are active in winter, with activity slowing at less than 4 [deg]C and little movement occurring at temperatures below 2 [deg]C. Silver carp used tributaries to larger rivers in the summer.
Large lakes connected to rivers often serve as nursery areas for silver carp. Juvenile silver carp typically remain in backwater habitats whereas adults are typically found in main channels of rivers. There is limited data about the habitat use of juvenile silver carp in the United States because their introduction, spread and establishment is relatively recent and ongoing. Young-of-year silver carp were found in abundance in the backwaters of the middle Mississippi River, and juvenile silver carp were collected in low-velocity and off-channel habitats in the Missouri, Mississippi, Wabash, and lower Ohio rivers. Young-of-year (1 m in length) in rivers, lakes, and reservoirs increases the probability of a negative impact on aquatic ecosystems they invade.
Potential Control
Due to the extensive established range of silver carp in the Mississippi River Basin, conventional control methods are not feasible to reduce established populations. The damage to ancillary fisheries resources through control measures would be substantial. Netting
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and electrofishing may be effective in reducing populations, but many non-target fish species would also be killed where such control measures are used. Selective removal of silver carp is possible given their location in the water column, but water trawling could also remove other non-target fish such as paddlefish.
Use of chemical treatments, such as rotenone, would be expensive, only locally effective, and would negatively affect all fishes and invertebrates, not just the target carp. Chemical treatment of the Mississippi River and other large rivers in the United States to control silver carp is not feasible, either logistically or economically, and would have a low likelihood of success. Even most nonlethal methods to prevent the spread of silver carp, such as electrical barriers or acoustic, physical, or bubble barriers, would negatively affect migratory native fishes. This effect might be minimized, if somewhat species-specific sonic barriers were developed. Treatment of ballast water in vessels moving from waters containing reproductive populations of silver carp to waters devoid of these fishes may become necessary. At present, there is no method known to substantially reduce established populations of silver carp. On the basis of presently available technology, eradication is not possible.
Impacts to Humans
Silver carp in the United States cause substantial impacts to the health and welfare of human beings that use waterways infested with silver carp. There are numerous reports of injuries to human beings and damage to boats and boating equipment because of the jumping habits of silver carp in the vicinity of moving motorized watercraft. Some reported injuries include cuts from fins, black eyes, broken bones, back injuries, and concussions. Silver carp also cause property damage including broken radios, depth finders, fishing equipment, and antennae. Some vessels have been fitted with a Plexiglas pilot's cab as protection against jumping silver carp.
Factors That Reduce or Remove Injuriousness for Silver Carp
Control
The large and growing range of silver carp in U.S. waterways makes chemical control of established populations highly unlikely, both physically and fiscally. Some control might be possible with massive fishing efforts. Justifying the expense of such efforts would require a large commercial demand, which does not currently exist, nor is likely given the jumping behavior of silver carp which makes fishing difficult.
The ability to control spread of established populations depends on their access to open waterways and riverine habitat to spawn. Barriers may help control the spread of silver carp from the Mississippi River basin into the Great Lakes or other waterbodies. However, there are still several pathways by which silver carp from established populations in the Mississippi River Basin might be moved to new waterbodies, such as the Potomac River or Columbia River, and have the potential to become established.
Recovery of Disturbed Sites
Because the ability to eradicate this species is low, there is little likelihood for rehabilitation or recovery of ecosystems disturbed by this species. Additionally infested waterways allow connections to unpopulated sites. Utilizing sterile silver carp would do little to reduce or remove injuriousness as the present range of establishment in the Mississippi River Basin is too extensive for this option to reduce current silver carp populations in this area. The use of daughterless fish technology (introducing sterile males to produce unviable eggs) may reduce populations, but this would take many years before it would reduce numbers of fish where they currently exist. Research is being conducted on the use of pheromones to control carp, but it is years from demonstrating effectiveness in natural waters and mass production. These technologies might be useful to prevent establishment of silver carp in new areas.
Potential Pathogens
The potential for silver carp to infect native fishes with pathogens is largely unknown. Should such transfers prove viable, the ability and effectiveness to control these transfers to native fishes would be low. The Asian carp tapeworm, for which silver carp is a known host, has demonstrated potential to jump to native species of several orders in other nations and within U.S. waters.
Potential Ecological Benefits for Introduction
The ability of silver carp to effectively filter particles and reliance on phytoplankton for much of its diet led to research into their effectiveness as a biological control agent for phytoplankton in wastewater systems and other ponds. There is conflicting data concerning the benefit of using silver carp to control excess nutrients. Regardless of their effect on increasing or decreasing phytoplankton and zooplankton abundance, studies have consistently shown that filter feeding by silver carp shifts the species composition of these communities to smaller species. Silver carps' effectiveness has also been shown to be greatly influenced by the design of the facility.
Conclusion
Because silver carp are likely to spread from their current established range to new waterbodies in the United States; are likely to compete with native species for food and habitat; are likely to have negative impacts on humans; are known to hybridize with bighead carp, a nonnative species also established in the United States; and because it would be difficult to eradicate, reduce large populations, or recover ecosystems disturbed by the species, the Service finds silver carp to be injurious to the interests of human beings and the wildlife and wildlife resources of the United States.
Factors That Contribute to Injuriousness for Largescale Silver Carp
Potential Introduction and Spread
To our knowledge, the largescale silver carp has not been imported into the United States. Its growth rate is greater than that of silver carp, and the species reaches sexual maturity sooner than silver carp. In culture situations, introduced silver carp hybridized with largescale silver carp. The hybrids did not grow as quickly as largescale silver carp but exceeded the growth rate of silver carp. Largescale silver carp x silver carp hybrids were introduced in Kazakhstan where they became established. The climate of Kazakhstan is temperate; thus, largescale silver carp x silver carp hybrids are more cold-tolerant than pure largescale silver carp. The faster growth rate of these hybrids than pure silver carp and the increased palatability of largescale silver carp compared to silver carp may conceivably stimulate interest in culturing either the hybrids or pure largescale silver carp in the United States. Because hybrids can tolerate temperate climates, they have the potential to be cultured in many southern States. Culture of pure largescale silver carp would probably require subtropical/tropical conditions.
Escape from containment, as has happened with silver carp, would provide a pathway for release of largescale silver carp into natural
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waters. Should this fish or its hybrids be released into natural waters, connected waterways would become a secondary pathway for spread. Because of the morphological similarity between this species and silver carp, stock contamination of silver carp by largescale silver carp is possible if imported from regions with populations of H. harmandi. Another possible introduction pathway, should largescale silver carp or their hybrids be imported for culture, would be sale of live individuals in food fish markets.
Likelihood of spread of largescale silver carp, should they be introduced, would be high in subtropical/tropical waters of the United States, but only where river flows are sufficient to support spawning. Hybrid largescale silver carp x silver carp, however, would have high potential to live in much of the temperate United States. Because largescale silver carp can occupy reservoirs, they could also live in lakes. The same is likely true for hybrids. Young largescale silver carp or any hybrids captured by anglers for use as live bait would be a pathway that could lead to numerous future introductions of these species.
Hybrids
Hybridization with native fishes is not believed to be possible. Largescale silver carp can hybridize with silver carp and possibly bighead carp, both of which are present in U.S. waters. Hybrids of largescale silver carp are known to have survived and became established in Kazakhstan at a latitude of approximately 45 [deg]N, a latitude that parallels the border between New York State and Ontario, Canada. Therefore, it can be assumed that these hybrids would be capable of surviving and probably establishing throughout much of the United States where suitable waters exist.
Potential Effects on Native Species
Largescale silver carp consume primarily planktonic food sources. It is unknown if largescale silver carp feed more heavily on phytoplankton than zooplankton, but their hybrids with silver carp would likely show a preference for phytoplankton. Largescale silver carp and hybrids are highly likely to compete for food with other planktivorous native fishes and with post-larvae and early juveniles of most native fishes should they become established in the United States.
Fishes most likely to be affected are those species whose diet is predominantly plankton including paddlefish (Polyodon spathula), native to the Mississippi River Basin and Gulf of Mexico river drainages from east Texas to Alabama, buffalos (Ictiobus spp.), or shads (Dorosoma spp.). Given that these fish may already be competing with bighead and silver carps in some areas, the presence of largescale silver carp would increase food competition and increase the threat of negative impacts to native species.
Potential for direct predation and injury of drifting fertilized eggs and larvae of fishes exists. Mussels are also filter feeders but live partly or totally buried in the substrate; they would be less likely to be affected by filter-feeding largescale silver carp or their hybrids. Largescale silver carp feed in the water column at night. Nevertheless, changes in the fish community structure caused by largescale silver carp or hybrids would likely have adverse effects on abundance and availability of host fishes required for mussel reproduction.
There are other possible, but less likely, effects that will cascade through any aquatic ecosystem with an established population of largescale silver carp or their hybrids. Nutrient levels are a concern because there is evidence of overloading of nutrients in waters into which silver carp have been introduced, and the same may apply to largescale silver carp or their hybrids.
Habitat competition would likely be low unless populations become significantly large. The potential of largescale silver and any hybrids to cause habitat degradation and/or destruction is low as is possible predation on native wildlife.
Additional adverse impacts on native wildlife, wildlife resources, and ecosystem balance are likely few, except for fishes. Ecosystem balance would likely be modified if populations of largescale silver carp or their hybrids with silver carp become large enough to dominate planktivorous fish species.
Because largescale silver carp may survive and become established and compete with native fishes, there is no acceptable escape or release threshold for largescale silver carp or their hybrids.
Potential Pathogens
The potential for largescale silver carp to transfer pathogens is largely unknown. No detailed studies of disease-causing agents of largescale silver carp have been found, but at least three trematode parasites (Dactylogyrus harmandi, D. hypophthalmichthys, D. chenthushenae) are known to infect largescale silver carp. Bighead, silver, grass, and black carps are known to host the Asian carp tapeworm (Bothriocephalus acheilognathi), but it is unknown whether largescale silver carp host this species. Since largescale silver carp are very similar to silver carp, they likely can host the Asian carp tapeworm.
Potential Impacts to Threatened and Endangered Wildlife
Adverse effects of largescale silver carp on selected threatened and endangered freshwater mussels and fishes would be expected to be moderate to high. There are currently 116 fishes and 70 mussels on the Federal List of Endangered and Threatened Wildlife. Based on habitat requirements, it appears that 40 fishes and 25 mussels currently on the endangered or threatened species list would likely be impacted by the introduction and establishment of largescale silver carp. However, the habitat requirements, springs and small streams, of the remaining listed fishes and mussels would probably preclude any detectable effects as it is unlikely that largescale silver carp or their hybrids would survive in such small bodies of water.
It is highly likely that largescale silver carp and particularly their hybrids with silver carp would have adverse effects on designated critical habitats of threatened and endangered species. There are currently 60 species of fishes and 18 mussels with designated critical habitat. At least 26 fishes and mussels with critical habitat inhabit lakes or reaches of streams large enough to support hybrids of largescale silver carp and silver carp. Largescale silver carp and their hybrids have the potential to alter food webs and ultimately alter nutrient and energy cycling in aquatic communities. The most likely effect would be an alteration of fish community structure through competition for food. Fishes and mussels that are determined to be candidates for listing under the Endangered Species Act would likewise be at risk.
There is low likelihood that species may be placed in danger of extinction as a result of the introduction or establishment of largescale silver carp if only pure stock escaped and became established in subtropical/tropical waters in the United States. Yet, the potential exists for hybrids with silver carp to develop large populations that could further imperil native fishes not currently on the Federal List of Endangered and Threatened Wildlife. Large populations of hybrids with silver carp would likely alter native fish community structures, ultimately resulting in decline of native mussels since many rely on native host fishes for reproduction. The fact that hybrids have the potential to become abundant and
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reach a very large size, > 1 m in length, in rivers, lakes, and reservoirs, increases the probability of a negative impact on aquatic ecosystems should largescale silver carp be introduced and become established.
Potential Control
Due to the potential range of establishment of hybrid largescale silver carp x silver carp in the United States, conventional control methods would not be feasible. The damage to ancillary fisheries resources through control measures would be substantial. Netting and electrofishing might be effective in reducing local populations of largescale silver carp, but they would also affect native fishes present in the area where such control measures are used. Similarly, use of chemical treatments would be expensive, only locally effective, and would negatively affect all fishes and invertebrates. Even most nonlethal methods to prevent the spread of largescale silver carp, such as electrical barriers or bubble curtains, would negatively affect migratory native fishes. At present, there is no method known to substantially reduce populations of established fishes in U.S. waterways. On the basis of presently available technology, eradication would not be possible.
Potential Impacts to Humans
The potential impact on the health and welfare of humans from largescale silver carp or any hybrids is unknown. If largescale silver x silver hybrids display the jumping behavior of pure silver carp, their potential to injure humans could be considerable. Impacts to agriculture, horticulture or forestry from largescale silver carp or hybrids are highly unlikely.
Factors That Reduce or Remove Injuriousness for Largescale Silver Carp
Detection and Response
If largescale silver carp were introduced into U.S. waters, it is unlikely that the introduction would be discovered until the numbers were high enough to impact wildlife and wildlife resources. Widespread surveys of waterways are not conducted to establish species' presence lists. Delay in discovery would limit the ability and effectiveness to rapidly respond to the introduction and prevent establishment. It is unlikely that hybrid largescale silver x silver carp could be eradicated from U.S. waterways, should they be introduced, unless they are found in unconnected waterbodies.
Control
If hybrid largescale silver x silver carp were to escape and become established in natural waters, management of established populations would be nearly impossible both physically and fiscally. Some control might be possible with massive fishing efforts using nets, but this would unlikely stem range expansion. There would have to be substantial commercial demand to justify the expense of such efforts.
Chemicals or selective removal may be used to manage populations in localized areas. However, selective removal of largescale silver carp would be difficult because they remain in deeper waters during daylight hours when such removal efforts would probably occur. If largescale hybrids lack this behavior, then selective removal may be feasible in specific situations. Pheromones may be a viable option to limit spread; this possibility is under investigation for silver carp, and may have applicability to largescale silver carp and any hybrids. However, research into this control method is in early stages.
It would be difficult to control the spread of largescale silver carp or any hybrids to new locations except, perhaps, by use of electric, acoustic, physical and other types of barriers. At present, there is no method known to substantially reduce populations of introduced fishes in U.S. waterways. On the basis of presently available technology, eradication would not be possible.
Although there is no evidence that this species has been introduced or targeted for introduction into the United States, its affinities with silver carp indicate that should it or its hybrids with silver carp be introduced, abilities to eradicate, manage or control spread to new locations would likely be low. Therefore, rehabilitation or recovery of ecosystems disturbed by this species or its hybrids is unlikely. Introduction of largescale silver carp or its hybrids has no known potential ecological benefits.
Because no evidence exists that largescale silver carp have been imported or released into U.S. waters, triploidy or induced sterility could potentially reduce or eliminate injuriousness. Nevertheless, these processes are likely to be costly, time-consuming, and not 100% effective. Should this species be imported, it is likely that it would be placed in culture with other Asian carps including silver carp, a species with which the largescale silver carp can hybridize. Although the largescale silver carp is not known to hybridize with bighead carp, it is feasible because hybrids between silver and bighead carps are known.
Recovery of Disturbed Sites
Although there is no evidence that this species has been introduced or targeted for introduction into the U.S., its similarities with silver carp indicate that should it or its hybrids with silver carp be introduced, abilities to eradicate, manage or control spread to new locations would likely be low. Therefore, there would be little likelihood for rehabilitation or recovery of ecosystems disturbed by this species or its hybrids.
Potential Pathogens
The potential for largescale silver carp or largescale silver x silver carp hybrids to infect native fishes with pathogens is largely unknown. Should such transfers prove viable, ability and effectiveness to control the spread to native fishes would be low.
Potential Ecological Benefits for Introduction
There are no potential ecological benefits for introduction of largescale silver carp or its hybrids.
Conclusion
Because largescale silver carp are likely to escape or be released into the wild if imported to the United States; are likely to survive, become established and spread if escaped or released; are likely to compete with native species for food and habitat; have been shown to hybridize with silver carp, a nonnative species already established in the United States; hybrids with silver carp may display jumping behavior that could injure humans; and because it would be difficult to prevent, eradicate, reduce large populations, control spread to new locations or recover ecosystems disturbed by the species, the Service finds largescale silver carp to be injurious to the interests of human beings and the wildlife and wildlife resources of the United States.
Required Determinations
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This rule contains information collection activity for special use permits. The Fish and Wildlife Service has approval from the Office of Management and Budget (OMB) to collect information under OMB control number 1018-0093. This approval expires June 30, 2007. The Service may not conduct or sponsor, and a person is not required to respond to, a collection
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of information unless it displays a currently valid OMB control number.
Regulatory Planning and Review
(a) In accordance with the criteria in Executive Order 12866, OMB has designated this rule as a significant regulatory action.
This rule would not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Costs Incurred
Silver Carp
We expect this proposed rule to have minimal costs. Silver carp are not cultured in the United States, nor do we believe that they are imported or exported. Currently, there are some commercial fisheries for silver carp in the Mississippi, Missouri, and Illinois rivers. Usually, commercial fishermen are catching silver carp as bycatch, which can account for up to 50 percent of the catch. Silver carp are not favorable because of their jumping habits and because they are less desirable by the consumer. In Missouri, many of the fishermen do not primarily target Asian carp (bighead and silver carp) because the price received is low ($0.10-$0.15 per pound). Instead, they fish for bighead and silver carp when other species or opportunities are unavailable. Many fishermen do not distinguish between bighead carp and silver carp.
Data for the silver carp fishery is limited. While Table 1 shows commercial fishery landings and value in Iowa and Illinois, we recognize that there may be landings in other States as well. Compared to the total commercial harvest and value, Asian carp represented 11 percent of landings and 6 percent of value in 2003. Because Illinois does not distinguish between bighead carp and silver carp in its annual report, we are unable to determine the magnitude of silver carp landings for the entire area. For Iowa, silver carp represented less than 1 percent of total landings.
Table 1.--2003 Commercial Fishery Landings and Value in Iowa and Illinois
Illinois\1\ Iowa \2\ \3\
Total
Total Commercial Harvest (lbs).................................. 6,385,473 2,242,997 8,628,470
Asian Carp*.................................................
900,497
15,774
916,271
Silver Carp................................................. ..............
3,828
3,828 Total Commercial Value ($)...................................... $1,334,467
$496,765 $1,831,232
Asian Carp*.................................................
$99,055
$1,735
$100,790
Silver Carp................................................. ..............
$421
$421
*Asian carp includes bighead carp and silver carp. The value for Asian carp and silver carp in Iowa is based on the average $0.11/lb received, which is the same as Illinois. \1\ Illinois Department of Natural Resources. 2005. 2003 Commercial Catch Report. Brighton, Illinois. \2\ Personal communication, Gene Jones, Iowa Department of Natural Resources. \3\ Iowa Department of Natural Resources. 2003. Fisheries Management Section 2003 Completion Reports. Des Moines, Iowa.
The majority of the silver carp catch is sold as round weight. In Illinois, fishermen can sell silver carp as long as they are not transported live once the fish are taken off the water. No impacts are expected to this market because silver carp are not delivered live to the processor.
The market for live silver carp is unknown. Two live silver carp have been seen for sale in Toronto markets; it is unknown if live silver carp are being sold in United States markets. It is possible that silver carp are inadvertently shipped along with live bighead carp. However, most live haulers will not haul live silver carp because the fishes do not transport well. Furthermore, the consumer prefers bighead carp to silver carp. Because only sales of live silver carp would be regulated by this proposed rulemaking, we do not expect any impacts to commercial fishermen unless they are transporting live silver carp across State lines for processing. While the exact impact is unknown, we expect it to be minimal.
Largescale Silver Carp
There is no known use for largescale silver carp in the United States or import/export of the species into or from the United States. We do not know of any future plans to use largescale silver carp in the United States. Therefore, we do not expect the proposed rule to add largescale silver carp to the list of injurious wildlife to have any costs. Benefits Accrued
Silver Carp
Within several waters of the Midwest, silver carp comprise a large percentage of the commercial catch as bycatch (non-target species). This may be negatively impacting revenue for commercial fishermen because silver carp are not as valuable as the native species that are targeted. It is possible that silver carp populations would not become established in new watersheds (Columbia Basin, Chesapeake Basin, and Sacramento-San Joaquin Delta) with similar attributes as the Mississippi River Basin as a result of this rulemaking. Silver carp are likely to compete with native fish for food, causing declines in native fishes in the United States, particularly those that rely heavily on plankton as a food resource.
With this proposed rule, we expect to delay and greatly decrease the risk of the establishment of silver carp populations in other U.S. watersheds. Thus, this proposed rule would protect native fish and the recreational and commercial fisheries associated with native fish. In terms of recreational fisheries, benefits would accrue due to (1) consumer surplus generated from fishing native fish and (2) fishing- related expenditures such as food, lodging, and equipment. In terms of commercial fisheries, benefits would accrue due to the ex-vessel revenue from fishing native fish which are more valuable than silver carp. The timeline for when these benefits would accrue depends on the potential spread and impacts of silver carp. The extent of benefits to recreational and commercial fisheries is also unknown.
Largescale Silver Carp
There have been no reports that largescale silver carp are in the United States. However, native fish populations could decline if largescale silver carp were to establish populations in the United States. With this proposed rule, we expect to greatly reduce the risk of the introduction and establishment of largescale silver carp (or any hybrids) in U.S. watersheds. Thus, this proposed rule protects native fish and the recreational and commercial fisheries
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associated with native fish. In terms of recreational fisheries, benefits would accrue due to the continued (1) consumer surplus generated from fishing native fish and (2) fishing-related expenditures such as food, lodging, and equipment. In terms of commercial fisheries, benefits would accrue due to the continued ex-vessel revenue from fishing native fish. The extent of benefits to recreational and commercial fisheries is also unknown because it depends on the introduction and subsequent establishment of largescale silver carp populations in the United States.
(b) This proposed rule will not create inconsistencies with other Federal agencies' actions. This rule pertains only to regulations promulgated by the U.S. Fish and Wildlife Service under the Lacey Act. No other agencies are involved in these regulations.
(c) This proposed rule would not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This proposed rule does not affect entitlement programs. This rule is aimed at regulating the importation and movement of nonindigenous species that have the potential to cause significant economic and other impacts on natural resources that are the trust responsibility of the Federal Government.
(d) OMB has determined that this proposed rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency publishes a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions) (5 U.S.C. 601 et seq.). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for ``significant impact'' and a threshold for a ``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.
This proposed rulemaking may impact a small number of fishermen selling live silver carp. The number of fishermen targeting silver carp is unknown. Because the market for live silver market is also unknown, we are unable to estimate the degree of impact of this rulemaking. We expect this proposed rulemaking to have a minimal effect on commercial fishermen selling live silver carp because many live haulers do not transport live silver carp. We do not expect this rulemaking to affect aquaculture because silver carp, largescale silver carp or any hybrids are not being cultured in the United States at this time.
Many small businesses within the retail trade industry (such as hotels, gas stations, taxidermy shops, bait and tackle shops, etc.) may benefit from continued recreational fishing without impacts from silver carp, largescale silver carp, or any hybrids. Furthermore, small businesses associated with commercial fishing (fishermen, wholesalers, and retailers) would also benefit from continued commercial fishing without impacts from silver carp, largescale silver carp, or any hybrids. We do not know the extent to which these small businesses would continue to benefit. However, we expect this benefit to be distributed across various watersheds, and so we do not expect that the rule will have a significant economic effect (benefit) on a substantial number of small entities in any region or nationally.
Therefore, we certify that this rule would 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.). An initial/final 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 live silver carp or largescale silver carp importation and interstate transportation are prohibited.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more. Silver carp is in limited commercial trade in the United States and primarily as fillets; the largescale silver carp is not known to be imported or present in the United States. Silver carp are likely to devastate many native fishery resources if it continues to spread in the United States. The largescale silver carp could devastate many native fishery resources if it is introduced to U.S. waterways. This rulemaking will protect the environment from the introduction and spread of non-native species and will indirectly work to sustain the economic benefits enjoyed by numerous small establishments connected with recreational and commercial fishing.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) 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.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), this rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule would not prohibit intrastate transport or any use of silver carp or largescale silver carp within State boundaries. Any regulations adhering to the use of silver carp or largescale silver carp within individual States will be the responsibility of each State. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act is not required.
Takings
In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. This rule would not impose significant requirements or limitations on private property use.
Federalism
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. This rule would 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.
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Civil Justice Reform
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 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.
National Environmental Policy Act
We have reviewed this rule in accordance with the criteria of the National Environmental Policy Act and the Departmental Manual in 516 DM. This action is being taken to protect the natural resources of the United States. Draft environmental assessments have been prepared for each species and are available for review by written request (see ADDRESSES section) or at our Web page at http://contaminants.fws.gov/Issues/InvasiveSpecies.cfm .
Adding silver carp and largescale silver carp to the list of injurious wildlife is intended to prevent their further introduction and establishment into natural waters of the United States in order to protect native fishes, the survival and welfare of wildlife and wildlife resources and the health and welfare of humans. Not listing silver carp as injurious may allow for an expansion of their use to States where they are not already found, thus increasing the risk of their escape and establishment in new areas due to accidental release and, perhaps, intentional release, which would likely threaten native fish, wildlife, and humans. Silver carp are established throughout much of the Mississippi River Basin. Releases of silver carp into natural waters of the United States are likely to occur again and the species is likely to become established in additional U.S. waterways, threatening native fish populations, wildlife, and wildlife resources dependent on phytoplankton, zooplankton, bacteria, and detritus, and impacting human health.
Largescale silver carp are not known to be in the United States, but if introduced to natural waters, they would likely impact the welfare and survival of native fish and wildlife, as well as the health and welfare of humans. In addition, largescale silver carp are visually similar to silver carp and can readily hybridize with silver carp, so they would be difficult to distinguish from silver carp.
Government-to-Government Relationship With Tribes
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. This rule involves the importation and interstate movement of all forms of live silver carp, largescale silver carp, gametes, eggs, and hybrids. We are unaware of trade in these species by Tribes.
Effects on Energy
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. This rule is not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand including answers to questions such as the following: (1) Are the requirements in this rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with the clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the rule? What else could we do to make the rule easier to understand?
Send a copy of any written comments about how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail comments to Exsec@ios.doi.gov.
References Cited
A complete list of all references used in this rulemaking is available upon request from the Branch of Invasive Species (see the FOR FURTHER INFORMATION CONTACT section).
Authority
The Service is issuing this proposed rule under the authority of the Lacey Act (18 U.S.C. 42).
List of Subjects in 50 CFR Part 16
Fish, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons discussed in the preamble, the U.S. Fish and Wildlife Service proposes to amend part 16, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
PART 16--[AMENDED]
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The authority citation for part 16 continues to read as follows:
Authority: 18 U.S.C. 42.
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Amend Sec. 16.13 as follows:
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By removing the word ``and'' at the end of paragraph (a)(2)(iii);
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By removing the period at the end of paragraph (a)(2)(iv)(BB) and adding in its place ``; and''; and
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By adding a new paragraph (a)(2)(v) to read as set forth below.
Sec. 16.13 Importation of live or dead fish, mollusks, and crustaceans, or their eggs.
(a) * * *
(2) * * *
(v) Live fish, gametes, viable eggs, or hybrids of the species silver carp, Hypophthalmichthys molitrix, or largescale silver carp, Hypophthalmichthys harmandi. * * * * *
Dated: July 14, 2006. Matt Hogan, Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-7416 Filed 9-1-06; 8:45 am]
BILLING CODE 4310-55-P
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