[Federal Register Volume 77, Number 56 (Thursday, March 22, 2012)]
[Rules and Regulations]
[Pages 16712-16718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6779]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2011-0034; FXES11130900000C3-123-FF09E32000]
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: Final rule.

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

DATES: This final rule is effective April 23, 2012.

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

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

SUPPLEMENTARY INFORMATION:

Background

Regulatory Background

    The American burying beetle (Nicrophorus americanus, ABB) was 
listed as endangered throughout its range on July 13, 1989 (54 FR 
29652), under the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), without critical habitat (USFWS 2008, p. 2). The Act 
provides that species listed as endangered are afforded protection 
primarily through the prohibitions of section 9 and the requirements of 
section 7. Section 9 of the Act, among other things, prohibits the take 
of endangered wildlife. ``Take'' is defined by the Act as to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
to attempt to engage in any such conduct. Section 7 of the Act outlines 
the procedures for Federal interagency cooperation to conserve 
federally listed species and protect designated critical habitat. It 
mandates that all Federal agencies use their existing authorities to 
further the purposes of the Act by carrying out programs for the 
conservation of listed species. It also states that Federal agencies 
must, in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    Under section 10(j) of the Act, the Secretary of the Interior can 
designate reestablished populations outside the species' current range, 
but within its historical range, as ``experimental.'' With the 
experimental population designation, the relevant population is treated 
as threatened for purposes of section 9 of the Act, regardless of the 
species' designation elsewhere in its range. Threatened designation 
allows us discretion in devising management programs and special 
regulations for such a population. Section 4(d) of the Act allows us to 
adopt whatever regulations are necessary and advisable to provide for 
the conservation of a threatened species. In these situations, the 
general regulations that extend most section 9 prohibitions to 
threatened species do not apply to that species, and the 10(j) rule 
contains the prohibitions and exemptions necessary and appropriate to 
conserve that species.
    Based on the best scientific and commercial data available, we must 
determine whether the experimental population is essential or 
nonessential to the continued existence of the species. The regulations 
(50 CFR 17.80(b)) state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild. All other 
populations are considered nonessential. We have determined that this 
experimental population will not be essential to the continued 
existence of the species in the wild. This determination has been made 
because, since the time the species was listed, wild populations of the 
ABB are now found in seven additional States, three of which are 
considered robust and suitable for donor populations (USFWS 2008, p. 
14). Therefore, the Service will designate a nonessential experimental 
population (NEP) for the species in southwestern Missouri.
    When NEPs are located outside a National Wildlife Refuge or 
National Park Service unit, then, for the purposes of section 7, we 
treat the population as proposed for listing and only section 7(a)(1) 
and section 7(a)(4) of the Act apply. In these instances, NEPs provide 
additional flexibility because Federal agencies are not required to 
consult with us under section 7(a)(2). Section 7(a)(4) requires Federal 
agencies to confer (rather than consult) with the Service on actions 
that are likely to jeopardize the continued existence of a species 
proposed to be listed. The results of a conference are in the form of 
conservation recommendations that are optional as the agencies carry 
out, fund, or authorize activities. Because the NEP is, by definition, 
not essential to the continued existence of the species, the effects of 
proposed actions affecting the NEP will generally not rise to the level 
of jeopardizing the continued existence of the species. As a result, a 
formal conference will likely never be required for ABBs established 
within the NEP area. Nonetheless, some agencies voluntarily confer with 
the Service on actions that may affect a proposed species. Activities 
that are not carried out, funded, or authorized by Federal agencies are 
not subject to provisions or requirements in section 7 of the Act.
    American burying beetles used to establish an experimental 
population will come from a captive-rearing facility

[[Page 16713]]

at the St. Louis Zoo, which propagates this species under the Federal 
Fish and Wildlife Permit TE135297-0. The donor population for 
the Zoo is a wild population from Ft. Chaffee, Arkansas. Each spring, 
Ft. Chaffee Maneuver Training Center (MTC) will provide the St. Louis 
Zoo with up to 15 ABB pairs, provided their removal is not likely to 
jeopardize the continued existence of the species and appropriate 
permits are issued in accordance with our regulations (50 CFR 17.22) 
prior to their removal. We will ensure, through our section 10 
permitting authority and the section 7 consultation process, that using 
individuals from donor populations for release is not likely to 
jeopardize the continued existence of the species in the wild. ABBs 
will be transported to St. Louis Zoo staff to augment the St. Louis 
Zoo's captive population, or possibly for direct reintroduction to 
Wah'kon-tah Prairie. The purpose of the captive population is to 
provide stock for reintroductions in ``suitable areas'' within the 
species' historical range, in accordance with recovery action 7.2 of 
the American Burying Beetle Recovery Plan (USFWS 1991, p. 52).
    We have not designated critical habitat for the ABB. Section 
10(j)(2)(C)(ii) of the Act states that critical habitat shall not be 
designated for any experimental population that is determined to be 
nonessential. Accordingly, we cannot designate critical habitat in 
areas where we establish an NEP.
    We will not change the NEP designation to ``essential 
experimental,'' ``threatened,'' or ``endangered'' within the NEP area 
without a public rulemaking. Additionally, we will not designate 
critical habitat for this NEP, as provided by 16 U.S.C. 
1539(j)(2)(C)(ii).

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 (4.8 km) (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, 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). 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

[[Page 16714]]

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 reintroduction site, Wah'kon-tah Prairie, is a 3,030-acre 
(1,226-hectare) 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 the borders 
of these four counties, 2,885 square miles (7,472 square kilometers 
(km)), is the designated area for the nonessential experimental 
population (NEP). The minimum distance from the reintroduction site to 
outside 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 its 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 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 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 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 counties of eastern 
Kansas, this 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 may seek to amend the NEP boundaries, after 
monitoring the possible new NEP areas. If individuals of this 
population move outside the designated NEP area, we will presume that 
they came from the reintroduced population. We may then amend this 
regulation to enlarge the boundaries of the NEP area to include the 
entire range of the expanded population.

Release Procedures

    Captive-bred beetles from the 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 is 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 (contact the person listed under FOR FURTHER 
INFORMATION CONTACT for copies of this document).

Population Status

    We will 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 will 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. Incidental take of the ABB within the NEP 
area will 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 will 
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 various 
meetings, the Service and cooperators have identified issues and 
concerns associated with the ABB population establishment. The 
population establishment was discussed with

[[Page 16715]]

potentially affected State agencies and private landowners. Affected 
State agencies, landowners, and land managers have either indicated 
support for, or no opposition to, the population establishment, 
provided an NEP is designated and a special rule is promulgated which 
does not prohibit incidental take.
    (d) Monitoring: 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 at least four directions, approximately 0.6 mile (1 km) 
away, for at least three consecutive nights, following a statistically-
based monitoring plan. Monitoring at the release sites and areas within 
approximately 0.6 mile (1 km) of those sites 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 pairs 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.

Summary of Public and Peer Review Comments and Recommendations

    In the proposed rule published on July 22, 2011 (76 FR 43973), we 
requested that all interested parties submit written comments on the 
proposal by August 22, 2011. We also contacted appropriate Federal and 
State agencies, scientific experts, and other interested parties, and 
invited them to comment on the proposal. A newspaper notice inviting 
general comments was published in the El Dorado Springs (Missouri) 
Star, and an article inviting the same was published in the El Dorado 
Springs (Missouri) Sun. We did not receive any requests for a public 
hearing, but we did hold a public meeting in El Dorado Springs, 
Missouri, on August 11, 2011.
    We reviewed all comments we received from the public and peer 
reviewers for substantive issues and new information regarding the 
creation of an experimental population of American burying beetles in 
southwestern Missouri. All substantive information provided during the 
comment period has either been incorporated into this final 
determination or is addressed below. We received seven written 
comments, including comments from three peer reviewers. Six comments 
supported the proposed NEP listing, including the comments from the 
three peer reviewers. One comment had no substantive issues.

Peer Review

    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited expert opinions from three individuals 
with scientific expertise that included familiarity with the species 
and their reintroduction. We received responses from all three peer 
reviewers from whom we requested comments. All three responses 
supported the 10(j) rule, and brought up no issues to be addressed.

Public Comments

    Comment: The Missouri Department of Conservation (MDC) provided 
recommendations on the post-release monitoring protocol described in 
the proposed rule and in the reintroduction plan. Based on information 
from other ABB reintroduction efforts, MDC commented that a sampling 
radius of 0.6 mile (1 km) would be more likely to capture dispersing 
ABBs than the 1 mile (1.6 km) described in the proposed rule. 
Furthermore, MDC suggested adding four specific sampling directions 
(NW., NE., SE., and SW.) to the four directions described in the 
proposed rule and the reintroduction plan.
    Our response: We will ensure implementation of a statistically-
based post release monitoring, and we have revised the final rule and 
reintroduction plan to reflect that sampling will occur approximately 
0.6 mile (1 km) away from the release site, as recommended by MDC. Our 
ability to conduct monitoring at specific distances and directions 
suggested by MDC is tempered by access to lands off of Wah'kon-tah 
Prairie, the locations of the reintroduction transects, and the number 
of stations necessary for a statistically sound monitoring protocol.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
final rule is not significant and has not reviewed this final rule 
under Executive Order 12866 (E.O. 12866). OMB bases its determination 
on the following four criteria:
    (a) Whether the final 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 final rule will create inconsistencies with other 
Federal agencies' actions.
    (c) Whether the final rule will materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    (d) Whether the final 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 will be affected includes the release areas at 
Wah'kon-tah Prairie and adjacent areas into which ABBs may disperse, 
which over time could include sizable portions of the NEP. Because of 
the regulatory flexibility for Federal agency actions provided by the 
NEP designation and the exemption for

[[Page 16716]]

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.
    This rule will broadly allow 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 is prohibited. Intentional take for 
research or recovery purposes will 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 will not affect the use of lands for these purposes because 
there will 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 will 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) This rule 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 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 will not be affected 
because the 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 NEP designation 
for the ABB will not impose any additional management or protection 
requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the 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 rule will 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 will 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and will 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 rule has significant Federalism effects and have 
determined that a federalism impact summary statement is not required. 
This rule will 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 rule 
with, the affected resource agencies in Missouri. Achieving the 
recovery goals for this species will 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 will not change; and fiscal capacity will 
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 
impact summary statement 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 will not unduly burden the 
judicial system and will 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.

[[Page 16717]]

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR part 
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 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.

References Cited

    A complete list of all references cited in this rule is available 
upon request at the Columbia, Missouri Ecological Services Office (see 
ADDRESSES).

Authors

    The primary authors of this rule are staff members of the Service's 
Columbia, Missouri Ecological Services 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, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    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.


0
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                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Insects
Beetle, American burying.........  Nicrophorus           U.S.A. (eastern      Entire, except       E                       351           NA           NA
                                    americanus.           States south to      where listed as an
                                                          FL, west to SD and   experimental
                                                          TX), eastern         population.
                                                          Canada.
Beetle, American burying.........  Nicrophorus           U.S.A. (eastern      In southwestern      XN                      800           NA     17.85(c)
                                    americanus.           States south to      Missouri, the
                                                          FL, west to SD and   counties of Cedar,
                                                          TX), eastern         St. Clair, Bates,
                                                          Canada.              and Vernon.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
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 exist in Cedar, 
St. Clair, Bates, or Vernon Counties in Missouri, as of the date of 
enacting this regulation. Based on its habitat requirements and 
movement patterns, we do not expect this species to become established 
outside this NEP area.
    (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 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 16718]]

[GRAPHIC] [TIFF OMITTED] TR22MR12.003


    Dated: March 12, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-6779 Filed 3-21-12; 8:45 am]
BILLING CODE 4310-55-P