[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Proposed Rules]
[Pages 43973-43980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18561]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R3-ES-2011-0034; 92220-1113-0000; ABC Code: C3]
RIN 1018-AX79


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of American Burying Beetle in 
Southwestern Missouri

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

DATES: Comments: We will consider public comments that we receive on or 
before August 22, 2011.
    Public meeting: We will hold a public meeting on August 11, 2011, 
from 6 to 8 p.m. in El Dorado Springs, Missouri (see ADDRESSES).

ADDRESSES: Written Comments: You may submit information by one of the 
following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments on Docket No. FWS-R3-ES-2011-0034.
    U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-
R3-ES-2010-0034; Division of Policy and Directives Management, U.S. 
Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington, 
VA 22203.
    We will post all comments that we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more details).
    Copies of Documents: The proposed rule is available on http://www.regulations.gov and available from our Web site at http://www.fws.gov/midwest/endangered. In addition, the supporting file for 
this proposed rule will be available for public inspection, by 
appointment, during normal business hours, at the Columbia, Missouri, 
Ecological Services Office, 101 Park DeVille Dr., Suite B, Columbia, MO 
65203, telephone 573-234-2132. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Services (FIRS) at 800-877-8339.
    Public meeting: The public meeting will take place at El Dorado 
Springs Community Center, 135 W. Spring Street, El Dorado Springs, MO 
64744.
    Copies of Documents: The proposed rule is available on http://www.regulations.gov and available from our Web site at http://www.fws.gov/midwest/endangered. In addition, the supporting file for 
this proposed rule will be available for public inspection, by 
appointment, during normal business hours, at the Columbia, Missouri, 
Ecological Services Office, 101 Park DeVille Dr., Suite B, Columbia, MO 
65203, telephone 573-234-2132. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Services (FIRS) at 800-877-8339.

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

SUPPLEMENTARY INFORMATION: 

Public Comments

    We want any final rule resulting from this proposal to 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 that differs from 
this proposal. All comments, including commenters' names and addresses, 
if provided to us, will become part of the supporting record.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date 
specified in the DATES section. We will not consider hand-delivered 
comments that we do not receive, or mailed comments that are not 
postmarked by the date specified in the DATES section.
    We will post your entire comment--including your personal 
identifying information--on http://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 http://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Columbia, Missouri Ecological Services Office (see ADDRESSES 
and FOR FURTHER INFORMATION CONTACT).

Public Meeting

    We will hold a public meeting from 6 to 8 p.m. on August 11, 2011, 
at the El Dorado Springs Community Center in El Dorado Springs, 
Missouri (see ADDRESSES). Persons needing reasonable accommodations in 
order to attend and participate in a public meeting should contact the 
Columbia, Missouri Ecological Services Office, at the address or phone 
number listed in the FOR FURTHER INFORMATION CONTACT section as soon as 
possible. In order to allow sufficient time to process requests, please 
call no later than one week before the meeting. Information regarding 
this proposal is available in alternative formats upon request.

Background

Regulatory Background

    The American burying beetle (Nicrophorus americanus, ABB) was 
listed as endangered throughout its range on July 13, 1989 (154 FR 
29652), under the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), without critical habitat (USFWS

[[Page 43974]]

2008, p. 2). The Act provides that species listed as endangered are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act, among other 
things, prohibits the take of endangered wildlife. ``Take'' is defined 
by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or attempt to engage in any such conduct. Section 
7 of the Act outlines the procedures for Federal interagency 
cooperation to conserve Federally listed species and protect designated 
critical habitat. It mandates that all Federal agencies use their 
existing authorities to further the purposes of the Act by carrying out 
programs for the conservation of listed species. It also states that 
Federal agencies must, in consultation with the Service, ensure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not affect activities undertaken on private 
land unless they are authorized, funded, or carried out by a Federal 
agency.
    Under section 10(j) of the Act, the Secretary of the Interior can 
designate reestablished populations outside the species' current range, 
but within its historical range, as ``experimental.'' With the 
experimental population designation, the relevant population is treated 
as threatened for purposes of section 9 of the Act, regardless of the 
species' designation elsewhere in its range. Threatened designation 
allows us discretion in devising management programs and special 
regulations for such a population. Section 4(d) of the Act allows us to 
adopt whatever regulations are necessary and advisable to provide for 
the conservation of a threatened species. In these situations, the 
general regulations that extend most section 9 prohibitions to 
threatened species do not apply to that species, and the 10(j) rule 
contains the prohibitions and exemptions necessary and appropriate to 
conserve that species.
    Based on the best scientific and commercial data available, we must 
determine whether the experimental population is essential or 
nonessential to the continued existence of the species. The regulations 
(50 CFR 17.80(b)) state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild. All other 
populations are considered nonessential. We have determined that this 
proposed experimental population would not be essential to the 
continued existence of the species in the wild. This determination has 
been made because, since the time the species was listed, wild 
populations of the ABB are now found in seven additional States, three 
of which are considered robust and suitable for donor populations 
(USFWS 2008, p. 14). Therefore, the Service is proposing to designate a 
nonessential experimental population (NEP) for the species in 
southwestern Missouri.
    For the purposes of section 7 of the Act, we treat an NEP as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or unit of the National Park Service, and Federal agency 
conservation requirements under section 7(a)(1) and the Federal agency 
consultation requirements of section 7(a)(2) of the Act apply. Section 
7(a)(1) requires all Federal agencies to use their authorities to carry 
out programs for the conservation of listed species. Section 7(a)(2) 
requires that Federal agencies, in consultation with the Service, 
ensure that any action authorized, funded, or carried out is not likely 
to jeopardize the continued existence of a listed species or adversely 
modify its critical habitat. When NEPs are located outside a National 
Wildlife Refuge or National Park Service unit, then, for the purposes 
of section 7, we treat the population as proposed for listing and only 
section 7(a)(1) and section 7(a)(4) apply. In these instances, NEPs 
provide additional flexibility because Federal agencies are not 
required to consult with us under section 7(a)(2). Section 7(a)(4) 
requires Federal agencies to confer (rather than consult) with the 
Service on actions that are likely to jeopardize the continued 
existence of a species proposed to be listed. The results of a 
conference are in the form of conservation recommendations that are 
optional as the agencies carry out, fund, or authorize activities. 
Because the NEP is, by definition, not essential to the continued 
existence of the species, the effects of proposed actions affecting the 
NEP will generally not rise to the level of jeopardizing the continued 
existence of the species. As a result, a formal conference will likely 
never be required for ABBs established within the NEP area. 
Nonetheless, some agencies voluntarily confer with the Service on 
actions that may affect a proposed species. Activities that are not 
carried out, funded, or authorized by Federal agencies are not subject 
to provisions or requirements in section 7.
    American burying beetles used to establish an experimental 
population will come from a captive-rearing facility at the St. Louis 
Zoo, which propagates this species under the Federal Fish and Wildlife 
Permit TE135297-0. The donor population for the Zoo is a wild 
population from Ft. Chaffee, Arkansas. Each spring, Ft. Chaffee 
Maneuver Training Center (MTC) will provide the St. Louis Zoo with up 
to 15 ABB pairs provided their removal is not likely to jeopardize the 
continued existence of the species, and appropriate permits are issued 
in accordance with our regulations (50 CFR 17.22) prior to their 
removal. If this proposal is adopted, we would ensure, through our 
section 10 permitting authority and the section 7 consultation process, 
that the use of individuals from donor populations for release is not 
likely to jeopardize the continued existence of the species in the 
wild. ABBs will be transported to St. Louis Zoo staff to augment the 
St. Louis Zoo's captive population, or possibly for direct 
reintroduction to Wah'kon-tah Prairie. The purpose of the captive 
population is to provide stock for reintroductions in ``suitable 
areas'' within the species' historical range, in accordance with 
recovery action 7.2 of the American Burying Beetle Recovery Plan (USFWS 
1991, p. 52).
    We have not designated critical habitat for the ABB. Section 
10(j)(2)(C)(ii) of the Act states that critical habitat shall not be 
designated for any experimental population that is determined to be 
nonessential. Accordingly, we cannot designate critical habitat in 
areas where we establish an NEP.

Biological Information

    The ABB is the largest member of the family Silphidae in North 
America, and the largest among a guild of species that breed and rear 
their young on vertebrate carcasses. Because carrion is a scarce and 
ephemeral resource, ABBs must traverse large areas in search of it. By 
necessity, they are strong flyers capable of covering several miles 
overnight. The farthest recorded dispersal in a year for reintroduced 
ABBs is 3 miles (4.8km) (McKenna-Foster et al. 2007, p. 9). Data from 
the Nantucket reintroduction show that the farthest dispersal in one 
season was 3 miles (4.8 km) (McKenna-Foster et al. 2007, p. 9). Data 
from Nebraska indicate that the vast majority (92 percent) of ABB were 
recaptured within 0.6 miles (1 km) of their initial capture within the 
same season (Bedick et al. 1999, p. 176). After ABBs find an 
appropriate-sized carcass, a pair of beetles cooperatively buries and 
prepares the carcass by removing its fur or feathers and coating it 
with antibacterial secretions. These activities require soil 
excavation, consequently soils must be conducive for excavation

[[Page 43975]]

and plant roots systems must not hinder excavation. Reproductive 
habitat activities also require soil that is appropriately moist. Both 
parents may remain to feed the larva with regurgitated meat until they 
are capable of feeding themselves. After pupation, new adults emerge 
within 30-45 days. ABBs are generally considered univoltine (having one 
brood or generation per year) in the wild, with a life span of about 12 
months. They are a habitat generalist with regards to vegetation, and 
will eat all classes of vertebrate carcasses (USFWS 2008, pp. 8, 11).
    The ABB's historical range included 35 States and three Canadian 
provinces in the eastern temperate areas of North America (USFWS 1991, 
p. 4). At the time of listing, only two ABB populations were known, one 
on Block Island, Rhode Island, and one in Latimer County, Oklahoma. 
Subsequent monitoring in other States documented additional populations 
in Arkansas, Nebraska, Texas, South Dakota, and Kansas (USFWS 2008, p. 
16). The population on Block Island is the only naturally occurring 
population east of the Mississippi River. The ABB also occurs in 
captive-breeding populations. Currently, captive populations are 
maintained at the Roger Williams Park Zoo in Providence, Rhode Island; 
St. Louis Zoo in St. Louis, Missouri; The Wilds in Ohio; and the 
Cincinnati Zoo in Cincinnati, Ohio.
    The reasons for the decline of the ABB during the 1900s are still 
unknown. Many hypotheses for the decline have been suggested, such as 
the widespread use of dichloro-diphenyl-trichloroethane (DDT) and other 
pesticides, habitat loss and fragmentation, decrease in the 
availability of carrion, increased use of artificial lighting, an 
unidentified pathogen, increase in competition from vertebrate 
scavengers, and an increase in competition from other carrion insects 
(Sikes and Raithel 2002, pp. 104-109). Confounding most of these 
hypotheses is the historical and continued presence of other 
Nicrophorus species. The pattern of disappearance from the center of 
the population to the eastern and western edges of its range is also 
difficult to explain.
    Predation is not believed to be an important mortality factor for 
the ABB, although interaction with fire ants, whether through 
competition or predation, is thought to adversely affect ABB 
populations. Disease is not known to be a factor in the decline of the 
ABB, but knowledge of diseases of insects is in its infancy (USFWS 
2008, p. 31). Competition for carrion by scavengers is thought to be an 
important factor in the decline of ABB (Sikes and Raithel 2002, p. 
111). Competition with ants, flies, and vertebrate scavengers, as well 
as other species of burying beetles, can be limiting factors for ABBs 
(Sikes and Raithel 2002, p. 111). Weather extremes, such as drought, 
wildfire, hurricanes, and ice storms may affect the viability of 
existing populations (USFWS 2008, p. 33).

Recovery Efforts

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of our endangered species program. The 
ABB recovery plan was developed within 2 years of the listing of the 
species and reflects the best information available at that time. The 
recovery objectives of the 1991 plan are to (1) ``reduce the immediacy 
of the threat of extinction * * *'' and (2) ``improve its status so 
that it can be reclassified from endangered to threatened.'' The 
recovery plan did not include delisting criteria, however, criteria for 
the reclassification are:
    (a) Three populations of N. americanus have been reestablished (or 
additional populations discovered) within each of four broad 
geographical areas of its historical range: The Northeast, the 
Southeast, the Midwest, and the Great Lakes States;
    (b) Each population contains a minimum of 500 adults as estimated 
by capture rates per trap night and black lighting effort; and
    (c) Each population is demonstrably self-sustaining for at least 5 
consecutive years (or is sustainable with established long-term 
management programs) (USFWS 1991, pp. 31-32).
    The 1991 Recovery Plan considers conducting additional 
reintroductions a top priority (Priority 1) (USFWS 1991, p. 63). The 
first reintroduction site for the ABB was Penikese Island, 
Massachusetts, in 1990. After ABBs were released on Penikese for 4 
years, the population persisted there for about 8 years (until 2002). 
No ABBs were subsequently found there during modest trapping efforts 
from 2003 to 2006. Nantucket Island was the next ABB reintroduction 
site, which was initiated in 1994. Release of ABBs ended in 2006, and 
the population has persisted. Since 1998, there have been sporadic 
efforts to reintroduce a population in Ohio, but ABBs have yet to be 
recaptured after overwintering (USFWS 2008, p. 5).

Reestablishment Area

    Historically, the ABB was recorded in 13 counties throughout 
Missouri, and was most likely found throughout the State. The last 
documented ABB occurrence in the State was collected in a light-trap 
from Newton County (southwest Missouri) in the mid 1970s (Simpson 1991, 
p. 1). Monitoring for existing ABB populations has been ongoing in 
Missouri since 1991. A concerted monitoring effort has been conducted 
by the St. Louis Zoo since 2002, and monitoring began on Wah'kon-tah 
Prairie in 2004. During the period 2002-2009, researchers monitored 49 
sites from 25 counties in Missouri for ABB (Merz 2009, p. 8). No ABBs 
were observed or collected in any of the sites surveyed in Missouri 
since the 1970s.
    The proposed reintroduction site, Wah'kon-tah Prairie, is a 3,030-
acre (1,226-hectares) site jointly owned and managed by the Missouri 
Department of Conservation (MDC) and The Nature Conservancy (TNC). It 
is a designated special focus area, where TNC is working to restore a 
greater prairie chicken (Tympanuchus cupido) population and native 
tallgrass prairie. Wah'kon-tah Prairie straddles the border of St. 
Clair and Cedar Counties, and is very close to Bates and Vernon 
Counties, all within southwestern Missouri. The area within these four 
counties, 2,885 square miles (7,472 square kilometers (km)), is the 
proposed area for the nonessential experimental population (NEP). The 
minimum distance from the reintroduction site to outside of the 
designated experimental population boundary is 17 miles (27 km); the 
greatest distance is 52 miles (84 km). This NEP area was selected 
because of the proximity to the last recorded ABB sighting in Missouri, 
the quantity of recent ABB monitoring, and the relative abundance of 
carrion (Hamilton and Merz 2010, pp. 4-5).
    According to the St. Louis Zoo's American Burying Beetle Activity 
Summary in 2009, 12 sites within the proposed NEP area were monitored 
for carrion beetles (Jean et. al. 2009, p. 1). Five of these sites were 
on Wah'Kon-Tah Prairie, one of which was sampled for 66 days throughout 
the season. The pitfall traps within the proposed NEP area collected 
46,522 individuals: Of which 86 percent were other species of the 
beetle family Silphidae (to which the ABB belongs); the remainder were 
other insects and spiders. No ABBs were found (Jean et. al. 2009, p. 
1).
    Section 10(j) of the Act requires that an experimental population 
be wholly separate geographically from other wild populations of the 
same species. Because there are no known populations of ABB in 
Missouri, and there are no records of ABB in the bordering

[[Page 43976]]

counties of eastern Kansas, this proposed NEP is geographically 
separate from all other known ABB populations. Based on the movement 
data of other ABB populations, we do not believe the reintroduced ABBs 
will move beyond the designated NEP area. If monitoring shows that the 
reintroduced ABB are moving toward a border of the NEP, we will seek to 
amend the NEP boundaries, after monitoring the possible new NEP areas.

Release Procedures

    Captive-bred beetles from St. Louis Zoo, wild beetles from Ft. 
Chaffee, or both will be brought to the release site in late spring by 
representatives of the St. Louis Zoo or the Service. ABBs will be 
paired 24 hours in advance of release. These beetles will be marked by 
clipping the elytra (the modified forewings that encase the thin hind 
wings used in flight) to distinguish between captive-bred and wild 
beetles, and between the release transects. For the release, a soil 
plug is dug and removed, and paired ABBs are provisioned with a 120-200 
gram (4-7 ounce) carcass and placed into the hole. The soil plug is 
then placed back over the hole and a wire screen stapled over the area 
to keep out scavenging animals and birds. These holes will be dug in 
several lines, or transects. The number of transects will be determined 
by the number of beetles available, and apportioned in equal numbers 
(Hamilton and Merz 2010, p. 7). The ABB Reintroduction Plan contains 
additional information on the release procedures and monitoring 
protocols (see FOR FURTHER INFORMATION CONTACT for copies of this 
document or go to http://www.regulations.gov at Docket No. FWS-R3-ES-
2011-03034).

Status of Proposed Population

    If this proposal is adopted, we would ensure, through our section 
10 permitting authority and the section 7 consultation process, that 
the use of ABBs from the donor population at Ft. Chaffee, Arkansas, for 
releases into Wah'kon-tah Prairie is not likely to jeopardize the 
continued existence of the species in the wild. These donor populations 
are closely monitored by the Service, and over-collection would not be 
permitted. Establishing additional ABB populations within the species' 
historical range is an important step in recovery (USFWS 1991, p. 52).
    The special rule that accompanies this section 10(j) rule is 
designed to broadly exempt from the section 9 take prohibitions any 
take of ABBs that is accidental and incidental to otherwise lawful 
activities. We provide this exemption because we believe that such 
incidental take of members of the NEP associated with otherwise lawful 
activities is necessary and advisable for the conservation of the 
species, as activities that currently occur or are anticipated in the 
NEP area, such as haying, grazing, and occasional burning of pastures, 
are generally compatible with ABB recovery.
    This designation is justified because no adverse effects to extant 
wild or captive ABB populations will result from release of progeny 
from the captive flock. We also expect that the reintroduction effort 
into Missouri will result in the successful establishment of a self-
sustaining population, which will contribute to the recovery of the 
species.

Management

    Management issues related to the ABB NEP that have been considered 
include:
    (a) Mortality: The regulations implementing the Act define 
``incidental take'' as take that is incidental to, and not the purpose 
of, carrying out an otherwise lawful activity (50 CFR 17.3), such as 
agricultural activities and other rural development, and other 
activities that are in accordance with Federal, Tribal, State, and 
local laws and regulations. If this 10(j) rule is finalized, incidental 
take of the ABB within the NEP area would not be prohibited, provided 
that the take is unintentional and is in accordance with the special 
rule that is a part of this 10(j) rule. However, if there is evidence 
of intentional take of an ABB within the NEP that is not authorized by 
the special rule, we would refer the matter to the appropriate law 
enforcement entities for investigation.
    (b) Special handling: In accordance with 50 CFR 17.21(c)(3), any 
employee or agent of the Service, any other Federal land management 
agency, or State personnel, designated for such purposes, may in the 
course of their official duties, handle ABBs to aid sick or injured 
ABBs, or to salvage dead ABBs. However, non-Service personnel and their 
agents would need to acquire permits from the Service for these 
activities.
    (c) Coordination with landowners and land managers: Through 
informal meetings, the Service and cooperators have identified issues 
and concerns associated with the proposed ABB population establishment. 
The proposed population establishment was discussed with potentially 
affected State agencies and private landowners. Affected State 
agencies, landowners, and land managers have either indicated support 
for, or no opposition to, the proposed population establishment, 
provided an NEP is designated and a special rule is promulgated to 
exempt incidental take from the section 9 take prohibitions.
    (d) Monitoring: If this proposal is finalized and the 
reintroduction takes place, we would implement several monitoring 
strategies. Surveys conducted prior to releasing the ABBs will assess 
the over-wintering population from the prior year's release. During 
reintroduction, carcasses will be exhumed 10-12 days after burial to 
determine breeding success and the number of third instar (a 
developmental stage in insects representing their third molt) larvae 
present. This should provide a close estimate of the number of 
offspring produced in that first generation.
    During the period from June through August, each reintroduction 
site will be surveyed for at least three nights in duration. In 
addition to sampling at the release site(s), surrounding areas will be 
sampled in four directions, approximately 1 mile (1.6 km) away, for at 
least three consecutive nights. Monitoring at the release sites and 1 
mile (1.6 km) distant should detect the majority of the released 
beetles. Monitoring using pitfall trap surveys in the subsequent early 
summer and fall following release will provide an estimate of breeding 
pair productivity by collecting young adults following emergence. This 
will also allow for an estimate of overwinter survival of progeny. 
Beetles captured in the late summer and fall will be paired, 
provisioned with a carcass, and held until all pairs can be 
reintroduced back to the original release sites. We intend to 
reintroduce at least 50 pair each year for 5 years, or until data 
suggest a viable population of more than 1,000 individuals has been 
established. At year five, the cooperators will evaluate the project's 
successes and failures and make adjustments to the ABB reintroduction 
project, if necessary.
    (e) Public awareness and cooperation: Public outreach for the ABB 
reintroduction project will be conducted in the spring of 2011, 
concurrent with the public comment period for the proposed rule. The 
State conservation department has conducted preliminary discussions 
with landowners in the NEP area, and the majority of the responses were 
positive. As part of the proposal process, we plan to conduct a public 
meeting in El Dorado Springs, Missouri, which is close to the 
reintroduction site. Additionally, we will distribute press releases to 
local media, announce the meeting and proposed rule in local 
newspapers, and post information on the Service's Web site (http://www.fws.gov/midwest/endangered) and

[[Page 43977]]

a Web site hosted by the St. Louis Zoo (http://www.stlzoo.org/wildcareinstitute/centerforamericanburyingbe/americanburyingbeetlerecov.htm).
    Fact sheets on the species and the proposed project were 
distributed to the local conservation department office and to some of 
the landowners neighboring the NEP area. Those materials will be 
distributed more widely upon publication of this proposal.

Peer Review

    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we will provide copies of this proposed rule to 
three or more appropriate and independent specialists in order to 
solicit comments on the scientific data and assumptions relating to the 
supportive biological and ecological information for this proposed NEP 
designation. The purpose of such review is to ensure that the proposed 
NEP designation is based on the best scientific information available. 
We will invite these peer reviewers to comment during the public 
comment period and will consider their comments and information on this 
proposed rule during preparation of a final determination.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant and has not reviewed this proposed 
rule under Executive Order 12866 (E.O. 12866). OMB bases its 
determination on the following four criteria:
    (a) Whether the proposed rule will have an annual effect of $100 
million or more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the proposed rule will create inconsistencies with 
other Federal agencies' actions.
    (c) Whether the proposed rule will materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    (d) Whether the proposed rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities. 
We are certifying that this rule will not have a significant economic 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    The area that would be affected if this proposed rule is adopted 
includes the release areas at Wah'kon-tah Prairie and adjacent areas 
into which ABBs may disperse, which over time could include significant 
portions of the NEP. Because of the regulatory flexibility for Federal 
agency actions provided by the NEP designation and the exemption for 
incidental take in the special rule, we do not expect this rule to have 
significant effects on any activities within Federal, State, or private 
lands within the NEP. In regard to section 7(a)(2), the population is 
treated as proposed for listing, and Federal action agencies are not 
required to consult on their activities. Section 7(a)(4) requires 
Federal agencies to confer (rather than consult) with the Service on 
actions that are likely to jeopardize the continued existence of a 
proposed species. However, because the NEP is, by definition, not 
essential to the survival of the species, conferring will likely never 
be required for the ABB populations within the NEP area. Furthermore, 
the results of a conference are advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities. In 
addition, section 7(a)(1) requires Federal agencies to use their 
authorities to carry out programs to further the conservation of listed 
species, which would apply on any lands within the NEP area. As a 
result, and in accordance with these regulations, some modifications to 
proposed Federal actions within the NEP area may occur to benefit the 
ABB, but we do not expect projects to be halted or substantially 
modified as a result of these regulations.
    If adopted, this proposal would broadly authorize incidental take 
of the ABB within the NEP area. The regulations implementing the Act 
define ``incidental take'' as take that is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity such as, 
agricultural activities and other rural development, camping, hiking, 
hunting, vehicle use of roads and highways, and other activities in the 
NEP area that are in accordance with Federal, Tribal, State, and local 
laws and regulations. Intentional take for purposes other than 
authorized data collection or recovery purposes would not be permitted. 
Intentional take for research or recovery purposes would require a 
section 10(a)(1)(A) recovery permit under the Act.
    The principal activities on private property near the NEP area are 
agriculture, rural development, and recreation. We believe the presence 
of the ABB would not affect the use of lands for these purposes because 
there would be no new or additional economic or regulatory restrictions 
imposed upon States, non-Federal entities, or members of the public due 
to the presence of the ABB, and Federal agencies would only have to 
comply with sections 7(a)(1) and 7(a)(4) of the Act in these areas. 
Therefore, this rulemaking is not expected to have any significant 
adverse impacts to activities on private lands within the NEP area.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) If adopted, this proposal will not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that 
this proposed rulemaking will not impose a cost of $100 million or more 
in any given year on local or State governments or private entities. A 
Small Government Agency Plan is not required. As explained above, small 
governments would not be affected because the proposed NEP designation 
will not place additional requirements on any city, county, or other 
local municipalities.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation for the ABB would not impose any additional management or 
protection requirements on the States or other entities.

[[Page 43978]]

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. When populations of 
Federally listed species are designated as NEPs, the Act's regulatory 
requirements regarding those populations are significantly reduced. 
This reduction of regulatory burden allows landowners to continue using 
their lands in ways that may adversely impact the ABB, but are 
otherwise lawful. For example, this proposed rule would not prohibit 
the taking of ABBs in the NEP area when such take is incidental to an 
otherwise legal activity, such as agricultural activities and other 
rural development, camping, hiking, hunting, vehicle use of roads and 
highways, and other activities that are in accordance with Federal, 
State, Tribal, and local laws and regulations. Because of the 
substantial regulatory relief provided by the NEP designations, we do 
not believe the reestablishment of this species will conflict with 
existing or proposed human activities or hinder public use of lands 
within the NEP.
    A takings implication assessment is not required because this rule 
(1) Will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule would 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and would not present a barrier to 
all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. This rule 
would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with the affected resource agencies in Missouri. Achieving the 
recovery goals for this species would contribute to its eventual 
delisting and its return to State management. No intrusion on State 
policy or administration is expected; roles or responsibilities of 
Federal or State governments would not change; and fiscal capacity 
would not be substantially directly affected. The special rule operates 
to maintain the existing relationship between the State and the Federal 
Government and is being undertaken in coordination with the State of 
Missouri. Therefore, this rule does not have significant Federalism 
effects or implications to warrant the preparation of a Federalism 
Assessment under the provisions of Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections (3)(a) and 
(3)(b)(2) of the Order.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands affected by this rule.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.), require that Federal agencies obtain approval from OMB 
before collecting information from the public. This proposed rule does 
not contain any new information collections that require approval. OMB 
has approved our collection of information associated with reporting 
the taking of experimental populations (50 CFR 17.84) and assigned 
control number 1018-0095. We may not collect or sponsor, and you are 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    The reintroduction of native species into suitable habitat within 
their historical or established range is categorically excluded from 
NEPA documentation requirements consistent with 40 CFR 1508.4, 516 DM 
2.3A, 516 DM 2 Appendix 1, and 516 DM 8 Appendix 1.4.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Because this action is not a significant energy action, no 
Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    We are required by E.O. 12866, E.O. 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 the ADDRESSES section. To 
better help us revise the rule, your comment should be as specific as 
possible. For example, you should tell us the numbers of the sections 
and paragraphs that are unclearly written, which sections or sentences 
are too long, or the sections where you feel lists and tables would be 
useful.

References Cited

    A complete list of all references cited in this proposed rule is 
available at http://www.regulations.gov at Docket No. FWS-R3-ES-2011-
0034.

Authors

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

List of Subjects in 50 CFR Part 17

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

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--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:


[[Page 43979]]


    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    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) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                       Vertebrate
----------------------------------------------------------                          population  where                       When     Critical   Special
                                                               Historic range         endangered or          Status        listed    habitat     rules
            Common name                Scientific name                                 threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Insects
Beetle, American Burying..........  Nicrophorus            U.S.A. (eastern        Entire, except where  E                      351  .........         NA
                                     americanus.            States south to FL,    listed as an
                                                            west to SD and TX),    experimental
                                                            eastern Canada.        population.
Beetle, American Burying..........  Nicrophorus            U.S.A. (eastern        In southwestern       XN               .........         NA   17.85(c)
                                     americanus.            States south to FL,    Missouri, the
                                                            west to SD and TX),    counties of Cedar,
                                                            eastern Canada.        St. Clair, Bates,
                                                                                   and Vernon.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.85 by adding paragraph (c) to read as follows:


Sec.  17.85  Special rules--invertebrates.

* * * * *
    (c) American Burying Beetle (Nicrophorus americanus).
    (1) Where is the American burying beetle designated as a 
nonessential experimental population (NEP)?
    (i) The NEP area for the American burying beetle is within the 
species' historical range and is defined as follows: the Missouri 
Counties of Cedar, St. Clair, Bates, and Vernon.
    (ii) The American burying beetle is not known to currently exist in 
Cedar, St. Clair, Bates, or Vernon Counties in Missouri. Based on its 
habitat requirements and movement patterns, we do not expect this 
species to become established outside this NEP area. However, if 
individuals of this population move outside the designated NEP area, we 
would presume that they came from the reintroduced population. We would 
then amend this regulation to enlarge the boundaries of the NEP area to 
include the entire range of the expanded population.
    (iii) We will not change the NEP designations to ``essential 
experimental,'' ``threatened,'' or ``endangered'' within the NEP area 
without a public rulemaking. Additionally, we will not designate 
critical habitat for this NEP, as provided by 16 U.S.C. 
1539(j)(2)(C)(ii).
    (2) What activities are not allowed in the NEP area?
    (i) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means, American burying beetles, or parts 
thereof, that are taken or possessed in violation of paragraph (c)(3) 
of this section or in violation of the applicable State fish and 
wildlife laws or regulations or the Act.
    (ii) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in paragraph (c)(2)(i) of 
this section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and incidental to an otherwise legal activity, such as 
agriculture, forestry and wildlife management, land development, 
recreation, and other activities, is allowed.
    (4) How will the effectiveness of these reintroductions be 
monitored? We will prepare periodic progress reports and fully evaluate 
these reintroduction efforts after 5 years to determine whether to 
continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the American burying beetle 
follows:

[[Page 43980]]

[GRAPHIC] [TIFF OMITTED] TP22JY11.011

* * * * *

    Dated: July 11, 2011.
Gregory E. Siekaniec,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-18561 Filed 7-21-11; 8:45 am]
BILLING CODE 4310-55-P