“Endangered and Threatened Wildlife and Plants; Reclassifying the American Burying Beetle from Endangered to Threatened on the Federal List of Endangered and Threatened Wildlife with a 4(d) Rule” 50 CRR Part 17

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

The U.S. Fish and Wildlife Service (USFWS) was petitioned in August 2015 to remove the American burying beetle (Nicrophorous americanus; ABB) from the Federal Lists of Endangered and Threatened Wildlife and Plants by the American Stewards of Liberty, the Independent Petroleum Association of America, the Texas Public Policy Foundation, and Dr. Steven W. Carothers.  The petitioners claimed that the species is not at risk of extinction now or in the foreseeable future.  The document summarized here is the 12-month finding from the USFWS to reclassify the ABB to threatened and their proposed 4(d) rule.

The USFWS seems to be between a rock and a hard place with the ABB.  At the time it was federally listed (1989) only two populations were known.  Due to increased survey efforts, the ABB is currently thought to occur in a much wider area with populations in Arkansas, Kansas, Missouri (nonessential population), Nebraska, Oklahoma, South Dakota, on Block Island off the coast of Rhode Island, and Nantucket Island off the coast of Massachusetts.  The population in Texas is likely extirpated. The USFWS has predicted that current and future land use in these areas will have minor, negative impacts and are unlikely to result in the beetle’s extinction (USFWS 2019).  This lends credence to the proposed change to threatened status.  However, it is not that easy and here is where the rock hits the hard place.  Once the effects of changing climate are considered, the ABB’s foreseeable future doesn’t look bright.

The ABB is sensitive to increasing temperatures and is forecasted to be extirpated from 59% of its range in the mid-century (2040-2069).  This projection is based on the Intergovernmental Panel on Climate Change Representative Concentration Pathway scenarios 4.5 and 8.5 which are intended to capture the range of climate change possibilities.  While the ABB may be currently threatened, it will likely become endangered in the foreseeable future (20-40 years) throughout all its range.

Given that the ABB has been deemed threatened and will be endangered in the foreseeable future, the USFWS has issued a proposed 4(d) rule.  The 4(d) rule is used by the USFWS to issue regulations for the conservation of a threatened species.  This will supersede the general prohibitions in 50 CFR 17.31. 

The proposed 4(d) rule prohibits all intentional take of ABBs.  Incidental take (take related to, and not the purpose of, otherwise lawful activity) is specific to the geographic area (Figure 1 copied from USFWS 2019a).

New England and Northern Plains

Incidental take in New England and Northern Plains (Figure 1 copied from USFWS 2019a) analysis areas would only be prohibited in suitable habitat when take is the result of soil disturbance.  The definition of suitable habitat is vague in the proposed 4(d) rule which states “Suitable habitat is defined, consistent with the SSA Report (Service 2019 [here cited as USFWS 2019b]), 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.”  This definition differs from the SSA Report in which potential habitat was mapped and defined as favorable, conditional, marginal, or unsuitable.  This will need to be clarified before the 4(d) rule is applied. 

Both the 4(d) rule and SSA Report consistently identify unfavorable ABB habitat.  Areas that are regularly tilled, maintained through regular mowing, or urban areas with paved surfaces are considered unfavorable for ABBs.  Soil disturbance is defined as “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.”  Agricultural application of lime or fertilizers are not regulated.  Normal livestock ranching and grazing is anticipated to have a minimal negative impact and is believe to be better for ABBs than converting land to row crops.  Therefore, normal livestock ranching, and grazing activities are not prohibited.

Southern Plains

In the Southern Plains analysis areas, incidental take would only be prohibited on identified conservation lands.  Activities on these conservation lands that may result in incidental take are not prohibited if they comply with a USFWS approved conservation plan.  The conservation lands include lands within the existing boundaries of:

·         Fort Chaffee in Arkansas

·         McAlester Army Ammunitions Plant in Oklahoma

·         Camp Gruber/Cherokee Wildlife Management Area in Oklahoma

·         The Nature Conservancy’s Tall Grass Prairie Preserve in Oklahoma

Land use changes in the Southern Plains analysis areas are thought to have a minimal negative impact on ABBs.  These are unlikely to affect the viability of ABBs in these areas.


Import and export of ABBs, activities related to shipping or delivering interstate or foreign commerce, and the sale or offering to sell ABBs is prohibited.

Federal agencies would continue to be required to consult on actions that could affect ABBs within the range (defined as analysis areas in Figure 1 copied from USFWS 2019a).  Actions with incidental take that is not prohibited could be streamlined through a programmatic consultation.

Permits may be issued for scientific purposes, enhancement or survival, economic hardship, zoo exhibition, educational purposes or others consistent with the Endangered Species Act.


U.S. Fish and Wildlife Service.  2019a.  Endangered and Threatened Wildlife and Plants; Reclassifying the American Burying Beetle from Endangered to Threatened on the Federal List of Endangered and Threatened Wildlife with a 4(d) Rule.  50 CFR Part 17. Pgs. 61.  (Accessed 05/01/2019)

U.S. Fish and Wildlife Service.  2019b.  Species Status Assessment Report for the American Burying Beetle (Nicrophorus americanus). Pgs. 184 without appendices.  (Accessed 05/02/2019)