December 16, 2005

Chief, Division of Environmental Quality
U.S. Fish and Wildlife Service
4401 N. Fairfax Dr.
Mail Stop 322
Arlington, VA 22203

Dear Colleagues:

We join other individual scientists and science-based groups in asking that you promptly add both diploid and triploid forms of the black carp (Mylopharyngodon piceus) to the list of injurious wildlife regulated under the Lacey Act. We appreciate this opportunity to comment and look forward to participating further in this process.

Personally, I have followed this issue since October 1993, when the House of Representative’s former Merchant Marine and Fisheries Committee asked me to testify on the risks posed by black carp to U.S. resources. It was apparent to me then that we should do everything possible to prevent black carp from becoming established in U.S. waters. I am disappointed that regulating black carp has been under consideration now for more than a decade.

Meanwhile, informal evidence exists that wild populations of black carp have, during this time, become established in the Mississippi River Basin (Nico et al., 2005). This likelihood is a serious indictment of current U.S. policy. While we understand the limits of FWS’ authority under the Lacey Act, we find that this current proposal does not go far enough. Like others, including the Department of the Interior’s own experts, (e.g., see Rasmussen, 2001), we believe that stronger measures are needed. We would like FWS to undertake cooperative efforts with state counterparts to further limit populations of Chinese carp already in this country and to phase out black carp use in North America. 

Here, we have divided our detailed comments into several sections, including:

• FWS’s unique and essential role;
• the inability of state regulation to substitute for federal rules;
• comments on what is missing from the Draft Environmental Assessment, especially related to biodiversity and newer scientific information;
• the need to regulate both diploid and triploid black carp;
• comments on the Draft Economic Analysis;
• the usefulness of FWS adopting electronic dockets; and
• literature cited.

FWS's Unique and Essential Role

FWS has sole authority to make listings of injurious fish and wildlife under the Lacey Act. No other federal agency has authority to use this law—one of the few federal legal tools designed to prevent the movement of additional invasive species into and within the country.

Yet the FWS has named only a few new injurious species between the early 1990’s and 2005. Of these few listings, one—the zebra mussel—was required by Congress. FWS complied in 1991 but zebra mussels went unregulated between 1993 and 2000 due to a FWS error. Perhaps this should not be surprising, given the low priority FWS places on further regulation versus more vague goals, such as increasing public awareness and coordinating federal management activities (FWS, undated).

During this same period, the impacts of invasive species have become much better documented. As a result, the American people have every right to expect far more action from their government. We believe that FWS’ use of the Lacey Act deserves higher priority. Therefore, we urge you to list black carp as just the first step in a more pro-active, long-term agency approach.

There are no effective and feasible methods to manage black carp (Nico et al., 2005). If black carp become locally abundant, some ecosystems are unlikely to recover. In others, recovery will be costly. Given their track record, further escapes of fish from culture facilities into the wild are likely. For just this reason, the Aquatic Nuisance Species Task Force’s 1994 Policy Review chose to consider escapes as “intentional introductions” and noted that internationally renowned scientists considered these inevitable. These are among the factors that make the environmental risks posed by black carp high and certain—a strong argument for the strongest possible regulation.

The Inability of State Regulation to Substitute for Federal Rules

We are concerned that several states have maintained the largest populations of diploid or triploid black carp in captivity: Arkansas, Louisiana, Missouri, and Mississippi. In 1993, the Office of Technology Assessment (U.S. Congress, 1993) found that none of these states was among those with exemplary approaches regarding comprehensiveness and attention to detail in their fish and wildlife regulations. In fact, Mississippi had the least authority of any state and was among five that OTA found to be clearly under-regulating. Most states had no clear decision-making standards for regulating the import and release of fish.

Since then, at least Arkansas, Missouri, and Mississippi have toughened their standards for importing or releasing fish. Now, at least seventeen states specifically treat black carp in their wildlife regulations (Nico et al., 2005; Great Lakes Sport Fishing Council, 2005). Clearly the trend is toward strengthening state black carp rules, as it is in Canadian provinces as well (Great Lakes Panel, 2004). Nevertheless, the Environmental Law Institute (2002) found significant gaps in various means of addressing the import, introduction, or release of aquatic species in each of these four states. It is unlikely that recent changes have filled all of these gaps. Thus state regulation does not—and cannot—provide the kind of nationwide protection needed for U.S. natural resources.

Comments on Draft Environmental Assessment 

The Draft Environmental Assessment evaluates three alternatives. Of these, FWS has been pursuing the "no action" course for nearly a decade, even though the environmental assessment shows that this route is likely to cause considerable ecological harm. The document identifies the preferred alternative to be listing both diploid and triploid black carp and their gametes and eggs as injurious. We agree and hope FWS will proceed with this listing immediately. In our view, this listing should have been made in the mid-1990’s. It seems that even letters from a significant number of members of Congress, in 2002 and 2004, could not speed the listing process. Now FWS is faced with congressional intervention to list several Chinese carp species simultaneously. We urge FWS to move forward with greater urgency, if only to preserve its own authority to make Lacey Act decisions.

The FWS experts who drafted the Draft Environmental Assessment show their familiarity with key scientific information. We believe that the Draft Environmental Assessment accurately captures most of the risks that black carp pose (but see also the section regarding diseases in the economics comments, below). For example, the Assessment acknowledges that the United States is home to about 30% of the world's freshwater mussel diversity and about 15% of North American snail species.

The Assessment, however, has a slightly different focus than the more recent information contained in Nico, et al. in their 2005 book, Black Carp: Biological Synopsis and Risk Assessment of an Introduced Fish. We find the following points emerge strongly in the latter:

• that the Southeast is the epicenter of U.S. mollusk diversity, is also where most aquaculture production occurs, and where black carp is held in “containment” facilities;
• that black carp in the Mississippi River Basin could pose a serious threat to many of the remaining populations of endangered and threatened mollusks;
• the likelihood that black carp will be able to form self-reproducing populations in not just the Mississippi River, but also the Missouri and other major U.S. rivers;
• that native mollusks have not yet experienced the introduction of a direct predator like black carp;
• that black carp could also have large impacts on larger ecological processes, potentially restructuring benthic communities in rivers and lakes;
• the strength of evidence that black carp are feeding specialists; nevertheless, there is the risk that, if mollusks become limited, black carp may switch to eating crayfishes and other large crustaceans, many of which are also imperiled; and
• that black carp may carry a parasitic form of the Asian mussel, Anodonta woodiana. If this organism enters the United States, it may further threaten already imperiled native mussels (Watters, 1997).

We ask that you ensure this information is factored into your decision-making now.   

The Need to Regulate Both Diploid and Triploid Black Carp

Considerable uncertainty exists regarding the rate of effectiveness in creating, measuring and maintaining triploidy in aquatic organisms. Nor is it certain whether triploid black carp would be completely incapable of reproducing or of hybridizing with other carp (USGS, 2003). On the basis of conversations with specialists, it seems that the research to answer these key questions is neither complete nor funded. Thus it would be premature to allow use of triploid black carp now. 

The Draft Environmental Assessment notes considerable potential for harm from triploid black carp. Even a highly effective triploid program would not protect native mollusks from these long-lived fish with the capacity to move long distances and consume large amounts. We feel it would be irresponsible to allow interstate shipments of triploids with no federal or federally-approved certification program in place, especially one that stipulates use of the most accurate methods for detecting triploids.

Comments on the Draft Economic Assessment

We find that the Draft Economic Assessment justifies listing diploid and triploid black carp under the Lacey Act.

First, the estimated value of the mussel industry ($40-50 million annually, around 1998) exceeded the value of two of the three industries that could suffer harm if they are unable to use black carp for biological control ($40 million for baitfish and $30 million for hybrid striped bass, also in 1998, but in 2003 dollars). 

Second, several important aspects emerge from the economic information that was available, calculated, or extrapolated in the Draft Analysis. These include:

1. the relatively low percentage of catfish production affected by snails in a four-state area (at most, 12-13%);
2. the small percentage of affected operations that use biological control, including black carp (at most, about 2-4%); and
3. the small percent of current losses. Only a small percentage of food fish and fry/fingerling catfish experience outbreaks from trematodes. Revenue losses are less than 1% of total national and state sales of catfish—except for two states for fry/fingerlings, where they climb to 2-4%. Estimated industry losses are similarly small. For catfish, these are equivalent to less than 1% of food fish sales nationally and statewide. Fry/fingerling costs are equivalent to less than 1% of national revenue but 4-8% at the state level.

We recognize that the FWS did its best to assess costs. However, many of the benefits of regulating black carp are un- or under-counted. For example, FWS has not estimated losses to sportfishing if black carp become widely established, as expected, and displace native fish or reorder aquatic ecosystems. American sportfishing generates more than $116 billion in total economic output and provides nine times the economic benefit of commercial fishing (Amer. Sportfishing Assoc., 2002). Only some portion of this value is at risk from black carp but it is likely significant, given the number of jobs, salaries and wages, and retail sales that sportfishing supports. This is true not only nationwide but also in the Southeast where catfish production is centered.

Nor are significant costs to taxpayers factored in. For a more complete picture, FWS might contact its field offices. For example, rare and endangered native mussels are being relocated to hatcheries in West Virginia, in an attempt to propagate them for eventual reintroduction. These sorts of costs will escalate if black carp endanger additional rare mussels. Also, if triploid black carp are not regulated, there would be federal, state, or private costs for new certification programs, especially if groups are required to use more effective—and expensive— equipment to distinguish diploid from triploid fish.
 
Also, inadequate consideration is given to the wide range of fish diseases and parasites carried by black carp—which could have serious economic and environmental impacts. Shipments of black carp are thought to have carried one parasite to Mexico, and shipments of the closely related grass carp introduced the Asian tapeworm to the United States and elsewhere (Nico et al., 2005). In the Virgin and Little Colorado Rivers, harm to native fish species—including endangered ones—was the result (Dept. Fisheries and Oceans, 2005). Nico et al. (2005) note that at least two diseases have been reported as spreading from black carp to humans. Since these are acquired by eating rare or undercooked fish, they are less likely in the United States unless and until a market develops for black carp as a food fish. This has been attempted unsuccessfully in the past. However, it is relevant that the Governor of Illinois recently announced a study to harvest and process Asian carp for its protein (Ill. Office of the Governor, 2005).             

We do not find adequate rationale for a number of assumptions regarding industry costs in the Draft Economic Analysis. The Analysis assumes that outbreaks occur only where no black carp are in use. However, no evidence is presented to show that black carp are this effective. In fact, Nico et al., (2005) note that few studies showing conclusive, successful results of this type of black carp use appear in peer-reviewed publications.

From the information available in the Draft Economic Analysis, it appears to us that individual industry sources and various trade groups have not cooperated fully in supplying key information, despite repeated requests and FWS regulatory delays to seek more data. Even the nation's leading experts say that related information "was difficult to obtain, and we are fairly certain that there are more black carp (diploids and triploids) currently being used than we have accounted for." (Nico, et al., 2005, p. 154). Granted, some important information may be in previously submitted but unpublished public comments. Nevertheless, we conclude that FWS has been more than accommodating to industry.

The lack of additional information—from industry or other sources—is no cause for further delaying rule-making on this or other Chinese carp species. Now, U.S. protections are only as strong as the weakest state policies. Valuable national resources are being placed at risk in the interest of largely one industry, located in a few states. Other federal agencies are also tasked with researching, developing, and promoting aquaculture. We hold that FWS should play its unique role and better protect natural resources.
 
We are particularly troubled by what is circular reasoning in the regulatory process. FWS states that the need to consider listing arose “as a result of the increased use of black carp to control exotic trematodes in fish culture…. The increased reproduction, use and interstate transportation of triploid and diploid black carp is likely to result in unintentional and intentional releases into the wild…” (Draft Economic Assessment, 2005). Therefore, the economic value of these fish in the aquaculture industry is not, in itself, an argument against regulation. It is this economic activity that puts resources at risk and the greater its value, the greater the risks of fish escaping and, thus, the need for tighter regulation. 

The Usefulness of FWS Adopting Electonic Dockets

We find the websites used by other regulatory agencies, like the Environmental Protection Agency and USDA’s Animal and Plant Health Inspection Service (APHIS), very helpful. For example, APHIS posts electronically all public comments as they are received, as well as the background items related to that docket. We urge you to develop similar tools. It is unfortunate that you do not make public comments, including those from previous comment periods, available except by in-person visits. While we appreciate that limited staff capacity may play a role here, this practice limits the transparency of decision making at FWS.

Literature Cited

American Sportfishing Association. 2002. “Sportfishing in America. Values of Our Traditional
Pastime.” (Alexandria, VA).

Aquatic Nuisance Species Task Force. 1994. “Intention Introductions Policy Review.” Report to Congress. On the web at http://www.anstaskforce.gov/iirpt.htm, accessed 12/7/05.

Environmental Law Institute. 2002. Halting the Invasion: State Tools for Invasive Species Management. (Washington, DC: ELI).

Department of Fisheries and Oceans. 2005. “Asian Carp Status Report.” Canadian Science Advisory Secretariat Science Advisory Report 2005/001. March. Ottawa, Canada.

Great Lakes Panel. 2004. “Around the Basin: Ontario.” ANS Update, vol. 10. no. 1, p. 2, Spring/Summer.

Great Lakes Sport Fishing Council. 2005. “Illinois: Governor Signs Bill to Protect Aquatic Resources.” Weekly News, week of Sept. 5, pp. 6-7.

Illinois Office of the Governor. 2005. “Gov. Blagojevich Announces $100,000 Grant to Fund Study Aimed at Reducing Asian Carp Population and Supporting New Business Growth in Central Illinois.” Nov. 6. On the web at: http://www.Illinois.gov/PressReleases
/ShowPressRelease.cfm?SubjectID=1&RecNum=4444; accessed 11/9/05.

Nico, L., J.Williams, and H.Jelks. 2005. Black Carp: Biological Synopsis and Risk Assessment of an Introduced Fish. American Fisheries Society Special Publication 32 (Bethesda, MD: American Fisheries Society).

Rasmussen, J. 2001. “The Cal-Sag and Chicago Sanitary and Ship Canal: A Perspective on the Spread and Control of Selected Aquatic Nuisance Fish Species” US Fish and Wildlife Service, Rock Island, IL. Linked from http://www.fws.gov/midwest/LaCrosseFisheries/publications/, accessed 12/9/05.

US Congress, Office of Technology Assessment. 1993. Harmful Non-Indigenous Species in the United States. (Washington, DC: US Government Printing Office).

US Fish and Wildlife Service, Division of Environmental Quality. 2005. “Draft Environmental Assessment for Listing Black Carp (Mylopharyngodon piceus) as Injurious under the Lacey Act.” Arlington, VA. August revision.

_____. Undated. “Invasive Species” On the web at http://www.fws.gov/contaminants/Issues/InvasiveSpecies.cfm. Accessed 12/12/05.

_____, Division of Economics and Division of Environmental Quality. 2005. “Rulemaking to list Black Carp under the Lacey Act. Draft Economic Analysis” August revision. 
    
US Geological Survey. 2003. “Invasive and Exotic Species. Reproductive Potential of Triploid Grass and Black Carp.” Columbia Environmental Research Center, Columbia, MO.

Watters, G. 1997. “A Synthesis and Review of the Expanding Range of the Asian Freshwater Mussel, Anodonta woodiana (Lea, 1834) (Bivalvia: Unionidae). The Veliger, vol. 40, pp.152-156.

Thank you, again, for the opportunity to comment on this proposed regulation. We find that listing black carp as injurious under the Lacey Act would be an important step forward.

Sincerely,

Phyllis N. Windle, PhD
Senior Scientist