Endangered and Threatened Wildlife and Plants; Reclassification of the American Burying Beetle From Endangered to Threatened With a Section 4(d) Rule

• Citation: 85 FR 65241
• Record Number: 2020-19810
• Published date: 15 October 2020
• Section: Rules and Regulations
• Court: Fish And Wildlife Service

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Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Rules and Regulations

§ 2500.3 Retirement of Logos.

The agency officially retires the day-

to-day use of all pre-existing logos,

emblems, and other insignia, except the

Days of Service logos, but does not

relinquish the legal rights to these logos.

§ 2500.4 Authority to affix logos.

Restrictions on the use of AmeriCorps

logos are found in 45 CFR 2540.500

through 2540.560.

Dated: September 4, 2020.

Helen Serassio,

Acting General Counsel.

[FR Doc. 2020–20318 Filed 10–14–20; 8:45 am]

BILLING CODE 6050–28–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS–R2–ES–2018–0029;

FF09E22000 FXES11130900000 201]

RIN 1018–BD46

Endangered and Threatened Wildlife

and Plants; Reclassification of the

American Burying Beetle From

Endangered to Threatened With a

Section 4(d) Rule

AGENCY

: Fish and Wildlife Service,

Interior.

ACTION

: Final rule.

SUMMARY

: We, the U.S. Fish and

Wildlife Service (Service), reclassify

(downlist) the American burying beetle

(Nicrophorus americanus) from

endangered to threatened on the Federal

List of Endangered and Threatened

Wildlife. This determination is based on

a thorough review of the best available

scientific and commercial information,

which indicates that the threats to this

species have been reduced to the point

that it is not currently in danger of

extinction throughout all or a significant

portion of its range, but that it is likely

to become so within the foreseeable

future. We also finalize a rule under the

authority of section 4(d) of the Act that

provides measures that are necessary

and advisable to provide for the

conservation of the American burying

beetle.

DATES

: This rule is effective November

16, 2020.

ADDRESSES

: This final rule and

supporting documents are available on

the internet at http://

www.regulations.gov under Docket No.

FWS–R2–ES–2018–0029. Comments

and materials we received, as well as

supporting documentation we used in

preparing this rule, are available for

public inspection at http://

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT

:

Jonna Polk, Field Supervisor, U.S. Fish

and Wildlife Service, Oklahoma

Ecological Services Field Office, 9014

East 21st St., Tulsa, OK 74129;

telephone 918–382–4500. Persons who

use a telecommunications device for the

deaf (TDD) may call the Federal Relay

Service at 800–877–8339.

SUPPLEMENTARY INFORMATION

:

Executive Summary

Why we need to publish a rule. Under

the Act a species may warrant

reclassification from endangered to

threatened if it no longer meets the

definition of endangered (in danger of

extinction). The American burying

beetle is listed as endangered, and we

are finalizing a reclassification

(downlisting) of the American burying

beetle as threatened because we have

determined it is not currently in danger

of extinction. Downlisting a species as

a threatened species can only be made

by issuing a rulemaking.

What this document does. This rule

reclassifies the American burying beetle

from endangered to threatened (i.e.,

‘‘downlists’’ the species), with a rule

issued under section 4(d) of the Act,

based on the species’ current status.

The basis for our action. Under the

Act, we may determine that a species is

an endangered or threatened species

because of any of five factors: (A) The

present or threatened destruction,

modification, or curtailment of its

habitat or range; (B) overutilization for

commercial, recreational, scientific, or

educational purposes; (C) disease or

predation; (D) the inadequacy of

existing regulatory mechanisms; or (E)

other natural or manmade factors

affecting its continued existence. We

may reclassify a species if the best

available commercial and scientific data

indicate the species no longer meets the

applicable definition in the Act.

We have determined that the

American burying beetle is no longer in

danger of extinction and, therefore, does

not meet the definition of an

endangered species, but is still affected

by current and ongoing threats to the

extent that the species meets the

definition of a threatened species under

the Act. Increasing temperatures due to

changing climate are projected to impact

American burying beetle populations

within the foreseeable future. Likewise,

we project future impacts to American

burying beetle populations due to land

use change associated with urbanization

and agricultural activities.

We are promulgating a section 4(d)

rule. We are issuing a section 4(d) rule

to provide measures necessary and

advisable to provide for the

conservation of the American burying

beetle. The 4(d) rule prohibits all

intentional take of the American

burying beetle and specifically tailor the

incidental take prohibitions and

exceptions under section 9(a)(1) of the

Act as a means to provide protective

mechanisms to State and Federal

partners, as well as private landowners,

so that they may continue with certain

activities that are not anticipated to

cause direct injury or mortality to

American burying beetles and that will

facilitate the conservation and recovery

of the species.

Previous Federal Actions

Please refer to the proposed rule to

reclassify American burying beetle from

endangered to threatened (84 FR 19013;

May 3, 2019) for a detailed description

of previous Federal actions concerning

this species.

Summary of Changes From the

Proposed Rule

We have made two changes from the

proposed rule in this final rule: One of

the changes affects the rule language,

and one affects only the preamble.

(1) Under the proposed 4(d) rule

provisions, we defined ‘‘conservation

lands’’ where incidental take would

continue to be prohibited within the

Southern Plains populations. The

proposed 4(d) rule included The Nature

Conservancy Tall Grass Prairie Preserve

as ‘‘conservation lands’’ where

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incidental take would be prohibited. In

this final rule, we have removed The

Nature Conservancy Tall Grass Prairie

Preserve from this definition of

conservation lands and, therefore,

removed the prohibition on incidental

take in this area, because The Nature

Conservancy has developed a

Memorandum of Understanding to

document their commitment to provide

ongoing management, research, and

monitoring at that site that makes the

prohibitions in the proposed rule

unnecessary.

(2) In Center for Biological Diversity v.

Everson, 2020 WL 437289 (D.D.C. Jan.

28, 2020) (Center for Biological Diversity

or CBD)), the court vacated part of the

2014 Significant Portion of its Range

Policy. Following the court’s holding in

CBD, we have now revised the

significant portion of the range analysis

in this final rule. We evaluated the

status of the species in three potentially

significant portions of the species’ range

and found that none meet the definition

of endangered. This updated analysis

did not result in any changes to the

proposed rule but provides support for

the determination.

Supporting Documents

A species status assessment (SSA)

team prepared an SSA report for the

American burying beetle. The SSA team

was composed of Service biologists, in

consultation with other species experts.

The SSA report represents a

compilation of the best scientific and

commercial data available concerning

the status of the species, including the

impacts of past, present, and future

factors (both negative and beneficial)

affecting the species. In accordance with

our joint policy on peer review

published in the Federal Register on

July 1, 1994 (59 FR 34270), and our

August 22, 2016, memorandum

updating and clarifying the role of peer

review of listing actions under the Act,

we sought peer review of the SSA

report. The Service sent the SSA report

to 12 independent peer reviewers and

received 8 responses. The purpose of

peer review is to ensure that our listing

determinations and 4(d) rules are based

on scientifically sound data,

assumptions, and analyses. The peer

reviewers have expertise in the biology,

habitat, and threats to the species. The

draft SSA report was also sent to species

experts and all Tribes and States within

the current range for a partner review.

We received review from six States and

two species experts.

I. Final Listing Determination

Background

The American burying beetle

(Nicrophorus americanus) is the largest

silphid (carrion beetle) in North

America, reaching 1.0 to 1.8 inches (25

to 35 centimeters) in length (Anderson

1982, p. 362; Backlund and Marrone

1997, p. 53). During the daytime,

American burying beetles are believed

to bury themselves under vegetation

litter or into soil (Jurzenski 2012, p. 76).

At night, American burying beetles are

active from late spring through early

fall, occupy a variety of habitats and

bury themselves in the soil to hibernate

for the duration of the winter. American

burying beetles emerge from their

winter inactive period when ambient

nighttime air temperatures consistently

exceed 59 degrees Fahrenheit (°F) (15

degrees Celsius (°C)) (Kozol et al. 1988,

p. 11; Kozol 1990b, p. 4; Bedick et al.

1999, p. 179; Service 2008, p. 13).

Reproduction occurs in the spring to

early summer after this emergence. New

adult beetles or offspring (called

tenerals), usually emerge in summer,

over-winter (hibernate) as adults, and

comprise the breeding population the

following summer (Kozol et al. 1988, p.

2; Amaral et al. 2005, pp. 30, 35).

The American burying beetle is native

to at least 35 States in the United States,

covering most of temperate eastern

North America, and the southern

borders of three eastern Canadian

provinces. The species is believed to be

extirpated from all but nine States in the

United States and is likely extirpated

from Canada. However, the current

range is much larger than originally

thought when the species was listed in

1989. Based on the last 15 years of

surveys, the American burying beetle

occurs in portions of Arkansas, Kansas,

Oklahoma, Nebraska, South Dakota, and

Texas; on Block Island off the coast of

Rhode Island; and in reintroduced

populations on Nantucket Island off the

coast of Massachusetts and in southwest

Missouri, where a nonessential

experimental population (NEP) was

established in 2012 under section 10(j)

of the Act (77 FR 16712; March 22,

2012). Reintroduction efforts are also

under way in Ohio, and survival of

reintroduced American burying beetles

into the next year (successful

overwintering) was documented in

2019. American burying beetles have

not been documented in Texas since

2008.

Please refer to the May 3, 2019,

proposed rule to reclassify American

burying beetle from endangered to

threatened (84 FR 19013) and the SSA

report for a full summary of species

information. Both are available at http://

www.regulations.gov under Docket No.

FWS–R2–ES–2018–0029.

Recovery Criteria

Section 4(f) of the Act directs us to

develop and implement recovery plans

for the conservation and survival of

endangered and threatened species

unless we determine that such a plan

will not promote the conservation of the

species. Recovery plans must, to the

maximum extent practicable, include

‘‘objective, measurable criteria which,

when met, would result in a

determination, in accordance with the

provisions [of section 4 of the Act], that

the species be removed from the list.’’

Recovery plans provide a roadmap for

us and our partners on methods of

enhancing conservation and minimizing

threats to listed species, as well as

measurable criteria against which to

evaluate progress towards recovery and

assess the species’ likely future

condition. However, they are not

regulatory documents and do not

substitute for the determinations and

promulgation of regulations required

under section 4(a)(1) of the Act. A

decision to revise the status of a species,

or to delist a species is ultimately based

on an analysis of the best scientific and

commercial data available to determine

whether a species is no longer an

endangered species or a threatened

species, regardless of whether that

information differs from the recovery

plan.

There are many paths to

accomplishing recovery of a species,

and recovery may be achieved without

all of the criteria in a recovery plan

being fully met. For example, one or

more criteria may be exceeded while

other criteria may not yet be

accomplished. In that instance, we may

determine that the threats are

minimized sufficiently and that the

species is robust enough that it no

longer meets the definition of an

endangered species or a threatened

species. In other cases, we may discover

new recovery opportunities after having

finalized the recovery plan. Parties

seeking to conserve the species may use

these opportunities instead of methods

identified in the recovery plan.

Likewise, we may learn new

information about the species after we

finalize the recovery plan. The new

information may change the extent to

which existing criteria are appropriate

for identifying recovery of the species.

The recovery of a species is a dynamic

process requiring adaptive management

that may, or may not, follow all of the

guidance provided in a recovery plan.

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The American burying beetle recovery

plan was approved by the Service on

September 27, 1991 (Service 1991).

Delisting criteria were not established in

the recovery plan. However, for

reclassification from endangered to

threatened, the recovery plan

established a criterion of at least three

self-sustaining populations of at least

500 individuals in each of four broad

geographical areas of the species’

historical range: the Northeast, the

Southeast, the Midwest, and the Great

Lakes States. The threshold of 500

individuals was developed based on

limited empirical data from Block Island

(Service 1991, p. 8) and principles from

the conservation biology literature

(Franklin 1980; Soule 1980; Salwasser et

al. 1982) that suggested the effective

population number of 500 was the

minimum threshold size for a biological

population to maintain long-term

adaptability.

We now understand that a population

estimate of 500 adults is probably an

inadequate metric for a self-sustaining

population of this species because

minimum viable population for most

species would be considerably larger

than 500 individuals. Minimum viable

population thresholds vary by species,

and additional empirical data and

analysis for American burying beetles

indicate that a larger threshold may be

more appropriate for this species (Reed

et al. 2003; Amaral et al. 2005; p. 36;

Brook et al. 2006; Flather et al. 2011;

Wolf et al. 2015). However, new

population targets for the species have

not been developed and would be

different for each population due to

differences in habitat and stressors

acting on populations. Likewise,

conservation of populations in the four

broad geographical areas used in the

recovery plan may not appropriately

address future threats given our current

understanding of the species’ range and

risks to populations (see sections 2.5.4

and 5.4 in the SSA Report; Service

2019). For example, the authors of the

recovery plan were not aware of future

climate-related risks and current

projections indicating that southern

portions of the historical range would

not be suitable for future recovery (see

section 5.4 in the SSA Report; Service

2019). Thus, the recovery plan

information is considered to be out of

date (Service 2008), and the SSA Report

(Service 2019) provides an updated,

revised analysis of current and future

risks based on our current

understanding of the species’ needs.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533)

and its implementing regulations (50

CFR part 424) set forth the procedures

for determining whether a species is an

‘‘endangered species’’ or a ‘‘threatened

species.’’ The Act defines an

endangered species as a species that is

‘‘in danger of extinction throughout all

or a significant portion of its range,’’ and

a threatened species as a species that is

‘‘likely to become an endangered

species within the foreseeable future

throughout all or a significant portion of

its range.’’ The Act requires that we

determine whether any species is an

‘‘endangered species’’ or a ‘‘threatened

species’’ because of any of the following

factors:

(A) The present or threatened

destruction, modification, or

curtailment of its habitat or range;

(B) Overutilization for commercial,

recreational, scientific, or educational

purposes;

(C) Disease or predation;

(D) The inadequacy of existing

regulatory mechanisms; or

(E) Other natural or manmade factors

affecting its continued existence.

These factors represent broad

categories of natural or human-caused

actions or conditions that could have an

effect on a species’ continued existence.

In evaluating these actions and

conditions, we look for those that may

have a negative effect on individuals of

the species, as well as other actions or

conditions that may ameliorate any

negative effects or may have positive

effects. We consider these same five

factors in reclassifying a species from

endangered to threatened (50 CFR

424.11(c) through (e)).

We use the term ‘‘threat’’ to refer in

general to actions or conditions that are

known to or are reasonably likely to

negatively affect individuals of a

species. The term ‘‘threat’’ includes

actions or conditions that have a direct

impact on individuals, as well as those

that affect individuals through alteration

of their habitat or required resources.

The term ‘‘threat’’ may encompass—

either together or separately—the source

of the action or condition or the action

or condition itself.

However, the mere identification of

any threat(s) does not necessarily mean

that the species meets the statutory

definition of an ‘‘endangered species’’ or

a ‘‘threatened species.’’ In determining

whether a species meets either

definition, we must evaluate all

identified threats by considering the

species’ expected response, and the

effects of the threats—in light of those

actions and conditions that will

ameliorate the threats—on an

individual, population, and species

level. We evaluate each threat and its

expected effects on the species, then

analyze the cumulative effect of all of

the threats on the species as a whole.

We also consider the cumulative effect

of the threats in light of those actions

and conditions that will have positive

effects on the species, such as any

existing regulatory mechanisms or

conservation efforts. The Secretary

determines whether the species meets

the definition of an ‘‘endangered

species’’ or a ‘‘threatened species’’ only

after conducting this cumulative

analysis and describing the expected

effect on the species now and in the

foreseeable future.

The Act does not define the term

‘‘foreseeable future,’’ which appears in

the statutory definition of ‘‘threatened

species.’’ Our implementing regulations

at 50 CFR 424.11(d) set forth a

framework for evaluating the foreseeable

future on a case-by-case basis. The term

foreseeable future extends only so far

into the future as the Services can

reasonably determine that both the

future threats and the species’ responses

to those threats are likely. In other

words, the foreseeable future is the

period of time in which we can make

reliable predictions. ‘‘Reliable’’ does not

mean ‘‘certain’’; it means sufficient to

provide a reasonable degree of

confidence in the prediction. Thus, a

prediction is reliable if it is reasonable

to depend on it when making decisions.

It is not always possible or necessary

to define foreseeable future as a

particular number of years. Analysis of

the foreseeable future uses the best

scientific and commercial data available

and should consider the timeframes

applicable to the relevant threats and to

the species’ likely responses to those

threats in view of its life-history

characteristics. Data that are typically

relevant to assessing the species’

biological response include species-

specific factors such as lifespan,

reproductive rates or productivity,

certain behaviors, and other

demographic factors.

Our proposed rule described

‘‘foreseeable future’’ as the extent to

which we can reasonably rely on

predictions about the future in making

determinations about the future

conservation status of the species. The

Service since codified its understanding

of foreseeable future in 50 CFR

424.11(d) (84 FR 45020). In those

regulations, we explain the term

‘‘foreseeable future’’ extends only so far

into the future as the Service can

reasonably determine that both the

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future threats and the species’ responses

to those threats are likely. The Service

will describe the foreseeable future on a

case-by-case basis, using the best

available data and taking into account

considerations such as the species’ life-

history characteristics, threat-projection

timeframes, and environmental

variability. The Service need not

identify the foreseeable future in terms

of a specific period of time. These

regulations did not significantly modify

the Service’s interpretation; rather they

codified a framework that sets forth how

the Service will determine what

constitutes the foreseeable future based

on our long-standing practice.

Accordingly, though regulations do not

apply to the final rule for the American

burying beetle because it was proposed

prior to their effective date, they do not

change the Service’s assessment of

foreseeable future for the American

burying beetle as contained in our

proposed rule and in this final rule.

Analytical Framework

The SSA report documents the results

of our comprehensive biological review

of the best scientific and commercial

data regarding the status of the species,

including an assessment of the potential

threats to the species. The SSA report

does not represent a decision by the

Service on whether the species should

be downlisted to threatened under the

Act. It does, however, provide the

scientific basis that informs our

regulatory decisions, which involve the

further application of standards within

the Act and its implementing

regulations and policies. The following

is a summary of the key results and

conclusions from the SSA report; the

full SSA report can be found at http://

www.regulations.gov under Docket No.

FWS–R2–ES–2018–0029.

To assess American burying beetle

viability, we used the three conservation

biology principles of resiliency,

redundancy, and representation (Shaffer

and Stein 2000, pp. 306–310). Briefly,

resiliency supports the ability of the

species to withstand environmental and

demographic stochasticity (for example,

wet or dry, warm or cold years);

redundancy supports the ability of the

species to withstand catastrophic events

(for example, droughts, large pollution

events); and representation supports the

ability of the species to adapt over time

to long-term changes in the environment

(for example, climate changes). In

general, the more resilient and

redundant a species is and the more

representation it has, the more likely it

is to sustain populations over time, even

under changing environmental

conditions. Using these principles, we

identified the species’ ecological

requirements for survival and

reproduction at the individual,

population, and species levels, and

described the beneficial and risk factors

influencing the species’ viability.

The SSA process can be categorized

into three sequential stages. During the

first stage, we evaluated individual

species’ life-history needs. The next

stage involved an assessment of the

historical and current condition of the

species’ demographics and habitat

characteristics, including an

explanation of how the species arrived

at its current condition. The final stage

of the SSA involved making predictions

about the species’ responses to positive

and negative environmental and

anthropogenic influences. Throughout

all of these stages, we used the best

available information to characterize

viability as the ability of a species to

sustain populations in the wild over

time. We use this information to inform

our regulatory decision.

Summary of Biological Status and

Threats

In this section, we review the

biological condition of the species and

its resources, and the threats that

influence the species’ current and future

condition, in order to assess the species’

overall viability and the risks to that

viability.

Summary of Species Needs

Adults and larvae depend on dead

animals (carrion), e.g., cotton rats,

pheasants, prairie dogs, ground

squirrels, etc., for food and moisture.

Adults also require adequate soil

moisture, appropriate soil temperatures,

and appropriate soil particle size to

allow them to bury themselves and/or a

carcass (see chapter 2 of the SSA Report;

Service 2019). Adequate soil moisture

levels appear to be critical for American

burying beetles, and they show a strong

preference for moist, sandy loam soil

with organic matter (Hoback 2008,

unpublished), but a specific threshold

for soil moisture is unknown. When the

nighttime ambient air temperature is

consistently below 59 °F (15 °C),

American burying beetles bury into the

soil and become inactive (Service 1991,

p. 11; Scott and Traniello 1989, pp. 34–

35; Kozol 1995, p. 11, Bedick et al. 2006,

p. 28).

For reproduction, American burying

beetles need appropriately sized carrion,

access to mates, and suitable soils. The

optimum weight of carcasses is 3.5 to

7.0 ounces (80 to 200 g) (Kozol 1989, pp.

12–13, 25, 36–39, figures 1 and 2; Kozol

1990a, pp. 7–8). Once an appropriate

carcass has been found for reproduction,

American burying beetles may compete

amongst themselves or with other

species for control of the carcass until

usually only a single dominant male

and female burying beetle remain

(Springett 1967, p. 56; Wilson and

Fudge 1984, entire; Scott and Traniello

1989, p. 34). Once the pair wins the

battle for the rights to the carcass, the

successful couple buries the carrion,

copulates, and constructs an

underground cavity called a brood

chamber around the carcass, although

either sex is capable of burying a carcass

alone (Kozol et al. 1988, p. 170).

Once underground, both parents strip

the carcass of fur or feathers, roll the

carcass into a ball and treat it with

secretions that form a brood chamber

and retard growth of mold and bacteria.

The female American burying beetle

lays eggs in the soil adjacent to the

carcass (Pukowski 1933, p. 555; Milne

and Milne 1976, p. 84; Scott and

Traniello 1990, p. 274) where the eggs

incubate for about 6 days before

hatching into larvae that require

parental care. Higher ambient

temperatures increase egg development

rates and reduce incubation times

(Damos and Savopoulou-Soultani 2012).

Females reproducing on smaller

carcasses produce fewer eggs than

females reproducing on larger carcasses

(Billman et al. 2014a, entire; 2014b,

entire). American burying beetles will

also cull their brood through

cannibalism to increase size and

survival of larvae in response to a less

than adequately sized carcass (Billman

et al. 2014a, entire; 2014b, entire).

Summary of Current Condition of the

Species

For the purposes of this analysis we

organized the current range of the

American burying beetle into analysis

areas that follow broad geographic and

ecological patterns: Northern Plains

analysis areas, Southern Plains analysis

areas, and the New England Analysis

Area (see Figure 1). This is the scale of

‘‘populations’’ referred to in the analysis

of risk factors potentially affecting the

species (chapters 4 and 5 in the SSA

Report; Service 2019).

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Because the American burying beetle

completes its life cycle in one year, each

year’s population levels are largely

dependent on the reproductive success

of the previous year and reproductive

conditions in the current year.

Fluctuations are thought to be a

function of the abundance of the carrion

resources on which the species

depends. Therefore, population

numbers may be cyclic (due to weather,

disease, etc.), with high abundance in

one year, followed by a decline in

numbers the succeeding year. Because

survey information can fluctuate over

time and survey effort is not equal for

all analysis areas, the SSA Report

(Service 2019) uses a combination of

habitat and population factors to

evaluate the current condition of

populations. For each analysis area, a

current condition category is assigned

based on relative abundance, population

distribution, known population trends,

availability of suitable habitat, acres of

protected areas, and the level of

management in protected areas (see

section 4.7.1 in the SSA Report; Service

2019). The current condition categories

are qualitative estimates of the current

status of the species.

Habitat Factors

Large quantities of potentially suitable

habitat are available in the Southern

Plains and the Northern Plains analysis

areas, though the New England Analysis

Area is much smaller (See Table 1).

Most analysis areas contain large areas

of managed protected lands as well

(Table 1). The New England Analysis

Area has a relatively small amount of

protected lands due to the limited area

of these islands, but a relatively high

percentage of conservation lands (Block,

41% and Nantucket, 33%).

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T

ABLE

1—A

CRES OF

S

UITABLE

H

ABITAT AND

P

ROTECTED

L

ANDS

W

ITHIN

E

ACH

A

NALYSIS

A

REA

.

Analysis area Suitable

habitat (acres)

Managed

protected

lands (acres)

a

Multi-purpose

protected

lands (acres)

b

Total acres in

each Analysis

Area

Red River ......................................................................................................... 2,678,406 123,779 23,997 3,251,894

Arkansas River ................................................................................................ 14,470,603 1,486,002 933,608 17,753,431

Flint Hills .......................................................................................................... 2,758,610 133,196 52,114 3,706,908

Loess Canyons ................................................................................................ 1,686,948 15,342 3,843 2,758,610

Sandhills .......................................................................................................... 8,633,685 93,983 24,633 10,819,170

Niobrara ........................................................................................................... 2,961,469 58,918 33,582 4,108,903

Nantucket

c

....................................................................................................... 23,311 11,934

c

NA 36,321

Block Island

c

................................................................................................... 2,554 2,507

c

NA 6,111

a

Managed lands incorporate active management to maintain or improve wildlife habitat and are assumed to protect or improve American bury-

ing beetle habitat.

b

Multi-purpose protected lands are assumed to include some management for wildlife that would protect or improve American burying beetle

habitat.

c

Note that Nantucket and Block Island together form the New England Analysis Area.

d

Protected lands on Nantucket and Block Island are mostly private and protected by easements. The active management is primarily moni-

toring and provisioning of carcasses.

Population Factors

Southern Plains Analysis Areas

Between 1993 and 1996, the

southeastern portion of the Red River

Analysis Area supported localized

populations with relatively high catch

rates of American burying beetles

(Creighton et al. 2009, p. 40), but catch

rates in these areas have declined since

the early 2000s. No positive surveys

have been documented in the Arkansas

or Texas portions of the Red River

Analysis Area since 2008, and only

eight positive surveys are known in the

analysis area (all in Oklahoma) since

2008. Within the Red River Analysis

Area, the Hugo Wildlife Management

Area in Oklahoma is the only protected

area currently known to support

American burying beetles, with five

captured in 2016. Populations in Texas

may be extirpated as the last

documented record of the species

occurred in 2008.

Both the Arkansas River Analysis

Area and the Flint Hills Analysis Area

have large areas of suitable habitat,

several large protected areas, and a

relatively wide distribution of American

burying beetles within the analysis

areas.

Northern Plains Analysis Areas

The Loess Canyons Analysis Area, the

Sandhills Analysis Area, and the

Niobrara River Analysis Area all have

large areas of native habitat and

relatively wide distribution of American

burying beetles within the analysis

areas. In the Loess Canyons Analysis

Area, expansion of eastern redcedar

(Juniperus virginiana) due to a lack of

fire or mechanical control has reduced

the habitat quality in much of this

analysis area, this population is

sensitive to droughts, and the analysis

area is relatively small and isolated from

other populations.

New England Analysis Area

This area is small relative to other

analysis areas, but the level of

protection and active management are

significantly greater than the other

analysis areas. On Block Island, the

American burying beetle population is

relatively stable with population

estimates ranging from 200 to 1,000.

This population has been monitored

annually since 1991. Carrion

provisioning has been conducted on

Block Island since 1993. On Nantucket

Island, the reintroduced population

does not appear to be self-sustaining

and requires human assistance for long-

term maintenance (Mckenna-Foster et

al. 2016, entire). The current resiliency

of the analysis area is considered

moderate due to relatively good

distribution, and fair ratios of positive to

negative surveys, although the

populations on both islands are highly

dependent on active management.

Summary of current overall viability

Resiliency ranged from moderate to

high in all analysis areas, with the

exception of the Red River Analysis

Area where resiliency is considered

low. Overall, representation is

considered moderate. The current

genetic diversity appears to be relatively

high, but the ecological diversity has

been reduced with the loss of about 90

percent of the historical range. The

current known range includes

populations from northern and southern

areas and eastern and western areas of

the historical American burying beetle

range, although representation from

eastern areas is limited to the New

England island populations and the

genetics represented from the Block

Island population. Multiple populations

within the analysis areas provide

redundancy that reduces the risk of any

catastrophic events.

Threats

The American Burying Beetle

Recovery Plan (Service 1991) and the 5-

year status review of the species

(Service 2008) identify the following

factors as threats or potential threats to

American burying beetles: direct habitat

loss and alteration, increase in

competition for carrion resources,

decrease in abundance of prey, loss of

genetic diversity in isolated

populations, disease/pathogens,

dichloro-diphenyl-trichloroethane

(commonly known as DDT), habitat

fragmentation due to agricultural and

grazing practices that lead to changes in

vertebrate composition or density, and

invasive species. DDT and some other

threats identified in the recovery plan

and 5-year status review are either no

longer a threat or pose less of a threat

to the species.

Overutilization (Factor B) for any

purpose was not identified as a threat to

the species at the time of listing in 1989,

and it is not considered a threat to the

species’ continued existence today.

While disease and predation (Factor C)

may kill or injure individual American

burying beetles, they are not known to

result in population-level impacts.

Further information regarding disease

and predation can be found in the SSA

Report (Service 2019).

Populations in the New England and

Northern Plains Analysis areas are

expected to experience future threats

from land use change, and all

populations are expected to experience

future threats from a changing climate

over varying time periods. Existing

regulatory mechanisms (Factor D), such

as regulations for species protections

implemented by the States, and

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implementation of the Sikes Act (16

U.S.C. 670a–670f, as amended) by the

Department of Defense (DoD) through

Integrated Natural Resources

Management Plans (INRMPs), vary by

region and specific location, but

generally do not fully address the

numerous threats that the American

burying beetle faces across its range,

particularly those future threats such as

land use change and climate change.

However, incorporation of INRMPs on

the DoD installations currently provide

management and conservation benefit to

American burying beetles occurring in

those areas.

The American burying beetle declined

over much of its historical range while

eight species in the same genus are still

relatively common rangewide (Sikes

and Raithel 2002, p. 104). Anecdotal

evidence indicates that the reduction of

appropriate carrion resources is a

primary mechanism of population

decline for the American burying beetle.

This hypothesis fits the temporal and

geographical pattern of the

disappearance of American burying

beetles from 90 percent of their

historical range, and may explain why

American burying beetles declined

while related species that do not rely on

the same carrion resources did not

similarly decline (Sikes and Raithel

2002, p. 104). The availability of

appropriately sized carrion may explain

current distributions of the American

burying beetle and the presence or

absence of American burying beetles in

most of the existing analysis areas. For

example, the American burying beetle

population on Nantucket Island was

established with provisioned carcasses,

but is projected to be extirpated without

continued provisioning of appropriately

sized carcasses (Mckenna-Foster et al.

2016, entire). American burying beetles

need carcasses of 80 to 200 grams, and

areas that can support the species must

have potential carrion sources within

this size range. The abundance of

potential carrion species and

competition for the carcasses can affect

availability for American burying

beetles.

Risks such as conversion to cropland

and wind energy development are

greater in portions of the Northern

Plains analysis areas, while risks

associated with grazing, silviculture,

and oil and gas development are more

common in the Southern Plains analysis

areas. All remaining populations have

some risks associated with areas of

urban or suburban development,

particularly in the New England

Analysis Area, but most current

American burying beetle populations

are in rural areas and have potential

risks associated with habitat loss due to

agricultural land uses. All habitat

alterations also have potential to affect

carrion populations, competing

scavenger populations, and carrion

availability. Risks associated with the

effects of changing climate, including

increasing temperatures, are now the

most significant threat for most analysis

areas.

Two scenarios in the SSA Report

(Service 2019) explore potential future

land use changes to help characterize

the likely potential for impacts to

suitable habitat for the American

burying beetle. The two land use

scenarios in the SSA Report (Service

2019) were evaluated independently

and then later evaluated in combination

with two separate climate change

scenarios.

The large areas of known and

potential habitat in the Southern Plains

buffer the effects of most land use

changes. Urban development and

conversion to agricultural lands are not

considered a threat to the species in the

Southern Plains analysis areas because

the projected loss of habitat is unlikely

to affect the viability of the species in

these areas (Service 2019). The

projected combined permanent loss of

suitable habitat from all sources for the

Southern Plains analysis areas is 1.2%

or 246,293 acres from the existing

19,995,088 acres (Service 2019). The

combined impacts of urban expansion

and agriculture (primarily conversion to

cropland) are expected to affect 5–15%

of the suitable habitat in the Northern

Plains, and redcedar expansion in the

Loess Canyon Analysis Area is expected

to result in up to an additional 30%

habitat loss (Service 2019). The

projections in our SSA Report (Service

2019) indicate that future representation

and redundancy are both reduced with

potential losses of habitat in New

England, Loess Canyons, and the

reintroduction site in Missouri. The

potential loss of the Loess Canyons

population is due to land use changes,

including redcedar expansion, and the

New England populations and Missouri

reintroduction could be lost if active

management and habitat protection are

not continued. The combined effects of

land use and future changes in climate

are likely to impact the resiliency of

most populations and the overall

viability of the species.

Recent development and potential

expansion of wind energy projects could

also add to impacts from other land use

changes. Potential land use impacts

related to an expanding wind industry

in the Northern Plains were not fully

evaluated in the SSA Report (Service

2019) due to limited information, so

additional analysis is recommended to

improve the reliability of land use

projections. The construction of wind

turbines, roads, and powerlines has

direct permanent habitat impacts and

fragments the remaining habitat. The

operation of wind turbines also has

potential for direct take through

American burying beetle collisions with

the blades. However, future land use

effects related to wind power were not

factored into land use scenarios because

we did not have estimates of future

development or total areas that may be

affected by wind projects, and no

studies have evaluated the effects of

wind projects on American burying

beetles. The most significant threat to

the American burying beetle is changes

in climate. This threat affects the

southern populations more than those

in northern locations due to the

southern population areas already

experiencing temperatures near the

species critical thermal tolerances.

Therefore, changes in climate within the

foreseeable future is an existential risk

only to those populations in the

southern portion of the species range.

Here we present a summary of climate-

related risks; additional information is

available in the SSA Report (Service

2019). The SSA Report’s chapter 3

summarizes general climate risks,

chapter 4 includes current risks, and

chapter 5 covers future risks (Service

2019).

Most considerations of climate change

in Endangered Species Act classification

decisions hinge upon whether climate

change will manifest in changing habitat

conditions and how the species is likely

to respond to these changes in the

future. Therefore, a key consideration

for classification decisions where

climate change is a potential stressor is

how we interpret ‘‘foreseeable future’’ in

the definition of a threatened species

under the Act.

The Intergovernmental Panel on

Climate Change (IPCC) adopted four

possible Representative Concentration

Pathways (RCP) scenarios (2.6, 4.5, 6,

and 8.5) to capture the possible ranges

of climate change within the next

century (Hartmann et al. 2013; Moss et

al. 2008). In our analysis of potential

climate change impacts to the American

burying beetle, we used two scenarios,

RCP 4.5 and 8.5, over different blocks of

time through the end of this century

(years 2010–2039, 2040–2069, and

2070–2099 time periods). For the

purpose of this document, we define

those time periods as: ‘early century

time period’ (2010–2039), ‘mid-century

time period’ (2040–2069), and ‘late

century time period’ (2070–2099).

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We use projections from two RCPs

(4.5 and 8.5) to account for uncertainty

regarding future atmospheric

greenhouse gas concentrations. RCP 4.5

is at the low end of the intermediate

range of conditions projected while RCP

8.5 is the high end of IPCC projections

of atmospheric conditions. By using

both a very high and low emissions

scenarios in our projections, we

bracketed the likely possibilities for

climate change in the future. For ease of

reference, we refer to these as

‘‘emissions scenarios,’’ although they

are not based solely on emissions of

greenhouse gases.

Our approach of using the two RCPs

is consistent with the current

widespread scientific practice of

considering projections based on RCP

4.5 and RCP 8.5 so as to consider a

range of projected conditions, rather

than relying on a single scenario. The

U.S. Global Change Research Program

used these two RCPs as the core

scenarios for the Fourth National

Climate Assessment (Hayhoe et al.

2017), and they also are used as the

basis for projections generated via the

U.S. Geological Survey’s National

Climate Change Viewer. Although it is

theoretically possible to achieve the

RCP 2.6 pathway and outcome, we did

not use it as it is not feasible or likely;

numerous scientific papers show that

key assumptions underlying it already

have not been met (including a very

rapid reduction in greenhouse gas

emissions) and other future activities it

relies upon are highly speculative. RCP

4.5 and 8.5 scenarios are more feasible

and widely used for future climate

assessments. Further, we did not use

RCP 6 because the specific datasets used

in our analyses are only available for

RCP 4.5 and 8.5.

The life-history characteristics of

American burying beetles indicate

limited ability to tolerate warmer

temperatures. Adult American burying

beetles use secretions to slow

decomposition of carcasses they bury

for reproduction (see Summary of

Species Requirements, above, for more

information on the role of carcasses in

reproduction). The carcasses are buried

and must support both adults and larvae

for at least 2 to 3 weeks, but high

temperatures reduce the effectiveness of

the secretions and accelerate

decomposition (Jacques et al. 2009, p.

871). While the American burying beetle

has life-history requirements similar to

other carrion beetles, it is the largest

Nicrophorus in North America and

requires a larger carcass to reach its

maximum reproductive potential (i.e., to

raise a maximum number of offspring)

than the other burying beetles (Service

1991, p. 2; Kozol et al. 1988, p. 37;

Trumbo 1992, pp. 294–295). American

burying beetles also have a longer time

period for egg and larval development

than other Nicrophorus carrion beetles,

so the carcass must last longer (at least

12 to 14 days) to provide food and

moisture for adults and support

development of their larvae to the pupa

stage. Temperature-related increases in

decomposition and development of fly

larvae would limit or prohibit

reproductive success for American

burying beetles if carcasses are in a

suitable condition for shorter periods of

time or do not last long enough to

support development of their larvae.

The distribution of American burying

beetles and other burying beetles in the

Nicrophorus genus also indicates a

limited ability to tolerate warmer

temperatures. Nicrophorus abundance

and diversity are higher in cooler

climates. There are 15 Nicrophorus

species in the United States and Canada,

but only 2 are endemic to Central and

South America, and they occur at higher

elevations with cooler temperatures.

Reasons for burying beetles’ lack of

success in warmer climates include

increased competition with flies and

ants (Peck and Anderson 1985 p. 248,

Jiron and Cartin 1981 entire, Trumbo

1990 p. 6–7), as well as increased rates

of carcass decomposition (Jacques et al.

2009. p. 871). Carcass decomposition is

dominated by dipteran species (true

flies), and the diversity of dipteran

species using carcasses increases in

warmer climates. Based on species

distributions and existing climate

conditions, few Nicrophorus species

appear to be capable of maintaining

populations in areas with long-term

average summer mean-maximum

temperatures at or exceeding a 95 °F

threshold (N. carolinus, and possibly N.

pustulatus and N. marginatus), and

there are no Nicrophorus species in

areas with average summer mean-

maximum temperatures exceeding

100 °F.

Under both RCP 4.5 and 8.5 emissions

scenarios, all American burying beetle

populations in the Southern Plains

Analysis Areas would be projected to

have summer mean-maximum

temperatures exceeding 95 °F within the

mid-century time period. Surveys for

American burying beetles in locations

that have experienced a mean-maximum

temperature near or above 95 °F during

summer have shown declining capture

rates the following year. Existing survey

information from Fort Chaffee (Arkansas

River Analysis Area) from 1992 through

2016 supports our conclusion that

mean-maximum temperatures above

95 °F would adversely affect American

burying beetle populations. During the

study, catch rates of American burying

beetles declined from the previous year

every time mean-maximum

temperatures exceeded 95 °F, which

happened a total of six times throughout

the study period. Based on this

information, we anticipate continued

population declines and potential

extirpation if mean-maximum

temperatures exceeding 95 °F became

the average during summer months and

more extreme temperatures occur more

frequently.

Southern populations of American

burying beetles that experience summer

mean-maximum temperatures near 95 °F

are declining. Since 2008, only seven

American burying beetles have been

detected within the Oklahoma portion

of the southernmost analysis area, and

no American burying beetles have been

documented in the Texas or Arkansas

portions. We have no evidence to

suggest that habitat conditions that

might otherwise explain the observed

declines within these areas have

significantly changed. American

burying beetles were last detected in

Texas in 2008 and populations have

declined or are extirpated in large

protected areas like Camp Maxey,

Texas, with no apparent changes in land

use. It appears that temperatures near

this area are at, or past, a threshold that

would support American burying

beetles. This conclusion may be further

supported by the fact that the species

does not exist south of the Red River

area in Texas and Louisiana, where

habitat, soil conditions, and carrion

availability are likely to be similar.

Thus, we conclude that the southern

edge of the species’ range is driven by

the 95 °F temperature threshold.

Temperature has always limited the

American burying beetle’s range to some

degree. Populations at the northern edge

of the range are limited by cool

nighttime temperatures and shorter

growing seasons, whereas populations

at the southern edge of the range are

likely limited by high temperatures. The

western edge of the species’ range has

been limited by reduced precipitation

and soil moisture. Although

temperature and other effects of climate

change are expected to affect American

burying beetles in both the northern and

the southern parts of the range, we

expect that the populations in southern

areas will be affected sooner and to a

greater extent based on projected

temperatures. Under both the RCP 4.5

and 8.5 emissions scenarios, a majority

of the Southern Plains analysis areas are

expected to be near or exceed summer

mean-maximum threshold temperatures

(95 °F) by 2039, with potential to

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extirpate American burying beetles from

most or all Southern Plains populations.

Within the mid-century time period, all

Southern Plains analysis areas are

expected to exceed threshold

temperatures under both the RCP 4.5

and 8.5 emissions scenarios, likely

resulting in extirpation of the American

burying beetle from these areas.

American burying beetles near the

southern and western edge of the range

in Kansas, Oklahoma, and Texas may

already be at or near their limits for

temperature- and moisture-related

tolerances and have a limited ability to

adapt to rapidly changing climate

conditions (see comments on limits

related to life history in chapter 5 of the

SSA Report; Service 2019).

No American burying beetle

populations, including known historical

populations, are located in areas that

experience a long-term summer mean-

maximum air temperature above 95 °F.

The Red River Analysis Area represents

the southernmost and warmest portion

of the American burying beetle’s current

range, with summer mean-maximum air

temperatures of approximately 93 to

94 °F.

Increased air temperatures, changes in

precipitation, increased evaporative

losses, and prolonged droughts may

stress or kill individual American

burying beetles and reduce reproductive

success or reduce the time periods with

suitable conditions for reproduction.

High air temperatures have been

documented to kill or sterilize American

burying beetles at captive colonies when

air conditioning systems have failed,

resulting in colony temperatures at 85 to

90 °F for about 2 weeks (Merz 2016,

pers. comm.). Survey protocols require

traps to be checked in the morning

because American burying beetle

mortalities occur when they are

confined in traps during warm days.

Additional indirect effects of increased

temperatures and reduced precipitation

or soil moisture may be related to

competition. Congeners with higher

temperature or lower moisture

tolerances, like N. carolinus, may be

more competitive and reduce or

eliminate American burying beetles in

southern populations. Species like N.

carolinus can compete for appropriate

carcasses and reproduce under warmer

and drier conditions than American

burying beetles (Abbott and Abbott

2013, p. 2). At Camp Maxey, American

burying beetle and N. orbicollis

numbers declined when N. carolinus

numbers increased rapidly (Abbott and

Abbott 2013, p. 2).

Increasing temperatures resulting

from changes in the climate could

reduce the reproductive success of

American burying beetles by reducing

the portion of the active season with

suitable temperatures for reproduction.

Recent temperature studies with N.

orbicollis indicate even small increases

in temperature can affect reproduction

(Quinby et al. 2020, entire). This type of

research is currently being conducted

with American burying beetles as well,

but those results are not yet available. N.

orbicollis has a similar historical range

to the American burying beetle, is the

most closely related congener, and basic

physiological characteristics, such as

thermal tolerances are highly conserved

within lineages; therefore, we expect the

American burying beetle study is likely

to yield similar results. For N. orbicollis,

the percent of successful broods

declined at temperatures greater than 20

°C (68 °F) and declined rapidly at any

temperatures greater than 25 °C (77 °F).

An increase of only 2 to 3 degrees (from

25 to 27–28 °C, or approximately 77 to

80 °F) stopped most beetles from

attempting to prepare a carcass for

reproduction, and those that did were

not successful in producing any larvae

or tenerals. The warmer temperatures

precluded eggs from hatching or larvae

from developing beyond a very early

stage. The study also demonstrated

effects of temperatures on seasonal

timeframes that would support

reproduction. While more southern

latitudes have a longer active season

and would logically have more time to

reproduce, the temperature restrictions

reduce the potential for reproduction in

Oklahoma. N. orbicollis in the northern

portion of their range (Wisconsin) have

a longer period of suitable climate

conditions for reproduction and could

reproduce more often than N. orbicollis

in the southern portion of their range

(Oklahoma) due to these temperature

restrictions. Projected climate changes

could limit reproduction in the future to

an even greater extent.

American burying beetles are a

nocturnal species; thus, nighttime

temperatures are likely to influence the

behavior and range of this species as

well. Nights above 75 °F were observed

only in the Southern Plains analysis

areas (Red River, Arkansas River, and

Flint Hills analysis areas) with the

exception of 7 nights over a 35-year

period in Colome, South Dakota. The

effects of the increase in nights above

75 °F and potential impacts to

reproductive success may be occurring

in the Red River Analysis Area, where

declines in positive American burying

beetle surveys have been documented

since the early 2000s. A recent study

evaluating reproductive strategies in N.

orbicollis across a temperature gradient

(54 °F, 59 °F, 68°F, 77 °F, and 81°F)

found that temperatures above 68 °F

adversely affected reproductive success

in N. orbicollis (Quinby et al. 2020, p.

8) and may have a similar effect on

American burying beetles. There was no

reproductive success in N. orbicollis at

81 °F (Quinby et al. 2020, p. 5). We do

not have data specifically related to

reproductive success in the Red River

Analysis Area, but the American

burying beetle population declines

coincide with the increase in nighttime

temperatures above 75 °F.

American burying beetles are active

only at night, resulting in a very narrow

window of time for suitable carcasses to

be available for American burying

beetles to find, bury, and prepare for

reproduction. Higher temperatures

cause carrion to decompose more

rapidly, and fly larvae to develop faster

and quickly consume small carcasses.

At high temperatures, exposed carcasses

can be heavily infested with fly larvae

within 2 days, and carcasses may be

suitable and available for only 1 or 2

nights. Thus, we conclude that

increased air temperatures can affect

reproductive success by reducing the

availability of suitable carrion due to

competition with flies and ants.

Risks associated with the effects of

changing climate, including increasing

temperatures, are a significant threat for

some analysis areas in the foreseeable

future. The information in the SSA

Report (see chapter 5; Service 2019)

indicates that projected increases in air

and soil temperatures, as a result of

climate change, are a significant risk to

future viability of the species. Within

the mid-century time period, American

burying beetles in all Southern Plains

analysis areas would likely be

extirpated and would represent a loss of

approximately 59 percent of the current

range of the species. The summer mean-

maximum threshold (95 °F), where we

determine American burying beetle

numbers will decline and not be able to

persist into the future, is predicted to be

exceeded in nearly all portions of the

Southern Plains analysis areas under

either the moderate or high emissions

levels of climate change within the mid-

century time period. Northern Plains

analysis areas are largely unaffected by

moderate emissions levels of climate

change within the mid-century time

period (see chapter 5 of the SSA Report;

Service 2019), but under the RCP 8.5

emissions scenario, temperatures

approach 93 to 95 °F in most of the

Northern Plains analysis areas by the

end of the mid-century time period.

Under the RCP 8.5 emissions scenario,

Southern Plains American burying

beetle populations would be projected

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to have summer mean-maximum

temperatures up to 98 to 100 °F within

the mid-century time period. We

conclude that the American burying

beetle is at risk of extirpation within the

Southern Plains analysis areas under the

two projected climate conditions we

analyzed (RCP 4.5 and 8.5) within the

mid-century time period. The species

would likely continue to be represented

by Northern Plains and New England

populations, but at least three

populations in the Southern Plains and

59 percent of the existing range of the

species are projected to be lost within

the mid-century time period. The effects

of a changing climate, such as

increasing temperatures, changes in

precipitation, increased evaporative

losses, and prolonged droughts, stress

and sometimes kill individual American

burying beetles and, therefore, are likely

to reduce reproductive success. Overall,

we consider these factors threats to

American burying beetle populations,

but the impacts are currently limited to

the southernmost parts of the range.

However, in large portions of the

Northern Plains analysis areas

temperatures are projected to approach

the thermal tolerance limits of the

American burying beetle under the high

emission scenario of RCP 8.5 by the end

of the mid-century time period and

future projections within the mid-

century time frame indicate that

American burying beetles have a high

risk of extirpation throughout the

Southern Plains analysis areas due to

these effects of climate change. Under

the RCP 4.5 scenario, the Southern

Plains Analysis Areas has an increased

risk of extirpation by the end of the mid-

century time period, leaving only the

Northern Plains and New England

populations.

We note that, by using the SSA

framework to guide our analysis of the

scientific information documented in

the SSA report, we have not only

analyzed individual effects on the

species, but we have also analyzed their

potential cumulative effects. We

incorporate the cumulative effects into

our SSA analysis when we characterize

the current and future condition of the

species. To assess the current and future

condition of the species, we undertake

an iterative analysis that encompasses

and incorporates the threats

individually and then accumulates and

evaluates the effects of all the factors

that may be influencing the species,

including threats and conservation

efforts. Because the SSA framework

considers not just the presence of the

factors, but to what degree they

collectively influence risk to the entire

species, our assessment integrates the

cumulative effects of the factors and

replaces a standalone cumulative effects

analysis.

Summary of Comments and

Recommendations

In the proposed rule published on

May 3, 2019 (84 FR 19013), we

requested that all interested parties

submit written comments on the

proposal by July 2, 2019. We also

contacted appropriate Federal and State

agencies, scientific experts and

organizations, and other interested

parties and invited them to comment on

the proposal. Newspaper notices

inviting general public comment were

published in USA Today. We received

a request for a public hearing. We held

a public hearing on September 24, 2019,

in Tulsa, Oklahoma, and reopened the

public comment period from September

9, 2019, to October 9, 2019 (84 FR

47231). All substantive information

provided during comment periods has

either been incorporated directly into

this final determination or addressed

below.

Peer Reviewer Comments

As discussed in Supporting

Documents above, we received

comments from 8 peer reviewers. We

also solicited reviews of the draft SSA

report from all States and Tribes within

the American burying beetle’s current

range and species experts during a

partner review. We reviewed all

comments we received from the peer

reviewers for substantive issues and

new information regarding the

information contained in the SSA

report. The peer reviewers generally

concurred with our methods and

conclusions, and provided additional

information, clarifications, and

suggestions to improve the final SSA

report. Peer reviewer comments are

addressed in the following summary

and were incorporated into the final

SSA report as appropriate. The changes

consisted of clarifications and

corrections to the SSA report, including

typographical edits, revising

descriptions of our analysis, and

expanding some risk information related

to the potential effects of the invasive

redcedar and wind energy expansion.

The reviewers’ comments resulted in

minor changes in the resiliency

assessments for some analysis areas, but

did not substantially change the SSA

report’s information on current and

future status of American burying beetle

populations.

The comments on the SSA report and

proposed rule did not change our

determination that the American

burying beetle meets the definition of a

threatened species under the Act.

Public Comments

We received comments from 75

respondents. These included comments

primarily from individuals,

nongovernmental organizations, and

industries, but also included comments

from five U.S. Senators, two States, and

one Tribe. We reviewed all comments

provided and addressed the substantive

comments. Many comments were not

substantive or relevant to the

downlisting decision, but all comments

are available at http://

www.regulations.gov in Docket No.

FWS–R2–ES–2018–0029. Substantive

comments are grouped together in

related categories below.

(1) Comment: Several commenters,

including the Nebraska Game and Parks

Commission, indicated that American

burying beetle populations have not met

the downlisting goals in the recovery

plan and suggested that delisting criteria

is needed.

Our Response: Downlisting criteria

are important, but not legally required

for reclassification (50 CFR 424.11(c)).

The American burying beetle recovery

plan was approved by the Service on

September 27, 1991; since then, new

information about the status and

conservation of the species has become

available. For reclassification from

endangered to threatened, the recovery

plan established a criterion of at least 3

self-sustaining populations of at least

500 individuals in each of 4 broad

geographical areas of the species’

historical range: the Northeast, the

Southeast, the Midwest, and the Great

Lakes States. The current total size of

populations exceed that criterion;

however, the populations are not within

the geographical areas described in the

recovery plan, making them more

vulnerable to local or regional impacts

than if they were spread through each

of the broad geographical areas. Several

large populations occur in the western

portions of the range, and two smaller

populations that require active

management have been maintained in

New England. Some very large

populations that likely support several

thousand adults are considered more

resilient than populations of only 500

adults and can be considered equivalent

to 2 or more smaller populations.

Current populations exist in northern,

southern, eastern, and western portions

of the historical range, but with very

limited representation in the East. Each

of the 6 analysis areas within western

populations has more than 1 million

acres of suitable habitat, and at least 4

analysis areas support relatively large

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populations. Although considerably

smaller, the New England Analysis Area

supports 1 population with estimates of

approximately 500 or more American

burying beetles and another smaller

population with active management.

The recovery plan is an exceptional

source of information but is out of date

and contained only reclassification

criteria rather than reclassification and

delisting criteria (see Review of the

Recovery Plan, above, for more

information on the role of

reclassification criteria in our

determination). New information will be

used to inform the criteria needed to be

met for full recovery of the species.

Recovery is a dynamic process requiring

adaptive management that may or may

not fully follow the guidance provided

in an earlier recovery plan. The SSA

Report does not include recovery

criteria, but will inform the

establishment of such criteria as it

provides an updated, revised analysis of

current and future status of the species

and risks based on our current

understanding of the species’ needs.

Information in the SSA Report indicates

that maintaining or reestablishing

populations in southern portions of the

historical range is not feasible for the

future due to the effects of projected

increases in temperatures due to climate

changes. The Service plans to use the

information from the SSA Report and

any additional information to revise the

recovery plan to include delisting

criteria.

(2) Comment: Several commenters,

including the Nebraska Game and Parks

Commission, suggest that downlisting is

inconsistent with the information in the

SSA and proposed rule because we

project a declining status and risk of

extinction in the future. Several

commenters pointed out that it does not

make sense to downlist the American

burying beetle if it may need to be

reclassified as endangered in the future

if projected future risks are accurate.

Our Response: We believe that most

of the comments asserting that the

proposed reclassification is not

supported by the SSA are related to

misunderstanding the definitions of

threatened and endangered in the Act.

The definition of endangered is ‘‘any

species which is in danger of extinction

throughout all or a significant portion of

its range,’’ while the definition of

threatened is ‘‘likely to become an

endangered species within the

foreseeable future.’’ The definitions of

threatened and endangered both include

being endangered or at risk of

extinction, but they are based on

different timeframes. The definition of

endangered applies to a species’ current

status, and a threatened determination

means that the species is likely to

become endangered in the future. The

SSA concludes that there are currently

at least six relatively resilient

populations with distribution in several

relatively large areas within the range.

While we recognize the large loss of the

historical range, the current range is

much larger than originally thought

when the species was listed and there

are several large populations with

relatively good genetic diversity and

relatively low current risks. We believe

the current risk of extinction is low for

the American burying beetle and that

the best available information indicates

the species no longer meets the

definition of an endangered species (i.e.,

it is not currently in danger of

extinction), but the future risk to the

species indicates that it meets the

definition of a threatened species.

The SSA projects future risks that

include changes in climate that may

extirpate southern populations within a

20–30-year period under either the RCP

4.5 or RCP 8.5 scenario and may affect

Northern Plains populations within 50

years under the RCP 8.5 scenario.

Therefore, the species is likely to be

endangered within the foreseeable

future (2069, the end of the second 30-

year climate analysis period). While the

status of the American burying beetle is

currently relatively stable, we have

determined that it is likely to become

endangered within the foreseeable

future, based on the analysis of how

climate change will impact its future

condition in the SSA report. Thus, we

conclude that the SSA is consistent with

this final determination and supports

our determination that the American

burying beetle meets the definition of a

threatened species.

By definition, a threatened species

determination implies a potential need

to reclassify the species as endangered

if our projections about its status in the

foreseeable future are accurate.

However, ongoing and future

conservation and recovery actions may

help establish populations in areas that

are safe from climate-related risks,

potentially precluding the need to

reclassify the species in the future. If

such efforts are not sufficient, then

uplisting the species to endangered

would be considered at that time.

(3) Comment: A few commenters

suggest that reintroduced populations

have not been documented to be self-

sustaining and should not have been

used in the downlisting decision. They

further suggest that additional genetics

information is needed for maintaining

genetic diversity and reintroduction

efforts.

Our Response: We agree that all

current reintroduction efforts need more

time and monitoring to determine if

they can be self-sustaining. We also

want to clarify that reintroduced

populations are included in the

description of where the species

currently occurs, but are not considered

self-sustaining and were not used to

justify the reclassification.

Reintroduction efforts have potential to

produce self-sustaining populations and

are necessary for the ultimate recovery

of the species. We hope we can learn

from ongoing efforts to reestablish

additional populations within the

historical range.

We also agree that additional genetics

information for all existing populations

would be helpful for assessing the

resiliency and representation of

populations and important for

maintaining genetic diversity.

Additional genetics information would

be important for any reintroduction

efforts. For the purposes of the proposed

rule and SSA Report, we used the best

available information and believe that

information supports the reclassification

and the 4(d) rule. With the exception of

the New England populations, the

existing populations in the Northern

Plains and Southern Plains are

relatively large and appear to support

good genetic diversity. The Northern

Plains and Southern Plains populations

are currently separated from each other,

but, within each area, the populations

are in close proximity and may have

some genetic exchange between those

populations. The existing genetic

information does not indicate any

significant genetic differences between

the Northern Plains and Southern Plains

populations, but they are geographically

separated and continued isolation can

create genetic limitations for recovery.

We strongly encourage additional

genetic analysis to help support future

recovery and reintroduction efforts.

(4) Comment: A few commenters

suggested that defining incidental take

as resulting from soil disturbance may

not be appropriate and we need to

provide more explanation about why we

take such an approach.

Our Response: Soil disturbance has

been used to evaluate the potential for

take of American burying beetles in

occupied areas for many years given

that they spend a substantial portion of

their lifespan underground. Because

American burying beetles and brood

chambers have been documented within

2 inches of the soil surface and adults

may seek shelter during the day in

varying depths and types of soil during

the active season, any soil disturbance

is likely to affect the species during the

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active season. Soil disturbance can

crush or injure buried adult beetles and

expose them to daytime heat and

potential predators. Soil disturbance can

collapse or expose brood chambers and

kill larvae and pupa. American burying

beetles are typically buried deeper

during the winter months, but depths

vary according to location and

temperatures. Soil disturbance during

the winter months can kill adults by

exposing them to freezing temperatures

and predation.

The Service usually defines incidental

take in terms of the number of occupied

acres disturbed and determines the risk

of incidental take based on the type and

timing of the disturbance for proposed

projects. We consider incidental take of

American burying beetles to occur as a

result of soil disturbance in the form of

harm, harassment, and/or mortality. The

number of American burying beetles

that will be taken is difficult to estimate

for most projects because density

estimates are not available for most

areas. For specific projects, the risks of

take can be determined or adjusted if

current density estimates are available.

The risk of incidental take is associated

with disturbance of soils in suitable

habitat with confirmed or potential

presence of American burying beetles.

American burying beetles use a variety

of habitat types; we have defined

habitats we consider to be unfavorable

in the proposed and final rule.

American burying beetle presence or

absence can be determined through

surveys using established scientific

protocols during the active season.

Take of American burying beetles is

difficult to quantify because: (1)

Individuals of the species are small in

size, making them difficult to locate,

which makes encountering dead or

injured individuals unlikely; (2)

American burying beetle losses may be

masked by temporal fluctuations in

numbers; (3) American burying beetles

spend a substantial portion of their

lifespan underground; and (4) the

species is primarily active at night.

Because we cannot often estimate the

precise number of individual American

burying beetles that will be incidentally

taken, we use soil disturbance as a

proxy to quantify take levels and define

when take would be considered to be

exceeded.

(5) Comment: Several commenters

suggest that climate change is not

certain enough to occur to be assumed

as a primary risk for the American

burying beetle. Several commenters also

suggested that all four representative

concentration pathways (RCPs, potential

emissions scenarios) should be used.

The commenters asked that the Service

provide the public information on how

these models perform at predicting

temperature increase in contrast with

historical data.

Our Response: The best available

science indicates that we can expect

increasing temperatures within the

range of the American burying beetle

within the foreseeable future. Likewise,

the best available science indicates that

increasing temperatures are likely to

have significant negative effects to

individual beetles and overall

populations within the foreseeable

future, particularly within the Southern

Plains Analysis Area.

We used RCP 4.5 and 8.5 in the

analysis e for the work presented in the

SSA report. We consulted with multiple

climate experts for our analysis of

potential climate effects. Based on the

recommendation of climate scientists at

the South Central Climate Adaptation

Science Center (a research consortium

of Federal, State, and Tribal entities),

climate change projections downscaled

by scientists at the University of Idaho

were selected. The climate change

assessment in the American Burying

Beetle SSA used the average of 20 global

climate models for two of the four

emission scenarios (RCP 4.5 and RCP

8.5). Consultations with climate

scientists at several Federal and

academic institutions confirmed that the

selected approach was optimal. The

MACA–METDATAv2 downscaling of

Global Climate Models (GCMs) was

chosen for the American Burying Beetle

SSA on the recommendation of the

South Central Climate Adaptation

Science Center. The downscaling of

GCMs using the METDATA method

increased the precision of climate

projections by 28 to 120 times,

depending on the original GCM. While

the chosen downscaling dataset

provided a robust (20 GCMs) and

consistent (same models available in all

datasets) pool of downscaled projections

available in an online format with data

access optimized for terrestrial analyses,

only two (RCP 4.5 and RCP 8.5) of the

four (RCPs 2.6, 4.5, 6.0, and 8.5)

representative concentration pathways

(RCPs, potential emissions scenarios)

were available. All four RCPs are

available through an archive hosted by

the University of California and

Lawrence Livermore National Lab.

Downscaled projections using the Bias

Corrected Spatial Disaggregation (BSCD)

method are available for all four RCPs

and up to 37 GCMs. However,

downscaled datasets are not available

for all models in all RCPs (only 18 of 37

are available across all 4 RCPs).

Additionally, the BSCD data access web

portal is optimized for aquatic analyses,

not terrestrial, and there is no option

available to average datasets across

GCMs. Different downscaling methods

were employed by the research groups

(METDATA vs BCSD), and the source

GCMs varied.

The MACA–METDATAv2

downscaling is a valid methodology and

constitutes the best available science

regarding climate change projections for

this context. Each GCM uses a different

set of assumptions in order to project

future temperatures. These assumptions

contribute to the variation seen across

the modeled output from the various

GCMs within each RCP scenario. Recent

literature and consultations with

climate scientists at the South Central

Climate Adaptation Science Center

indicate that the RCP 2.6 is not

achievable even if the most ambitious

current international agreements (e.g.,

the Paris Climate Accords) are

successful. Furthermore, all four RCPs

will consistently exceed the 95 °F mean

maximum summer (June, July, and

August) temperature threshold

established in the American burying

beetle SSA by 2040 in the Southern

Plains analysis areas. The four RCPs do

not diverge from the RCP 4.5 projections

until about 2055 (RCP 2.6) and 2080

(RCP 6.0), which are, respectively, near

the end and beyond the foreseeable

future established by the American

burying beetle recommendation team

(2040–2069, or mid-century timeframe

as described above under Threats). A

comparison of all four RCP scenarios

with historical data shows all four are

nearly identical and only predict minor

changes through 2055. The historical

data was within the variability projected

for all four scenarios. In summary, the

American burying beetle SSA used the

average of 20 global climate models for

2 of the 4 emission scenarios (RCP 4.5

and RCP 8.5) based on the best available

science, and this analysis will be

updated as new information becomes

available.

(6) Comment: Four commenters

opined that the Southern Plains

populations are at higher risk due to

climate changes and need more

protection than other populations.

Our Response: In our revised

significant portion of the range analysis

(presented below), we considered that

the Southern Plains populations are at

higher risk from climate-related

changes; however, we concluded that

the Southern Plains populations are not

currently at risk of extinction.

Populations at the southern and western

edges of the species’ range in Kansas,

Oklahoma, and Texas are vulnerable to

changes in temperature and

precipitation (and related soil moisture)

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in the future. Relative to other

populations, Southern Plains

populations are currently at a lower risk

from any land use changes. Land use

changes could have local impacts but

are unlikely to affect populations in the

Southern Plains. The combination of

large areas of suitable habitat, relatively

large areas of protected habitat, and

relatively low levels of projected

changes resulted in low risks to habitat

and populations in the Southern Plains

with the exception of climate-related

risks. Large areas of the Southern Plains

analysis areas are rural with most of the

land used as pasture or hay production

for decades. The land use is not that

likely to change much, and human

population levels are projected to

remain constant or fall in many

counties. Only small portions of the

Southern Plains analysis areas are in or

near urban areas that are projected to

expand.

Continued or expanded protection of

habitat is not likely to change the status

of existing American burying beetle

populations. The 4(d) rule exemptions

for the Southern Plains analysis areas

are based on this information, and no

new information was provided during

the peer review or public comment

periods to change the projections

provided in the SSA Report. Continued

or expanded habitat protections would

do little to avoid or minimize the

primary risks that are related to

projected increasing temperatures and

other climate-related changes.

Reintroduction of southern American

burying beetles to cooler portions of the

range is the only likely option for

maintaining the genetic diversity

represented by the Southern Plains

populations. Within the Southern Plains

analysis areas, the conservation areas

will support American burying beetles

for as long as possible and provide

sources of American burying beetles for

reintroductions and areas for recovery-

related research.

Along these lines, one of the above

commenters elaborated that the

conservation areas in the 4(d) rule for

the Southern Plains were vulnerable to

extirpation and had highly variable

numbers of American burying beetles.

American burying beetle population

numbers vary, but we determine that the

large sizes of the conservation areas

buffer the effects of seasonal or annual

variations. All conservation areas are

greater than 30,000 acres in size, and

most are surrounded by additional

suitable habitat.

(7) Comment: A few commenters

expressed an opinion that conservation

areas were not needed and that the

conservation banks in Oklahoma could

be used to support reintroductions.

Our Response: We will use

conservation banks to assist recovery

actions, and these banks are protected

through perpetual easements and

endowment funds to support

management activities. However, the

conservation banks (all less than 10,000

acres) are relatively small compared to

the conservation areas described in the

final rule, and our ability to remove

American burying beetles from these

areas without impacting the local

populations is more limited.

(8) Comment: Six commenters,

including the Nebraska Game and Parks

Commission, suggested that the 4(d)

exemptions should be consistent across

the range. Some commenters wanted

proposed exemptions for the Northern

Plains populations to apply to the entire

range, while others wanted the more

extensive exemptions proposed for the

Southern Plains to apply.

Our Response: The risks for American

burying beetle populations are different

for each region of the country. The area,

density, and distribution of populations

are also different in each location, and

risks that may be minor for one

population could be substantial and

affect the resiliency of other

populations. For example, urban

expansion may be a minor risk for larger

populations in Oklahoma but is a

substantial risk for the small Block

Island population in Rhode Island. The

proposed 4(d) rule includes protection

of the species from take related to soil

disturbance activities on Block Island

because suitable habitat is limited (only

about 2,000 acres), and protecting

habitat is necessary for the conservation

of this important population.

In finalizing protections and

exemptions in the 4(d) rule, we

considered appropriate risks for each

region or population. Exemptions for all

land uses are being finalized for the

Southern Plains populations (except in

conservation areas) because projected

habitat losses due to changes in land

uses are less than 2% and there are large

areas of protected habitat. The primary

threats to southern populations are

related to projected temperature

increases. Exceptions are limited to

grazing and wildlife management in the

Northern Plains populations because

potential habitat losses due to changes

like conversions of grassland to

cropland and invasion of redcedar are

higher than the projected habitat loses

in the Southern Plains. The Northern

Plains populations may be the only

large and resilient populations

remaining within 20–30 years, and

habitat impacts should be closely

evaluated. Some potential impacts like

the expansion of wind energy projects

and related fragmentation impacts to

habitat and carrion availability were not

addressed in the SSA Report due to a

lack of available information. These

potential impacts to Northern Plains

populations need to be evaluated, and

necessary protections can be applied

through section 7 consultations and

section 10 permits. Exceptions for

grazing and wildlife management

practices, as defined under Provisions of

the 4(d) Rule, are proposed exceptions

for the northern populations because

lands under this management have

supported resilient American burying

beetle populations. We conclude that

applying protections based upon the

tailored conservation needs within each

analysis area provides the protection

that is necessary and advisable to

conserve the American burying beetle as

a whole. The American burying beetle

SSA report provides detailed

information on the status of the species

in each region.

(9) Comment: Several commenters

suggested that the proposed 4(d) rule is

catering to the oil and gas industry.

Our Response: The 4(d) rule is based

on assessments of current and future

land use effects on American burying

beetle populations. The exceptions

provided in the 4(d) rule are not specific

to the oil and gas industry or any other

industry. The approach taken in the 4(d)

rule was based on our analysis that

indicated that less than 2 percent of

suitable habitat in the Southern Plains

analysis area is vulnerable to the effects

of all impacts combined (including oil

and gas activities). Thus, prohibiting

these impacts is not necessary for the

conservation of the American burying

beetle in this area. The rule is supported

by the best available scientific and

commercial information, our analysis of

threats to the species, and measures

necessary and advisable for the

conservation of the species.

(10) Comment: A few commenters

suggested the proposed rule should

have included more information on

threats or risks related to carrion

sources.

Our Response: Appropriately sized

carrion are key to supporting American

burying beetle populations. However,

the known information for carrion

sources used by American burying

beetles is limited, and available

information on the status of potential

carrion species is also very limited.

General information on possible effects

of land use changes on carrion sources

is provided in the SSA report, but the

best available information does not

allow us to draw conclusions on the

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threats posed by the availability of

carrion resources.

(11) Comment: One commenter stated

that surveys indicated the Northern

Plains populations declined by 90% in

2019 and are at risk because the number

of tenerals was low and they are an

annual species.

Our Response: We have reviewed the

American burying beetle capture rates

for surveys in 2019. This information is

not reflected in the SSA Report because

it was developed before the 2019 survey

information was available. We have

discussed this issue with Dr. Wyatt

Hoback and others familiar with the

Northern Plains populations and believe

the reductions in capture rates was due

to the record level of flooding that

occurred in that area in 2019. This event

is an example of circumstances that

factor into our evaluation of the

resiliency of populations.

Population abundance can vary

substantially with annual species; thus,

the SSA Report looked at catch rates

over a 15-year time period to provide a

better assessment for the abundance and

resiliency of populations. Previous

droughts have also caused declines in

annual catch rates, and severe weather

can affect annual reproduction and

catch rates. The decline in catch rates in

the 2019 Northern Plains surveys is

more extreme than most, but the

flooding event was also the largest on

record and extended over much of the

active season. We believe that the

Northern Plains populations will

rebound from these flooding events,

because this is a temporary or short-

term effect and the large area of

contiguous habitat and good

distribution of American burying beetles

within the Sandhills and Niobrara

analysis areas should allow the

populations to recover in subsequent

years.

The habitat in the Northern Plains

analysis areas has historically supported

some of the highest densities of

American burying beetles within its

current range, and this habitat is

expected to recover from the flooding.

We expect these areas to support good

numbers of American burying beetles in

the near future but may be affected by

climate risks within the foreseeable

future. Because these populations may

represent the only large and resilient

populations by 2040, we have limited

exceptions under the 4(d) rule to grazing

and wildlife management within the

Northern Plains analysis areas. We will

reassess this information with the

survey information in upcoming years

and note that the Act requires a status

review every 5 years.

Determination of American Burying

Beetle Status

Section 4 of the Act (16 U.S.C. 1533)

and its implementing regulations (50

CFR part 424) set forth the procedures

for determining whether a species meets

the definition of ‘‘endangered species’’

or ‘‘threatened species.’’ The Act defines

an ‘‘endangered species’’ as a species

that is ‘‘in danger of extinction

throughout all or a significant portion of

its range,’’ and a ‘‘threatened species’’ as

a species that is ‘‘likely to become an

endangered species within the

foreseeable future throughout all or a

significant portion of its range.’’ The Act

requires that we determine whether a

species meets the definition of

‘‘endangered species’’ or ‘‘threatened

species’’ because of any of the following

factors: (A) The present or threatened

destruction, modification, or

curtailment of its habitat or range; (B)

Overutilization for commercial,

recreational, scientific, or educational

purposes; (C) Disease or predation; (D)

The inadequacy of existing regulatory

mechanisms; or (E) Other natural or

manmade factors affecting its continued

existence.

Status Throughout All of Its Range

After evaluating threats to the species

and assessing the cumulative effect of

the threats under the section 4(a)(1)

factors, we find that the risk of

extinction of the American burying

beetle has been ameliorated since the

species was listed. The current range is

much larger than originally thought

when the species was listed and there

are several large populations with

relatively good genetic diversity and

relatively low current risks. However,

the future threat of increased

temperature puts the species at risk of

extinction in the foreseeable future.

The large areas of known and

potential habitat in the Southern Plains

buffer the effects of most land use

changes. The Arkansas River and Flint

Hills analysis areas are adjacent to each

other and combined provide over 17

million acres of potential habitat. These

analysis areas support large populations

with moderate to high resiliency (see

chapter 4 of the SSA report). The Red

River Analysis Area has over 2 million

acres of suitable habitat but has a very

limited population with low resiliency.

The Northern Plains populations are

also relatively large with a combined

area of over 11 million acres of suitable

habitat in the Niobrara and Sandhills

analysis areas that currently support

populations with moderate to high

resiliency. A smaller area of suitable

habitat (1,686,948 acres) supports a

smaller population with low to

moderate resiliency in the Loess

Canyons analysis area.

The New England analysis area

currently supports two populations on

separate islands. The Block Island

population is relatively small with only

about 2,000 acres of suitable habitat, but

it supports a population with moderate

resiliency with continued active

management. Nantucket Island is a

reintroduced population on a larger

island, but resiliency is low and active

management with carcass

supplementation is required to maintain

this population.

In summary, the current status

includes at least five populations with

moderate to high resiliency and several

of these populations are relatively large.

We find that the species is not currently

in danger of extinction as it faces

relatively low near-term risk of

extinction. Thus, after assessing the best

available information, we conclude that

the American burying beetle is not

currently in danger of extinction

throughout all of its range. Therefore,

we proceeded with determining

whether the American burying beetle is

likely to become endangered within the

foreseeable future throughout all of its

range.

Within the mid-century time period

(i.e., 2040–2069), American burying

beetles in all Southern Plains analysis

areas would likely be extirpated as a

result of increasing temperatures due to

climate change. The projected combined

permanent loss of suitable habitat from

all land use sources for the Southern

Plains analysis areas is minimal

compared to the total extent of suitable

habitat. The impact of agriculture

(primarily conversion to cropland) is

expected to affect areas of suitable

habitat (5–15 percent) in the Northern

Plains (Wright and Wimberly 2013, p.

4134), and redcedar expansion in the

Loess Canyon Analysis Area is expected

to result in larger proportions (30

percent) of habitat loss in the future

(Walker and Hoback 2007, pages 297–

298). This loss of the Southern Plains

populations (approximately 59 percent

of the existing range of the species) and

additional losses of habitat in the

Northern Plains would severely impact

representation of the species and would

limit our ability to recover the species.

The combined effects of land use and

future climate changes are likely to

impact the resiliency of most

populations and the overall viability of

the species. Thus, after assessing the

best available information, we conclude

that the American burying beetle is

likely to become in danger of extinction

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in the foreseeable future throughout all

of its range.

Status Throughout a Significant Portion

of Its Range

Under the Act and our implementing

regulations, a species may warrant

listing if it is in danger of extinction or

likely to become so in the foreseeable

future throughout all or a significant

portion of its range. The court in Center

for Biological Diversity v. Everson, 2020

WL 437289 (D.D.C. Jan. 28, 2020)

(Center for Biological Diversity or CBD),

vacated the aspect of the 2014

Significant Portion of its Range Policy

that provided that the Services do not

undertake an analysis of significant

portions of a species’ range if the

species warrants listing as threatened

throughout all of its range. Therefore,

we evaluated whether the species is

endangered in a significant portion of its

range—that is, whether there is any

portion of the species’ range for which

both (1) the portion is significant; and

(2) the species is in danger of extinction

in that portion. Depending on the case,

it might be more efficient for us to

address the ‘‘significance’’ question or

the ‘‘status’’ question first. We can

choose to address either question first.

Regardless of which question we

address first, if we reach a negative

answer with respect to the first question

that we address, we do not need to

evaluate the other question for that

portion of the species’ range.

Following the court’s holding in CBD,

we now consider whether there are any

significant portions of the species’ range

where the species is in danger of

extinction now (i.e., endangered). In

undertaking this analysis for the

American burying beetle, we choose to

address the status question first—we

consider information pertaining to the

geographic distribution of both the

species and the threats that the species

faces to identify any portions of the

range where the species is endangered.

Based on the SSA Report (Service

2019), there are three potential portions

of the range that could be significant for

American burying beetle: The Northern

Plains analysis areas, the Southern

Plains analysis areas, and the New

England Analysis Area. These three

areas correspond to the areas of

representation for the species.

Representation describes the ability of a

species to adapt to changing

environmental conditions.

Representation can be measured

through the breadth of genetic diversity

within and among populations and the

ecological diversity (also called

environmental variation or diversity) of

populations across the species’ range.

The more representation or diversity the

species has, the higher its potential of

adapting to changes (natural or human

caused) in its environment. Geographic

distribution of occupied and potentially

suitable habitat and genetic information

were used to describe representation for

the American burying beetle. The areas

of representation were developed

primarily based on geographic

separation, the ecological variation

represented across these three areas, and

some genetic variation in the New

England Analysis Area when compared

with the other two areas.

For the purposes of the SSA analysis,

we further assessed three smaller areas

each in the Northern Plains and

Southern Plains representation areas.

However, we determined that these

smaller areas were not, by themselves,

separate areas of representation for the

species. Evidence indicates that the

smaller analysis areas within each larger

area are connected genetically and

demographically, such that they behave

as metapopulations. In some cases, there

are differences in risk factors related to

land uses, and human population

concentrations that facilitated the SSA

analysis, particularly with respect to

those risk factors. These smaller areas

were simply used as a framework for

conducting the SSA analysis. As

explained below, they are not

sufficiently distinct to be considered

areas of representation for the species.

The three individual analysis areas

within the Northern Plains (Loess

Canyons, Sandhills, and Niobrara

analysis areas) are in close geographical

proximity to one another, and existing

information suggests that they share

similar genetic characteristics. One

example of ecological variation that

unites these three analysis areas is that

the timing and number of breeding

attempts per season remains the same

across all three Northern Plains analysis

areas, but differs from the Southern

Plains analysis areas (Service 2019, p.

98). Combined, the Northern Plains

analysis areas represent about 40

percent of the known species range.

The three analysis areas within the

Southern Plains (Red River, Arkansas

River, and Flint Hills) were combined

for similar reasons. The three southern

analysis areas are adjacent, and may be

one population, meaning that

individuals in one of the smaller areas

could potentially breed with individuals

in the other southern analysis areas, but

it is very unlikely they would have

access to mates in either of the other

areas of representation (i.e., Northern

Plains or New England). Existing

information suggests that individuals

within the Southern Plains analysis

areas also share similar genetic

characteristics. Combined, the Southern

Plains analysis areas represent about 59

percent of the known species range, and

individuals in this representative area

may have genetic adaptations to warmer

climates. For example, individuals in

the Southern Plains analysis areas are

known to become active earlier in the

season than individuals in the Northern

Plains analysis areas. Likewise,

individuals in the Southern Plains

analysis areas may potentially breed

twice in one season and the young-of-

year may breed in the same season they

are born, unlike individuals in other

parts of the range (Service 2019, p. 98).

The New England Analysis Area is

relatively small with a total of only

42,431 acres on two islands but

represents the only remaining

population within the eastern portion of

the historical range. Recent evidence

suggests that the New England

population may represent a genetically

distinct population as compared to the

Northern Plains and Southern Plains

analysis areas. Although the New

England Analysis Area is distinct from

the other areas, they appear to share

some genotypes. However, geographic

isolation between the two areas will

likely continue to differentiate them

further, making them more distinct over

time. The New England Analysis Area is

the only portion of the species’ range

that is not threatened by projected

climate changes.

The first question of the significant

portion of the range analysis we address

is the status or risk of extinction (i.e.,

identifying portions where the species

may currently be in danger of

extinction) for each portion of the range.

We considered whether the current

condition of the species in any portion

of the range (i.e., the Northern Plains

analysis areas, the Southern Plains

analysis areas, and the New England

Analysis Area) along with any threats

acting in those areas cause that portion

of the range to be in danger of

extinction. We examined the following

threats: Urban and suburban

development, land use change,

decreased carrion availability,

competition with other scavengers,

wind energy development, silviculture,

oil and gas development, and increasing

temperatures due to changing climate,

as well as their cumulative effects for

each of the three portions of the range.

In the Northern Plains representation

area, although threats evaluated include

urban and suburban development, most

current American burying beetle

populations are in rural areas and have

potential risks associated with habitat

loss due to agricultural land uses, and

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these threats are the ones that we

consider the most important drivers of

the species’ status in this representation

area. All habitat alterations also have

potential to affect carrion populations,

competing scavenger populations, and

carrion availability. Risks such as

conversion to cropland, cedar

expansion, and wind energy

development also affect portions of the

Northern Plains analysis areas.

However, the large areas of known and

potential habitat buffer the effects of

most of these land use changes, and

these threats are not known to currently

cause population-level impacts to

American burying beetles in the

Northern Plains representation area.

Likewise, given the large size of this

representative area and the relatively

small proportion of anticipated impacts

from such activities, population-level

impacts from these land use threats do

not put the species at risk of extinction

now and are not anticipated within the

foreseeable future.

Our analysis of the available

information on changes in climate

indicates that, although the change in

climate is occurring now, the impacts

from climate change that are likely to

put the species at risk of extinction will

occur in the future. The combination of

land use and climate-related risks do

have potential to endanger Northern

Plains populations within the

foreseeable future. Under the RCP 4.5

emissions scenario, temperatures

approach 93 to 95 °F in small areas of

the Northern Plains analysis areas by

the end of the mid-century time period,

however, under the RCP 8.5 emissions

scenario, temperatures approach 93 to

95 °F in most of the Northern Plains

analysis areas by the end of the mid-

century time period. Thus, after

assessing the best available information,

we conclude that the American burying

beetle is not currently in danger of

extinction within the Northern Plains

representative area but is likely to

become endangered in the foreseeable

future.

Many of the same threats apply to the

Southern Plains representation area as

well: Urban and suburban development,

land use change, decreased carrion

availability, and competition with other

scavengers. In the Southern Plains area

most current American burying beetle

populations are in rural areas and have

potential risks associated with habitat

loss due to agricultural land uses. Risks

associated with grazing, silviculture,

and oil and gas development also affect

portions of the Southern Plains analysis

areas. The large areas of known and

potential habitat buffer the effects of

most land use changes, and these threats

are not known to currently cause

population-level impacts to American

burying beetles. Likewise, given the

large size of these analysis areas and the

relatively small proportion of

anticipated impacts from such activities,

population-level impacts from these

land use threats are not anticipated

within the foreseeable future. The

Southern Plains analysis areas are

currently experiencing the effects of

climate change. However, the

magnitude of the changes up to the

present time are low enough that the

species is not in danger of extinction.

The bulk of the impact from climate

change to these analysis areas occur in

the future according to our analysis.

Within the foreseeable future, i.e., the

mid-century time period (2040–2069),

all Southern Plains analysis areas are

expected to exceed threshold

temperatures under both the RCP 4.5

and 8.5 emissions scenarios, likely

resulting in extirpation of the American

burying beetle from these areas. Thus,

after assessing the best available

information, we conclude that the

American burying beetle is not currently

in danger of extinction within the

Southern Plains representative area but

is likely to become endangered in the

foreseeable future.

In the New England Analysis Area,

threats from urban or suburban

development affect populations in this

area. However, ongoing active

management in the New England

Analysis Area, including ongoing

provisioning of carcasses for the species,

has minimized the impacts of these

threats and has resulted in relatively

stable populations within the New

England Analysis Area. The large

proportions of protected habitat in the

New England Analysis Area and

significant ongoing active management

mitigate population-level impacts from

current threats in this analysis area and

the species is not in danger of extinction

in this analysis area now. This ongoing

management is expected to continue

into the foreseeable future.

In the New England Analysis Area,

the climate is colder than the other

analysis areas and temperature increases

have not approached any possible

thresholds, and temperatures are not

expected to exceed those thresholds

within the foreseeable future. Future

risks to the New England Analysis Area

are related to limited population sizes

and limited habitat. The population

estimates on Block Island fluctuate

between 200 and 1,000 individuals, and

they are genetically isolated from any

other populations. Continued

management of the New England

population helps maintain resiliency,

but limited population size and genetic

diversity are risks to future populations

and additional habitat loss could reduce

that population size. In some cases,

where American burying beetles occur

on lands with conservation easements

or deed restrictions or owned by

conservation organizations, existing

regulatory mechanisms appear to be

adequate. However, given the varied

missions of these landowners, the level

of protection varies and may change

over time. Populations in the New

England Analysis areas are expected to

experience future threats from land use

change because habitat is already very

limited. Only about 2,000 acres of

suitable habitat are available on Block

Island, and much of the protection for

this habitat is based on easements with

time limits and not specifically related

to the American burying beetle. Existing

regulatory mechanisms do not

adequately address those future threats

to the American burying beetle in New

England. Thus, after assessing the best

available information, we conclude that

the American burying beetle is not

currently in danger of extinction within

the New England Analysis Area but is

likely to become endangered in the

foreseeable future.

For each portion of the range, we

found that the threats to the species,

along with conservation measures that

ameliorate these threats, do not cause a

current danger of extinction for the

species in any portion. For this reason,

we find that the American burying

beetle is not in danger of extinction

throughout a significant portion of its

range.

Determination of Status

Our review of the best scientific and

commercial data available indicates that

the American burying beetle meets the

definition of a threatened species.

Therefore, we are reclassifying the

American burying beetle as a threatened

species in accordance with sections

3(20) and 4(a)(1) of the Act.

II. Final Rule Issued Under Section 4(d)

of the Act

Background

Section 4(d) of the Act contains two

sentences. The first sentence states that

the ‘‘Secretary shall issue such

regulations as he deems necessary and

advisable to provide for the

conservation’’ of species listed as

threatened. The U.S. Supreme Court has

noted that statutory language like

‘‘necessary and advisable’’ demonstrates

a large degree of deference to the agency

(see Webster v. Doe, 486 U.S. 592

(1988)). Conservation is defined in the

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Act to mean ‘‘the use of all methods and

procedures which are necessary to bring

any endangered species or threatened

species to the point at which the

measures provided pursuant to [the Act]

are no longer necessary.’’ Additionally,

the second sentence of section 4(d) of

the Act states that the Secretary ‘‘may by

regulation prohibit with respect to any

threatened species any act prohibited

under section 9(a)(1), in the case of fish

or wildlife, or section 9(a)(2), in the case

of plants.’’ Thus, the combination of the

two sentences of section 4(d) provides

the Secretary with wide latitude of

discretion to select and promulgate

appropriate regulations tailored to the

specific conservation needs of the

threatened species. The second sentence

grants particularly broad discretion to

the Service when adopting the

prohibitions under section 9.

The courts have recognized the extent

of the Secretary’s discretion under this

standard to develop rules that are

appropriate for the conservation of a

species. For example, courts have

upheld rules developed under section

4(d) as a valid exercise of agency

authority where they prohibited take of

threatened wildlife, or include a limited

taking prohibition (see Alsea Valley

Alliance v. Lautenbacher, 2007 U.S.

Dist. Lexis 60203 (D. Or. 2007);

Washington Environmental Council v.

National Marine Fisheries Service, 2002

U.S. Dist. Lexis 5432 (W.D. Wash.

2002)). Courts have also upheld 4(d)

rules that do not address all of the

threats a species faces (see State of

Louisiana v. Verity, 853 F.2d 322 (5th

Cir. 1988)). As noted in the legislative

history when the Act was initially

enacted, ‘‘once an animal is on the

threatened list, the Secretary has an

almost infinite number of options

available to him with regard to the

permitted activities for those species. He

may, for example, permit taking, but not

importation of such species, or he may

choose to forbid both taking and

importation but allow the transportation

of such species’’ (H.R. Rep. No. 412,

93rd Cong., 1st Sess. 1973).

Exercising its authority under section

4(d), the Service has developed a rule

that is designed to address the American

burying beetle’s specific threats and

conservation needs. Although the

statute does not require the Service to

make a ‘‘necessary and advisable’’

finding with respect to the adoption of

specific prohibitions under section 9,

we find that this rule as a whole satisfies

the requirement in section 4(d) of the

Act to issue regulations deemed

necessary and advisable to provide for

the conservation of the American

burying beetle. As discussed under

Summary of Biological Status and

Threats, the Service has concluded that

the American burying beetle is likely to

become in danger of extinction within

the foreseeable future primarily due to

the combined effects of land use change

and the future impacts of climate

change, which will make much of the

current range uninhabitable by the

species. The provisions of this 4(d) rule

will promote conservation of the

American burying beetle by encouraging

management of the landscape in ways

that meet both land management

considerations and the conservation

needs of the American burying beetle.

The provisions of this rule are one of

many tools that the Service will use to

promote the conservation of the

American burying beetle.

Provisions of the 4(d) Rule

The 4(d) rule prohibits all intentional

take of the American burying beetle.

The 4(d) rule prohibits incidental take

of the species only where the Service

has specifically tailored the prohibition

of incidental take in each of the three

geographic areas that the American

burying beetle occupies. In the New

England and Northern Plains analysis

areas, incidental take is prohibited only

in suitable habitat when the take is the

result of soil disturbance. Suitable

habitat is defined, consistent with the

SSA Report (Service 2019), as areas

where suitable soils contain the

appropriate abiotic elements (e.g., soil

temperature, soil moisture, particle size,

etc.) that are favorable for excavation

and formation of brood chambers and

where appropriate carrion for

reproduction is available. This suitable

habitat accounts for breeding, feeding,

overwintering, and dispersal needs.

Areas that are regularly tilled,

vegetation maintained at less than 8

inches through regular mowing, wetland

areas with standing water or saturated

soils, or urban areas with paved surfaces

are examples of lands considered

unfavorable for use by American

burying beetles. Soil disturbance means

movement or alteration of soil

associated with modifying the existing

land use. Soil disturbance includes

actions such as grading, filling, soil

excavating or topsoil stripping. Soil

disturbance also includes non-physical

alterations such as chemical treatment,

including ground or soil sterilizers, and

pesticides that would make the habitat

unsuitable. However, typical

agricultural levels of applications like

liming or fertilizer should not affect

American burying beetles, and we do

not intend to regulate such practices.

Because incidental take stemming

from normal livestock ranching and

grazing activities is not expected to have

an appreciable negative impact on the

species, and retaining land uses

associated with ranching or grazing

(rather than converting the land to row

crops) provides potential habitat for the

species, we are not prohibiting any

incidental take associated with ranching

and grazing. Ranching and grazing

means activities involved in grazing

livestock (e.g., cattle, bison, horse,

sheep, goats or other grazing animals)

such as: Gathering of livestock;

construction and maintenance of fences

associated with livestock grazing;

installation and maintenance of corrals,

loading chutes, and other livestock

working facilities; development and

maintenance of livestock watering

facilities; placement of supplements

such as salt blocks for grazing livestock;

and, when associated with livestock

grazing, the control of noxious weeds,

haying, mowing, and prescribed

burning. Ranching and grazing does not

include any form of tillage, conversion

of grassland to cropland, or management

of cropland.

In the Southern Plains analysis areas,

incidental take is prohibited only on

certain conservation lands, as defined

below under Regulation Promulgation.

However, within these conservation

lands, activities conducted in

compliance with Service-approved

conservation plans that result in take of

the species are not prohibited. For

example, on conservation lands in the

Southern Plains analysis areas managed

by the Department of Defense, certain

activities that result in incidental take

are not prohibited if those activities are

in compliance with a Service-approved

integrated natural resources

management plan.

In addition to intentional take and

some forms of incidental take, the 4(d)

rule also prohibits activities related to

possession and other acts with

unlawfully taken American burying

beetles, import and export of the

species, activities related to shipping or

delivering the species in interstate or

foreign commerce, and the sale or

offering to sell of the species. These

activities are generally prohibited for

endangered wildlife. We have

determined that it is appropriate to

extend the Act’s protections to these

activities as well for the American

burying beetle.

This 4(d) rule tailors the Act’s

protections to allow activities that have

only minor or temporary effects and are

unlikely to affect the resiliency of

American burying beetle populations or

viability of the species. The risks for

American burying beetle populations

are different for each region of the

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country, and risks that may be minor for

one population could affect the

resiliency of others. For example, urban

expansion is a minor risk for larger

populations in Oklahoma, but is a

substantial risk for the small Block

Island population in Rhode Island. The

4(d) rule includes protection of habitat

related to soil disturbance activities on

Block Island because suitable habitat is

limited (only about 2,000 acres) and

protecting habitat is necessary for the

conservation of this population.

Although threats vary in type and

degree across the American burying

beetle’s range, those related to land use

activities and climate change continue

to impact the species. Habitat loss or

alteration related to land use activities

is ongoing in all American burying

beetle populations, but the impacts of

these habitat losses is minor for most

analysis areas with the exception of the

Loess Canyons and New England

populations. Impacts from changing

climate are ongoing as well, and

populations in the Southern Plains

analysis areas are projected to be

extirpated within 20 to 30 years, as

described above (Service 2019).

Provisions of the 4(d) Rule in the New

England Analysis Area

Within the New England Analysis

Area, we prohibit incidental take only if

it occurs in suitable habitat and is the

result of soil disturbance, as defined

below under Regulation Promulgation,

which includes converting suitable

habitat from an existing land use to a

different land use. The species

persistence in the New England

Analysis Area is dependent upon active

management occurring on two small

coastal islands. A large percentage of

land mass in the New England Analysis

Area is protected in some form, and

American burying beetles occur on

many lands with conservation

easements or deed restrictions or owned

by conservation organizations;

municipal, State, and Federal agencies;

and private land trusts. However,

existing land protections are not

comprehensive for the American

burying beetle. Given the varied

missions of these landowners, the level

of protection varies and may change

over time. Although some minimal level

of take may occur incidental to ranching

and grazing, the effects of such land

uses serve to maintain suitable habitat

for the species. Urban and suburban

expansion and development activities

can lead to soil disturbance that may

lead to incidental take of the species.

Habitat conversion further limits the

habitat available to American burying

beetles in the New England Analysis

Area.

The population in the New England

Analysis Area is proportionally more

sensitive and vulnerable to impacts than

the other analysis areas, because it is

limited to two small coastal islands, and

the species’ persistence on one or both

of the islands is likely dependent on

management, particularly captive

breeding, reintroduction, and the

provisioning of carrion. Thus, urban and

suburban expansion represent

substantial risks to the future viability of

the species in this area. Limiting the

prohibition to suitable habitat is

sufficient as any beetles occupying

unsuitable habitat would be very few in

number and possibly either lost to the

population or not of value to the

population.

In addition, activities by State or

Federal government agencies related to

wildlife management that result in

incidental take of American burying

beetles is not prohibited in the New

England Analysis Area.

Provisions of the 4(d) Rule in the

Northern Plains Analysis Areas

Within the Northern Plains analysis

areas, we prohibit incidental take only

if it occurs in suitable habitat and is the

result of soil disturbance, which

includes converting habitat from an

existing land use to a different land use,

as defined below under Regulation

Promulgation. The combined impacts of

urban expansion and agriculture

(primarily conversion to cropland) are

expected to affect 5–15% of the suitable

habitat in the Northern Plains (Service

2019). Potential impacts related to wind

energy expansion are likely (additional

information provided in the SSA Report

and proposed rule), but additional

information is needed to fully evaluate

the potential effects to habitat and

carrion availability. Only low

percentages of the Northern Plains

analysis areas are protected, with only

one large protected area that supports

significant numbers of American

burying beetles. Thus, we find that land

use changes like urban expansion and

agricultural land conversion to cropland

(combined with other risks such as

cedar expansion as discussed in the

proposed rule) represent risks to the

future viability of the species in this

area.

However, incidental take that is the

result of normal grazing and livestock

activities is not prohibited. In addition,

activities by State or Federal

government agencies related to wildlife

management that result in incidental

take of American burying beetles is not

prohibited. Grasslands in the Northern

Plains support relatively high-density

populations of American burying

beetles that have high resiliency.

Ranching, grazing, and wildlife

management activities in this area are

generally compatible with conservation

of this species, as these land uses help

maintain native grassland habitats (see

chapters 4 and 5 in the SSA Report;

Service 2019) important for American

burying beetle conservation. Based on

the analysis of climate change impacts

in the SSA Report (Service 2019), we

believe it is possible that the Northern

Plains may support the only remaining

self-sustaining populations with

moderate or high resiliency by the mid-

century time period. Therefore,

protecting existing habitat in the

Northern Plains is important for the

future viability of the species. Although

there may be some minimal level of take

incidental to ranching, grazing, and

wildlife management activities, the

effects of such land uses serve to

maintain suitable habitat for the species

and prevent more extensive soil

disturbance than would occur with

other land use changes such as farming

or urban development.

Provisions of the 4(d) Rule in the

Southern Plains Analysis Areas

Within the Southern Plains analysis

areas on defined conservation lands, see

below under Regulation Promulgation,

incidental take is exempted if it occurs

in compliance with a Service-approved

management plan, such as an integrated

natural resources management plan

(INRMP), that includes conservation

measures for the American burying

beetle. Outside of defined conservation

lands, incidental take is not prohibited

because the Southern Plains Analysis

Area currently has low risks to the

species associated with land

development. The combined permanent

loss of habitat projected due to urban

and agricultural expansion is less than

2 percent (Service 2019).

Currently, conservation lands provide

relatively large protected areas of habitat

with good populations; these lands

would potentially serve as sources of

American burying beetles for relocation

and reintroduction efforts in areas that

are projected to have future climate

conditions that would be expected to

sustain the species. We define

‘‘conservation lands’’ as lands included

within the existing boundaries of Fort

Chaffee in Arkansas (approximately

64,000 acres) and McAlester Army

Ammunition Plant (approximately

45,000 acres) and Camp Gruber/

Cherokee Wildlife Management Area

(approximately 64,000 acres), both in

Oklahoma. These areas have defined

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Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Rules and Regulations

boundaries and management that is

compatible with recovery for the

American burying beetle; however, that

management is not intentionally being

conducted for American burying

beetles, and monitoring and

management would likely cease at some

sites without the incidental take

protections in place specific to the

species. Active management and

monitoring in these conservation lands

is considered important to help support

recovery by serving as source

populations for relocation and

reintroduction efforts of American

burying beetle populations, for as long

as they sustain beetle populations.

Land use changes such as urban

development and conversion to

agricultural lands that cause habitat loss

and fragmentation are a minor risk in

Southern Plains analysis areas. These

activities are not considered a threat to

the species in this area because the

combined permanent loss of habitat

projected due to urban and agricultural

expansion is less than 2 percent of these

large analysis areas and is unlikely to

affect the viability of the species in

these areas (Service 2019). Large areas of

suitable habitat, combined with low

levels of projected land use change, and

relatively large areas of protected habitat

indicate that impacts to habitat are not

likely to affect the viability of the

species in these areas.

We may issue permits to carry out

otherwise prohibited activities,

including those described above,

involving threatened wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.32. With regard to threatened

wildlife, a permit may be issued for the

following purposes: Scientific purposes,

to enhance propagation or survival, for

economic hardship, for zoological

exhibition, for educational purposes, for

incidental taking, or for special

purposes consistent with the purposes

of the Act. There are also certain

statutory exemptions from the

prohibitions, which are found in

sections 9 and 10 of the Act.

The Service recognizes the special

and unique relationship with our State

natural resource agency partners in

contributing to conservation of listed

species. State agencies often possess

scientific data and valuable expertise on

the status and distribution of

endangered, threatened, and candidate

species of wildlife and plants. State

agencies, because of their authorities

and their close working relationships

with local governments and

landowners, are in a unique position to

assist the Service in implementing all

aspects of the Act. In this regard, section

6 of the Act provides that the Service

shall cooperate to the maximum extent

practicable with the States in carrying

out programs authorized by the Act.

Therefore, any qualified employee or

agent of a State conservation agency that

is a party to a cooperative agreement

with the Service in accordance with

section 6(c) of the Act, who is

designated by his or her agency for such

purposes, will be able to conduct

activities designed to conserve

American burying beetles that may

result in otherwise prohibited take for

wildlife without additional

authorization.

Nothing in this 4(d) rule changes in

any way the recovery planning

provisions of section 4(f) of the Act, the

consultation requirements under section

7 of the Act, or the ability of the Service

to enter into partnerships for the

management and protection of the

American burying beetle. However,

interagency cooperation will be further

streamlined through programmatic

consultations for the species between

Federal agencies and the Service. A

programmatic consultation has been

developed (see https://www.fws.gov/

southwest/es/oklahoma/default.htm) to

allow Federal agencies to consult using

the 4(d) rule in a streamlined manner

for all Federal actions that can comply

with the 4(d) rule.

Required Determinations

National Environmental Policy Act

We have determined that

environmental assessments and

environmental impact statements, as

defined under the authority of the

National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.), need not

be prepared in connection with

regulations pursuant to section 4(a) of

the Act. We published a notice outlining

our reasons for this determination in the

Federal Register on October 25, 1983

(48 FR 49244).

References Cited

A complete list of references cited in

this rulemaking is available on the

internet at http://www.regulations.gov

and upon request from the Oklahoma

Ecological Services Field Office (see

FOR

FURTHER INFORMATION CONTACT

).

Authors

The primary authors of this rule are

the staff members of the Fish and

Wildlife Service’s Species Status

Assessment Team and the Oklahoma

Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations, as set forth

below:

PART 17—ENDANGERED AND

THREATENED WILDLIFE AND PLANTS

■1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 1531–

1544; and 4201–4245, unless otherwise

noted.

■2. Amend § 17.11(h) by revising the

entries for ‘‘Beetle, American burying’’

under ‘‘INSECTS’’ in the List of

Endangered and Threatened Wildlife to

read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Common name Scientific name Where listed Status Listing citations and applicable rules

*******

I

NSECTS

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Common name Scientific name Where listed Status Listing citations and applicable rules

*******

Beetle, American burying Nicrophorus americanus Wherever found, except where listed

as an experimental population. T 54 FR 29652, 7/13/1989; 85 FR [IN-

SERT FEDERAL REGISTER

PAGE WHERE THE DOCUMENT

BEGINS], 10/15/2020; 50 CFR

17.47(d).

4d

Beetle, American burying Nicrophorus americanus In southwestern Missouri, the coun-

ties of Cedar, St. Clair, Bates, and

Vernon.

XN 77 FR 16712, 3/22/2012; 50 CFR

17.85(c).

10j

*******

■3. Amend § 17.47 by adding paragraph

(d) to read as follows:

§ 17.47 Special rules—insects.

* * * * *

(d) American burying beetle

(Nicrophorus americanus)—(1)

Prohibitions. The following prohibitions

apply to the American burying beetle:

(i) Take of the American burying

beetle. Take of the American burying

beetle, except that take that is incidental

to otherwise lawful activity (incidental

take) is prohibited only when the take

occurs on suitable American burying

beetle habitat:

(A) In the New England and Northern

Plains Analysis Areas where the

incidental take results from soil

disturbance; or

(B) In the Southern Plains Analysis

Areas where the incidental take occurs

on defined conservation lands, except

where incidental take is in compliance

with a Service-approved conservation

plan.

(ii) Possession and other acts with

unlawfully taken American burying

beetles. It is unlawful to possess, sell,

deliver, carry, transport, or ship, by any

means whatsoever, any American

burying beetle that was taken in

violation of paragraph (d)(1)(i) of this

section or State law. Notwithstanding

the preceding sentence, Federal and

State law enforcement officers may

possess, deliver, carry, transport, or ship

any American burying beetle taken in

violation of the Act as necessary in

performing their official duties.

(iii) Import and export of the

American burying beetle. It is unlawful

to import or export the American

burying beetle.

(iv) Interstate or foreign commerce. It

is unlawful to deliver, receive, carry,

transport, or ship in interstate or foreign

commerce, by any means whatsoever,

and in the course of a commercial

activity, the American burying beetle.

(v) Sale or offer for sale. It is unlawful

to sell or to offer for sale in interstate or

foreign commerce any American

burying beetle.

(2) Exceptions from prohibitions. (i)

Any employee or agent of the Service or

of a State conservation agency that is

operating a conservation program

pursuant to the terms of a cooperative

agreement with the Service in

accordance with section 6(c) of the Act,

who is designated by his or her agency

for such purposes, may, when acting in

the course of his or her official duties,

take American burying beetles, provided

that, for State conservation agencies, the

American burying beetle is covered by

an approved cooperative agreement to

carry out conservation programs.

(ii) Federal or State government

agencies may incidentally take

American burying beetles when

conducting wildlife management

activities in the Northern Plains

Analysis Areas.

(iii) Incidental take of American

burying beetles resulting from ranching

and grazing activities is allowed.

(3) Definitions. For the purposes of

this paragraph (d), we define the

following terms:

(i) Conservation lands means lands

included within the existing

boundaries:

(A) In Arkansas, of Fort Chaffee

(approximately 64,000 acres); and

(B) In Oklahoma, of McAlester Army

Ammunition Plant (approximately

45,000 acres) and Camp Gruber/

Cherokee Wildlife Management Area

(approximately 64,000 acres).

(ii) New England Analysis Area means

Block Island in Rhode Island and

Nantucket Island in Massachusetts.

(iii) Northern Plains Analysis Areas

means portions of Nebraska and South

Dakota, as presented in the map at

paragraph (d)(4) of this section, to

initially include an 18.6-mile buffer

around each capture location to

determine the outside boundaries of the

analysis area. For specific information

regarding whether a parcel of land is

inside the Northern Plains Analysis

Areas, contact your local Service

ecological services field office. Field

office contact information may be

obtained from the Service regional

offices, the addresses of which are listed

at 50 CFR 2.2.

(iv) Ranching and grazing means

activities involved in grazing livestock

(e.g., cattle, bison, horse, sheep, goats, or

other grazing animals) such as:

Gathering of livestock; construction and

maintenance of fences associated with

livestock grazing; installation and

maintenance of corrals, loading chutes,

and other livestock working facilities;

development and maintenance of

livestock watering facilities; placement

of supplements such as salt blocks for

grazing livestock; and, when associated

with livestock grazing, the control of

noxious weeds, haying, mowing, and

prescribed burning. Ranching and

grazing does not include any form of

farming, conversion of grassland to

cropland, or management of cropland.

(v) Soil disturbance means movement

or alteration of soil. Soil disturbance

includes actions such as grading, filling,

soil excavating, or topsoil stripping. Soil

disturbance also includes non-physical

alterations such as chemical treatment.

(vi) Southern Plains Analysis Areas

means portions of Arkansas, Kansas,

Oklahoma, and Texas, as presented in

the map at paragraph (d)(4) of this

section, to initially include an 18.6-mile

buffer around each capture location to

determine the outside boundaries of the

analysis area. For specific information

regarding whether a parcel of land is

inside the Southern Plains Analysis

Areas, contact your local Service

ecological services field office. Field

office contact information may be

obtained from the Service regional

offices, the addresses of which are listed

at 50 CFR 2.2.

(4) Map of American Burying Beetle

Analysis Areas.

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Aurelia Skipwith,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 2020–19810 Filed 10–14–20; 8:45 am]

BILLING CODE 4333–15–P

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