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American Burying Beetle - Final Rule

Establishment of a Nonessential Experimental Population of American Burying Beetle in Southwestern Missouri


Below are the first 6 pages of the Final Rule (Summary and Regulatory Background sections).

Download the entire 32-page PDF Adobe PDF icon



Fish and Wildlife Service

50 CFR Part 17]

[Docket No. FWS–R3–ES–2011–0034]


RIN 1018–AX79


AGENCY: Fish and Wildlife Service, Interior.


ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), will reestablish the American burying beetle, a federally listed endangered insect, into its historical habitat in Wah’kon-tah Prairie in southwestern Missouri. We will reestablish the American burying beetle under section 10(j) of the Endangered Species Act of 1973, as amended (Act), and will classify that reestablished population as a nonessential experimental population (NEP) within St. Clair, Cedar, Bates, and Vernon Counties, Missouri. This rule provides a plan for establishing the NEP and provides for allowable legal incidental taking of the American burying beetle within the defined NEP area.


DATES: This final rule is effective April 21, 2012.


ADDRESSES: This final rule is available on http://www.regulations.gov and available from our website at http://www.fws.gov/midwest/endangered. Comments and materials received, as well as the supporting file for this final rule will be available for public inspection, by appointment, during normal business hours, at the Columbia, Missouri Ecological Services Office, 101 Park DeVille Dr., Suite B, Columbia, MO 65203; telephone 573–234–2132. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Services (FIRS) at 800–877–8339.


FOR FURTHER INFORMATION CONTACT: Scott Hamilton, Fish and Wildlife Biologist, at the Columbia, Missouri Ecological Services Office, 101 Park DeVille Dr., Suite B, Columbia; MO 65203, telephone 573–234–2132; facsimile 573–234–2181.




Regulatory Background

The American burying beetle (Nicrophorus americanus, ABB) was listed as endangered throughout its range on July 13, 1989 (54 FR 29652), under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), without critical habitat (USFWS 2008, p. 2). The Act provides that species listed as endangered are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act, among other things, prohibits the take of endangered wildlife. “Take” is defined by the Act as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. It also states that Federal agencies must, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.


Under section 10(j) of the Act, the Secretary of the Interior can designate reestablished populations outside the species’ current range, but within its historical range, as “experimental.” With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species’ designation elsewhere in its range. Threatened designation allows us discretion in devising management programs and special regulations for such a population. Section 4(d) of the Act allows us to adopt whatever regulations are necessary and advisable to provide for the conservation of a threatened species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the 10(j) rule contains the prohibitions and exemptions necessary and appropriate to conserve that species.


Based on the best scientific and commercial data available, we must determine whether the experimental population is essential or nonessential to the continued existence of the species. The regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential. We have determined that this experimental population will not be essential to the continued existence of the species in the wild. This determination has been made because, since the time the species was listed, wild populations of the ABB are now found in seven additional States, three of which are considered robust and suitable for donor populations (USFWS 2008, p. 14). Therefore, the Service will designate a nonessential experimental population (NEP) for the species in southwestern Missouri.


When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) of the Act apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. Because the NEP is, by definition, not essential to the continued existence of the species, the effects of proposed actions affecting the NEP will generally not rise to the level of jeopardizing the continued existence of the species. As a result, a formal conference will likely never be required for ABBs established within the NEP area. Nonetheless, some agencies voluntarily confer with the Service on actions that may affect a proposed species. Activities that are not carried out, funded, or authorized by Federal agencies are not subject to provisions or requirements in section 7 of the Act. American burying beetles used to establish an experimental population will come from a captive-rearing facility at the St. Louis Zoo, which propagates this species under the Federal Fish and Wildlife Permit #TE135297-0. The donor population for the Zoo is a wild population from Ft. Chaffee, Arkansas. Each spring, Ft. Chaffee Maneuver Training Center (MTC) will provide the St. Louis Zoo with up to 15 ABB pairs, provided their removal is not likely to jeopardize the continued existence of the species and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. We will ensure, through our section 10 permitting authority and the section 7 consultation process, that using individuals from donor populations for release is not likely to jeopardize the continued existence of the species in the wild. ABBs will be transported to St. Louis Zoo staff to augment the St. Louis Zoo’s captive population, or possibly for direct reintroduction to Wah’kon-tah Prairie. The purpose of the captive population is to provide stock for reintroductions in “suitable areas” within the species’ historical range, in accordance with recovery action 7.2 of the American Burying Beetle Recovery Plan (USFWS 1991, p. 52).


We have not designated critical habitat for the ABB. Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.


We will not change the NEP designation to “essential experimental,” “threatened,” or “endangered” within the NEP area without a public rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).


Above are the first 6 pages of the Final Rule (Summary and Regulatory Background sections).

Download the entire 32-page PDF Adobe PDF icon



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Last updated: July 19, 2016