16712 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

Accountability Office pursuant to the 

Congressional Review Act. In addition, the 

Commission will send a copy of the Fifth 

Report and Order, including this FRFA, to 

the Chief Counsel for Advocacy of the SBA. 

A copy of the Fifth Report and Order and 

FRFA (or summaries thereof) will also be 

published in the Federal Register. 

[FR Doc. 2012–6601 Filed 3–21–12; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R3–ES–2011–0034; 

FXES11130900000C3–123–FF09E32000] 

RIN 1018–AX79 

Endangered and Threatened Wildlife 

and Plants; Establishment of a 

Nonessential Experimental Population 

of American Burying Beetle in 

Southwestern Missouri 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), will 

reestablish the American burying beetle, 

a federally listed endangered insect, into 

its historical habitat in Wah’kon-tah 

Prairie in southwestern Missouri. We 

will reestablish the American burying 

beetle under section 10(j) of the 

Endangered Species Act of 1973, as 

amended (Act), and will classify that 

reestablished population as a 

nonessential experimental population 

(NEP) within St. Clair, Cedar, Bates, and 

Vernon Counties, Missouri. This rule 

provides a plan for establishing the NEP 

and provides for allowable legal 

incidental taking of the American 

burying beetle within the defined NEP 

area. 

DATES: This final rule is effective April 

23, 2012. 

ADDRESSES: This final rule is available 

on http://www.regulations.gov and 

available from our Web site at http:// 

www.fws.gov/midwest/endangered. 

Comments and materials received, as 

well as the supporting file for this final 

rule will be available for public 

inspection, by appointment, during 

normal business hours, at the Columbia, 

Missouri Ecological Services Office, 101 

Park DeVille Dr., Suite B, Columbia, MO 

65203; telephone 573–234–2132. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Information Relay Services 

(FIRS) at 800–877–8339. 

FOR FURTHER INFORMATION CONTACT: 

Scott Hamilton, Fish and Wildlife 

Biologist, at the Columbia, Missouri 

Ecological Services Office, 101 Park 

DeVille Dr., Suite B, Columbia, MO 

65203, telephone 573–234–2132; 

facsimile 573–234–2181. 

SUPPLEMENTARY INFORMATION: 

Background 

Regulatory Background 

The American burying beetle 

(Nicrophorus americanus, ABB) was 

listed as endangered throughout its 

range on July 13, 1989 (54 FR 29652), 

under the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.), without critical habitat (USFWS 

2008, p. 2). The Act provides that 

species listed as endangered are 

afforded protection primarily through 

the prohibitions of section 9 and the 

requirements of section 7. Section 9 of 

the Act, among other things, prohibits 

the take of endangered wildlife. ‘‘Take’’ 

is defined by the Act as to harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or to attempt to 

engage in any such conduct. Section 7 

of the Act outlines the procedures for 

Federal interagency cooperation to 

conserve federally listed species and 

protect designated critical habitat. It 

mandates that all Federal agencies use 

their existing authorities to further the 

purposes of the Act by carrying out 

programs for the conservation of listed 

species. It also states that Federal 

agencies must, in consultation with the 

Service, ensure that any action they 

authorize, fund, or carry out is not likely 

to jeopardize the continued existence of 

a listed species or result in the 

destruction or adverse modification of 

designated critical habitat. Section 7 of 

the Act does not affect activities 

undertaken on private land unless they 

are authorized, funded, or carried out by 

a Federal agency. 

Under section 10(j) of the Act, the 

Secretary of the Interior can designate 

reestablished populations outside the 

species’ current range, but within its 

historical range, as ‘‘experimental.’’ 

With the experimental population 

designation, the relevant population is 

treated as threatened for purposes of 

section 9 of the Act, regardless of the 

species’ designation elsewhere in its 

range. Threatened designation allows us 

discretion in devising management 

programs and special regulations for 

such a population. Section 4(d) of the 

Act allows us to adopt whatever 

regulations are necessary and advisable 

to provide for the conservation of a 

threatened species. In these situations, 

the general regulations that extend most 

section 9 prohibitions to threatened 

species do not apply to that species, and 

the 10(j) rule contains the prohibitions 

and exemptions necessary and 

appropriate to conserve that species. 

Based on the best scientific and 

commercial data available, we must 

determine whether the experimental 

population is essential or nonessential 

to the continued existence of the 

species. The regulations (50 CFR 

17.80(b)) state that an experimental 

population is considered essential if its 

loss would be likely to appreciably 

reduce the likelihood of survival of that 

species in the wild. All other 

populations are considered 

nonessential. We have determined that 

this experimental population will not be 

essential to the continued existence of 

the species in the wild. This 

determination has been made because, 

since the time the species was listed, 

wild populations of the ABB are now 

found in seven additional States, three 

of which are considered robust and 

suitable for donor populations (USFWS 

2008, p. 14). Therefore, the Service will 

designate a nonessential experimental 

population (NEP) for the species in 

southwestern Missouri. 

When NEPs are located outside a 

National Wildlife Refuge or National 

Park Service unit, then, for the purposes 

of section 7, we treat the population as 

proposed for listing and only section 

7(a)(1) and section 7(a)(4) of the Act 

apply. In these instances, NEPs provide 

additional flexibility because Federal 

agencies are not required to consult 

with us under section 7(a)(2). Section 

7(a)(4) requires Federal agencies to 

confer (rather than consult) with the 

Service on actions that are likely to 

jeopardize the continued existence of a 

species proposed to be listed. The 

results of a conference are in the form 

of conservation recommendations that 

are optional as the agencies carry out, 

fund, or authorize activities. Because 

the NEP is, by definition, not essential 

to the continued existence of the 

species, the effects of proposed actions 

affecting the NEP will generally not rise 

to the level of jeopardizing the 

continued existence of the species. As a 

result, a formal conference will likely 

never be required for ABBs established 

within the NEP area. Nonetheless, some 

agencies voluntarily confer with the 

Service on actions that may affect a 

proposed species. Activities that are not 

carried out, funded, or authorized by 

Federal agencies are not subject to 

provisions or requirements in section 7 

of the Act. 

American burying beetles used to 

establish an experimental population 

will come from a captive-rearing facility 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16713 

at the St. Louis Zoo, which propagates 

this species under the Federal Fish and 

Wildlife Permit #TE135297–0. The 

donor population for the Zoo is a wild 

population from Ft. Chaffee, Arkansas. 

Each spring, Ft. Chaffee Maneuver 

Training Center (MTC) will provide the 

St. Louis Zoo with up to 15 ABB pairs, 

provided their removal is not likely to 

jeopardize the continued existence of 

the species and appropriate permits are 

issued in accordance with our 

regulations (50 CFR 17.22) prior to their 

removal. We will ensure, through our 

section 10 permitting authority and the 

section 7 consultation process, that 

using individuals from donor 

populations for release is not likely to 

jeopardize the continued existence of 

the species in the wild. ABBs will be 

transported to St. Louis Zoo staff to 

augment the St. Louis Zoo’s captive 

population, or possibly for direct 

reintroduction to Wah’kon-tah Prairie. 

The purpose of the captive population 

is to provide stock for reintroductions in 

‘‘suitable areas’’ within the species’ 

historical range, in accordance with 

recovery action 7.2 of the American 

Burying Beetle Recovery Plan (USFWS 

1991, p. 52). 

We have not designated critical 

habitat for the ABB. Section 

10(j)(2)(C)(ii) of the Act states that 

critical habitat shall not be designated 

for any experimental population that is 

determined to be nonessential. 

Accordingly, we cannot designate 

critical habitat in areas where we 

establish an NEP. 

We will not change the NEP 

designation to ‘‘essential experimental,’’ 

‘‘threatened,’’ or ‘‘endangered’’ within 

the NEP area without a public 

rulemaking. Additionally, we will not 

designate critical habitat for this NEP, as 

provided by 16 U.S.C. 1539(j)(2)(C)(ii). 

Biological Information 

The ABB is the largest member of the 

family Silphidae in North America, and 

the largest among a guild of species that 

breed and rear their young on vertebrate 

carcasses. Because carrion is a scarce 

and ephemeral resource, ABBs must 

traverse large areas in search of it. By 

necessity, they are strong flyers capable 

of covering several miles overnight. The 

farthest recorded dispersal in a year for 

reintroduced ABBs is 3 miles (4.8 km) 

(McKenna-Foster et al. 2007, p. 9). Data 

from the Nantucket reintroduction show 

that the farthest dispersal in one season 

was 3 miles (4.8 km) (McKenna-Foster 

et al. 2007, p. 9). Data from Nebraska 

indicate that the vast majority (92 

percent) of ABB were recaptured within 

0.6 miles (1 km) of their initial capture 

within the same season (Bedick et al. 

1999, p. 176). After ABBs find an 

appropriate-sized carcass, a pair of 

beetles cooperatively buries and 

prepares the carcass by removing its fur 

or feathers and coating it with 

antibacterial secretions. These activities 

require soil excavation; consequently 

soils must be conducive for excavation, 

and plant roots systems must not hinder 

excavation. Reproductive habitat 

activities also require soil that is 

appropriately moist. Both parents may 

remain to feed the larva with 

regurgitated meat until they are capable 

of feeding themselves. After pupation, 

new adults emerge within 30–45 days. 

ABBs are generally considered 

univoltine (having one brood or 

generation per year) in the wild, with a 

life span of about 12 months. They are 

a habitat generalist with regards to 

vegetation, and will eat all classes of 

vertebrate carcasses (USFWS 2008, pp. 

8, 11). 

The ABB’s historical range included 

35 States and three Canadian provinces 

in the eastern temperate areas of North 

America (USFWS 1991, p. 4). At the 

time of listing, only two ABB 

populations were known, one on Block 

Island, Rhode Island, and one in 

Latimer County, Oklahoma. Subsequent 

monitoring in other States documented 

additional populations in Arkansas, 

Nebraska, Texas, South Dakota, and 

Kansas (USFWS 2008, p. 16). The 

population on Block Island is the only 

naturally occurring population east of 

the Mississippi River. The ABB also 

occurs in captive-breeding populations. 

Currently, captive populations are 

maintained at the Roger Williams Park 

Zoo in Providence, Rhode Island; St. 

Louis Zoo in St. Louis, Missouri; The 

Wilds in Ohio; and the Cincinnati Zoo 

in Cincinnati, Ohio. 

The reasons for the decline of the 

ABB during the 1900s are still 

unknown. Many hypotheses for the 

decline have been suggested, such as the 

widespread use of dichloro-diphenyltrichloroethane (DDT) and other 

pesticides, habitat loss and 

fragmentation, decrease in the 

availability of carrion, increased use of 

artificial lighting, an unidentified 

pathogen, increase in competition from 

vertebrate scavengers, and an increase 

in competition from other carrion 

insects (Sikes and Raithel 2002, pp. 

104–109). Predation is not believed to 

be an important mortality factor for the 

ABB, although interaction with fire ants, 

whether through competition or 

predation, is thought to adversely affect 

ABB populations. Disease is not known 

to be a factor in the decline of the ABB, 

but knowledge of diseases of insects is 

in its infancy (USFWS 2008, p. 31). 

Competition for carrion by scavengers is 

thought to be an important factor in the 

decline of ABB (Sikes and Raithel 2002, 

p. 111). Competition with ants, flies, 

and vertebrate scavengers, as well as 

other species of burying beetles, can be 

limiting factors for ABBs (Sikes and 

Raithel 2002, p. 111). Weather extremes, 

such as drought, wildfire, hurricanes, 

and ice storms, may affect the viability 

of existing populations (USFWS 2008, 

p. 33). 

Recovery Efforts 

Restoring an endangered or 

threatened species to the point where it 

is recovered is a primary goal of our 

endangered species program. The ABB 

recovery plan was developed within 2 

years of the listing of the species and 

reflects the best information available at 

that time. The recovery objectives of the 

1991 plan are to (1) ‘‘reduce the 

immediacy of the threat of extinction 

* * *’’ and (2) ‘‘improve its status so 

that it can be reclassified from 

endangered to threatened.’’ The 

recovery plan did not include delisting 

criteria; however, criteria for the 

reclassification are: 

(a) Three populations of N. 

americanus have been reestablished (or 

additional populations discovered) 

within each of four broad geographical 

areas of its historical range: the 

Northeast, the Southeast, the Midwest, 

and the Great Lakes States; 

(b) Each population contains a 

minimum of 500 adults as estimated by 

capture rates per trap night and black 

lighting effort; and 

(c) Each population is demonstrably 

self-sustaining for at least 5 consecutive 

years (or is sustainable with established 

long-term management programs) 

(USFWS 1991, pp. 31–32). 

The 1991 Recovery Plan considers 

conducting additional reintroductions a 

top priority (Priority 1) (USFWS 1991, 

p. 63). The first reintroduction site for 

the ABB was Penikese Island, 

Massachusetts, in 1990. After ABBs 

were released on Penikese for 4 years, 

the population persisted there for about 

8 years (until 2002). No ABBs were 

subsequently found there during modest 

trapping efforts from 2003 to 2006. 

Nantucket Island was the next ABB 

reintroduction site, which was initiated 

in 1994. Release of ABBs ended in 2006, 

and the population has persisted. Since 

1998, there have been sporadic efforts to 

reintroduce a population in Ohio, but 

ABBs have yet to be recaptured after 

overwintering (USFWS 2008, p. 5). 

Reestablishment Area 

Historically, the ABB was recorded in 

13 counties throughout Missouri, and 

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16714 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

was most likely found throughout the 

State. The last documented ABB 

occurrence in the State was collected in 

a light-trap from Newton County 

(southwest Missouri) in the mid-1970s 

(Simpson 1991, p. 1). Monitoring for 

existing ABB populations has been 

ongoing in Missouri since 1991. A 

concerted monitoring effort has been 

conducted by the St. Louis Zoo since 

2002, and monitoring began on 

Wah’kon-tah Prairie in 2004. During the 

period 2002–2009, researchers 

monitored 49 sites from 25 counties in 

Missouri for ABB (Merz 2009, p. 8). No 

ABBs were observed or collected in any 

of the sites surveyed in Missouri since 

the 1970s. 

The reintroduction site, Wah’kon-tah 

Prairie, is a 3,030-acre (1,226-hectare) 

site jointly owned and managed by the 

Missouri Department of Conservation 

(MDC) and The Nature Conservancy 

(TNC). It is a designated special focus 

area, where TNC is working to restore a 

greater prairie chicken (Tympanuchus 

cupido) population and native tallgrass 

prairie. Wah’kon-tah Prairie straddles 

the border of St. Clair and Cedar 

Counties, and is very close to Bates and 

Vernon Counties, all within 

southwestern Missouri. The area within 

the borders of these four counties, 2,885 

square miles (7,472 square kilometers 

(km)), is the designated area for the 

nonessential experimental population 

(NEP). The minimum distance from the 

reintroduction site to outside the 

designated experimental population 

boundary is 17 miles (27 km); the 

greatest distance is 52 miles (84 km). 

This NEP area was selected because of 

its proximity to the last recorded ABB 

sighting in Missouri, the quantity of 

recent ABB monitoring, and the relative 

abundance of carrion (Hamilton and 

Merz 2010, pp. 4–5). 

According to the St. Louis Zoo’s 

American Burying Beetle Activity 

Summary in 2009, 12 sites within the 

NEP area were monitored for carrion 

beetles (Jean et al. 2009, p. 1). Five of 

these sites were on Wah’Kon-Tah 

Prairie, one of which was sampled for 

66 days throughout the season. The 

pitfall traps within the NEP area 

collected 46,522 individuals, of which 

86 percent were other species of the 

beetle family Silphidae (to which the 

ABB belongs); the remainder were other 

insects and spiders. No ABBs were 

found (Jean et al. 2009, p. 1). 

Section 10(j) of the Act requires that 

an experimental population be wholly 

separate geographically from wild 

populations of the same species. 

Because there are no known populations 

of ABB in Missouri, and there are no 

records of ABB in the bordering 

counties of eastern Kansas, this NEP is 

geographically separate from all other 

known ABB populations. Based on the 

movement data of other ABB 

populations, we do not believe the 

reintroduced ABBs will move beyond 

the designated NEP area. If monitoring 

shows that the reintroduced ABB are 

moving toward a border of the NEP, we 

may seek to amend the NEP boundaries, 

after monitoring the possible new NEP 

areas. If individuals of this population 

move outside the designated NEP area, 

we will presume that they came from 

the reintroduced population. We may 

then amend this regulation to enlarge 

the boundaries of the NEP area to 

include the entire range of the expanded 

population. 

Release Procedures 

Captive-bred beetles from the St. 

Louis Zoo, wild beetles from Ft. Chaffee, 

or both, will be brought to the release 

site in late spring by representatives of 

the St. Louis Zoo or the Service. ABBs 

will be paired 24 hours in advance of 

release. These beetles will be marked by 

clipping the elytra (the modified 

forewings that encase the thin hind 

wings used in flight) to distinguish 

between captive-bred and wild beetles, 

and between the release transects. For 

the release, a soil plug is dug and 

removed, and paired ABBs are 

provisioned with a 120–200 gram (4–7 

ounce) carcass and placed into the hole. 

The soil plug is then placed back over 

the hole and a wire screen is stapled 

over the area to keep out scavenging 

animals and birds. These holes will be 

dug in several lines, or transects. The 

number of transects will be determined 

by the number of beetles available, and 

apportioned in equal numbers 

(Hamilton and Merz 2010, p. 7). The 

ABB Reintroduction Plan contains 

additional information on the release 

procedures and monitoring protocols 

(contact the person listed under FOR

FURTHER INFORMATION CONTACT for 

copies of this document). 

Population Status 

We will ensure, through our section 

10 permitting authority and the section 

7 consultation process, that the use of 

ABBs from the donor population at Ft. 

Chaffee, Arkansas, for releases into 

Wah’kon-tah Prairie is not likely to 

jeopardize the continued existence of 

the species in the wild. These donor 

populations are closely monitored by 

the Service, and over collection will not 

be permitted. Establishing additional 

ABB populations within the species’ 

historical range is an important step in 

recovery (USFWS 1991, p. 52). 

The special rule that accompanies this 

section 10(j) rule is designed to broadly 

exempt from the section 9 take 

prohibitions any take of ABBs that is 

accidental and incidental to otherwise 

lawful activities. We provide this 

exemption because we believe that such 

incidental take of members of the NEP 

associated with otherwise lawful 

activities is necessary and advisable for 

the conservation of the species, as 

activities that currently occur or are 

anticipated in the NEP area, such as 

haying, grazing, and occasional burning 

of pastures, are generally compatible 

with ABB recovery. 

This designation is justified because 

no adverse effects to extant wild or 

captive ABB populations will result 

from release of progeny from the captive 

flock. We also expect that the 

reintroduction effort into Missouri will 

result in the successful establishment of 

a self-sustaining population, which will 

contribute to the recovery of the species. 

Management 

Management issues related to the ABB 

NEP that have been considered include: 

(a) Mortality: The regulations 

implementing the Act define 

‘‘incidental take’’ as take that is 

incidental to, and not the purpose of, 

carrying out an otherwise lawful activity 

(50 CFR 17.3), such as agricultural 

activities and other rural development, 

and other activities that are in 

accordance with Federal, Tribal, State, 

and local laws and regulations. 

Incidental take of the ABB within the 

NEP area will not be prohibited, 

provided that the take is unintentional 

and is in accordance with the special 

rule that is a part of this 10(j) rule. 

However, if there is evidence of 

intentional take of an ABB within the 

NEP that is not authorized by the 

special rule, we will refer the matter to 

the appropriate law enforcement entities 

for investigation. 

(b) Special handling: In accordance 

with 50 CFR 17.21(c)(3), any employee 

or agent of the Service, any other 

Federal land management agency, or 

State personnel, designated for such 

purposes, may in the course of their 

official duties, handle ABBs to aid sick 

or injured ABBs, or to salvage dead 

ABBs. However, non-Service personnel 

and their agents would need to acquire 

permits from the Service for these 

activities. 

(c) Coordination with landowners and 

land managers: Through various 

meetings, the Service and cooperators 

have identified issues and concerns 

associated with the ABB population 

establishment. The population 

establishment was discussed with 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16715 

potentially affected State agencies and 

private landowners. Affected State 

agencies, landowners, and land 

managers have either indicated support 

for, or no opposition to, the population 

establishment, provided an NEP is 

designated and a special rule is 

promulgated which does not prohibit 

incidental take. 

(d) Monitoring: Surveys conducted 

prior to releasing the ABBs will assess 

the over-wintering population from the 

prior year’s release. During 

reintroduction, carcasses will be 

exhumed 10–12 days after burial to 

determine breeding success and the 

number of third instar (a developmental 

stage in insects representing their third 

molt) larvae present. This should 

provide a close estimate of the number 

of offspring produced in that first 

generation. 

During the period from June through 

August, each reintroduction site will be 

surveyed for at least three nights in 

duration. In addition to sampling at the 

release site(s), surrounding areas will be 

sampled in at least four directions, 

approximately 0.6 mile (1 km) away, for 

at least three consecutive nights, 

following a statistically-based 

monitoring plan. Monitoring at the 

release sites and areas within 

approximately 0.6 mile (1 km) of those 

sites should detect the majority of the 

released beetles. Monitoring using 

pitfall trap surveys in the subsequent 

early summer and fall following release 

will provide an estimate of breeding 

pair productivity by collecting young 

adults following emergence. This will 

also allow for an estimate of overwinter 

survival of progeny. Beetles captured in 

the late summer and fall will be paired, 

provisioned with a carcass, and held 

until all pairs can be reintroduced back 

to the original release sites. We intend 

to reintroduce at least 50 pairs each year 

for 5 years, or until data suggest a viable 

population of more than 1,000 

individuals has been established. At 

year five, the cooperators will evaluate 

the project’s successes and failures and 

make adjustments to the ABB 

reintroduction project, if necessary. 

Summary of Public and Peer Review 

Comments and Recommendations 

In the proposed rule published on 

July 22, 2011 (76 FR 43973), we 

requested that all interested parties 

submit written comments on the 

proposal by August 22, 2011. We also 

contacted appropriate Federal and State 

agencies, scientific experts, and other 

interested parties, and invited them to 

comment on the proposal. A newspaper 

notice inviting general comments was 

published in the El Dorado Springs 

(Missouri) Star, and an article inviting 

the same was published in the El 

Dorado Springs (Missouri) Sun. We did 

not receive any requests for a public 

hearing, but we did hold a public 

meeting in El Dorado Springs, Missouri, 

on August 11, 2011. 

We reviewed all comments we 

received from the public and peer 

reviewers for substantive issues and 

new information regarding the creation 

of an experimental population of 

American burying beetles in 

southwestern Missouri. All substantive 

information provided during the 

comment period has either been 

incorporated into this final 

determination or is addressed below. 

We received seven written comments, 

including comments from three peer 

reviewers. Six comments supported the 

proposed NEP listing, including the 

comments from the three peer 

reviewers. One comment had no 

substantive issues. 

Peer Review 

In accordance with our policy on peer 

review, published on July 1, 1994 (59 

FR 34270), we solicited expert opinions 

from three individuals with scientific 

expertise that included familiarity with 

the species and their reintroduction. We 

received responses from all three peer 

reviewers from whom we requested 

comments. All three responses 

supported the 10(j) rule, and brought up 

no issues to be addressed. 

Public Comments 

Comment: The Missouri Department 

of Conservation (MDC) provided 

recommendations on the post-release 

monitoring protocol described in the 

proposed rule and in the reintroduction 

plan. Based on information from other 

ABB reintroduction efforts, MDC 

commented that a sampling radius of 

0.6 mile (1 km) would be more likely to 

capture dispersing ABBs than the 1 mile 

(1.6 km) described in the proposed rule. 

Furthermore, MDC suggested adding 

four specific sampling directions (NW., 

NE., SE., and SW.) to the four directions 

described in the proposed rule and the 

reintroduction plan. 

Our response: We will ensure 

implementation of a statistically-based 

post release monitoring, and we have 

revised the final rule and reintroduction 

plan to reflect that sampling will occur 

approximately 0.6 mile (1 km) away 

from the release site, as recommended 

by MDC. Our ability to conduct 

monitoring at specific distances and 

directions suggested by MDC is 

tempered by access to lands off of 

Wah’kon-tah Prairie, the locations of the 

reintroduction transects, and the 

number of stations necessary for a 

statistically sound monitoring protocol. 

Required Determinations 

Regulatory Planning and Review (E.O. 

12866) 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is not significant and has not 

reviewed this final rule under Executive 

Order 12866 (E.O. 12866). OMB bases 

its determination on the following four 

criteria: 

(a) Whether the final rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the final rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the final rule will 

materially affect entitlements, grants, 

user fees, loan programs, or the rights 

and obligations of their recipients. 

(d) Whether the final rule raises novel 

legal or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (small businesses, 

small organizations, and small 

government jurisdictions). However, no 

regulatory flexibility analysis is required 

if the head of an agency certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA 

amended the Regulatory Flexibility Act 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that a rule will not have a 

significant economic impact on a 

substantial number of small entities. We 

are certifying that this rule will not have 

a significant economic effect on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

The area that will be affected includes 

the release areas at Wah’kon-tah Prairie 

and adjacent areas into which ABBs 

may disperse, which over time could 

include sizable portions of the NEP. 

Because of the regulatory flexibility for 

Federal agency actions provided by the 

NEP designation and the exemption for 

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16716 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

incidental take in the special rule, we 

do not expect this rule to have 

significant effects on any activities 

within Federal, State, or private lands 

within the NEP. In regard to section 

7(a)(2), the population is treated as 

proposed for listing, and Federal action 

agencies are not required to consult on 

their activities. Section 7(a)(4) requires 

Federal agencies to confer (rather than 

consult) with the Service on actions that 

are likely to jeopardize the continued 

existence of a proposed species. 

However, because the NEP is, by 

definition, not essential to the survival 

of the species, conferring will likely 

never be required for the ABB 

populations within the NEP area. 

Furthermore, the results of a conference 

are advisory in nature and do not 

restrict agencies from carrying out, 

funding, or authorizing activities. In 

addition, section 7(a)(1) requires Federal 

agencies to use their authorities to carry 

out programs to further the conservation 

of listed species, which would apply on 

any lands within the NEP area. As a 

result, and in accordance with these 

regulations, some modifications to 

proposed Federal actions within the 

NEP area may occur to benefit the ABB, 

but we do not expect projects to be 

halted or substantially modified as a 

result of these regulations. 

This rule will broadly allow 

incidental take of the ABB within the 

NEP area. The regulations implementing 

the Act define ‘‘incidental take’’ as take 

that is incidental to, and not the 

purpose of, the carrying out of an 

otherwise lawful activity, such as 

agricultural activities and other rural 

development, camping, hiking, hunting, 

vehicle use of roads and highways, and 

other activities in the NEP area that are 

in accordance with Federal, Tribal, 

State, and local laws and regulations. 

Intentional take for purposes other than 

authorized data collection or recovery 

purposes is prohibited. Intentional take 

for research or recovery purposes will 

require a section 10(a)(1)(A) recovery 

permit under the Act. 

The principal activities on private 

property near the NEP area are 

agriculture, rural development, and 

recreation. We believe the presence of 

the ABB will not affect the use of lands 

for these purposes because there will be 

no new or additional economic or 

regulatory restrictions imposed upon 

States, non-Federal entities, or members 

of the public due to the presence of the 

ABB, and Federal agencies will only 

have to comply with sections 7(a)(1) and 

7(a)(4) of the Act in these areas. 

Therefore, this rulemaking is not 

expected to have any significant adverse 

impacts to activities on private lands 

within the NEP area. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.): 

(a) This rule will not ‘‘significantly or 

uniquely’’ affect small governments. We 

have determined and certify under the 

Unfunded Mandates Reform Act, 2 

U.S.C. 1502 et seq., that this rulemaking 

will not impose a cost of $100 million 

or more in any given year on local or 

State governments or private entities. A 

Small Government Agency Plan is not 

required. As explained above, small 

governments will not be affected 

because the NEP designation will not 

place additional requirements on any 

city, county, or other local 

municipalities. 

(b) This rule will not produce a 

Federal mandate of $100 million or 

greater in any year (i.e., it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act). 

This NEP designation for the ABB will 

not impose any additional management 

or protection requirements on the States 

or other entities. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. When populations 

of federally listed species are designated 

as NEPs, the Act’s regulatory 

requirements regarding those 

populations are significantly reduced. 

This reduction of regulatory burden 

allows landowners to continue using 

their lands in ways that may adversely 

impact the ABB, but are otherwise 

lawful. For example, this rule will not 

prohibit the taking of ABBs in the NEP 

area when such take is incidental to an 

otherwise legal activity, such as 

agricultural activities and other rural 

development, camping, hiking, hunting, 

vehicle use of roads and highways, and 

other activities that are in accordance 

with Federal, State, Tribal, and local 

laws and regulations. Because of the 

substantial regulatory relief provided by 

the NEP designations, we do not believe 

the reestablishment of this species will 

conflict with existing or proposed 

human activities or hinder public use of 

lands within the NEP. 

A takings implication assessment is 

not required because this rule (1) will 

not effectively compel a property owner 

to suffer a physical invasion of property 

and (2) will not deny all economically 

beneficial or productive use of the land 

or aquatic resources. This rule will 

substantially advance a legitimate 

government interest (conservation and 

recovery of a listed species) and will not 

present a barrier to all reasonable and 

expected beneficial use of private 

property. 

Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, we have considered whether this 

rule has significant Federalism effects 

and have determined that a federalism 

impact summary statement is not 

required. This rule will not have 

substantial direct effects on the States, 

on the relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. In keeping with 

Department of the Interior policy, we 

requested information from, and 

coordinated development of this rule 

with, the affected resource agencies in 

Missouri. Achieving the recovery goals 

for this species will contribute to its 

eventual delisting and its return to State 

management. No intrusion on State 

policy or administration is expected; 

roles or responsibilities of Federal or 

State governments will not change; and 

fiscal capacity will not be substantially 

directly affected. The special rule 

operates to maintain the existing 

relationship between the State and the 

Federal Government, and is being 

undertaken in coordination with the 

State of Missouri. Therefore, this rule 

does not have significant Federalism 

effects or implications to warrant the 

preparation of a federalism impact 

summary statement under the 

provisions of Executive Order 13132. 

Civil Justice Reform (E.O. 12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule will not 

unduly burden the judicial system and 

will meet the requirements of sections 

(3)(a) and (3)(b)(2) of the Order. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands affected by this rule. 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16717 

Paperwork Reduction Act 

Office of Management and Budget 

(OMB) regulations at 5 CFR part 1320, 

which implement provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.), require that Federal 

agencies obtain approval from OMB 

before collecting information from the 

public. This rule does not contain any 

new information collections that require 

approval. OMB has approved our 

collection of information associated 

with reporting the taking of 

experimental populations (50 CFR 

17.84) and assigned control number 

1018–0095. We may not collect or 

sponsor, and you are not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. 

National Environmental Policy Act 

The reintroduction of native species 

into suitable habitat within their 

historical or established range is 

categorically excluded from NEPA 

documentation requirements consistent 

with 40 CFR 1508.4, 516 DM 2.3A, 516 

DM 2 Appendix 1, and 516 DM 8 

Appendix 1.4. 

Energy Supply, Distribution or Use (E.O. 

13211) 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. This rule is not expected to 

significantly affect energy supplies, 

distribution, and use. Because this 

action is not a significant energy action, 

no Statement of Energy Effects is 

required. 

References Cited 

A complete list of all references cited 

in this rule is available upon request at 

the Columbia, Missouri Ecological 

Services Office (see ADDRESSES). 

Authors 

The primary authors of this rule are 

staff members of the Service’s Columbia, 

Missouri Ecological Services Office (see 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. Amend § 17.11(h) by revising the 

entry for ‘‘Beetle, American burying’’ 

under ‘‘INSECTS’’ in the List of 

Endangered and Threatened Wildlife to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population 

where 

endangered or 

threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

*******

INSECTS

Beetle, American 

burying.

Nicrophorus 

americanus.

U.S.A. (eastern States 

south to FL, west to 

SD and TX), eastern 

Canada.

Entire, except where 

listed as an experimental population.

E 351 NA NA 

Beetle, American 

burying.

Nicrophorus 

americanus.

U.S.A. (eastern States 

south to FL, west to 

SD and TX), eastern 

Canada.

In southwestern Missouri, the counties of 

Cedar, St. Clair, 

Bates, and Vernon.

XN 800 NA 17.85(c) 

* * * * * * * 

■ 3. Amend § 17.85 by adding paragraph 

(c) to read as follows: 

§ 17.85 Special rules—invertebrates. 

* * * * * 

(c) American Burying Beetle 

(Nicrophorus americanus). 

(1) Where is the American burying 

beetle designated as a nonessential 

experimental population (NEP)? 

(i) The NEP area for the American 

burying beetle is within the species’ 

historical range and is defined as 

follows: The Missouri Counties of 

Cedar, St. Clair, Bates, and Vernon. 

(ii) The American burying beetle is 

not known to exist in Cedar, St. Clair, 

Bates, or Vernon Counties in Missouri, 

as of the date of enacting this regulation. 

Based on its habitat requirements and 

movement patterns, we do not expect 

this species to become established 

outside this NEP area. 

(2) What activities are not allowed in 

the NEP area? 

(i) You may not possess, sell, deliver, 

carry, transport, ship, import, or export 

by any means, American burying 

beetles, or parts thereof, that are taken 

or possessed in violation of paragraph 

(c)(3) of this section or in violation of 

applicable State fish and wildlife laws 

or regulations or the Act. 

(ii) You may not attempt to commit, 

solicit another to commit, or cause to be 

committed any offense defined in 

paragraph (c)(2)(i) of this section. 

(3) What take is allowed in the NEP 

area? Take of this species that is 

accidental and incidental to an 

otherwise legal activity, such as 

agriculture, forestry and wildlife 

management, land development, 

recreation, and other activities, is 

allowed. 

(4) How will the effectiveness of these 

reintroductions be monitored? We will 

prepare periodic progress reports and 

fully evaluate these reintroduction 

efforts after 5 years to determine 

whether to continue or terminate the 

reintroduction efforts. 

(5) Note: Map of the NEP area for the 

American burying beetle follows: 

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16718 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

Dated: March 12, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–6779 Filed 3–21–12; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 100217098–2125–02] 

RIN 0648–AY64 

Taking and Importing Marine 

Mammals; Naval Explosive Ordnance 

Disposal School Training Operations 

at Eglin Air Force Base, Florida 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the U.S. Department of the Air Force, 

Headquarters 96th Air Base Wing (U.S. 

Air Force), Eglin Air Force Base (Eglin 

AFB) is issuing regulations to govern the 

taking of Atlantic bottlenose dolphins, 

by Level B harassment, incidental to 

Naval Explosive Ordnance Disposal 

School (NEODS) training operations at 

Eglin AFB, Florida, for a 5-year period. 

The U.S. Air Force activities are 

considered military readiness activities 

pursuant to the Marine Mammal 

Protection Act (MMPA), as amended by 

the National Defense Authorization Act 

of 2004 (NDAA). These regulations, 

which allow for the issuance of Letters 

of Authorization (LOAs) for the 

incidental take of marine mammals 

during the described activities and 

specified time frames, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

NMFS issued annual Incidental 

Harassment Authorizations (IHAs) 

pursuant to section 101(a)(5)(D) of the 

MMPA for similar specified activities in 

2005, 2006, 2007, and 2008. No 

activities have occurred to date under 

those IHAs. 

DATES: Effective April 23, 2012, through 

April 24, 2017. 

ADDRESSES: A copy of the application 

containing a list of the references used 

in this document may be obtained by 

writing to Tammy Adams, Acting Chief, 

Permits and Conservation Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225, and telephoning the 

contact listed below (see FOR FURTHER

INFORMATION CONTACT), or visiting the 

internet at: http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm. Documents 

cited in this notice may be viewed, by 

appointment, during regular business 

hours, at the aforementioned address. 

NMFS has prepared an Environmental 

Assessment (EA) and Finding of No 

Significant Impact (FONSI) in 

accordance with the National 

Environmental Policy Act (NEPA) as 

implemented by the regulations 

published by the Council on 

Environmental Quality (CEQ). 

FOR FURTHER INFORMATION CONTACT: 

Howard Goldstein or Jolie Harrison, 

Office of Protected Resources, NMFS, 

301–427–8401. 

SUPPLEMENTARY INFORMATION: 

Background 

Paragraphs 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (Secretary), 

upon request, to allow for a period of 

not more than 5 years, the incidental, 

but not intentional, taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and regulations are issued. 

Alternatively, if the taking is limited to 

harassment, certain determinations are 

made and the authorization does not 

exceed one year, an IHA may be issued. 

Upon making a finding that an 

application for incidental take is 

adequate and complete, NMFS 

commences the incidental take 

authorization process by publishing in 

the Federal Register a notice of a receipt 

of an application for the implementation 


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