[Federal Register Volume 85, Number 200 (Thursday, October 15, 2020)]
[Rules and Regulations]
[Pages 65241-65261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19810]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2018-0029; FF09E22000 FXES11130900000 201]
RIN 1018-BD46
Endangered and Threatened Wildlife and Plants; Reclassification
of the American Burying Beetle From Endangered to Threatened With a
Section 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reclassify
(downlist) the American burying beetle (Nicrophorus americanus) from
endangered to threatened on the Federal List of Endangered and
Threatened Wildlife. This determination is based on a thorough review
of the best available scientific and commercial information, which
indicates that the threats to this species have been reduced to the
point that it is not currently in danger of extinction throughout all
or a significant portion of its range, but that it is likely to become
so within the foreseeable future. We also finalize a rule under the
authority of section 4(d) of the Act that provides measures that are
necessary and advisable to provide for the conservation of the American
burying beetle.
DATES: This rule is effective November 16, 2020.
ADDRESSES: This final rule and supporting documents are available on
the internet at http://www.regulations.gov under Docket No. FWS-R2-ES-
2018-0029. Comments and materials we received, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jonna Polk, Field Supervisor, U.S.
Fish and Wildlife Service, Oklahoma Ecological Services Field Office,
9014 East 21st St., Tulsa, OK 74129; telephone 918-382-4500. Persons
who use a telecommunications device for the deaf (TDD) may call the
Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction). The American
burying beetle is listed as endangered, and we are finalizing a
reclassification (downlisting) of the American burying beetle as
threatened because we have determined it is not currently in danger of
extinction. Downlisting a species as a threatened species can only be
made by issuing a rulemaking.
What this document does. This rule reclassifies the American
burying beetle from endangered to threatened (i.e., ``downlists'' the
species), with a rule issued under section 4(d) of the Act, based on
the species' current status.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We may reclassify a species if the best available
commercial and scientific data indicate the species no longer meets the
applicable definition in the Act.
We have determined that the American burying beetle is no longer in
danger of extinction and, therefore, does not meet the definition of an
endangered species, but is still affected by current and ongoing
threats to the extent that the species meets the definition of a
threatened species under the Act. Increasing temperatures due to
changing climate are projected to impact American burying beetle
populations within the foreseeable future. Likewise, we project future
impacts to American burying beetle populations due to land use change
associated with urbanization and agricultural activities.
We are promulgating a section 4(d) rule. We are issuing a section
4(d) rule to provide measures necessary and advisable to provide for
the conservation of the American burying beetle. The 4(d) rule
prohibits all intentional take of the American burying beetle and
specifically tailor the incidental take prohibitions and exceptions
under section 9(a)(1) of the Act as a means to provide protective
mechanisms to State and Federal partners, as well as private
landowners, so that they may continue with certain activities that are
not anticipated to cause direct injury or mortality to American burying
beetles and that will facilitate the conservation and recovery of the
species.
Previous Federal Actions
Please refer to the proposed rule to reclassify American burying
beetle from endangered to threatened (84 FR 19013; May 3, 2019) for a
detailed description of previous Federal actions concerning this
species.
Summary of Changes From the Proposed Rule
We have made two changes from the proposed rule in this final rule:
One of the changes affects the rule language, and one affects only the
preamble.
(1) Under the proposed 4(d) rule provisions, we defined
``conservation lands'' where incidental take would continue to be
prohibited within the Southern Plains populations. The proposed 4(d)
rule included The Nature Conservancy Tall Grass Prairie Preserve as
``conservation lands'' where
[[Page 65242]]
incidental take would be prohibited. In this final rule, we have
removed The Nature Conservancy Tall Grass Prairie Preserve from this
definition of conservation lands and, therefore, removed the
prohibition on incidental take in this area, because The Nature
Conservancy has developed a Memorandum of Understanding to document
their commitment to provide ongoing management, research, and
monitoring at that site that makes the prohibitions in the proposed
rule unnecessary.
(2) In Center for Biological Diversity v. Everson, 2020 WL 437289
(D.D.C. Jan. 28, 2020) (Center for Biological Diversity or CBD)), the
court vacated part of the 2014 Significant Portion of its Range Policy.
Following the court's holding in CBD, we have now revised the
significant portion of the range analysis in this final rule. We
evaluated the status of the species in three potentially significant
portions of the species' range and found that none meet the definition
of endangered. This updated analysis did not result in any changes to
the proposed rule but provides support for the determination.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the American burying beetle. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. In accordance with our joint policy on peer
review published in the Federal Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought peer review of
the SSA report. The Service sent the SSA report to 12 independent peer
reviewers and received 8 responses. The purpose of peer review is to
ensure that our listing determinations and 4(d) rules are based on
scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in the biology, habitat, and threats to the
species. The draft SSA report was also sent to species experts and all
Tribes and States within the current range for a partner review. We
received review from six States and two species experts.
I. Final Listing Determination
Background
The American burying beetle (Nicrophorus americanus) is the largest
silphid (carrion beetle) in North America, reaching 1.0 to 1.8 inches
(25 to 35 centimeters) in length (Anderson 1982, p. 362; Backlund and
Marrone 1997, p. 53). During the daytime, American burying beetles are
believed to bury themselves under vegetation litter or into soil
(Jurzenski 2012, p. 76). At night, American burying beetles are active
from late spring through early fall, occupy a variety of habitats and
bury themselves in the soil to hibernate for the duration of the
winter. American burying beetles emerge from their winter inactive
period when ambient nighttime air temperatures consistently exceed 59
degrees Fahrenheit ([deg]F) (15 degrees Celsius ([deg]C)) (Kozol et al.
1988, p. 11; Kozol 1990b, p. 4; Bedick et al. 1999, p. 179; Service
2008, p. 13). Reproduction occurs in the spring to early summer after
this emergence. New adult beetles or offspring (called tenerals),
usually emerge in summer, over-winter (hibernate) as adults, and
comprise the breeding population the following summer (Kozol et al.
1988, p. 2; Amaral et al. 2005, pp. 30, 35).
The American burying beetle is native to at least 35 States in the
United States, covering most of temperate eastern North America, and
the southern borders of three eastern Canadian provinces. The species
is believed to be extirpated from all but nine States in the United
States and is likely extirpated from Canada. However, the current range
is much larger than originally thought when the species was listed in
1989. Based on the last 15 years of surveys, the American burying
beetle occurs in portions of Arkansas, Kansas, Oklahoma, Nebraska,
South Dakota, and Texas; on Block Island off the coast of Rhode Island;
and in reintroduced populations on Nantucket Island off the coast of
Massachusetts and in southwest Missouri, where a nonessential
experimental population (NEP) was established in 2012 under section
10(j) of the Act (77 FR 16712; March 22, 2012). Reintroduction efforts
are also under way in Ohio, and survival of reintroduced American
burying beetles into the next year (successful overwintering) was
documented in 2019. American burying beetles have not been documented
in Texas since 2008.
Please refer to the May 3, 2019, proposed rule to reclassify
American burying beetle from endangered to threatened (84 FR 19013) and
the SSA report for a full summary of species information. Both are
available at http://www.regulations.gov under Docket No. FWS-R2-ES-
2018-0029.
Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Recovery plans must, to the
maximum extent practicable, include ``objective, measurable criteria
which, when met, would result in a determination, in accordance with
the provisions [of section 4 of the Act], that the species be removed
from the list.''
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species, or to
delist a species is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
[[Page 65243]]
The American burying beetle recovery plan was approved by the
Service on September 27, 1991 (Service 1991). Delisting criteria were
not established in the recovery plan. However, for reclassification
from endangered to threatened, the recovery plan established a
criterion of at least three self-sustaining populations of at least 500
individuals in each of four broad geographical areas of the species'
historical range: the Northeast, the Southeast, the Midwest, and the
Great Lakes States. The threshold of 500 individuals was developed
based on limited empirical data from Block Island (Service 1991, p. 8)
and principles from the conservation biology literature (Franklin 1980;
Soule 1980; Salwasser et al. 1982) that suggested the effective
population number of 500 was the minimum threshold size for a
biological population to maintain long-term adaptability.
We now understand that a population estimate of 500 adults is
probably an inadequate metric for a self-sustaining population of this
species because minimum viable population for most species would be
considerably larger than 500 individuals. Minimum viable population
thresholds vary by species, and additional empirical data and analysis
for American burying beetles indicate that a larger threshold may be
more appropriate for this species (Reed et al. 2003; Amaral et al.
2005; p. 36; Brook et al. 2006; Flather et al. 2011; Wolf et al. 2015).
However, new population targets for the species have not been developed
and would be different for each population due to differences in
habitat and stressors acting on populations. Likewise, conservation of
populations in the four broad geographical areas used in the recovery
plan may not appropriately address future threats given our current
understanding of the species' range and risks to populations (see
sections 2.5.4 and 5.4 in the SSA Report; Service 2019). For example,
the authors of the recovery plan were not aware of future climate-
related risks and current projections indicating that southern portions
of the historical range would not be suitable for future recovery (see
section 5.4 in the SSA Report; Service 2019). Thus, the recovery plan
information is considered to be out of date (Service 2008), and the SSA
Report (Service 2019) provides an updated, revised analysis of current
and future risks based on our current understanding of the species'
needs.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in reclassifying a species from endangered to threatened (50
CFR 424.11(c) through (e)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals, as well as
those that affect individuals through alteration of their habitat or
required resources. The term ``threat'' may encompass--either together
or separately--the source of the action or condition or the action or
condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response, and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as the Services
can reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Our proposed rule described ``foreseeable future'' as the extent to
which we can reasonably rely on predictions about the future in making
determinations about the future conservation status of the species. The
Service since codified its understanding of foreseeable future in 50
CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the
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future threats and the species' responses to those threats are likely.
The Service will describe the foreseeable future on a case-by-case
basis, using the best available data and taking into account
considerations such as the species' life-history characteristics,
threat-projection timeframes, and environmental variability. The
Service need not identify the foreseeable future in terms of a specific
period of time. These regulations did not significantly modify the
Service's interpretation; rather they codified a framework that sets
forth how the Service will determine what constitutes the foreseeable
future based on our long-standing practice. Accordingly, though
regulations do not apply to the final rule for the American burying
beetle because it was proposed prior to their effective date, they do
not change the Service's assessment of foreseeable future for the
American burying beetle as contained in our proposed rule and in this
final rule.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be downlisted to threatened
under the Act. It does, however, provide the scientific basis that
informs our regulatory decisions, which involve the further application
of standards within the Act and its implementing regulations and
policies. The following is a summary of the key results and conclusions
from the SSA report; the full SSA report can be found at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0029.
To assess American burying beetle viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years); redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events); and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated individual species' life-history
needs. The next stage involved an assessment of the historical and
current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this section, we review the biological condition of the species
and its resources, and the threats that influence the species' current
and future condition, in order to assess the species' overall viability
and the risks to that viability.
Summary of Species Needs
Adults and larvae depend on dead animals (carrion), e.g., cotton
rats, pheasants, prairie dogs, ground squirrels, etc., for food and
moisture. Adults also require adequate soil moisture, appropriate soil
temperatures, and appropriate soil particle size to allow them to bury
themselves and/or a carcass (see chapter 2 of the SSA Report; Service
2019). Adequate soil moisture levels appear to be critical for American
burying beetles, and they show a strong preference for moist, sandy
loam soil with organic matter (Hoback 2008, unpublished), but a
specific threshold for soil moisture is unknown. When the nighttime
ambient air temperature is consistently below 59 [deg]F (15 [deg]C),
American burying beetles bury into the soil and become inactive
(Service 1991, p. 11; Scott and Traniello 1989, pp. 34-35; Kozol 1995,
p. 11, Bedick et al. 2006, p. 28).
For reproduction, American burying beetles need appropriately sized
carrion, access to mates, and suitable soils. The optimum weight of
carcasses is 3.5 to 7.0 ounces (80 to 200 g) (Kozol 1989, pp. 12-13,
25, 36-39, figures 1 and 2; Kozol 1990a, pp. 7-8). Once an appropriate
carcass has been found for reproduction, American burying beetles may
compete amongst themselves or with other species for control of the
carcass until usually only a single dominant male and female burying
beetle remain (Springett 1967, p. 56; Wilson and Fudge 1984, entire;
Scott and Traniello 1989, p. 34). Once the pair wins the battle for the
rights to the carcass, the successful couple buries the carrion,
copulates, and constructs an underground cavity called a brood chamber
around the carcass, although either sex is capable of burying a carcass
alone (Kozol et al. 1988, p. 170).
Once underground, both parents strip the carcass of fur or
feathers, roll the carcass into a ball and treat it with secretions
that form a brood chamber and retard growth of mold and bacteria. The
female American burying beetle lays eggs in the soil adjacent to the
carcass (Pukowski 1933, p. 555; Milne and Milne 1976, p. 84; Scott and
Traniello 1990, p. 274) where the eggs incubate for about 6 days before
hatching into larvae that require parental care. Higher ambient
temperatures increase egg development rates and reduce incubation times
(Damos and Savopoulou-Soultani 2012). Females reproducing on smaller
carcasses produce fewer eggs than females reproducing on larger
carcasses (Billman et al. 2014a, entire; 2014b, entire). American
burying beetles will also cull their brood through cannibalism to
increase size and survival of larvae in response to a less than
adequately sized carcass (Billman et al. 2014a, entire; 2014b, entire).
Summary of Current Condition of the Species
For the purposes of this analysis we organized the current range of
the American burying beetle into analysis areas that follow broad
geographic and ecological patterns: Northern Plains analysis areas,
Southern Plains analysis areas, and the New England Analysis Area (see
Figure 1). This is the scale of ``populations'' referred to in the
analysis of risk factors potentially affecting the species (chapters 4
and 5 in the SSA Report; Service 2019).
BILLING CODE 4333-15-P
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[GRAPHIC] [TIFF OMITTED] TR15OC20.000
BILLING CODE 4333-15-C
Because the American burying beetle completes its life cycle in one
year, each year's population levels are largely dependent on the
reproductive success of the previous year and reproductive conditions
in the current year. Fluctuations are thought to be a function of the
abundance of the carrion resources on which the species depends.
Therefore, population numbers may be cyclic (due to weather, disease,
etc.), with high abundance in one year, followed by a decline in
numbers the succeeding year. Because survey information can fluctuate
over time and survey effort is not equal for all analysis areas, the
SSA Report (Service 2019) uses a combination of habitat and population
factors to evaluate the current condition of populations. For each
analysis area, a current condition category is assigned based on
relative abundance, population distribution, known population trends,
availability of suitable habitat, acres of protected areas, and the
level of management in protected areas (see section 4.7.1 in the SSA
Report; Service 2019). The current condition categories are qualitative
estimates of the current status of the species.
Habitat Factors
Large quantities of potentially suitable habitat are available in
the Southern Plains and the Northern Plains analysis areas, though the
New England Analysis Area is much smaller (See Table 1). Most analysis
areas contain large areas of managed protected lands as well (Table 1).
The New England Analysis Area has a relatively small amount of
protected lands due to the limited area of these islands, but a
relatively high percentage of conservation lands (Block, 41% and
Nantucket, 33%).
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Table 1--Acres of Suitable Habitat and Protected Lands Within Each Analysis Area.
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Managed Multi-purpose
Suitable protected protected Total acres in
Analysis area habitat lands lands each Analysis
(acres) (acres)\a\ (acres)\b\ Area
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Red River....................................... 2,678,406 123,779 23,997 3,251,894
Arkansas River.................................. 14,470,603 1,486,002 933,608 17,753,431
Flint Hills..................................... 2,758,610 133,196 52,114 3,706,908
Loess Canyons................................... 1,686,948 15,342 3,843 2,758,610
Sandhills....................................... 8,633,685 93,983 24,633 10,819,170
Niobrara........................................ 2,961,469 58,918 33,582 4,108,903
Nantucket \c\................................... 23,311 11,934 \c\NA 36,321
Block Island \c\................................ 2,554 2,507 \c\NA 6,111
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\a\Managed lands incorporate active management to maintain or improve wildlife habitat and are assumed to
protect or improve American burying beetle habitat.
\b\Multi-purpose protected lands are assumed to include some management for wildlife that would protect or
improve American burying beetle habitat.
\c\Note that Nantucket and Block Island together form the New England Analysis Area.
\d\Protected lands on Nantucket and Block Island are mostly private and protected by easements. The active
management is primarily monitoring and provisioning of carcasses.
Population Factors
Southern Plains Analysis Areas
Between 1993 and 1996, the southeastern portion of the Red River
Analysis Area supported localized populations with relatively high
catch rates of American burying beetles (Creighton et al. 2009, p. 40),
but catch rates in these areas have declined since the early 2000s. No
positive surveys have been documented in the Arkansas or Texas portions
of the Red River Analysis Area since 2008, and only eight positive
surveys are known in the analysis area (all in Oklahoma) since 2008.
Within the Red River Analysis Area, the Hugo Wildlife Management Area
in Oklahoma is the only protected area currently known to support
American burying beetles, with five captured in 2016. Populations in
Texas may be extirpated as the last documented record of the species
occurred in 2008.
Both the Arkansas River Analysis Area and the Flint Hills Analysis
Area have large areas of suitable habitat, several large protected
areas, and a relatively wide distribution of American burying beetles
within the analysis areas.
Northern Plains Analysis Areas
The Loess Canyons Analysis Area, the Sandhills Analysis Area, and
the Niobrara River Analysis Area all have large areas of native habitat
and relatively wide distribution of American burying beetles within the
analysis areas. In the Loess Canyons Analysis Area, expansion of
eastern redcedar (Juniperus virginiana) due to a lack of fire or
mechanical control has reduced the habitat quality in much of this
analysis area, this population is sensitive to droughts, and the
analysis area is relatively small and isolated from other populations.
New England Analysis Area
This area is small relative to other analysis areas, but the level
of protection and active management are significantly greater than the
other analysis areas. On Block Island, the American burying beetle
population is relatively stable with population estimates ranging from
200 to 1,000. This population has been monitored annually since 1991.
Carrion provisioning has been conducted on Block Island since 1993. On
Nantucket Island, the reintroduced population does not appear to be
self-sustaining and requires human assistance for long-term maintenance
(Mckenna-Foster et al. 2016, entire). The current resiliency of the
analysis area is considered moderate due to relatively good
distribution, and fair ratios of positive to negative surveys, although
the populations on both islands are highly dependent on active
management.
Summary of current overall viability
Resiliency ranged from moderate to high in all analysis areas, with
the exception of the Red River Analysis Area where resiliency is
considered low. Overall, representation is considered moderate. The
current genetic diversity appears to be relatively high, but the
ecological diversity has been reduced with the loss of about 90 percent
of the historical range. The current known range includes populations
from northern and southern areas and eastern and western areas of the
historical American burying beetle range, although representation from
eastern areas is limited to the New England island populations and the
genetics represented from the Block Island population. Multiple
populations within the analysis areas provide redundancy that reduces
the risk of any catastrophic events.
Threats
The American Burying Beetle Recovery Plan (Service 1991) and the 5-
year status review of the species (Service 2008) identify the following
factors as threats or potential threats to American burying beetles:
direct habitat loss and alteration, increase in competition for carrion
resources, decrease in abundance of prey, loss of genetic diversity in
isolated populations, disease/pathogens, dichloro-diphenyl-
trichloroethane (commonly known as DDT), habitat fragmentation due to
agricultural and grazing practices that lead to changes in vertebrate
composition or density, and invasive species. DDT and some other
threats identified in the recovery plan and 5-year status review are
either no longer a threat or pose less of a threat to the species.
Overutilization (Factor B) for any purpose was not identified as a
threat to the species at the time of listing in 1989, and it is not
considered a threat to the species' continued existence today. While
disease and predation (Factor C) may kill or injure individual American
burying beetles, they are not known to result in population-level
impacts. Further information regarding disease and predation can be
found in the SSA Report (Service 2019).
Populations in the New England and Northern Plains Analysis areas
are expected to experience future threats from land use change, and all
populations are expected to experience future threats from a changing
climate over varying time periods. Existing regulatory mechanisms
(Factor D), such as regulations for species protections implemented by
the States, and
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implementation of the Sikes Act (16 U.S.C. 670a-670f, as amended) by
the Department of Defense (DoD) through Integrated Natural Resources
Management Plans (INRMPs), vary by region and specific location, but
generally do not fully address the numerous threats that the American
burying beetle faces across its range, particularly those future
threats such as land use change and climate change. However,
incorporation of INRMPs on the DoD installations currently provide
management and conservation benefit to American burying beetles
occurring in those areas.
The American burying beetle declined over much of its historical
range while eight species in the same genus are still relatively common
rangewide (Sikes and Raithel 2002, p. 104). Anecdotal evidence
indicates that the reduction of appropriate carrion resources is a
primary mechanism of population decline for the American burying
beetle. This hypothesis fits the temporal and geographical pattern of
the disappearance of American burying beetles from 90 percent of their
historical range, and may explain why American burying beetles declined
while related species that do not rely on the same carrion resources
did not similarly decline (Sikes and Raithel 2002, p. 104). The
availability of appropriately sized carrion may explain current
distributions of the American burying beetle and the presence or
absence of American burying beetles in most of the existing analysis
areas. For example, the American burying beetle population on Nantucket
Island was established with provisioned carcasses, but is projected to
be extirpated without continued provisioning of appropriately sized
carcasses (Mckenna-Foster et al. 2016, entire). American burying
beetles need carcasses of 80 to 200 grams, and areas that can support
the species must have potential carrion sources within this size range.
The abundance of potential carrion species and competition for the
carcasses can affect availability for American burying beetles.
Risks such as conversion to cropland and wind energy development
are greater in portions of the Northern Plains analysis areas, while
risks associated with grazing, silviculture, and oil and gas
development are more common in the Southern Plains analysis areas. All
remaining populations have some risks associated with areas of urban or
suburban development, particularly in the New England Analysis Area,
but most current American burying beetle populations are in rural areas
and have potential risks associated with habitat loss due to
agricultural land uses. All habitat alterations also have potential to
affect carrion populations, competing scavenger populations, and
carrion availability. Risks associated with the effects of changing
climate, including increasing temperatures, are now the most
significant threat for most analysis areas.
Two scenarios in the SSA Report (Service 2019) explore potential
future land use changes to help characterize the likely potential for
impacts to suitable habitat for the American burying beetle. The two
land use scenarios in the SSA Report (Service 2019) were evaluated
independently and then later evaluated in combination with two separate
climate change scenarios.
The large areas of known and potential habitat in the Southern
Plains buffer the effects of most land use changes. Urban development
and conversion to agricultural lands are not considered a threat to the
species in the Southern Plains analysis areas because the projected
loss of habitat is unlikely to affect the viability of the species in
these areas (Service 2019). The projected combined permanent loss of
suitable habitat from all sources for the Southern Plains analysis
areas is 1.2% or 246,293 acres from the existing 19,995,088 acres
(Service 2019). The combined impacts of urban expansion and agriculture
(primarily conversion to cropland) are expected to affect 5-15% of the
suitable habitat in the Northern Plains, and redcedar expansion in the
Loess Canyon Analysis Area is expected to result in up to an additional
30% habitat loss (Service 2019). The projections in our SSA Report
(Service 2019) indicate that future representation and redundancy are
both reduced with potential losses of habitat in New England, Loess
Canyons, and the reintroduction site in Missouri. The potential loss of
the Loess Canyons population is due to land use changes, including
redcedar expansion, and the New England populations and Missouri
reintroduction could be lost if active management and habitat
protection are not continued. The combined effects of land use and
future changes in climate are likely to impact the resiliency of most
populations and the overall viability of the species.
Recent development and potential expansion of wind energy projects
could also add to impacts from other land use changes. Potential land
use impacts related to an expanding wind industry in the Northern
Plains were not fully evaluated in the SSA Report (Service 2019) due to
limited information, so additional analysis is recommended to improve
the reliability of land use projections. The construction of wind
turbines, roads, and powerlines has direct permanent habitat impacts
and fragments the remaining habitat. The operation of wind turbines
also has potential for direct take through American burying beetle
collisions with the blades. However, future land use effects related to
wind power were not factored into land use scenarios because we did not
have estimates of future development or total areas that may be
affected by wind projects, and no studies have evaluated the effects of
wind projects on American burying beetles. The most significant threat
to the American burying beetle is changes in climate. This threat
affects the southern populations more than those in northern locations
due to the southern population areas already experiencing temperatures
near the species critical thermal tolerances. Therefore, changes in
climate within the foreseeable future is an existential risk only to
those populations in the southern portion of the species range. Here we
present a summary of climate-related risks; additional information is
available in the SSA Report (Service 2019). The SSA Report's chapter 3
summarizes general climate risks, chapter 4 includes current risks, and
chapter 5 covers future risks (Service 2019).
Most considerations of climate change in Endangered Species Act
classification decisions hinge upon whether climate change will
manifest in changing habitat conditions and how the species is likely
to respond to these changes in the future. Therefore, a key
consideration for classification decisions where climate change is a
potential stressor is how we interpret ``foreseeable future'' in the
definition of a threatened species under the Act.
The Intergovernmental Panel on Climate Change (IPCC) adopted four
possible Representative Concentration Pathways (RCP) scenarios (2.6,
4.5, 6, and 8.5) to capture the possible ranges of climate change
within the next century (Hartmann et al. 2013; Moss et al. 2008). In
our analysis of potential climate change impacts to the American
burying beetle, we used two scenarios, RCP 4.5 and 8.5, over different
blocks of time through the end of this century (years 2010-2039, 2040-
2069, and 2070-2099 time periods). For the purpose of this document, we
define those time periods as: `early century time period' (2010-2039),
`mid-century time period' (2040-2069), and `late century time period'
(2070-2099).
[[Page 65248]]
We use projections from two RCPs (4.5 and 8.5) to account for
uncertainty regarding future atmospheric greenhouse gas concentrations.
RCP 4.5 is at the low end of the intermediate range of conditions
projected while RCP 8.5 is the high end of IPCC projections of
atmospheric conditions. By using both a very high and low emissions
scenarios in our projections, we bracketed the likely possibilities for
climate change in the future. For ease of reference, we refer to these
as ``emissions scenarios,'' although they are not based solely on
emissions of greenhouse gases.
Our approach of using the two RCPs is consistent with the current
widespread scientific practice of considering projections based on RCP
4.5 and RCP 8.5 so as to consider a range of projected conditions,
rather than relying on a single scenario. The U.S. Global Change
Research Program used these two RCPs as the core scenarios for the
Fourth National Climate Assessment (Hayhoe et al. 2017), and they also
are used as the basis for projections generated via the U.S. Geological
Survey's National Climate Change Viewer. Although it is theoretically
possible to achieve the RCP 2.6 pathway and outcome, we did not use it
as it is not feasible or likely; numerous scientific papers show that
key assumptions underlying it already have not been met (including a
very rapid reduction in greenhouse gas emissions) and other future
activities it relies upon are highly speculative. RCP 4.5 and 8.5
scenarios are more feasible and widely used for future climate
assessments. Further, we did not use RCP 6 because the specific
datasets used in our analyses are only available for RCP 4.5 and 8.5.
The life-history characteristics of American burying beetles
indicate limited ability to tolerate warmer temperatures. Adult
American burying beetles use secretions to slow decomposition of
carcasses they bury for reproduction (see Summary of Species
Requirements, above, for more information on the role of carcasses in
reproduction). The carcasses are buried and must support both adults
and larvae for at least 2 to 3 weeks, but high temperatures reduce the
effectiveness of the secretions and accelerate decomposition (Jacques
et al. 2009, p. 871). While the American burying beetle has life-
history requirements similar to other carrion beetles, it is the
largest Nicrophorus in North America and requires a larger carcass to
reach its maximum reproductive potential (i.e., to raise a maximum
number of offspring) than the other burying beetles (Service 1991, p.
2; Kozol et al. 1988, p. 37; Trumbo 1992, pp. 294-295). American
burying beetles also have a longer time period for egg and larval
development than other Nicrophorus carrion beetles, so the carcass must
last longer (at least 12 to 14 days) to provide food and moisture for
adults and support development of their larvae to the pupa stage.
Temperature-related increases in decomposition and development of fly
larvae would limit or prohibit reproductive success for American
burying beetles if carcasses are in a suitable condition for shorter
periods of time or do not last long enough to support development of
their larvae.
The distribution of American burying beetles and other burying
beetles in the Nicrophorus genus also indicates a limited ability to
tolerate warmer temperatures. Nicrophorus abundance and diversity are
higher in cooler climates. There are 15 Nicrophorus species in the
United States and Canada, but only 2 are endemic to Central and South
America, and they occur at higher elevations with cooler temperatures.
Reasons for burying beetles' lack of success in warmer climates include
increased competition with flies and ants (Peck and Anderson 1985 p.
248, Jiron and Cartin 1981 entire, Trumbo 1990 p. 6-7), as well as
increased rates of carcass decomposition (Jacques et al. 2009. p. 871).
Carcass decomposition is dominated by dipteran species (true flies),
and the diversity of dipteran species using carcasses increases in
warmer climates. Based on species distributions and existing climate
conditions, few Nicrophorus species appear to be capable of maintaining
populations in areas with long-term average summer mean-maximum
temperatures at or exceeding a 95 [deg]F threshold (N. carolinus, and
possibly N. pustulatus and N. marginatus), and there are no Nicrophorus
species in areas with average summer mean-maximum temperatures
exceeding 100 [deg]F.
Under both RCP 4.5 and 8.5 emissions scenarios, all American
burying beetle populations in the Southern Plains Analysis Areas would
be projected to have summer mean-maximum temperatures exceeding 95
[deg]F within the mid-century time period. Surveys for American burying
beetles in locations that have experienced a mean-maximum temperature
near or above 95 [deg]F during summer have shown declining capture
rates the following year. Existing survey information from Fort Chaffee
(Arkansas River Analysis Area) from 1992 through 2016 supports our
conclusion that mean-maximum temperatures above 95 [deg]F would
adversely affect American burying beetle populations. During the study,
catch rates of American burying beetles declined from the previous year
every time mean-maximum temperatures exceeded 95 [deg]F, which happened
a total of six times throughout the study period. Based on this
information, we anticipate continued population declines and potential
extirpation if mean-maximum temperatures exceeding 95 [deg]F became the
average during summer months and more extreme temperatures occur more
frequently.
Southern populations of American burying beetles that experience
summer mean-maximum temperatures near 95 [deg]F are declining. Since
2008, only seven American burying beetles have been detected within the
Oklahoma portion of the southernmost analysis area, and no American
burying beetles have been documented in the Texas or Arkansas portions.
We have no evidence to suggest that habitat conditions that might
otherwise explain the observed declines within these areas have
significantly changed. American burying beetles were last detected in
Texas in 2008 and populations have declined or are extirpated in large
protected areas like Camp Maxey, Texas, with no apparent changes in
land use. It appears that temperatures near this area are at, or past,
a threshold that would support American burying beetles. This
conclusion may be further supported by the fact that the species does
not exist south of the Red River area in Texas and Louisiana, where
habitat, soil conditions, and carrion availability are likely to be
similar. Thus, we conclude that the southern edge of the species' range
is driven by the 95 [deg]F temperature threshold.
Temperature has always limited the American burying beetle's range
to some degree. Populations at the northern edge of the range are
limited by cool nighttime temperatures and shorter growing seasons,
whereas populations at the southern edge of the range are likely
limited by high temperatures. The western edge of the species' range
has been limited by reduced precipitation and soil moisture. Although
temperature and other effects of climate change are expected to affect
American burying beetles in both the northern and the southern parts of
the range, we expect that the populations in southern areas will be
affected sooner and to a greater extent based on projected
temperatures. Under both the RCP 4.5 and 8.5 emissions scenarios, a
majority of the Southern Plains analysis areas are expected to be near
or exceed summer mean-maximum threshold temperatures (95 [deg]F) by
2039, with potential to
[[Page 65249]]
extirpate American burying beetles from most or all Southern Plains
populations. Within the mid-century time period, all Southern Plains
analysis areas are expected to exceed threshold temperatures under both
the RCP 4.5 and 8.5 emissions scenarios, likely resulting in
extirpation of the American burying beetle from these areas. American
burying beetles near the southern and western edge of the range in
Kansas, Oklahoma, and Texas may already be at or near their limits for
temperature- and moisture-related tolerances and have a limited ability
to adapt to rapidly changing climate conditions (see comments on limits
related to life history in chapter 5 of the SSA Report; Service 2019).
No American burying beetle populations, including known historical
populations, are located in areas that experience a long-term summer
mean-maximum air temperature above 95 [deg]F. The Red River Analysis
Area represents the southernmost and warmest portion of the American
burying beetle's current range, with summer mean-maximum air
temperatures of approximately 93 to 94 [deg]F.
Increased air temperatures, changes in precipitation, increased
evaporative losses, and prolonged droughts may stress or kill
individual American burying beetles and reduce reproductive success or
reduce the time periods with suitable conditions for reproduction. High
air temperatures have been documented to kill or sterilize American
burying beetles at captive colonies when air conditioning systems have
failed, resulting in colony temperatures at 85 to 90 [deg]F for about 2
weeks (Merz 2016, pers. comm.). Survey protocols require traps to be
checked in the morning because American burying beetle mortalities
occur when they are confined in traps during warm days. Additional
indirect effects of increased temperatures and reduced precipitation or
soil moisture may be related to competition. Congeners with higher
temperature or lower moisture tolerances, like N. carolinus, may be
more competitive and reduce or eliminate American burying beetles in
southern populations. Species like N. carolinus can compete for
appropriate carcasses and reproduce under warmer and drier conditions
than American burying beetles (Abbott and Abbott 2013, p. 2). At Camp
Maxey, American burying beetle and N. orbicollis numbers declined when
N. carolinus numbers increased rapidly (Abbott and Abbott 2013, p. 2).
Increasing temperatures resulting from changes in the climate could
reduce the reproductive success of American burying beetles by reducing
the portion of the active season with suitable temperatures for
reproduction. Recent temperature studies with N. orbicollis indicate
even small increases in temperature can affect reproduction (Quinby et
al. 2020, entire). This type of research is currently being conducted
with American burying beetles as well, but those results are not yet
available. N. orbicollis has a similar historical range to the American
burying beetle, is the most closely related congener, and basic
physiological characteristics, such as thermal tolerances are highly
conserved within lineages; therefore, we expect the American burying
beetle study is likely to yield similar results. For N. orbicollis, the
percent of successful broods declined at temperatures greater than 20
[deg]C (68 [deg]F) and declined rapidly at any temperatures greater
than 25 [deg]C (77 [deg]F). An increase of only 2 to 3 degrees (from 25
to 27-28 [deg]C, or approximately 77 to 80 [deg]F) stopped most beetles
from attempting to prepare a carcass for reproduction, and those that
did were not successful in producing any larvae or tenerals. The warmer
temperatures precluded eggs from hatching or larvae from developing
beyond a very early stage. The study also demonstrated effects of
temperatures on seasonal timeframes that would support reproduction.
While more southern latitudes have a longer active season and would
logically have more time to reproduce, the temperature restrictions
reduce the potential for reproduction in Oklahoma. N. orbicollis in the
northern portion of their range (Wisconsin) have a longer period of
suitable climate conditions for reproduction and could reproduce more
often than N. orbicollis in the southern portion of their range
(Oklahoma) due to these temperature restrictions. Projected climate
changes could limit reproduction in the future to an even greater
extent.
American burying beetles are a nocturnal species; thus, nighttime
temperatures are likely to influence the behavior and range of this
species as well. Nights above 75 [deg]F were observed only in the
Southern Plains analysis areas (Red River, Arkansas River, and Flint
Hills analysis areas) with the exception of 7 nights over a 35-year
period in Colome, South Dakota. The effects of the increase in nights
above 75 [deg]F and potential impacts to reproductive success may be
occurring in the Red River Analysis Area, where declines in positive
American burying beetle surveys have been documented since the early
2000s. A recent study evaluating reproductive strategies in N.
orbicollis across a temperature gradient (54 [deg]F, 59 [deg]F, 68
[deg]F, 77 [deg]F, and 81 [deg]F) found that temperatures above 68
[deg]F adversely affected reproductive success in N. orbicollis (Quinby
et al. 2020, p. 8) and may have a similar effect on American burying
beetles. There was no reproductive success in N. orbicollis at 81
[deg]F (Quinby et al. 2020, p. 5). We do not have data specifically
related to reproductive success in the Red River Analysis Area, but the
American burying beetle population declines coincide with the increase
in nighttime temperatures above 75 [deg]F.
American burying beetles are active only at night, resulting in a
very narrow window of time for suitable carcasses to be available for
American burying beetles to find, bury, and prepare for reproduction.
Higher temperatures cause carrion to decompose more rapidly, and fly
larvae to develop faster and quickly consume small carcasses. At high
temperatures, exposed carcasses can be heavily infested with fly larvae
within 2 days, and carcasses may be suitable and available for only 1
or 2 nights. Thus, we conclude that increased air temperatures can
affect reproductive success by reducing the availability of suitable
carrion due to competition with flies and ants.
Risks associated with the effects of changing climate, including
increasing temperatures, are a significant threat for some analysis
areas in the foreseeable future. The information in the SSA Report (see
chapter 5; Service 2019) indicates that projected increases in air and
soil temperatures, as a result of climate change, are a significant
risk to future viability of the species. Within the mid-century time
period, American burying beetles in all Southern Plains analysis areas
would likely be extirpated and would represent a loss of approximately
59 percent of the current range of the species. The summer mean-maximum
threshold (95 [deg]F), where we determine American burying beetle
numbers will decline and not be able to persist into the future, is
predicted to be exceeded in nearly all portions of the Southern Plains
analysis areas under either the moderate or high emissions levels of
climate change within the mid-century time period. Northern Plains
analysis areas are largely unaffected by moderate emissions levels of
climate change within the mid-century time period (see chapter 5 of the
SSA Report; Service 2019), but under the RCP 8.5 emissions scenario,
temperatures approach 93 to 95 [deg]F in most of the Northern Plains
analysis areas by the end of the mid-century time period. Under the RCP
8.5 emissions scenario, Southern Plains American burying beetle
populations would be projected
[[Page 65250]]
to have summer mean-maximum temperatures up to 98 to 100 [deg]F within
the mid-century time period. We conclude that the American burying
beetle is at risk of extirpation within the Southern Plains analysis
areas under the two projected climate conditions we analyzed (RCP 4.5
and 8.5) within the mid-century time period. The species would likely
continue to be represented by Northern Plains and New England
populations, but at least three populations in the Southern Plains and
59 percent of the existing range of the species are projected to be
lost within the mid-century time period. The effects of a changing
climate, such as increasing temperatures, changes in precipitation,
increased evaporative losses, and prolonged droughts, stress and
sometimes kill individual American burying beetles and, therefore, are
likely to reduce reproductive success. Overall, we consider these
factors threats to American burying beetle populations, but the impacts
are currently limited to the southernmost parts of the range. However,
in large portions of the Northern Plains analysis areas temperatures
are projected to approach the thermal tolerance limits of the American
burying beetle under the high emission scenario of RCP 8.5 by the end
of the mid-century time period and future projections within the mid-
century time frame indicate that American burying beetles have a high
risk of extirpation throughout the Southern Plains analysis areas due
to these effects of climate change. Under the RCP 4.5 scenario, the
Southern Plains Analysis Areas has an increased risk of extirpation by
the end of the mid-century time period, leaving only the Northern
Plains and New England populations.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Summary of Comments and Recommendations
In the proposed rule published on May 3, 2019 (84 FR 19013), we
requested that all interested parties submit written comments on the
proposal by July 2, 2019. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in USA
Today. We received a request for a public hearing. We held a public
hearing on September 24, 2019, in Tulsa, Oklahoma, and reopened the
public comment period from September 9, 2019, to October 9, 2019 (84 FR
47231). All substantive information provided during comment periods has
either been incorporated directly into this final determination or
addressed below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments
from 8 peer reviewers. We also solicited reviews of the draft SSA
report from all States and Tribes within the American burying beetle's
current range and species experts during a partner review. We reviewed
all comments we received from the peer reviewers for substantive issues
and new information regarding the information contained in the SSA
report. The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions to improve the final SSA report. Peer reviewer comments are
addressed in the following summary and were incorporated into the final
SSA report as appropriate. The changes consisted of clarifications and
corrections to the SSA report, including typographical edits, revising
descriptions of our analysis, and expanding some risk information
related to the potential effects of the invasive redcedar and wind
energy expansion. The reviewers' comments resulted in minor changes in
the resiliency assessments for some analysis areas, but did not
substantially change the SSA report's information on current and future
status of American burying beetle populations.
The comments on the SSA report and proposed rule did not change our
determination that the American burying beetle meets the definition of
a threatened species under the Act.
Public Comments
We received comments from 75 respondents. These included comments
primarily from individuals, nongovernmental organizations, and
industries, but also included comments from five U.S. Senators, two
States, and one Tribe. We reviewed all comments provided and addressed
the substantive comments. Many comments were not substantive or
relevant to the downlisting decision, but all comments are available at
http://www.regulations.gov in Docket No. FWS-R2-ES-2018-0029.
Substantive comments are grouped together in related categories below.
(1) Comment: Several commenters, including the Nebraska Game and
Parks Commission, indicated that American burying beetle populations
have not met the downlisting goals in the recovery plan and suggested
that delisting criteria is needed.
Our Response: Downlisting criteria are important, but not legally
required for reclassification (50 CFR 424.11(c)). The American burying
beetle recovery plan was approved by the Service on September 27, 1991;
since then, new information about the status and conservation of the
species has become available. For reclassification from endangered to
threatened, the recovery plan established a criterion of at least 3
self-sustaining populations of at least 500 individuals in each of 4
broad geographical areas of the species' historical range: the
Northeast, the Southeast, the Midwest, and the Great Lakes States. The
current total size of populations exceed that criterion; however, the
populations are not within the geographical areas described in the
recovery plan, making them more vulnerable to local or regional impacts
than if they were spread through each of the broad geographical areas.
Several large populations occur in the western portions of the range,
and two smaller populations that require active management have been
maintained in New England. Some very large populations that likely
support several thousand adults are considered more resilient than
populations of only 500 adults and can be considered equivalent to 2 or
more smaller populations. Current populations exist in northern,
southern, eastern, and western portions of the historical range, but
with very limited representation in the East. Each of the 6 analysis
areas within western populations has more than 1 million acres of
suitable habitat, and at least 4 analysis areas support relatively
large
[[Page 65251]]
populations. Although considerably smaller, the New England Analysis
Area supports 1 population with estimates of approximately 500 or more
American burying beetles and another smaller population with active
management.
The recovery plan is an exceptional source of information but is
out of date and contained only reclassification criteria rather than
reclassification and delisting criteria (see Review of the Recovery
Plan, above, for more information on the role of reclassification
criteria in our determination). New information will be used to inform
the criteria needed to be met for full recovery of the species.
Recovery is a dynamic process requiring adaptive management that may or
may not fully follow the guidance provided in an earlier recovery plan.
The SSA Report does not include recovery criteria, but will inform the
establishment of such criteria as it provides an updated, revised
analysis of current and future status of the species and risks based on
our current understanding of the species' needs. Information in the SSA
Report indicates that maintaining or reestablishing populations in
southern portions of the historical range is not feasible for the
future due to the effects of projected increases in temperatures due to
climate changes. The Service plans to use the information from the SSA
Report and any additional information to revise the recovery plan to
include delisting criteria.
(2) Comment: Several commenters, including the Nebraska Game and
Parks Commission, suggest that downlisting is inconsistent with the
information in the SSA and proposed rule because we project a declining
status and risk of extinction in the future. Several commenters pointed
out that it does not make sense to downlist the American burying beetle
if it may need to be reclassified as endangered in the future if
projected future risks are accurate.
Our Response: We believe that most of the comments asserting that
the proposed reclassification is not supported by the SSA are related
to misunderstanding the definitions of threatened and endangered in the
Act. The definition of endangered is ``any species which is in danger
of extinction throughout all or a significant portion of its range,''
while the definition of threatened is ``likely to become an endangered
species within the foreseeable future.'' The definitions of threatened
and endangered both include being endangered or at risk of extinction,
but they are based on different timeframes. The definition of
endangered applies to a species' current status, and a threatened
determination means that the species is likely to become endangered in
the future. The SSA concludes that there are currently at least six
relatively resilient populations with distribution in several
relatively large areas within the range. While we recognize the large
loss of the historical range, the current range is much larger than
originally thought when the species was listed and there are several
large populations with relatively good genetic diversity and relatively
low current risks. We believe the current risk of extinction is low for
the American burying beetle and that the best available information
indicates the species no longer meets the definition of an endangered
species (i.e., it is not currently in danger of extinction), but the
future risk to the species indicates that it meets the definition of a
threatened species.
The SSA projects future risks that include changes in climate that
may extirpate southern populations within a 20-30-year period under
either the RCP 4.5 or RCP 8.5 scenario and may affect Northern Plains
populations within 50 years under the RCP 8.5 scenario. Therefore, the
species is likely to be endangered within the foreseeable future (2069,
the end of the second 30-year climate analysis period). While the
status of the American burying beetle is currently relatively stable,
we have determined that it is likely to become endangered within the
foreseeable future, based on the analysis of how climate change will
impact its future condition in the SSA report. Thus, we conclude that
the SSA is consistent with this final determination and supports our
determination that the American burying beetle meets the definition of
a threatened species.
By definition, a threatened species determination implies a
potential need to reclassify the species as endangered if our
projections about its status in the foreseeable future are accurate.
However, ongoing and future conservation and recovery actions may help
establish populations in areas that are safe from climate-related
risks, potentially precluding the need to reclassify the species in the
future. If such efforts are not sufficient, then uplisting the species
to endangered would be considered at that time.
(3) Comment: A few commenters suggest that reintroduced populations
have not been documented to be self-sustaining and should not have been
used in the downlisting decision. They further suggest that additional
genetics information is needed for maintaining genetic diversity and
reintroduction efforts.
Our Response: We agree that all current reintroduction efforts need
more time and monitoring to determine if they can be self-sustaining.
We also want to clarify that reintroduced populations are included in
the description of where the species currently occurs, but are not
considered self-sustaining and were not used to justify the
reclassification. Reintroduction efforts have potential to produce
self-sustaining populations and are necessary for the ultimate recovery
of the species. We hope we can learn from ongoing efforts to
reestablish additional populations within the historical range.
We also agree that additional genetics information for all existing
populations would be helpful for assessing the resiliency and
representation of populations and important for maintaining genetic
diversity. Additional genetics information would be important for any
reintroduction efforts. For the purposes of the proposed rule and SSA
Report, we used the best available information and believe that
information supports the reclassification and the 4(d) rule. With the
exception of the New England populations, the existing populations in
the Northern Plains and Southern Plains are relatively large and appear
to support good genetic diversity. The Northern Plains and Southern
Plains populations are currently separated from each other, but, within
each area, the populations are in close proximity and may have some
genetic exchange between those populations. The existing genetic
information does not indicate any significant genetic differences
between the Northern Plains and Southern Plains populations, but they
are geographically separated and continued isolation can create genetic
limitations for recovery. We strongly encourage additional genetic
analysis to help support future recovery and reintroduction efforts.
(4) Comment: A few commenters suggested that defining incidental
take as resulting from soil disturbance may not be appropriate and we
need to provide more explanation about why we take such an approach.
Our Response: Soil disturbance has been used to evaluate the
potential for take of American burying beetles in occupied areas for
many years given that they spend a substantial portion of their
lifespan underground. Because American burying beetles and brood
chambers have been documented within 2 inches of the soil surface and
adults may seek shelter during the day in varying depths and types of
soil during the active season, any soil disturbance is likely to affect
the species during the
[[Page 65252]]
active season. Soil disturbance can crush or injure buried adult
beetles and expose them to daytime heat and potential predators. Soil
disturbance can collapse or expose brood chambers and kill larvae and
pupa. American burying beetles are typically buried deeper during the
winter months, but depths vary according to location and temperatures.
Soil disturbance during the winter months can kill adults by exposing
them to freezing temperatures and predation.
The Service usually defines incidental take in terms of the number
of occupied acres disturbed and determines the risk of incidental take
based on the type and timing of the disturbance for proposed projects.
We consider incidental take of American burying beetles to occur as a
result of soil disturbance in the form of harm, harassment, and/or
mortality. The number of American burying beetles that will be taken is
difficult to estimate for most projects because density estimates are
not available for most areas. For specific projects, the risks of take
can be determined or adjusted if current density estimates are
available. The risk of incidental take is associated with disturbance
of soils in suitable habitat with confirmed or potential presence of
American burying beetles. American burying beetles use a variety of
habitat types; we have defined habitats we consider to be unfavorable
in the proposed and final rule. American burying beetle presence or
absence can be determined through surveys using established scientific
protocols during the active season.
Take of American burying beetles is difficult to quantify because:
(1) Individuals of the species are small in size, making them difficult
to locate, which makes encountering dead or injured individuals
unlikely; (2) American burying beetle losses may be masked by temporal
fluctuations in numbers; (3) American burying beetles spend a
substantial portion of their lifespan underground; and (4) the species
is primarily active at night. Because we cannot often estimate the
precise number of individual American burying beetles that will be
incidentally taken, we use soil disturbance as a proxy to quantify take
levels and define when take would be considered to be exceeded.
(5) Comment: Several commenters suggest that climate change is not
certain enough to occur to be assumed as a primary risk for the
American burying beetle. Several commenters also suggested that all
four representative concentration pathways (RCPs, potential emissions
scenarios) should be used. The commenters asked that the Service
provide the public information on how these models perform at
predicting temperature increase in contrast with historical data.
Our Response: The best available science indicates that we can
expect increasing temperatures within the range of the American burying
beetle within the foreseeable future. Likewise, the best available
science indicates that increasing temperatures are likely to have
significant negative effects to individual beetles and overall
populations within the foreseeable future, particularly within the
Southern Plains Analysis Area.
We used RCP 4.5 and 8.5 in the analysis e for the work presented in
the SSA report. We consulted with multiple climate experts for our
analysis of potential climate effects. Based on the recommendation of
climate scientists at the South Central Climate Adaptation Science
Center (a research consortium of Federal, State, and Tribal entities),
climate change projections downscaled by scientists at the University
of Idaho were selected. The climate change assessment in the American
Burying Beetle SSA used the average of 20 global climate models for two
of the four emission scenarios (RCP 4.5 and RCP 8.5). Consultations
with climate scientists at several Federal and academic institutions
confirmed that the selected approach was optimal. The MACA-METDATAv2
downscaling of Global Climate Models (GCMs) was chosen for the American
Burying Beetle SSA on the recommendation of the South Central Climate
Adaptation Science Center. The downscaling of GCMs using the METDATA
method increased the precision of climate projections by 28 to 120
times, depending on the original GCM. While the chosen downscaling
dataset provided a robust (20 GCMs) and consistent (same models
available in all datasets) pool of downscaled projections available in
an online format with data access optimized for terrestrial analyses,
only two (RCP 4.5 and RCP 8.5) of the four (RCPs 2.6, 4.5, 6.0, and
8.5) representative concentration pathways (RCPs, potential emissions
scenarios) were available. All four RCPs are available through an
archive hosted by the University of California and Lawrence Livermore
National Lab. Downscaled projections using the Bias Corrected Spatial
Disaggregation (BSCD) method are available for all four RCPs and up to
37 GCMs. However, downscaled datasets are not available for all models
in all RCPs (only 18 of 37 are available across all 4 RCPs).
Additionally, the BSCD data access web portal is optimized for aquatic
analyses, not terrestrial, and there is no option available to average
datasets across GCMs. Different downscaling methods were employed by
the research groups (METDATA vs BCSD), and the source GCMs varied.
The MACA-METDATAv2 downscaling is a valid methodology and
constitutes the best available science regarding climate change
projections for this context. Each GCM uses a different set of
assumptions in order to project future temperatures. These assumptions
contribute to the variation seen across the modeled output from the
various GCMs within each RCP scenario. Recent literature and
consultations with climate scientists at the South Central Climate
Adaptation Science Center indicate that the RCP 2.6 is not achievable
even if the most ambitious current international agreements (e.g., the
Paris Climate Accords) are successful. Furthermore, all four RCPs will
consistently exceed the 95 [deg]F mean maximum summer (June, July, and
August) temperature threshold established in the American burying
beetle SSA by 2040 in the Southern Plains analysis areas. The four RCPs
do not diverge from the RCP 4.5 projections until about 2055 (RCP 2.6)
and 2080 (RCP 6.0), which are, respectively, near the end and beyond
the foreseeable future established by the American burying beetle
recommendation team (2040-2069, or mid-century timeframe as described
above under Threats). A comparison of all four RCP scenarios with
historical data shows all four are nearly identical and only predict
minor changes through 2055. The historical data was within the
variability projected for all four scenarios. In summary, the American
burying beetle SSA used the average of 20 global climate models for 2
of the 4 emission scenarios (RCP 4.5 and RCP 8.5) based on the best
available science, and this analysis will be updated as new information
becomes available.
(6) Comment: Four commenters opined that the Southern Plains
populations are at higher risk due to climate changes and need more
protection than other populations.
Our Response: In our revised significant portion of the range
analysis (presented below), we considered that the Southern Plains
populations are at higher risk from climate-related changes; however,
we concluded that the Southern Plains populations are not currently at
risk of extinction. Populations at the southern and western edges of
the species' range in Kansas, Oklahoma, and Texas are vulnerable to
changes in temperature and precipitation (and related soil moisture)
[[Page 65253]]
in the future. Relative to other populations, Southern Plains
populations are currently at a lower risk from any land use changes.
Land use changes could have local impacts but are unlikely to affect
populations in the Southern Plains. The combination of large areas of
suitable habitat, relatively large areas of protected habitat, and
relatively low levels of projected changes resulted in low risks to
habitat and populations in the Southern Plains with the exception of
climate-related risks. Large areas of the Southern Plains analysis
areas are rural with most of the land used as pasture or hay production
for decades. The land use is not that likely to change much, and human
population levels are projected to remain constant or fall in many
counties. Only small portions of the Southern Plains analysis areas are
in or near urban areas that are projected to expand.
Continued or expanded protection of habitat is not likely to change
the status of existing American burying beetle populations. The 4(d)
rule exemptions for the Southern Plains analysis areas are based on
this information, and no new information was provided during the peer
review or public comment periods to change the projections provided in
the SSA Report. Continued or expanded habitat protections would do
little to avoid or minimize the primary risks that are related to
projected increasing temperatures and other climate-related changes.
Reintroduction of southern American burying beetles to cooler portions
of the range is the only likely option for maintaining the genetic
diversity represented by the Southern Plains populations. Within the
Southern Plains analysis areas, the conservation areas will support
American burying beetles for as long as possible and provide sources of
American burying beetles for reintroductions and areas for recovery-
related research.
Along these lines, one of the above commenters elaborated that the
conservation areas in the 4(d) rule for the Southern Plains were
vulnerable to extirpation and had highly variable numbers of American
burying beetles. American burying beetle population numbers vary, but
we determine that the large sizes of the conservation areas buffer the
effects of seasonal or annual variations. All conservation areas are
greater than 30,000 acres in size, and most are surrounded by
additional suitable habitat.
(7) Comment: A few commenters expressed an opinion that
conservation areas were not needed and that the conservation banks in
Oklahoma could be used to support reintroductions.
Our Response: We will use conservation banks to assist recovery
actions, and these banks are protected through perpetual easements and
endowment funds to support management activities. However, the
conservation banks (all less than 10,000 acres) are relatively small
compared to the conservation areas described in the final rule, and our
ability to remove American burying beetles from these areas without
impacting the local populations is more limited.
(8) Comment: Six commenters, including the Nebraska Game and Parks
Commission, suggested that the 4(d) exemptions should be consistent
across the range. Some commenters wanted proposed exemptions for the
Northern Plains populations to apply to the entire range, while others
wanted the more extensive exemptions proposed for the Southern Plains
to apply.
Our Response: The risks for American burying beetle populations are
different for each region of the country. The area, density, and
distribution of populations are also different in each location, and
risks that may be minor for one population could be substantial and
affect the resiliency of other populations. For example, urban
expansion may be a minor risk for larger populations in Oklahoma but is
a substantial risk for the small Block Island population in Rhode
Island. The proposed 4(d) rule includes protection of the species from
take related to soil disturbance activities on Block Island because
suitable habitat is limited (only about 2,000 acres), and protecting
habitat is necessary for the conservation of this important population.
In finalizing protections and exemptions in the 4(d) rule, we
considered appropriate risks for each region or population. Exemptions
for all land uses are being finalized for the Southern Plains
populations (except in conservation areas) because projected habitat
losses due to changes in land uses are less than 2% and there are large
areas of protected habitat. The primary threats to southern populations
are related to projected temperature increases. Exceptions are limited
to grazing and wildlife management in the Northern Plains populations
because potential habitat losses due to changes like conversions of
grassland to cropland and invasion of redcedar are higher than the
projected habitat loses in the Southern Plains. The Northern Plains
populations may be the only large and resilient populations remaining
within 20-30 years, and habitat impacts should be closely evaluated.
Some potential impacts like the expansion of wind energy projects and
related fragmentation impacts to habitat and carrion availability were
not addressed in the SSA Report due to a lack of available information.
These potential impacts to Northern Plains populations need to be
evaluated, and necessary protections can be applied through section 7
consultations and section 10 permits. Exceptions for grazing and
wildlife management practices, as defined under Provisions of the 4(d)
Rule, are proposed exceptions for the northern populations because
lands under this management have supported resilient American burying
beetle populations. We conclude that applying protections based upon
the tailored conservation needs within each analysis area provides the
protection that is necessary and advisable to conserve the American
burying beetle as a whole. The American burying beetle SSA report
provides detailed information on the status of the species in each
region.
(9) Comment: Several commenters suggested that the proposed 4(d)
rule is catering to the oil and gas industry.
Our Response: The 4(d) rule is based on assessments of current and
future land use effects on American burying beetle populations. The
exceptions provided in the 4(d) rule are not specific to the oil and
gas industry or any other industry. The approach taken in the 4(d) rule
was based on our analysis that indicated that less than 2 percent of
suitable habitat in the Southern Plains analysis area is vulnerable to
the effects of all impacts combined (including oil and gas activities).
Thus, prohibiting these impacts is not necessary for the conservation
of the American burying beetle in this area. The rule is supported by
the best available scientific and commercial information, our analysis
of threats to the species, and measures necessary and advisable for the
conservation of the species.
(10) Comment: A few commenters suggested the proposed rule should
have included more information on threats or risks related to carrion
sources.
Our Response: Appropriately sized carrion are key to supporting
American burying beetle populations. However, the known information for
carrion sources used by American burying beetles is limited, and
available information on the status of potential carrion species is
also very limited. General information on possible effects of land use
changes on carrion sources is provided in the SSA report, but the best
available information does not allow us to draw conclusions on the
[[Page 65254]]
threats posed by the availability of carrion resources.
(11) Comment: One commenter stated that surveys indicated the
Northern Plains populations declined by 90% in 2019 and are at risk
because the number of tenerals was low and they are an annual species.
Our Response: We have reviewed the American burying beetle capture
rates for surveys in 2019. This information is not reflected in the SSA
Report because it was developed before the 2019 survey information was
available. We have discussed this issue with Dr. Wyatt Hoback and
others familiar with the Northern Plains populations and believe the
reductions in capture rates was due to the record level of flooding
that occurred in that area in 2019. This event is an example of
circumstances that factor into our evaluation of the resiliency of
populations.
Population abundance can vary substantially with annual species;
thus, the SSA Report looked at catch rates over a 15-year time period
to provide a better assessment for the abundance and resiliency of
populations. Previous droughts have also caused declines in annual
catch rates, and severe weather can affect annual reproduction and
catch rates. The decline in catch rates in the 2019 Northern Plains
surveys is more extreme than most, but the flooding event was also the
largest on record and extended over much of the active season. We
believe that the Northern Plains populations will rebound from these
flooding events, because this is a temporary or short-term effect and
the large area of contiguous habitat and good distribution of American
burying beetles within the Sandhills and Niobrara analysis areas should
allow the populations to recover in subsequent years.
The habitat in the Northern Plains analysis areas has historically
supported some of the highest densities of American burying beetles
within its current range, and this habitat is expected to recover from
the flooding. We expect these areas to support good numbers of American
burying beetles in the near future but may be affected by climate risks
within the foreseeable future. Because these populations may represent
the only large and resilient populations by 2040, we have limited
exceptions under the 4(d) rule to grazing and wildlife management
within the Northern Plains analysis areas. We will reassess this
information with the survey information in upcoming years and note that
the Act requires a status review every 5 years.
Determination of American Burying Beetle Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a ``threatened species'' as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following factors: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that the risk of extinction of the American burying beetle has
been ameliorated since the species was listed. The current range is
much larger than originally thought when the species was listed and
there are several large populations with relatively good genetic
diversity and relatively low current risks. However, the future threat
of increased temperature puts the species at risk of extinction in the
foreseeable future.
The large areas of known and potential habitat in the Southern
Plains buffer the effects of most land use changes. The Arkansas River
and Flint Hills analysis areas are adjacent to each other and combined
provide over 17 million acres of potential habitat. These analysis
areas support large populations with moderate to high resiliency (see
chapter 4 of the SSA report). The Red River Analysis Area has over 2
million acres of suitable habitat but has a very limited population
with low resiliency.
The Northern Plains populations are also relatively large with a
combined area of over 11 million acres of suitable habitat in the
Niobrara and Sandhills analysis areas that currently support
populations with moderate to high resiliency. A smaller area of
suitable habitat (1,686,948 acres) supports a smaller population with
low to moderate resiliency in the Loess Canyons analysis area.
The New England analysis area currently supports two populations on
separate islands. The Block Island population is relatively small with
only about 2,000 acres of suitable habitat, but it supports a
population with moderate resiliency with continued active management.
Nantucket Island is a reintroduced population on a larger island, but
resiliency is low and active management with carcass supplementation is
required to maintain this population.
In summary, the current status includes at least five populations
with moderate to high resiliency and several of these populations are
relatively large. We find that the species is not currently in danger
of extinction as it faces relatively low near-term risk of extinction.
Thus, after assessing the best available information, we conclude that
the American burying beetle is not currently in danger of extinction
throughout all of its range. Therefore, we proceeded with determining
whether the American burying beetle is likely to become endangered
within the foreseeable future throughout all of its range.
Within the mid-century time period (i.e., 2040-2069), American
burying beetles in all Southern Plains analysis areas would likely be
extirpated as a result of increasing temperatures due to climate
change. The projected combined permanent loss of suitable habitat from
all land use sources for the Southern Plains analysis areas is minimal
compared to the total extent of suitable habitat. The impact of
agriculture (primarily conversion to cropland) is expected to affect
areas of suitable habitat (5-15 percent) in the Northern Plains (Wright
and Wimberly 2013, p. 4134), and redcedar expansion in the Loess Canyon
Analysis Area is expected to result in larger proportions (30 percent)
of habitat loss in the future (Walker and Hoback 2007, pages 297-298).
This loss of the Southern Plains populations (approximately 59 percent
of the existing range of the species) and additional losses of habitat
in the Northern Plains would severely impact representation of the
species and would limit our ability to recover the species. The
combined effects of land use and future climate changes are likely to
impact the resiliency of most populations and the overall viability of
the species. Thus, after assessing the best available information, we
conclude that the American burying beetle is likely to become in danger
of extinction
[[Page 65255]]
in the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity
or CBD), vacated the aspect of the 2014 Significant Portion of its
Range Policy that provided that the Services do not undertake an
analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we evaluated whether the species is endangered in a significant portion
of its range--that is, whether there is any portion of the species'
range for which both (1) the portion is significant; and (2) the
species is in danger of extinction in that portion. Depending on the
case, it might be more efficient for us to address the ``significance''
question or the ``status'' question first. We can choose to address
either question first. Regardless of which question we address first,
if we reach a negative answer with respect to the first question that
we address, we do not need to evaluate the other question for that
portion of the species' range.
Following the court's holding in CBD, we now consider whether there
are any significant portions of the species' range where the species is
in danger of extinction now (i.e., endangered). In undertaking this
analysis for the American burying beetle, we choose to address the
status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify any portions of the range where the species
is endangered.
Based on the SSA Report (Service 2019), there are three potential
portions of the range that could be significant for American burying
beetle: The Northern Plains analysis areas, the Southern Plains
analysis areas, and the New England Analysis Area. These three areas
correspond to the areas of representation for the species.
Representation describes the ability of a species to adapt to changing
environmental conditions. Representation can be measured through the
breadth of genetic diversity within and among populations and the
ecological diversity (also called environmental variation or diversity)
of populations across the species' range. The more representation or
diversity the species has, the higher its potential of adapting to
changes (natural or human caused) in its environment. Geographic
distribution of occupied and potentially suitable habitat and genetic
information were used to describe representation for the American
burying beetle. The areas of representation were developed primarily
based on geographic separation, the ecological variation represented
across these three areas, and some genetic variation in the New England
Analysis Area when compared with the other two areas.
For the purposes of the SSA analysis, we further assessed three
smaller areas each in the Northern Plains and Southern Plains
representation areas. However, we determined that these smaller areas
were not, by themselves, separate areas of representation for the
species. Evidence indicates that the smaller analysis areas within each
larger area are connected genetically and demographically, such that
they behave as metapopulations. In some cases, there are differences in
risk factors related to land uses, and human population concentrations
that facilitated the SSA analysis, particularly with respect to those
risk factors. These smaller areas were simply used as a framework for
conducting the SSA analysis. As explained below, they are not
sufficiently distinct to be considered areas of representation for the
species.
The three individual analysis areas within the Northern Plains
(Loess Canyons, Sandhills, and Niobrara analysis areas) are in close
geographical proximity to one another, and existing information
suggests that they share similar genetic characteristics. One example
of ecological variation that unites these three analysis areas is that
the timing and number of breeding attempts per season remains the same
across all three Northern Plains analysis areas, but differs from the
Southern Plains analysis areas (Service 2019, p. 98). Combined, the
Northern Plains analysis areas represent about 40 percent of the known
species range.
The three analysis areas within the Southern Plains (Red River,
Arkansas River, and Flint Hills) were combined for similar reasons. The
three southern analysis areas are adjacent, and may be one population,
meaning that individuals in one of the smaller areas could potentially
breed with individuals in the other southern analysis areas, but it is
very unlikely they would have access to mates in either of the other
areas of representation (i.e., Northern Plains or New England).
Existing information suggests that individuals within the Southern
Plains analysis areas also share similar genetic characteristics.
Combined, the Southern Plains analysis areas represent about 59 percent
of the known species range, and individuals in this representative area
may have genetic adaptations to warmer climates. For example,
individuals in the Southern Plains analysis areas are known to become
active earlier in the season than individuals in the Northern Plains
analysis areas. Likewise, individuals in the Southern Plains analysis
areas may potentially breed twice in one season and the young-of-year
may breed in the same season they are born, unlike individuals in other
parts of the range (Service 2019, p. 98).
The New England Analysis Area is relatively small with a total of
only 42,431 acres on two islands but represents the only remaining
population within the eastern portion of the historical range. Recent
evidence suggests that the New England population may represent a
genetically distinct population as compared to the Northern Plains and
Southern Plains analysis areas. Although the New England Analysis Area
is distinct from the other areas, they appear to share some genotypes.
However, geographic isolation between the two areas will likely
continue to differentiate them further, making them more distinct over
time. The New England Analysis Area is the only portion of the species'
range that is not threatened by projected climate changes.
The first question of the significant portion of the range analysis
we address is the status or risk of extinction (i.e., identifying
portions where the species may currently be in danger of extinction)
for each portion of the range. We considered whether the current
condition of the species in any portion of the range (i.e., the
Northern Plains analysis areas, the Southern Plains analysis areas, and
the New England Analysis Area) along with any threats acting in those
areas cause that portion of the range to be in danger of extinction. We
examined the following threats: Urban and suburban development, land
use change, decreased carrion availability, competition with other
scavengers, wind energy development, silviculture, oil and gas
development, and increasing temperatures due to changing climate, as
well as their cumulative effects for each of the three portions of the
range.
In the Northern Plains representation area, although threats
evaluated include urban and suburban development, most current American
burying beetle populations are in rural areas and have potential risks
associated with habitat loss due to agricultural land uses, and
[[Page 65256]]
these threats are the ones that we consider the most important drivers
of the species' status in this representation area. All habitat
alterations also have potential to affect carrion populations,
competing scavenger populations, and carrion availability. Risks such
as conversion to cropland, cedar expansion, and wind energy development
also affect portions of the Northern Plains analysis areas. However,
the large areas of known and potential habitat buffer the effects of
most of these land use changes, and these threats are not known to
currently cause population-level impacts to American burying beetles in
the Northern Plains representation area. Likewise, given the large size
of this representative area and the relatively small proportion of
anticipated impacts from such activities, population-level impacts from
these land use threats do not put the species at risk of extinction now
and are not anticipated within the foreseeable future.
Our analysis of the available information on changes in climate
indicates that, although the change in climate is occurring now, the
impacts from climate change that are likely to put the species at risk
of extinction will occur in the future. The combination of land use and
climate-related risks do have potential to endanger Northern Plains
populations within the foreseeable future. Under the RCP 4.5 emissions
scenario, temperatures approach 93 to 95 [deg]F in small areas of the
Northern Plains analysis areas by the end of the mid-century time
period, however, under the RCP 8.5 emissions scenario, temperatures
approach 93 to 95 [deg]F in most of the Northern Plains analysis areas
by the end of the mid-century time period. Thus, after assessing the
best available information, we conclude that the American burying
beetle is not currently in danger of extinction within the Northern
Plains representative area but is likely to become endangered in the
foreseeable future.
Many of the same threats apply to the Southern Plains
representation area as well: Urban and suburban development, land use
change, decreased carrion availability, and competition with other
scavengers. In the Southern Plains area most current American burying
beetle populations are in rural areas and have potential risks
associated with habitat loss due to agricultural land uses. Risks
associated with grazing, silviculture, and oil and gas development also
affect portions of the Southern Plains analysis areas. The large areas
of known and potential habitat buffer the effects of most land use
changes, and these threats are not known to currently cause population-
level impacts to American burying beetles. Likewise, given the large
size of these analysis areas and the relatively small proportion of
anticipated impacts from such activities, population-level impacts from
these land use threats are not anticipated within the foreseeable
future. The Southern Plains analysis areas are currently experiencing
the effects of climate change. However, the magnitude of the changes up
to the present time are low enough that the species is not in danger of
extinction. The bulk of the impact from climate change to these
analysis areas occur in the future according to our analysis. Within
the foreseeable future, i.e., the mid-century time period (2040-2069),
all Southern Plains analysis areas are expected to exceed threshold
temperatures under both the RCP 4.5 and 8.5 emissions scenarios, likely
resulting in extirpation of the American burying beetle from these
areas. Thus, after assessing the best available information, we
conclude that the American burying beetle is not currently in danger of
extinction within the Southern Plains representative area but is likely
to become endangered in the foreseeable future.
In the New England Analysis Area, threats from urban or suburban
development affect populations in this area. However, ongoing active
management in the New England Analysis Area, including ongoing
provisioning of carcasses for the species, has minimized the impacts of
these threats and has resulted in relatively stable populations within
the New England Analysis Area. The large proportions of protected
habitat in the New England Analysis Area and significant ongoing active
management mitigate population-level impacts from current threats in
this analysis area and the species is not in danger of extinction in
this analysis area now. This ongoing management is expected to continue
into the foreseeable future.
In the New England Analysis Area, the climate is colder than the
other analysis areas and temperature increases have not approached any
possible thresholds, and temperatures are not expected to exceed those
thresholds within the foreseeable future. Future risks to the New
England Analysis Area are related to limited population sizes and
limited habitat. The population estimates on Block Island fluctuate
between 200 and 1,000 individuals, and they are genetically isolated
from any other populations. Continued management of the New England
population helps maintain resiliency, but limited population size and
genetic diversity are risks to future populations and additional
habitat loss could reduce that population size. In some cases, where
American burying beetles occur on lands with conservation easements or
deed restrictions or owned by conservation organizations, existing
regulatory mechanisms appear to be adequate. However, given the varied
missions of these landowners, the level of protection varies and may
change over time. Populations in the New England Analysis areas are
expected to experience future threats from land use change because
habitat is already very limited. Only about 2,000 acres of suitable
habitat are available on Block Island, and much of the protection for
this habitat is based on easements with time limits and not
specifically related to the American burying beetle. Existing
regulatory mechanisms do not adequately address those future threats to
the American burying beetle in New England. Thus, after assessing the
best available information, we conclude that the American burying
beetle is not currently in danger of extinction within the New England
Analysis Area but is likely to become endangered in the foreseeable
future.
For each portion of the range, we found that the threats to the
species, along with conservation measures that ameliorate these
threats, do not cause a current danger of extinction for the species in
any portion. For this reason, we find that the American burying beetle
is not in danger of extinction throughout a significant portion of its
range.
Determination of Status
Our review of the best scientific and commercial data available
indicates that the American burying beetle meets the definition of a
threatened species. Therefore, we are reclassifying the American
burying beetle as a threatened species in accordance with sections
3(20) and 4(a)(1) of the Act.
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the ``Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the
[[Page 65257]]
Act to mean ``the use of all methods and procedures which are necessary
to bring any endangered species or threatened species to the point at
which the measures provided pursuant to [the Act] are no longer
necessary.'' Additionally, the second sentence of section 4(d) of the
Act states that the Secretary ``may by regulation prohibit with respect
to any threatened species any act prohibited under section 9(a)(1), in
the case of fish or wildlife, or section 9(a)(2), in the case of
plants.'' Thus, the combination of the two sentences of section 4(d)
provides the Secretary with wide latitude of discretion to select and
promulgate appropriate regulations tailored to the specific
conservation needs of the threatened species. The second sentence
grants particularly broad discretion to the Service when adopting the
prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising its authority under section 4(d), the Service has
developed a rule that is designed to address the American burying
beetle's specific threats and conservation needs. Although the statute
does not require the Service to make a ``necessary and advisable''
finding with respect to the adoption of specific prohibitions under
section 9, we find that this rule as a whole satisfies the requirement
in section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the American burying
beetle. As discussed under Summary of Biological Status and Threats,
the Service has concluded that the American burying beetle is likely to
become in danger of extinction within the foreseeable future primarily
due to the combined effects of land use change and the future impacts
of climate change, which will make much of the current range
uninhabitable by the species. The provisions of this 4(d) rule will
promote conservation of the American burying beetle by encouraging
management of the landscape in ways that meet both land management
considerations and the conservation needs of the American burying
beetle. The provisions of this rule are one of many tools that the
Service will use to promote the conservation of the American burying
beetle.
Provisions of the 4(d) Rule
The 4(d) rule prohibits all intentional take of the American
burying beetle. The 4(d) rule prohibits incidental take of the species
only where the Service has specifically tailored the prohibition of
incidental take in each of the three geographic areas that the American
burying beetle occupies. In the New England and Northern Plains
analysis areas, incidental take is prohibited only in suitable habitat
when the take is the result of soil disturbance. Suitable habitat is
defined, consistent with the SSA Report (Service 2019), as areas where
suitable soils contain the appropriate abiotic elements (e.g., soil
temperature, soil moisture, particle size, etc.) that are favorable for
excavation and formation of brood chambers and where appropriate
carrion for reproduction is available. This suitable habitat accounts
for breeding, feeding, overwintering, and dispersal needs. Areas that
are regularly tilled, vegetation maintained at less than 8 inches
through regular mowing, wetland areas with standing water or saturated
soils, or urban areas with paved surfaces are examples of lands
considered unfavorable for use by American burying beetles. Soil
disturbance means movement or alteration of soil associated with
modifying the existing land use. Soil disturbance includes actions such
as grading, filling, soil excavating or topsoil stripping. Soil
disturbance also includes non-physical alterations such as chemical
treatment, including ground or soil sterilizers, and pesticides that
would make the habitat unsuitable. However, typical agricultural levels
of applications like liming or fertilizer should not affect American
burying beetles, and we do not intend to regulate such practices.
Because incidental take stemming from normal livestock ranching and
grazing activities is not expected to have an appreciable negative
impact on the species, and retaining land uses associated with ranching
or grazing (rather than converting the land to row crops) provides
potential habitat for the species, we are not prohibiting any
incidental take associated with ranching and grazing. Ranching and
grazing means activities involved in grazing livestock (e.g., cattle,
bison, horse, sheep, goats or other grazing animals) such as: Gathering
of livestock; construction and maintenance of fences associated with
livestock grazing; installation and maintenance of corrals, loading
chutes, and other livestock working facilities; development and
maintenance of livestock watering facilities; placement of supplements
such as salt blocks for grazing livestock; and, when associated with
livestock grazing, the control of noxious weeds, haying, mowing, and
prescribed burning. Ranching and grazing does not include any form of
tillage, conversion of grassland to cropland, or management of
cropland.
In the Southern Plains analysis areas, incidental take is
prohibited only on certain conservation lands, as defined below under
Regulation Promulgation. However, within these conservation lands,
activities conducted in compliance with Service-approved conservation
plans that result in take of the species are not prohibited. For
example, on conservation lands in the Southern Plains analysis areas
managed by the Department of Defense, certain activities that result in
incidental take are not prohibited if those activities are in
compliance with a Service-approved integrated natural resources
management plan.
In addition to intentional take and some forms of incidental take,
the 4(d) rule also prohibits activities related to possession and other
acts with unlawfully taken American burying beetles, import and export
of the species, activities related to shipping or delivering the
species in interstate or foreign commerce, and the sale or offering to
sell of the species. These activities are generally prohibited for
endangered wildlife. We have determined that it is appropriate to
extend the Act's protections to these activities as well for the
American burying beetle.
This 4(d) rule tailors the Act's protections to allow activities
that have only minor or temporary effects and are unlikely to affect
the resiliency of American burying beetle populations or viability of
the species. The risks for American burying beetle populations are
different for each region of the
[[Page 65258]]
country, and risks that may be minor for one population could affect
the resiliency of others. For example, urban expansion is a minor risk
for larger populations in Oklahoma, but is a substantial risk for the
small Block Island population in Rhode Island. The 4(d) rule includes
protection of habitat related to soil disturbance activities on Block
Island because suitable habitat is limited (only about 2,000 acres) and
protecting habitat is necessary for the conservation of this
population.
Although threats vary in type and degree across the American
burying beetle's range, those related to land use activities and
climate change continue to impact the species. Habitat loss or
alteration related to land use activities is ongoing in all American
burying beetle populations, but the impacts of these habitat losses is
minor for most analysis areas with the exception of the Loess Canyons
and New England populations. Impacts from changing climate are ongoing
as well, and populations in the Southern Plains analysis areas are
projected to be extirpated within 20 to 30 years, as described above
(Service 2019).
Provisions of the 4(d) Rule in the New England Analysis Area
Within the New England Analysis Area, we prohibit incidental take
only if it occurs in suitable habitat and is the result of soil
disturbance, as defined below under Regulation Promulgation, which
includes converting suitable habitat from an existing land use to a
different land use. The species persistence in the New England Analysis
Area is dependent upon active management occurring on two small coastal
islands. A large percentage of land mass in the New England Analysis
Area is protected in some form, and American burying beetles occur on
many lands with conservation easements or deed restrictions or owned by
conservation organizations; municipal, State, and Federal agencies; and
private land trusts. However, existing land protections are not
comprehensive for the American burying beetle. Given the varied
missions of these landowners, the level of protection varies and may
change over time. Although some minimal level of take may occur
incidental to ranching and grazing, the effects of such land uses serve
to maintain suitable habitat for the species. Urban and suburban
expansion and development activities can lead to soil disturbance that
may lead to incidental take of the species. Habitat conversion further
limits the habitat available to American burying beetles in the New
England Analysis Area.
The population in the New England Analysis Area is proportionally
more sensitive and vulnerable to impacts than the other analysis areas,
because it is limited to two small coastal islands, and the species'
persistence on one or both of the islands is likely dependent on
management, particularly captive breeding, reintroduction, and the
provisioning of carrion. Thus, urban and suburban expansion represent
substantial risks to the future viability of the species in this area.
Limiting the prohibition to suitable habitat is sufficient as any
beetles occupying unsuitable habitat would be very few in number and
possibly either lost to the population or not of value to the
population.
In addition, activities by State or Federal government agencies
related to wildlife management that result in incidental take of
American burying beetles is not prohibited in the New England Analysis
Area.
Provisions of the 4(d) Rule in the Northern Plains Analysis Areas
Within the Northern Plains analysis areas, we prohibit incidental
take only if it occurs in suitable habitat and is the result of soil
disturbance, which includes converting habitat from an existing land
use to a different land use, as defined below under Regulation
Promulgation. The combined impacts of urban expansion and agriculture
(primarily conversion to cropland) are expected to affect 5-15% of the
suitable habitat in the Northern Plains (Service 2019). Potential
impacts related to wind energy expansion are likely (additional
information provided in the SSA Report and proposed rule), but
additional information is needed to fully evaluate the potential
effects to habitat and carrion availability. Only low percentages of
the Northern Plains analysis areas are protected, with only one large
protected area that supports significant numbers of American burying
beetles. Thus, we find that land use changes like urban expansion and
agricultural land conversion to cropland (combined with other risks
such as cedar expansion as discussed in the proposed rule) represent
risks to the future viability of the species in this area.
However, incidental take that is the result of normal grazing and
livestock activities is not prohibited. In addition, activities by
State or Federal government agencies related to wildlife management
that result in incidental take of American burying beetles is not
prohibited. Grasslands in the Northern Plains support relatively high-
density populations of American burying beetles that have high
resiliency. Ranching, grazing, and wildlife management activities in
this area are generally compatible with conservation of this species,
as these land uses help maintain native grassland habitats (see
chapters 4 and 5 in the SSA Report; Service 2019) important for
American burying beetle conservation. Based on the analysis of climate
change impacts in the SSA Report (Service 2019), we believe it is
possible that the Northern Plains may support the only remaining self-
sustaining populations with moderate or high resiliency by the mid-
century time period. Therefore, protecting existing habitat in the
Northern Plains is important for the future viability of the species.
Although there may be some minimal level of take incidental to
ranching, grazing, and wildlife management activities, the effects of
such land uses serve to maintain suitable habitat for the species and
prevent more extensive soil disturbance than would occur with other
land use changes such as farming or urban development.
Provisions of the 4(d) Rule in the Southern Plains Analysis Areas
Within the Southern Plains analysis areas on defined conservation
lands, see below under Regulation Promulgation, incidental take is
exempted if it occurs in compliance with a Service-approved management
plan, such as an integrated natural resources management plan (INRMP),
that includes conservation measures for the American burying beetle.
Outside of defined conservation lands, incidental take is not
prohibited because the Southern Plains Analysis Area currently has low
risks to the species associated with land development. The combined
permanent loss of habitat projected due to urban and agricultural
expansion is less than 2 percent (Service 2019).
Currently, conservation lands provide relatively large protected
areas of habitat with good populations; these lands would potentially
serve as sources of American burying beetles for relocation and
reintroduction efforts in areas that are projected to have future
climate conditions that would be expected to sustain the species. We
define ``conservation lands'' as lands included within the existing
boundaries of Fort Chaffee in Arkansas (approximately 64,000 acres) and
McAlester Army Ammunition Plant (approximately 45,000 acres) and Camp
Gruber/Cherokee Wildlife Management Area (approximately 64,000 acres),
both in Oklahoma. These areas have defined
[[Page 65259]]
boundaries and management that is compatible with recovery for the
American burying beetle; however, that management is not intentionally
being conducted for American burying beetles, and monitoring and
management would likely cease at some sites without the incidental take
protections in place specific to the species. Active management and
monitoring in these conservation lands is considered important to help
support recovery by serving as source populations for relocation and
reintroduction efforts of American burying beetle populations, for as
long as they sustain beetle populations.
Land use changes such as urban development and conversion to
agricultural lands that cause habitat loss and fragmentation are a
minor risk in Southern Plains analysis areas. These activities are not
considered a threat to the species in this area because the combined
permanent loss of habitat projected due to urban and agricultural
expansion is less than 2 percent of these large analysis areas and is
unlikely to affect the viability of the species in these areas (Service
2019). Large areas of suitable habitat, combined with low levels of
projected land use change, and relatively large areas of protected
habitat indicate that impacts to habitat are not likely to affect the
viability of the species in these areas.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: Scientific purposes, to enhance propagation
or survival, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. There are also certain
statutory exemptions from the prohibitions, which are found in sections
9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
State natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
will be able to conduct activities designed to conserve American
burying beetles that may result in otherwise prohibited take for
wildlife without additional authorization.
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of the American burying
beetle. However, interagency cooperation will be further streamlined
through programmatic consultations for the species between Federal
agencies and the Service. A programmatic consultation has been
developed (see https://www.fws.gov/southwest/es/oklahoma/default.htm)
to allow Federal agencies to consult using the 4(d) rule in a
streamlined manner for all Federal actions that can comply with the
4(d) rule.
Required Determinations
National Environmental Policy Act
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Status Assessment Team and the Oklahoma
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entries for ``Beetle, American
burying'' under ``INSECTS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------
[[Page 65260]]
* * * * * * *
Beetle, American burying......... Nicrophorus Wherever found, T 54 FR 29652, 7/13/
americanus. except where 1989; 85 FR
listed as an [INSERT FEDERAL
experimental REGISTER PAGE
population. WHERE THE DOCUMENT
BEGINS], 10/15/
2020; 50 CFR
17.47(d).\4d\
Beetle, American burying......... Nicrophorus In southwestern XN 77 FR 16712, 3/22/
americanus. Missouri, the 2012; 50 CFR
counties of Cedar, 17.85(c).\10j\
St. Clair, Bates,
and Vernon.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.47 by adding paragraph (d) to read as follows:
Sec. 17.47 Special rules--insects.
* * * * *
(d) American burying beetle (Nicrophorus americanus)--(1)
Prohibitions. The following prohibitions apply to the American burying
beetle:
(i) Take of the American burying beetle. Take of the American
burying beetle, except that take that is incidental to otherwise lawful
activity (incidental take) is prohibited only when the take occurs on
suitable American burying beetle habitat:
(A) In the New England and Northern Plains Analysis Areas where the
incidental take results from soil disturbance; or
(B) In the Southern Plains Analysis Areas where the incidental take
occurs on defined conservation lands, except where incidental take is
in compliance with a Service-approved conservation plan.
(ii) Possession and other acts with unlawfully taken American
burying beetles. It is unlawful to possess, sell, deliver, carry,
transport, or ship, by any means whatsoever, any American burying
beetle that was taken in violation of paragraph (d)(1)(i) of this
section or State law. Notwithstanding the preceding sentence, Federal
and State law enforcement officers may possess, deliver, carry,
transport, or ship any American burying beetle taken in violation of
the Act as necessary in performing their official duties.
(iii) Import and export of the American burying beetle. It is
unlawful to import or export the American burying beetle.
(iv) Interstate or foreign commerce. It is unlawful to deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever, and in the course of a commercial activity,
the American burying beetle.
(v) Sale or offer for sale. It is unlawful to sell or to offer for
sale in interstate or foreign commerce any American burying beetle.
(2) Exceptions from prohibitions. (i) Any employee or agent of the
Service or of a State conservation agency that is operating a
conservation program pursuant to the terms of a cooperative agreement
with the Service in accordance with section 6(c) of the Act, who is
designated by his or her agency for such purposes, may, when acting in
the course of his or her official duties, take American burying
beetles, provided that, for State conservation agencies, the American
burying beetle is covered by an approved cooperative agreement to carry
out conservation programs.
(ii) Federal or State government agencies may incidentally take
American burying beetles when conducting wildlife management activities
in the Northern Plains Analysis Areas.
(iii) Incidental take of American burying beetles resulting from
ranching and grazing activities is allowed.
(3) Definitions. For the purposes of this paragraph (d), we define
the following terms:
(i) Conservation lands means lands included within the existing
boundaries:
(A) In Arkansas, of Fort Chaffee (approximately 64,000 acres); and
(B) In Oklahoma, of McAlester Army Ammunition Plant (approximately
45,000 acres) and Camp Gruber/Cherokee Wildlife Management Area
(approximately 64,000 acres).
(ii) New England Analysis Area means Block Island in Rhode Island
and Nantucket Island in Massachusetts.
(iii) Northern Plains Analysis Areas means portions of Nebraska and
South Dakota, as presented in the map at paragraph (d)(4) of this
section, to initially include an 18.6-mile buffer around each capture
location to determine the outside boundaries of the analysis area. For
specific information regarding whether a parcel of land is inside the
Northern Plains Analysis Areas, contact your local Service ecological
services field office. Field office contact information may be obtained
from the Service regional offices, the addresses of which are listed at
50 CFR 2.2.
(iv) Ranching and grazing means activities involved in grazing
livestock (e.g., cattle, bison, horse, sheep, goats, or other grazing
animals) such as: Gathering of livestock; construction and maintenance
of fences associated with livestock grazing; installation and
maintenance of corrals, loading chutes, and other livestock working
facilities; development and maintenance of livestock watering
facilities; placement of supplements such as salt blocks for grazing
livestock; and, when associated with livestock grazing, the control of
noxious weeds, haying, mowing, and prescribed burning. Ranching and
grazing does not include any form of farming, conversion of grassland
to cropland, or management of cropland.
(v) Soil disturbance means movement or alteration of soil. Soil
disturbance includes actions such as grading, filling, soil excavating,
or topsoil stripping. Soil disturbance also includes non-physical
alterations such as chemical treatment.
(vi) Southern Plains Analysis Areas means portions of Arkansas,
Kansas, Oklahoma, and Texas, as presented in the map at paragraph
(d)(4) of this section, to initially include an 18.6-mile buffer around
each capture location to determine the outside boundaries of the
analysis area. For specific information regarding whether a parcel of
land is inside the Southern Plains Analysis Areas, contact your local
Service ecological services field office. Field office contact
information may be obtained from the Service regional offices, the
addresses of which are listed at 50 CFR 2.2.
(4) Map of American Burying Beetle Analysis Areas.
[[Page 65261]]
[GRAPHIC] [TIFF OMITTED] TR15OC20.001
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19810 Filed 10-14-20; 8:45 am]
BILLING CODE 4333-15-P