[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Rules and Regulations]
[Pages 15857-15858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6507]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 16

[Docket No. FWS-R3-FHC-2010-0094; 94140-1342-0000-N5]
RIN 1018-AT49


Injurious Wildlife Species; Listing the Bighead Carp 
(Hypophthalmichthys nobilis) as Injurious Fish

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) adds the bighead 
carp (Hypophthalmichthys nobilis), a large fish native to eastern Asia, 
to the list of injurious fish, mollusks, and crustaceans. The 
importation into the United States and interstate transportation 
between States, the District of Columbia, the Commonwealth of Puerto 
Rico, or any territory or possession of the United States of all forms 
of live bighead carp, gametes, viable eggs, and hybrids thereof is 
prohibited, except by permit for zoological, education, medical, or 
scientific purposes (in accordance with permit regulation at 50 CFR 
16.22) or by Federal agencies without a permit solely for their own 
use.

DATES: This rule is effective March 22, 2011.

ADDRESSES: The final rule and supporting documents will be available on 
the Internet at http://www.regulations.gov at Docket No. FWS-R3-FHC-
2010-0094.

FOR FURTHER INFORMATION CONTACT: Nate Caswell, Fish Biologist, U.S. 
Fish and Wildlife Service, Carterville Fish and Wildlife Conservation 
Office, 9053 Rt. 148, Suite A, Marion, IL 62959; telephone 618-997-
6869; facsimile 618-997-9185. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    In October 2002, the U.S. Fish and Wildlife Service (Service) 
received a petition signed by 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). In a final 
rule of July 10, 2007 (72 FR 37459), the Service added silver and 
largescale silver carp to the list of injurious wildlife at 50 CFR 
16.13, and in a final rule of October 18, 2007 (72 FR 59019), the 
Service added black carp to this list. The Service published a Federal 
Register notice of inquiry on bighead carp (68 FR 54409; September 17, 
2003) and provided a 60-day public comment period, but the listing 
process for this species was delayed. Another letter from members of 
Congress in 2009 supported the petitioned action for bighead carp.
    The Asian Carp Prevention and Control Act (Pub. L. 111-307) was 
passed by the Senate on November 17, 2010, and by the House of 
Representatives on December 1, 2010, and signed into law by President 
Obama on December 14, 2010. The law amends the Lacey Act (18 U.S.C. 42) 
by adding the bighead carp (Hypophthalmichthys nobilis) to the list of 
injurious animals contained therein. The statutory prohibitions and 
exceptions for this species went into effect upon signature into law. 
This rule adds the bighead carp to the list of injurious fish, 
mollusks, and crustaceans at 50 CFR 16.13.

Description of the Final Rule

    The regulations contained in 50 CFR part 16 implement the Lacey Act 
(18 U.S.C. 42) as amended. Under the terms of that law, the importation 
and interstate transportation of certain named wildlife is prohibited, 
with exceptions. Additionally, the Secretary of the Interior is 
authorized to prescribe by regulations other wild animals, or

[[Page 15858]]

viable eggs thereof, that are deemed to be injurious or potentially 
injurious to the health and welfare of human beings, to the interests 
of agriculture, forestry, or horticulture, or to the welfare and 
survival of the wildlife or wildlife resources of the United States.
    The Asian Carp Prevention and Control Act added the bighead carp to 
the statutory list. The Service accordingly amends 50 CFR 16.13 to 
reflect the current list of prohibited wildlife. By adding all forms of 
live bighead carp (Hypophthalmichthys nobilis), gametes, viable eggs, 
and hybrids thereof to the list of injurious fish, mollusks, and 
crustaceans in 18 U.S.C. 42 and now in 50 CFR 16.13, their importation 
into the United States 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, or by Federal agencies without a permit solely for their own 
use upon filing a written declaration with the District Director of 
Customs at the port of entry. In addition, no live bighead carp, 
gametes, viable eggs, or hybrids thereof acquired under permit may be 
sold, donated, traded, loaned, or transferred to any other person 
unless such person has a permit issued by the Director of the Service. 
The interstate transportation of any live bighead carp, gametes, viable 
eggs, or hybrids thereof that currently may be held in the United 
States for any purpose is prohibited, unless authorized by permit.
    In adding bighead carp to the list of injurious fish, we are 
revising some of the current text in 50 CFR 16.13. These changes are 
nonsubstantive and for the purposes of creating a consistent format for 
the list and helping to ensure clarity.

Effective Date

    We are making this rule effective upon publication in the Federal 
Register. In accordance with the Administrative Procedure Act (5 U.S.C. 
553 (d)(3)), we find good cause to make this rule effective less than 
30 days after publication in the Federal Register. With the signing of 
Public Law 111-307, the listing of bighead carp and the statutory 
prohibitions on importation into the United States and interstate 
transport went into effect on December 14, 2010. The Service does not 
have the authority to delay the effectiveness of the listing or the 
prohibitions. Therefore, we find good cause to make this rule effective 
immediately.

Required Determinations

    This rulemaking amends the list of prohibited species in 50 CFR 
16.13 to accurately reflect the addition made by Public Law 111-307, 
the Asian Carp Prevention and Control Act, which amends the U.S. Code 
(18 U.S.C. 42) by adding the bighead carp to its list of injurious 
animals. To update the Code of Federal Regulations to conform with 
Public Law 111-307, it is necessary to add this species to the 
implementing regulations (50 CFR 16.13). The Administrative Procedure 
Act requires publication of a proposed rule and the opportunity for 
public comment, except when such notice and comment would be 
impracticable, unnecessary, or contrary to the public interest. In this 
situation, public notice and the opportunity to comment are unnecessary 
because there would be nothing for the public to comment on. The 
Service does not have the authority to remove or alter either the 
listing that Congress put in place with Public Law 111-307 or the 
prohibitions that went into effect on December 14, 2010. The facts of 
this situation may also meet the ``contrary to the public interest'' 
standard under the APA to the extent that publication of a proposed 
rule would likely mislead the public by implying either that the 
prohibitions are not yet in effect or that the agency has discretion 
over whether the species should be listed or discretion over the scope 
or timing of the prohibitions. This rulemaking involves no 
discretionary or policy decisionmaking on the part of the Service, but 
merely amends regulations to reflect a change in statute. As such, 
neither an economic analysis nor an environmental assessment was 
required in conjunction with this rulemaking.

Information Collection Requirements

    This final rule contains no information collection requirements for 
which Office of Management and Budget approval is required under the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

List of Subjects in 50 CFR Part 16

    Fish, Imports, Reporting and recordkeeping requirements, 
Transportation, Wildlife.

    Accordingly, 50 CFR part 16 is amended as described below:

PART 16--INJURIOUS WILDLIFE

0
1. The authority citation for part 16 is revised to read as follows:

    Authority: 18 U.S.C. 42.



0
2. Amend Sec.  16.13(a)(2) as follows:
0
a. In paragraphs (a)(2)(i) through (iii) and paragraph (a)(2)(iv)(BB), 
by removing the semicolon at the end of the paragraph and adding a 
period in its place;
0
b. By removing paragraphs (a)(2)(v) and (vi); and
0
c. By adding a new paragraph (a)(2)(v) to read as follows:


Sec.  16.13  Importation of live or dead fish, mollusks, and 
crustaceans, or their eggs.

    (a) * * *
    (2) * * *
    (v) Any live fish, gametes, viable eggs, or hybrids of the 
following Asian carp species in family Cyprinidae:
    (A) Hypophthalmichthys harmandi (largescale silver carp).
    (B) Hypophthalmichthys molitrix (silver carp).
    (C) Hypophthalmichthys nobilis (bighead carp).
    (D) Mylopharyngodon piceus (black carp).
* * * * *

    Dated: March 4, 2011.
Paul R. Schmidt.
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-6507 Filed 3-21-11; 8:45 am]
BILLING CODE 4310-55-P