Endangered and Threatened Wildlife and Plants; Reclassifying the American Burying Beetle From Endangered to Threatened on the Federal List of Endangered and Threatened Wildlife With a 4(d) Rule, 19013-19029 [2019-09035]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 84, Number 86 (Friday, May 3, 2019)]
[Proposed Rules]
[Pages 19013-19029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09035]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2018-0029; FXES11130900000 189 FF09E42000]
RIN 1018-BD46


Endangered and Threatened Wildlife and Plants; Reclassifying the 
American Burying Beetle From Endangered to Threatened on the Federal 
List of Endangered and Threatened Wildlife With a 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month petition finding; request for 
comments.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (Act), we, the U.S. Fish and Wildlife Service (Service), 
propose to reclassify the American burying beetle (Nicrophorus 
americanus) from endangered to threatened on the Federal List of 
Endangered and Threatened Wildlife (List). 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 no longer meets the definition of an 
endangered species under the Act, but is likely to become endangered 
within the foreseeable future. We are also proposing a rule under 
section 4(d) of the Act to provide for the conservation of the species. 
Many routine activities in the species' range will not be regulated if 
this proposal is finalized because these practices will not affect the 
overall viability of the American burying beetle. We are soliciting 
additional data and information that may assist us in making a final 
decision on this proposed action. This document also serves as the 12-
month finding on a petition to remove this species from the List.

DATES: We will accept comments received or postmarked on or before July 
2, 2019. Please note that if you are using the Federal eRulemaking 
Portal (see ADDRESSES), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Time on this date. We must receive 
requests for public hearings, in writing, at the address shown in FOR 
FURTHER INFORMATION CONTACT by June 17, 2019.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2018-0029, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2018-0029, U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Copies of documents: This proposed rule and supporting documents 
are available on https://www.regulations.gov. In addition, the 
supporting file for this proposed rule will be available for public 
inspection, by appointment, during normal business hours, at the 
Oklahoma Ecological Services Field Office, 9014 East 21st St., Tulsa, 
OK 74129; telephone 918-382-4500.

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 proposing to reclassify the American 
burying beetle as threatened because we have determined it is not 
currently in danger of extinction. Reclassifications can only be made 
by issuing a rulemaking. Furthermore, changes to the prohibitions 
relevant to this species, such as those we are proposing for this 
species under a section 4(d) rule, can only be made by issuing a 
rulemaking.
    The basis for our action.
    Under the Act, we may determine that a species is an endangered or 
threatened species based on any one or a combination 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 
have determined that the American burying beetle is not currently at 
risk of extinction and, therefore, does not meet the definition of 
endangered. However, due to continued threats from increasing 
temperatures and ongoing land use changes, we find that the American 
burying beetle is likely to become an endangered species within the 
foreseeable future throughout all of its range.
    We are proposing to promulgate a section 4(d) rule.
    The Service proposes to prohibit all intentional take of the 
American burying beetle and specifically tailor the prohibition of 
incidental take to the three geographic areas that the American burying 
beetle occupies. In the New England and Northern Plains analysis areas, 
incidental take under the proposed rule is only prohibited in suitable 
habitat when the take is the result of soil disturbance. However, we 
propose an exception for any incidental take associated with ranching 
and grazing activities. In the Southern Plains analysis areas, 
incidental take is not prohibited unless it occurs on defined 
conservation lands. However, we propose an exception for any incidental 
take that occurs on conservation lands while conducting activities that 
are in compliance with a Service-approved management plan. Federally 
implemented, funded, or permitted actions would continue to be subject 
to the requirements of section 7 of the Act.

Information Requested

Public Comments

    We want any final rule resulting from this proposal to reflect full 
consideration of all relevant issues and be as effective as possible. 
Therefore, we invite tribal and governmental agencies, the scientific 
community, industry, and other interested parties to submit comments or 
recommendations concerning any aspect of this proposed rule. Comments 
should be as specific as possible.
    To issue a final rule to implement this proposed action, we will 
take into consideration all comments and any additional information we 
receive. Such communications may lead to a final rule

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that differs from this proposal, i.e., a final rule could leave the 
species listed as endangered, reclassify the species as threatened, or 
remove the species from the List. All comments, including commenters' 
names and addresses, if provided to us, will become part of the 
supporting record.
    We specifically request comments on:
    (1) New information on the historical and current status, range, 
distribution, and population size of the American burying beetle, 
including the locations of any additional populations.
    (2) New information on the known, potential, and future threats to 
the American burying beetle, particularly any projected quantities and 
locations of potential threats to the American burying beetle or its 
habitat. For example, we request any information that would allow us to 
better project the potential future impacts of wind development, 
including scientific assessments of how much potential habitat could be 
lost. Better assessments of future land use and industry development 
could allow us to develop more accurate assessments of risks and 
potential exemptions associated with the proposed rule under section 
4(d) of the Act (16 U.S.C. 1531 et seq.), which we refer to as our 
proposed ``4(d) rule,'' below.
    (3) The temperature range in which the species will or will not 
persist long term.
    (4) Any available data on the effects climate change may have on 
the ecosystem on which this species depends, particularly information 
related to a future northward shift of this ecosystem.
    (5) New information regarding the life history, ecology, and 
habitat use of the American burying beetle.
    (6) Information on a potential acreage threshold level below which 
the prohibitions in the proposed 4(d) rule would not be necessary and 
advisable for the conservation of American burying beetle.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 
1533(b)(1)(A)) directs that determinations as to whether any species is 
an endangered or threatened species must be made ``solely on the basis 
of the best scientific and commercial data available.''
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. Comments must be 
submitted to https://www.regulations.gov before 11:59 p.m. (Eastern 
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are 
not postmarked, by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Oklahoma Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5)(E) of the Act provides for a public hearing on this 
proposed rule, if requested. We must receive requests for a public 
hearing, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by the date shown in DATES. We will schedule a public hearing 
on this proposal, if requested, and the place of the hearing, as well 
as how to obtain reasonable accommodations, in the Federal Register at 
least 15 days before the hearing.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
was published on July 1, 1994 (59 FR 34270), we solicited the expert 
opinion of appropriate independent specialists regarding scientific 
data and interpretations contained in the Species Status Assessment 
Report (SSA Report) (Service 2019; available at https://www.regulations.gov under Docket No. FWS-R2-ES-2018-0029) supporting 
this proposed rule. The purpose of such review is to ensure that our 
decisions are based on scientifically sound data, assumptions, and 
analysis. We have incorporated feedback from the peer review in the SSA 
Report (Service 2019).

Background

    Section 4(b)(3)(B) of the Act requires that, for any petition to 
revise the Federal Lists of Endangered and Threatened Wildlife and 
Plants that contains substantial scientific or commercial information 
that reclassifying a species may be warranted, we make a finding within 
12 months of the date of receipt of the petition (``12-month 
finding''). In this finding, we determine whether the petitioned action 
is: (1) Not warranted, (2) warranted, or (3) warranted, but immediate 
proposal of a regulation implementing the petitioned action is 
precluded by other pending proposals to determine whether species are 
endangered or threatened, and expeditious progress is being made to add 
or remove qualified species from the Federal Lists of Endangered and 
Threatened Wildlife and Plants. We must publish these 12-month findings 
in the Federal Register. This document represents:
     Our 12-month not-warranted finding on an August 21, 2015, 
petition to remove the American burying beetle from the List (that is, 
to ``delist'' this species);
     Our proposed determination that the American burying 
beetle no longer meets the definition of endangered under the Act;
     Our proposed determination that the American burying 
beetle meets the definition of threatened under the Act;
     Our proposed rule to reclassify the American burying 
beetle from endangered to threatened on the Federal List of Endangered 
and Threatened Wildlife; and
     Our proposed 4(d) rule that outlines the proposed 
prohibitions applicable to the conservation of the American burying 
beetle.

Previous Federal Actions

    We published a final rule to list the American burying beetle as an 
endangered species under the Act on July 13, 1989 (54 FR 29652). We 
issued a recovery plan on September 27, 1991. We completed a status 
review (``5-year review'') under section 4(c)(2)(A) of the Act for the 
American burying beetle on June 16, 2008. The 5-year review recommended 
that this species remain classified as endangered (Service 2008).
    On August 21, 2015, we received a petition dated August 18, 2015, 
from the American Stewards of Liberty, the Independent Petroleum 
Association of America, the Texas Public Policy Foundation, and Dr. 
Steven W. Carothers requesting that the American burying beetle be 
removed from the List. The petition claims that the threats to the 
species do not support a conclusion that the species is at risk of 
extinction now or in the foreseeable future. The Service published a 
90-day finding on

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March 16, 2016 (81 FR 14058), that the petition contained substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. The Independent Petroleum Association of 
America, American Stewards of Liberty, and Osage Producers Association 
filed a lawsuit on September 21, 2017, challenging the Service's 
failure to make a 12-month finding on their petition. The parties have 
settled this lawsuit, with the Service agreeing to deliver a 12-month 
finding on the petition no later than April 30, 2019. This document 
serves as our 12-month finding on the August 18, 2015, petition to 
remove the American burying beetle from the List.

Species Status Assessment for American Burying Beetle

    We prepared a species status assessment (SSA) for the American 
burying beetle (Service 2019), which includes a thorough review of the 
species' taxonomy, natural history, habitats, ecology, populations, and 
range. The SSA analyzes individual, population, and species 
requirements, as well as factors affecting the species' survival and 
its current conditions, to assess the species' current and future 
viability in terms of resiliency, redundancy, and representation.
    We define viability as the ability of a species to persist and to 
avoid extinction over the long term. Resiliency refers to the 
population size and demographic characteristics necessary to endure 
stochastic environmental variation (Shaffer and Stein 2000, pp. 308-
310). Resilient populations are better able to recover from losses 
caused by random variation, such as fluctuations in recruitment 
(demographic stochasticity), variations in rainfall (environmental 
stochasticity), or changes in the frequency of wildfires. Redundancy 
refers to the number and geographic distribution of populations or 
sites necessary to endure catastrophic events (Shaffer and Stein 2000, 
pp. 308-310). As defined here, catastrophic events are rare 
occurrences, usually of finite duration, that cause severe impacts to 
one or more populations. Examples of catastrophic events include 
tropical storms, unusually high or prolonged floods, prolonged drought, 
and unusually intense wildfire. Species that have multiple resilient 
populations distributed over a larger landscape are more likely to 
survive catastrophic events, because not all populations would be 
affected. Representation refers to the genetic diversity, both within 
and among populations, necessary to conserve long-term adaptive 
capability (Shaffer and Stein 2000, pp. 307-308). Species with greater 
genetic diversity are more able to adapt to environmental changes and 
to colonize new sites.
    The SSA Report (Service 2019) provides the scientific basis that 
informs our regulatory determination as to whether or not this species 
should be listed as an endangered or a threatened species under the 
Act. This decision involves the application of standards within the 
Act, the Act's implementing regulations, and Service policies (see 
Finding and Proposed Determination, below). The following discussion is 
a summary of the results and conclusions from the SSA Report (Service 
2019). We have solicited and incorporated peer review of the draft SSA 
Report (Service 2019) from objective and independent scientific 
experts.

Description

    The American burying beetle (Nicrophorus americanus) is a member of 
the beetle family Silphidae (subfamily Nicrophorinae); these beetles 
bury vertebrate carcasses for reproductive purposes and exhibit 
parental care of young. The genus Nicrophorus contains about 70 species 
worldwide, of which 15 occur in North America (Peck and Kaulbars 1987, 
entire). Globally, burying beetles are restricted to temperate 
climates, and high elevations in tropical climates (Arnett 1946; Howden 
& Peck 1972; Cornaby 1974; Anderson & Peck 1985; Young 1978;; Peck & 
Anderson 1985; Trumbo 1990; Ruddiman 2001; Sikes & Venables 2013). The 
American burying beetle 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). The 
beetles are black with orange-red markings. 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. Based on the last 15 years of surveys, the American 
burying beetle is known to occur 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 underway in Ohio, but survival of 
reintroduced American burying beetles into the next year (successful 
over-wintering) has not yet been documented. A 2017 report of a 
potential American burying beetle in Michigan is being investigated. 
Surveys for American burying beetles in Michigan in 2018 failed to 
confirm the report, but additional surveys are planned in 2019. While 
it is possible that additional surveys could result in the location of 
additional American burying beetles in areas not currently known to 
support them, it is unlikely that there are viable populations that are 
not known. Most portions of the historical range have not had a 
positive survey in over 50 years and over that time period it is likely 
that the species would have been reported if there was a viable 
population present.
    The American burying beetle is a nocturnal species that lives for 
only one year. During the daytime, American burying beetles are 
believed to bury themselves under vegetation litter or into soil 
(Jurzenski 2012, p. 76). 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 1988, p. 11; 
Kozol 1990c, 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 1988, p. 2; Amaral et al. 2005, 
pp. 30, 35).

Summary of Species Requirements

Requirements of Individuals
    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). Although American burying beetles will use multiple soil types, 
they have a strong preference for soils with high moisture levels. 
Burying beetles likely seek moist microhabitats to avoid drying out 
(Bedick et al. 2006; Hoback 2008, pp. 2, 4), but a specific threshold 
for soil moisture is unknown. Adequate soil moisture levels appear to

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be critical for American burying beetles, and they show a strong 
preference for moist, sandy loam soil with organic matter (Hoback 2008, 
unpublished). 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). American burying beetles 
require adequate soil moisture, temperature, and particle size during 
this inactive phase as well (Bedick et al. 2004, p. 28).
    Carrion selection for food can include an array of available 
carrion species and sizes, as well as feeding through capturing and 
consuming live insects (Service 1991, p. 11) and eating fly larvae when 
encountered on a carcass (Trumbo 1994, p. 247).
Population and Species Requirements
    For reproduction, American burying beetles need appropriately sized 
carrion, access to mates, and suitable soils. American burying beetles 
are nocturnal and must find and bury the carcass in one night. Carrion 
sources that American burying beetles have been documented using for 
reproduction include carcasses weighing from 1.7 to 10.5 ounces (48 to 
297 grams (g)), but the optimum weight of carcasses is 3.5 to 7.0 
ounces (80 to 200 g) (Kozol 1988, 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 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 
Savolpoulou-Soultani 2012). Females reproducing on smaller carcasses 
produce fewer eggs than females reproducing on larger carcasses 
(Creighton et al. 2009, p. 681; Billman et al. 2014a, entire; 2014b, 
entire). Brood sizes of American burying beetles can sometimes exceed 
25 larvae, but 12 to 18 is more typical (Kozol 1990b, entire).
    Parental care in the genus Nicrophorus is unique because both 
parents participate in the rearing of young (Pukowski 1933, p. 585; 
Fetherston et al. 1990, entire; Trumbo 1990, p. 9). Larvae of large 
Nicrophorus species are extremely dependent on parental regurgitation 
and will die before they reach second instar (second stage of larval 
development) if they receive no parental care (Scott 1998a, p. 602). 
Additionally, American burying beetles will 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). The reproductive process from carcass burial to 
eclosure (emergence from pupae) is about 30 to 65 days (Kozol 1995, pp. 
2, 99: 55-65 days; Kozol 1988, p. 16: 48-65 days; Smith and Clifford 
2006, p. 11).
    Suitable carrion for reproduction is more likely to be available in 
properly functioning ecosystems that have diverse vegetative 
communities and associated potential carrion species. 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. These abiotic elements also contribute to 
proper growth and development of young.
    Areas containing the appropriate abiotic elements must be of 
sufficient size to support the survival of adequate numbers of 
individual American burying beetles such that the opportunity to find a 
mate is not reduced and that the presence and abundance of carrion to 
support breeding and feeding are uninterrupted. The Service does not 
currently have information on the minimum size of suitable areas 
(habitat patch size) needed to maintain a healthy population of 
American burying beetles. The minimum area needed to support a self-
sustaining population varies based on habitat quality factors such as 
climate, soils, vegetation, carrion availability, predators, and 
competition.
    The American burying beetle lives up to 12-16 months and is 
dependent upon annual reproduction to sustain extant populations. 
Sufficiently sized areas also contribute to opportunities for 
populations to at least remain stable over time. Ideally, areas should 
be of sufficient size to support a positive growth rate and enable 
populations to expand over time. These suitable areas also must be 
connected with other suitable, occupied American burying beetle 
habitats so that gene flow and genetic diversity are maintained, if not 
enhanced, and individuals have access to areas with appropriate 
temperatures, moisture levels, and soil types, when needed, across the 
landscape.
    We generally refer to American burying beetle populations as 
clustered, localized areas, roughly defined by habitat differences or 
other geographical features, with inter-breeding individuals. However, 
there are no clear boundaries separating many of the areas known to be 
occupied by American burying beetles. 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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Review of the Recovery Plan

    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 identify site-
specific management actions that will achieve recovery of the species, 
measurable criteria that set a trigger for review of the species' 
status, and methods for monitoring recovery progress.
    Recovery plans are not regulatory documents; instead they are 
intended to establish goals for long-term conservation of listed 
species and define criteria that are designed to indicate when the 
threats facing a species have been removed or reduced to such an extent 
that the species may no longer need the protections of the Act, as well 
as actions that may be employed to achieve reaching the criteria. There 
are many paths to accomplishing recovery of a species, and recovery may 
be achieved without all criteria being fully met or all actions fully 
implemented. Recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, fully follow the guidance 
provided in a recovery plan.
    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 theoretical 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 populations thresholds vary by species, and 
additional empirical data and analysis for American burying beetles 
suggest 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

[[Page 19018]]

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 historic 
range would not be suitable for future recovery (see section 5.4 in the 
SSA Report; Service 2019). Because we have limited information on 
actual population estimates by which to measure population resiliency, 
the primary indicators that we rely on for resiliency are area and 
condition of habitat, geographic distribution of American burying 
beetles within analysis areas, relative abundance, and size and number 
of concentrations of positive surveys within an analysis area (see 
chapters 4 and 5 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.

Current Status of the Species

    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 numbers and 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 status 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.

Southern Plains Analysis Areas

    We included three separate analysis areas within the Southern 
Plains analysis areas: Red River Analysis Area, Arkansas River Analysis 
Area, and Flint Hills Analysis Area. The Red River Analysis Area 
includes 3,251,894 total acres in portions of Arkansas, Texas, and 
southeastern Oklahoma near the Red River. Within this area, there are 
2,678,406 acres of suitable habitat, 123,779 acres of managed protected 
lands, and 23,997 acres of multi-purpose protected lands. Managed lands 
are defined in the SSA Report (Service 2019) as those areas that have 
management plans that incorporate active management with the primary 
purpose of maintaining or improving wildlife habitat and are assumed to 
protect or improve American burying beetle habitat. Multi-purpose 
protected lands are defined in the SSA Report (Service 2019) as areas 
managed for mixed purposes and are assumed to include some management 
for wildlife that would protect or improve American burying beetle 
habitat. Within the Red River Analysis Area, only the Hugo Wildlife 
Management Area in Oklahoma is currently known to support American 
burying beetles, with five captured in 2016. 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, and this area is no longer 
considered to be occupied. 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. Populations in Texas may be extirpated. 
The current resiliency of the Red River Analysis Area is considered low 
due to the limited distribution and very low ratios of positive to 
negative surveys in recent years.
    The Arkansas River Analysis Area includes 17,753,431 total acres in 
portions of Arkansas, Oklahoma, and Kansas. Within this area, there are 
14,470,603 acres of suitable habitat, 1,486,002 acres of managed 
protected lands, and 933,608 acres of multi-purpose protected lands. 
Protected areas include multiple Federal, State, and private areas, 
many of which are known to support American burying beetles. There are 
some positive surveys in all portions of the Arkansas River Analysis 
Area and scattered concentrations of positive surveys in all but the 
northeastern portion of the analysis area. The current resiliency of 
the analysis area is considered high due to the large area of suitable 
habitat, wide distribution of American burying beetles within the 
analysis area, the presence of several large protected areas, and fair 
ratios of positive to negative surveys.
    The Flint Hills Analysis Area includes 3,706,908 total acres in 
portions of Oklahoma and Kansas. Within this area, there are 2,758,610 
acres of suitable habitat, 133,196 acres of managed protected lands, 
and 52,114 acres of multi-purpose protected lands. Protected areas 
include Federal, State, tribal, and private areas, many of which are 
known to support American burying beetles. Distribution is fair with 
some recent positive surveys in the southern two-thirds of the analysis 
area and one concentration of positive surveys. This analysis area has 
a relatively low ratio of positive to negative surveys with relatively 
large fluctuations between years. Reports for 2016 indicated more 
positive surveys and a higher ratio of positive to negative surveys, 
but some areas have limited survey effort. Portions of this analysis 
area have a very low ratio of positive surveys, which indicates low 
density populations. The current resiliency of the analysis area is 
considered moderate due to the large area of native habitat, relatively 
wide distribution within the analysis area and proximity to the 
Arkansas River Analysis Area, the presence of several large protected 
areas, and ratios of positive to negative surveys that are on average 
low but can periodically be good in some locations.

Northern Plains Analysis Areas

    We included three separate analysis areas within the Northern 
Plains analysis areas: Loess Canyons Analysis Area, Sand Hills Analysis 
Area, and Niobrara Analysis Area. The Loess Canyons Analysis Area 
includes 2,758,610 total acres in southcentral portions of Nebraska. 
Within this area, there are 1,686,948 acres of suitable habitat, 15,342 
acres of managed protected lands, and 3,843 acres of multi-purpose 
protected lands. In addition, there are five conservation easements 
specifically set up for protection and management of American burying 
beetles, held by the Nebraska Land Trust, in the Loess Canyons, 
totaling 3,277 acres. The protected areas within this analysis area are 
known to support American burying beetles. Distribution is currently 
fair across the Loess Canyons Analysis Area, with one relatively large 
contiguous concentration of positive surveys in the center of the 
analysis area. This analysis area has a fair ratio of positive to

[[Page 19019]]

negative surveys. The current resiliency of the analysis area is 
considered moderate due to the extent of native habitat, relatively 
wide distribution within the analysis area, and fair ratios of positive 
to negative surveys. However, 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, and this population is 
sensitive to droughts. The analysis area is relatively small and 
isolated from other populations.
    The Sand Hills Analysis Area includes 10,819,170 total acres in 
northcentral portions of Nebraska. Within this area, there are 
8,633,685 acres of suitable habitat, 93,983 acres of managed protected 
lands, and 24,633 acres of multi-purpose protected lands. Most 
protected areas within this analysis area are known to support American 
burying beetles, but some large forested areas have relatively few 
positive surveys. The Valentine National Wildlife Refuge is the only 
large block of protected lands in this analysis area with relatively 
good catch rates and distribution of American burying beetles, but 
smaller protected areas near the Niobrara River also have American 
burying beetles (Hoback 2018, pers. comm.). Distribution is good, with 
some positive surveys in all portions of the analysis area and one 
large contiguous concentration of positive surveys. This analysis area 
has the highest ratio of positive to negative surveys for the last 15-
year timeframe. The current resiliency of the analysis area is 
considered high due to the large area of native habitat, wide 
distribution within the analysis area, and good ratios of positive to 
negative surveys.
    The Niobrara River Analysis Area includes 4,108,903 total acres in 
northcentral portions of Nebraska and southcentral portions of South 
Dakota. Within this area, there are 2,961,469 acres of suitable 
habitat, 58,918 acres of managed protected lands, and 33,582 acres of 
multi-purpose protected lands. It includes a large area of tribal land, 
but no American burying beetles have been documented there. Some 
protected areas within this analysis area are known to support American 
burying beetles. Distribution is currently fair with some positive 
surveys in most portions of the analysis area and one contiguous 
concentration of positive surveys. This analysis area has a fair ratio 
of positive to negative surveys for the last 15-year timeframe. The 
current resiliency of the analysis area is considered moderate due to 
the large area of native habitat, relatively wide distribution, and 
fair ratios of positive to negative surveys.

New England Analysis Area

    The New England Analysis Area includes Block Island and Nantucket 
Island. Block Island has 2,554 acres of suitable habitat, and Nantucket 
Island has 23,311 acres of suitable habitat. This is a small area 
relative to other analysis areas, but the level of protection and 
active management are significantly greater than the other analysis 
areas. There are 2,507 acres of protected lands on Block Island and 
11,934 acres on Nantucket Island. The total area of protected lands is 
small compared to some other analysis areas, but it is a relatively 
large percentage of the suitable habitat. The protected areas within 
this analysis area are known to support American burying beetles. 
Distribution is currently fair, with some positive surveys in most 
portions of the analysis area that is considered suitable habitat. This 
analysis area has a good ratio of positive to negative surveys on Block 
Island and fair to poor ratios on Nantucket Island. 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. However, the populations on 
both islands are highly dependent on active management.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five listing factors described in section 4(a)(1) of the Act: 
(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. A 
species may be reclassified or delisted on the same basis. The SSA 
Report (Service 2019) represents a compilation of the best scientific 
and commercial data available concerning the status of the species, 
including the past, present, and future threats, to evaluate viability 
of the American burying beetle. The effects of conservation actions 
were also assessed as part of the current condition of the American 
burying beetle in the SSA Report (Service 2019), and those effects were 
projected in future scenarios.
    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. We now know that DDT and 
some other threats identified at the time that the recovery plan and 5-
year status review were completed are either no longer a threat or pose 
less of a threat to the species. However, none of these factors alone 
adequately explains why the American burying beetle declined over much 
of its historic range while species in the same genus are still 
relatively common rangewide. There are eight sympatric congeners (other 
Nicrophorus species or species of the same genus) which have not 
experienced similar reductions in their ranges (Sikes and Raithel 2002, 
p. 104).
    Much of the evidence suggesting the reduction of appropriate 
carrion resources as a primary mechanism of population decline for the 
American burying beetle is circumstantial. However, this hypothesis 
fits the temporal and geographical pattern of the disappearance of 
American burying beetles from 90 percent of its 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,

[[Page 19020]]

entire). Apparently, the natural availability of appropriately sized 
carrion is limited on the island and will not support the population 
without any provisioning. 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.
    Risk factors are not equal in all portions of the American burying 
beetle's range, and some risk factors have changed since the recovery 
plan was written. All current risks for each analysis area are 
described in chapter 4, and future risks are discussed in chapter 5, of 
the SSA Report (Service 2019). 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. Risks associated with the effects of 
changing climate, including increasing temperatures, are now the most 
significant threat for most analysis areas.

Present or Threatened Destruction, Modification, or Curtailment of Its 
Habitat or Range (Factor A)

    Agricultural land uses and urban expansion are predicted to have 
impacts to American burying beetle habitat and populations over time; 
however, those impacts are expected to be relatively minor in most of 
the current known range of the species. Historically and to a lesser 
extent currently, land conversion to agriculture, intensive domestic 
livestock grazing, logging, fire suppression, wind energy development, 
and urban development are common causes of habitat quality reductions, 
loss, and fragmentation within the current range of the American 
burying beetle. Habitat loss and alteration affect this species at 
local and regional levels, and could account for the extirpation of 
populations once they become isolated from others (Kozol 1995, p. 170; 
Ratcliffe 1996; Lomolino and Creighton 1996, entire; Amaral et al. 
1997, pp. 123-124; Bedick et al. 1999, p. 179; Creighton et al. 2009, 
p. 40). There are no known American burying beetle populations 
surviving in intensively farmed or highly urbanized areas.
    Large areas of native grasslands have been converted to nonnative 
grasses to improve pastures for intensive cattle grazing operations. 
Even in areas with native vegetation, pastures and hay fields can be 
more intensely grazed or mowed during drought periods when demand for 
grass or hay is high, which can keep habitat in an unfavorable or 
marginal condition for longer time periods. A more complete description 
of potential land use impacts is provided in chapter 3 of the SSA 
Report (Service 2019).
    Relatively little urban and industrial development is occurring 
within the current known range of the American burying beetle. There 
are a few relatively large urban areas near American burying beetle 
populations in the New England area but most of the current range is 
rural. Most of the existing American burying beetle range is already 
under some agricultural use (primarily grazing and hay production).
    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. Land use 
changes were evaluated separately for each analysis area because they 
are a risk factor for current conditions. Future risk factors like 
climate changes affect different analysis areas over different time 
periods; however, climate changes were not considered under the two 
land use scenarios in the SSA Report (Service 2019). Climate related 
impacts to habitat and range are addressed under Factor E.
    The large areas of known and potential habitat in the Southern 
Plains buffer the effects of most land use changes. 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 climate changes (see Factor E) are 
likely to impact the resiliency of most populations and the overall 
viability of the species.
Other Considerations
    This assessment of land use effects includes cautions because these 
effects were compared to areas of potential suitable habitat, and our 
assessment of suitable habitat was very broad. Not all potentially 
suitable habitat is occupied by American burying beetles; therefore, 
this analysis may underestimate the impacts of land use changes. 
Additional cautions are related to our limited ability to quantify some 
potential future effects. For example, uncommon increases in crop 
prices could increase incentives for conversion of grassland to row 
crops to levels beyond the assumptions used in the two scenarios.
    Recent development and potential expansion of wind energy projects 
could also add to impacts from other land use changes. 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.
    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 
there are no studies available to evaluate the actual effects of wind 
projects on American burying beetles. Within the Southern Plains 
analysis areas, the current area of wind projects is relatively small, 
and there is limited potential for expansion. Less than 10 percent of 
the Southern Plains analysis areas have annual average wind speeds of 6 
meters/second (m/s) or greater at 30 meters height that are recommended 
for wind development. There is greater potential for wind energy 
development in the Northern Plains analysis areas. Nearly all of the 
Northern Plains analysis areas have annual average wind speeds of 6 m/s 
or greater at 30 meters height. There are 6,471 wind turbines 
registered in the Northern Plains analysis areas, but we do not know 
what areas, or what percentage of the suitable habitat in Northern 
Plains analysis areas, may be affected by wind projects in future 
years. The Service intends to do further evaluation of potential 
effects of wind

[[Page 19021]]

projects and welcomes any additional information on the subject.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes (Factor B)

    Overutilization 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.

Disease or Predation (Factor C)

    While disease and predation may represent relevant threats to the 
American burying beetle, 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).

Inadequacy of Existing Regulatory Mechanisms (Factor D)

    Under this factor, we examine the stressors identified within the 
other factors as ameliorated or exacerbated by any existing regulatory 
mechanisms or conservation efforts. Section 4(b)(1)(A) of the Act 
requires that the Service take into account ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species . . .'' In 
relation to Factor D under the Act, we interpret this language to 
require the Service to consider relevant Federal, State, and Tribal 
laws, regulations, and other such binding legal mechanisms that may 
ameliorate or exacerbate any of the threats we describe in threat 
analyses under the other four factors or otherwise enhance the species' 
conservation. We give strongest weight to statutes and their 
implementing regulations and to management direction that stems from 
those laws and regulations.
    Existing regulatory mechanisms vary by location, but generally do 
not fully address the numerous stressors that the American burying 
beetle faces. The American burying beetle is State-listed in Kansas, 
Massachusetts, Nebraska, Ohio, and Oklahoma. The specific protections 
vary by State, but often include some permitting requirements or 
coordination with the State wildlife agencies when projects could 
directly impact the species or its habitat. It is not State-listed in 
Rhode Island, Arkansas (special concern only), South Dakota, or Texas. 
Currently, there is no protection under State law for the habitat of 
the American burying beetle in Arkansas or South Dakota (Backlund et 
al. 2008).
    In some parts of the range (Nebraska, South Dakota, and Kansas), 
the species occurs almost exclusively on private land and regulatory 
mechanisms do not address the stressors impacting the species. In other 
areas, there are several robust populations on public lands or private 
conservation organization properties, but many protected lands 
supporting American burying beetles require ongoing management like 
prescribed fire or other measures to control invasion of woody 
vegetation to ensure the species' continued presence. Federal and State 
agencies have adopted and implemented laws, regulations, and best 
management practices that result in protection of American burying 
beetles.
    In addition, the Department of Defense (DoD), with the assistance 
of the Service and the states, is responsible under the Sikes Act (16 
U.S.C. 670a-670f, as amended) for carrying out programs and 
implementing management strategies to conserve and protect biological 
resources on its lands. Integrated Natural Resources Management Plans 
(INRMPs) are planning documents that allow DoD installations to 
implement landscape-level planning to provide for the management of 
natural resources, including fish, wildlife, and plants, without any 
net loss in the capability of an installation to support its military 
mission. Incorporation of INRMPs on the DoD installations provide 
management and conservation benefit to American burying beetles.
    In some cases, where American burying beetles occur on lands with 
conservation easements, deed restrictions, or owned by conservation 
organizations, existing regulatory mechanisms appear to be adequate. 
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. Additionally, 
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 climate 
change over varying time periods. Existing regulatory mechanisms do not 
address those future threats to the American burying beetle.

Other Natural and Manmade Factors (Factor E)

    The most significant potential threat under this factor is climate 
change. This is a summary of climate-related risks, and 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 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 of those 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). 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). We use more than one emissions scenario to 
account for uncertainty regarding future atmospheric greenhouse gas 
concentrations. By using both a relatively high and relatively low 
emissions scenario in our projections, we attempt to bracket the likely 
possibilities for climate change in the foreseeable future. RCP 4.5 is 
at the low end of the intermediate range of conditions projected by the 
IPCC and represents a situation under which key atmospheric conditions 
would stabilize at a relatively moderate level shortly after 2100. This 
scenario envisions emissions mitigation through strong policy action by 
the international community, including the United States, in the near 
future to curb emissions and the resulting effects to global climate. 
RCP 8.5 is the high end of IPCC projections of atmospheric conditions. 
RCP 8.5 is the expected scenario if strong policy actions to curb 
emissions are not pursued by the United States and the international 
community. This scenario is essentially the continuation of current 
trends in emissions as they may play out over the next century. 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

[[Page 19022]]

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.
    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 have been 
shown to 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 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, as 
well as increased rates of carcass decomposition. 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 are 
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) supports the assumption that mean-
maximum temperatures above 95 [deg]F would adversely affect American 
burying beetle populations. Monitoring of American burying beetles has 
occurred annually from 1992 through 2016. During the study period, 
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 occurred 
more frequently.
    Evidence suggests that 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 within these areas have significantly changed, which might 
otherwise explain the observed American burying beetle declines in this 
area. 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 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. This leads us to 
conclude that the southern edge of the species' range is driven by this 
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 night time 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 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 may already be at 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).
    There are no American burying beetle populations, including known 
historical populations, 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. Historical populations 
south of the Red River Analysis Area have not been documented in over 
70 years. Because American burying beetles have not expanded their 
range to warmer climates since the early 1900s, we believe that climate 
conditions associated with the current and historical ranges represent 
existing

[[Page 19023]]

thresholds for maintaining American burying beetle populations.
    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 have 
occurred when they are confined in traps during warm days. More 
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, N. carolinus numbers increased rapidly when American burying 
beetle and N. orbicollis numbers declined (Abbott and Abbott 2013, p. 
2).
    Increasing temperatures resulting from climate change 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 (Creighton 
2016, pers. comm.). 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 and is the most 
closely related congener; therefore, we expect the American burying 
beetle study will 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 apparently 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 actually 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, and nighttime 
temperatures are likely to influence the behavior and range of this 
species as well. Nights above 75 [deg]F were only observed 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 (1 night in 2001, 3 nights in 2006, and 
3 nights in 2011). 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. 
Temperatures of 75 [deg]F or higher adversely affected reproductive 
success in N. orbicollis (Creighton 2016, pers. comm.) and may have a 
similar effect on American burying beetles. 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. From 1993-1996, 
the Red River Analysis Area supported some areas with good catch rates 
of American burying beetles in the southeastern portion (Creighton et 
al. 2009, p. 40), but positive/negative ratios and catch rates have 
declined since the early 2000s. On the Weyerhaeuser Habitat 
Conservation Plan planning area in McCurtain County, Oklahoma, relative 
densities of American burying beetles generally declined from an 
average of 0.076 beetles per trap-night (106 beetles captured) in 1997, 
to 0.010 beetles per trap-night (16 beetles captured) in 2001. There 
was a slight increase in 2002 (0.015 beetles per trap-night), and a 
greater one in 2003 (0.053 beetles per trap-night), but then relative 
densities dropped again. During 2005-2007, there were no captures of 
American burying beetles at regular sites and only one capture in 2005 
at a supplemental site (Schnell et al. 2008). No positive surveys have 
been documented in the Arkansas or Texas portions since 2008, and only 
seven positive surveys are known in the Oklahoma portion since 2006. 
Populations in Texas may be extirpated.
    American burying beetles are only active 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 only be suitable and available for 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 combination of information in the 
SSA Report (see chapter 5; Service 2019) indicates increasing air and 
soil temperatures as a result of climate change is 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 about two-thirds of the Loess 
Canyons Analysis Area and small portions of the other two analysis 
areas in the Northern Plains within the mid-century time period. Under 
the RCP 8.5 emissions scenario, Southern Plains American burying beetle 
populations would be projected to have summer mean-maximum temperatures 
up to 98 to 100 [deg]F within the mid-century time

[[Page 19024]]

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 and 59 percent of the existing range of the 
species are projected to be lost within the mid-century time period.
    The effects of climate change, such as increasing temperatures, 
changes in precipitation, increased evaporative losses, and prolonged 
droughts, are known to 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, future projections indicate 
that American burying beetles have a high risk of extirpation 
throughout the Southern Plains analysis areas and in large portions of 
the Northern Plains analysis areas due to these effects of climate 
change.

Finding and Proposed Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the American burying beetle. The American burying beetle was listed 
as endangered in 1989, due to the disappearance of the species across 
the vast majority of its known historical range, habitat changes, and 
competition for limited carrion resources. At the time of listing, only 
two highly disjunct populations of a formerly widespread species were 
known to be extant, one in New England and one in eastern Oklahoma.
    We now know there are more populations over a much wider area 
relative to the time of listing. Since the time of listing, numerous 
searches and surveys have resulted in the discovery of additional 
American burying beetle occurrences in Oklahoma, Nebraska, Arkansas, 
Texas, Kansas, and South Dakota. However, some known populations are 
small and isolated, and populations in the monitored portions of the 
southernmost areas have declined in recent years. In some parts of the 
range (Nebraska, South Dakota, and Kansas), the species occurs almost 
exclusively on private land, presenting additional future risks for 
land use conversion leading to loss or fragmentation of previously 
suitable habitat. Several robust populations occur on public lands or 
private conservation organization properties, but many protected lands 
supporting American burying beetles require ongoing management like 
prescribed fire or other measures to control invasion of woody 
vegetation to ensure the species' continued presence. Additionally, 
most of those protected areas are in southern areas, where increasing 
temperatures due to climate change are projected to cause extirpation 
sometime within the mid-century time period. Although we now know the 
species occurs in more locations than at the time of listing, extant 
American burying beetle populations vary in level of protected habitat, 
there is limited information on population trends and biological 
limiting factors for most populations, and all populations are exposed 
to a combination of risk factors. Further, although the threats to the 
species vary in scope and severity, some threats (such as those related 
to increasing temperatures) are difficult to avoid or minimize. 
Population viability in the only areas that are not threatened by 
climate changes, namely the New England Analysis Area, appears to be 
reliant to some degree upon continuing habitat management and/or 
provisioning of carrion.
    We have determined that the American burying beetle's current 
viability is higher than was known at the time of listing. Based on the 
analysis in the SSA Report (Service 2019), and summarized information 
above, the Service concludes that the American burying beetle does not 
currently meet the definition of endangered under the Act because it is 
not presently in danger of extinction. Our analysis indicates that the 
overall viability of the species is not significantly impacted by the 
current rate of land use change or the existing level of habitat 
degradation or fragmentation. The species is currently represented by 
several populations with moderate to high resiliency that are 
distributed in several portions of the historical range.
    The future status of the species was evaluated under increasing 
temperatures for three periods of time (years 2010-2039, 2040-2069, and 
2070-2099). As described above, we defined those time periods, as such: 
``early century time period,'' ``mid-century time period,'' and ``late 
century time period,'' respectively. According to both RCP 4.5 and 8.5 
emissions scenarios, due to expected temperature increases, the species 
is likely to be extirpated from the Southern Plains analysis areas 
sometime within the mid-century time period. Furthermore, mean maximum 
summer temperatures in the Northern Plains analysis areas approach 93-
95 [deg]F under the RCP 8.5 emissions scenario within the mid-century 
time period. About two-thirds of the Loess Canyons Analysis Area and 
small portions of the other two analysis areas in the Northern Plains 
would also be at risk of extirpation under this scenario. The 
projections of increasing temperatures are considered reliable; 
however, there is greater uncertainty in future projections of land use 
change and in the species' response to both increasing temperatures and 
changes in land use. We believe that the risk of extinction will 
increase significantly between 2040 and 2069, based primarily on the 
effects of projected temperature increases. The foreseeable future is 
uniquely related to population status, trends, and threats for the 
species in each analysis area, and there are varying degrees of 
foreseeability with respect to various threats. Due to the improved 
condition of the species' status since the time of listing and the 
increasing threats from increasing temperatures and ongoing land use 
changes, we find that the American burying beetle is not currently in 
danger of extinction, but is likely to become endangered within the 
foreseeable future throughout all of its range. Because we have found 
that the American burying beetle meets the definition of threatened 
under the Act, we propose to reclassify it from endangered to 
threatened on the Federal List of Endangered and Threatened Wildlife 
(List).

Significant Portion of the Range Analysis

    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that the 
American burying beetle is likely to become an endangered species 
within the foreseeable future throughout all of its range (i.e., 
warrants listing as a threatened species), we find it unnecessary to 
proceed to an evaluation of potentially significant portions of the 
range. Where the best available information allows the Services to 
determine a status for the species rangewide, that determination should 
be given conclusive weight because a rangewide determination of status 
more accurately reflects the species' degree of imperilment and better 
promotes the purposes of the Act. Under this reading, we should first 
consider whether the species warrants listing ``throughout all'' of its 
range and proceed to conduct a ``significant portion of its range'' 
analysis if, and only if, a species does

[[Page 19025]]

not qualify for listing as either an endangered or a threatened species 
according to the ``throughout all'' language. We note that the court in 
Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 
2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, 
and our conclusion is therefore consistent with the opinion in that 
case.
    Therefore, on the basis of the best available scientific and 
commercial information, we propose to reclassify the American burying 
beetle as a threatened species across its entire range in accordance 
with sections 3(20) and 4(a)(1) of the Act.

Conclusion

    Using the best available scientific and commercial information, we 
conclude that, while the American burying beetle is not currently in 
danger of extinction throughout all or a significant portion of its 
range, it is likely to become an endangered species within the 
foreseeable future throughout all of its range. In accordance with 50 
CFR 424.11(c), we therefore propose to reclassify the American burying 
beetle as threatened on the Federal List of Endangered and Threatened 
Wildlife at 50 CFR 17.11(h).

Proposed 4(d) Rule

    Under section 4(d) of the Act, the Service has discretion to issue 
regulations that we find necessary and advisable to provide for the 
conservation of threatened species. We may also prohibit by regulation, 
with respect to threatened wildlife, any act prohibited by section 
9(a)(1) of the Act for endangered wildlife. When we establish a 4(d) 
rule, the general prohibitions in 50 CFR 17.31 for threatened species 
do not apply to the subject species, and the 4(d) rule contains all the 
prohibitions and exceptions that apply to the subject species. For the 
American burying beetle, the Service has developed a proposed 4(d) rule 
to respond to the specific threats and conservation needs of this 
species.
    The proposed 4(d) rule would prohibit all intentional take of the 
American burying beetle. The proposed 4(d) rule would only prohibit 
incidental take of the species where the Service has determined such a 
prohibition is necessary and advisable for the conservation for the 
species. For example, take from a biologically insignificant threat 
would not be necessary and advisable to regulate whereas a factor that 
is a population driver would be necessary and advisable to regulate via 
a 4(d) rule. Incidental take is defined as take that is incidental to, 
and not the purpose of, otherwise lawful activity.
    The Service proposes to specifically tailor 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 would only be prohibited 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, maintained through regular 
mowing, 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 proposing to allow 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. Overall, we find that ranching, grazing, and wildlife 
management activities, such as prescribed fire or invasive species 
control, is necessary and advisable to conserve the species.
    In the Southern Plains analysis areas, incidental take would only 
be prohibited on certain conservation lands, as defined below under 
Proposed Regulation Promulgation. However, within these conservation 
lands, activities conducted in compliance with Service-approved 
conservation plans that result in take of the species would not be 
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 would not be 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, 
we also propose to prohibit 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 proposed 4(d) rule tailors the Act's protections to allow 
activities that only have 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 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 Nebraska and South Dakota, but is a substantial risk for 
the small Block Island population in Rhode Island. The proposed 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

[[Page 19026]]

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. 
Climate change impacts are ongoing as well, and southern populations 
are projected to be extirpated within 20 to 30 years, as described 
above.
    We recognize that many types of activities will impact suitable 
American burying beetle habitat, and application of prohibitions should 
also take into account the scope, scale, and magnitude of potential 
risks in American burying beetle habitat. We recognize that large 
intact areas of habitat are important for American burying beetle 
conservation. We seek public comment on the proposed 4(d) rule to 
ensure that proposed measures will effectively conserve the American 
burying beetle.

Provisions of the Proposed 4(d) Rule in the New England Analysis Area

    Within the New England Analysis Area, we propose to only prohibit 
incidental take if it occurs in suitable habitat and is the result of 
soil disturbance, as defined below under Proposed 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. There is a large percentage of 
land mass in the New England Analysis Area that is protected in some 
form, and American burying beetles occur on many lands with 
conservation easements, 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 there may be some minimal level of take incidental to ranching 
and grazing, the effects of such land uses serve to maintain suitable 
habitat for the species. Therefore, prohibiting take from ranching and 
grazing is not necessary and advisable to conserve 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. Therefore, we have determined 
that prohibiting incidental take due to activities that cause soil 
disturbance, including suitable habitat conversion, is necessary and 
advisable to conserve the species. 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.

Provisions of the Proposed 4(d) Rule in the Northern Plains Analysis 
Areas

    Within the Northern Plains analysis areas, we propose to only 
prohibit incidental take 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 
Proposed 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). Thus, we find that urban expansion and agriculture land 
conversion to cropland (combined with other risks such as cedar 
expansion as discussed earlier in the proposed rule) represent risks to 
the future viability of the species in this area. Therefore, we have 
determined that prohibiting incidental take due to activities that 
cause soil disturbance, including suitable habitat conversion, is 
necessary and advisable to conserve the species.
    However, incidental take that is the result of normal grazing and 
livestock activities would not be prohibited. In addition, activities 
by State or Federal government agencies related to wildlife management 
that result in incidental take of American burying beetles would not be 
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 mid-century. 
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 Proposed 4(d) Rule in the Southern Plains Analysis 
Areas

    Within the Southern Plains analysis areas on defined conservation 
lands, see below under Proposed 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 
propose to 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), Camp Gruber/Cherokee Wildlife Management Area (approximately 
64,000 acres), and The Nature Conservancy Tall Grass Prairie Preserve 
(approximately 40,000 acres) in Oklahoma. These areas have defined 
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

[[Page 19027]]

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.

Section 4(d) and Section 7 of the Act

    Federal agencies would continue to be required to consult on all 
actions that may affect American burying beetles in all analysis areas; 
however, these consultations could likely be streamlined through a 
programmatic consultation for actions with incidental take that is not 
prohibited under the proposed 4(d) rule.

Permits for Threatened Wildlife

    We may issue permits to carry out otherwise prohibited activities 
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: 
For scientific purposes, for the enhancement of propagation or 
survival, for economic hardship, for zoological exhibition, for 
educational purposes, 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.
    Questions regarding whether specific activities would constitute a 
violation of 50 CFR 17.47(c) should be directed to the Oklahoma 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Effects of the Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) to 
reclassify the American burying beetle as threatened on the Federal 
List of Endangered and Threatened Wildlife and would revise 50 CFR 
17.47 to codify the prohibitions and exceptions that would apply to the 
American burying beetle under the 4(d) rule. This proposal would not 
affect the designation of the nonessential experimental population in 
four counties in Missouri or the prohibitions established for that 
population. There is no critical habitat designated for this species; 
therefore, this proposed rule would not affect 50 CFR 17.95.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

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 all references cited in this proposed rule is 
available at https://www.regulations.gov at Docket No. FWS-R2-ES-2018-
0029, or upon request from the Oklahoma Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Oklahoma Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to 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.
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2. Amend Sec.  17.11(h) by revising the entry 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) * * *

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                                                                                           Listing citations and
          Common name             Scientific name        Where listed          Status        applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Insects
 
                                                  * * * * * * *
Beetle, American burying.......  Nicrophorus        Wherever found, except            T   54 FR 29652, 7/13/
                                  americanus.        where listed as an                    1989; [Federal
                                                     experimental                          Register citation of
                                                     population.                           the final rule]; 50
                                                                                           CFR 17.47(c).\4d\

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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.
 
                                                  * * * * * * *
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3. Amend Sec.  17.47 by adding paragraph (c) to read as follows:


Sec.  17.47  Special rules--insects.

* * * * *
    (c) American burying beetle (Nicrophorus americanus).
    (1) Prohibitions. The following prohibitions apply to the American 
burying beetle:
    (i) Take of the American burying beetle, except that take that is 
incidental to otherwise lawful activity (incidental take) is only 
prohibited 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.
    (A) 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 (c)(1)(i) of this section or State law.
    (B) Notwithstanding paragraph (c)(1)(ii)(A) of this section, 
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.
    (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 agency for such purposes, may, when acting in the 
course of his 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 (c), we define 
the following terms:
    (i) Conservation lands means lands included within the existing 
boundaries of Fort Chaffee in Arkansas (approximately 64,000 acres), 
and McAlester Army Ammunition Plant (approximately 45,000 acres), Camp 
Gruber/Cherokee Wildlife Management Area (approximately 64,000 acres), 
and The Nature Conservancy Tall Grass Prairie Preserve (approximately 
40,000 acres) in Oklahoma.
    (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 (c)(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 
(c)(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.
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[GRAPHIC] [TIFF OMITTED] TP03MY19.059


    Dated: April 25, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising 
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-09035 Filed 5-2-19; 8:45 am]
BILLING CODE 4333-15-C