02-22300. Endangered and Threatened Wildlife and Plants; Proposal To Delist the California Plant Berberis

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), propose to delist or remove Berberis (=Mahonia) sonnei (Truckee barberry) from the List of Endangered and Threatened Plants. We propose this action based on a review of all available data, which indicate that this plant is not a discrete taxonomic entity and does not meet the definition of a species (which includes subspecies and varieties of plants) as defined by the Endangered Species Act of 1973, as amended (Act). Berberis sonnei has been synonymized with B. repens, a common and widespread taxon with a distribution from California northward to British Columbia and Alberta, and eastward to the Great Plains. If made final, this proposed rule would eliminate Federal protection for Berberis sonnei under the Act. Comments from the public regarding this proposal are sought.

DATES:

Comments from all interested parties must be received by November 4, 2002. Public hearing requests must be received by October 18, 2002.

ADDRESSES:

If you wish to comment, you may submit your comments and materials concerning this proposal to delist or remove Berberis (=Mahonia) sonnei (Truckee barberry) from the List of Endangered and Threatened plants by any one of several methods:

You may submit written comments and information to Wayne White, Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Room W-2605, Sacramento, California 95825.

You may send electronic mail (e-mail) to [e-mail]. See the Public Comments Solicited section below for file format and other information about electronic filing.

You may hand-deliver comments to our Sacramento Fish and Wildlife Office at the address given above.

Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT:

Kirsten Tarp or Jim Browning, at the above address (telephone [phone]; facsimile 916/414-6710).

SUPPLEMENTARY INFORMATION:

Background

Berberis (=Mahonia) sonnei (Truckee barberry) is a small colonial evergreen shrub known only from a 250-meter (m) (280-yard (yd)) section of Truckee River flood plain in the town of Truckee, Nevada County, California. Berberis (=Mahonia) sonnei (Truckee barberry) is a small colonial evergreen shrub known only from a 250-meter (m) (280-yard (yd)) section of Truckee River flood plain in the town of Truckee, Nevada County, California. LeRoy Abrams described Berberis sonnei as Mahonia sonnei in 1934. McMinn (1939) transferred Mahonia sonnei to the genus Berberis. Separation of Berberis and Mahonia at the generic level is in dispute among taxonomists. The generic name Berberis will be used throughout this discussion following Yoder-Williams (1985, 1987).

The collections amateur botanist Charles Sonne made between 1884-1886 from around the Truckee River in Nevada County, California, provided the material from which the Berberis sonnei type later was taken. Sonne placed his collections in B. aquifolium, which at the time was the only suitable name to which he could refer his specimens (Roof 1974).

LeRoy Abrams (1934) determined that Sonne's specimens were not Berberis aquifolium and recognized them as a new species, B. sonnei, in his revision of the western barberries. Abrams distinguished the new species from B. aquifolium by the numerous small teeth on the leaf margins, dull color of underside leaf surfaces, and presence of papillae (small round or conic projections), concluding that these characters indicated a closer relationship with B. repens.

Sonne's material, and an 1881 collection by Marcus Jones at Soda Springs, Nevada County, California, were the only specimens of Berberis sonnei available to botanists for many years. The actual location of Jones' collection has never been determined conclusively; it possibly was the same area later collected by Sonne (U.S. Fish and Wildlife Service 1984). Howard McMinn searched unsuccessfully for B. sonnei for his 1939 treatment of California shrubs. A 1944 collection from an unknown site on the Truckee River was placed in B. repens and went unnoticed by botanists for nearly 30 years. In 1965, an examination of Sonne's field notes revealed a reference to B. aquifolium, which likely could have been B. sonnei, from Deer Creek in Placer County, California but the locality is undocumented by a specimen (Roof 1974). Berberis sonnei was not relocated until a 1973 collection by Tahoe-Truckee high school student, Cathy Kramer, from the site presumably visited by Sonne nearly 90 years earlier (Roof 1974).

Taxonomic relationships between members of the Berberis aquifolium complex, which includes B. repens and B. sonnei, have long been confused. Abrams (1934) and McMinn (1939) both recognized a close relationship between B. sonnei and B. repens. McMinn (1939) first questioned the validity of B. sonnei, observing that B. sonnei perhaps was “'only a more upright form of”' B. repens. Yoder-Williams (1985, 1986, 1987) attributed frequent misclassification of herbarium specimens to the use of taxonomic characters incapable of consistently separating taxa of the group because they failed to account for variability throughout the range of the complex.

Yoder-Williams (1985, 1986, 1987) evaluated the diagnostic value of Berberis characters, including presence of papillae, glossiness of upper and lower leaf surfaces, plant height, and leaf tooth spination. As a result of his evaluation, Yoder-Williams concluded in several unpublished manuscripts that an analysis of possible characters to separate Berberis sonnei from both B. repens and B. aquifolium as treated by Abrams (1934) “failed to produce any clear distinctions,” and that the taxon B. sonnei should be reduced to synonymy under B. repens. He recommended further field work and a comprehensive taxonomic revision of the entire group.

Michael Williams (1993) based his treatment of California Berberis on his taxonomic studies of selected members of the B. aquifolium complex (Yoder-Williams 1985, 1986, 1987). Williams' treatment of the California taxa followed earlier authors (Scoggan 1978) in placing B. repens as a variety of B. aquifolium, and additionally synonymized B. sonnei with B. aquifolium var. repens. The latter is a widespread taxon with a distribution from the Peninsular Ranges of southern California northward to British Columbia and eastward to the Great Plains.

In the Flora of North America (Whittemore 1997), both Berberis aquifolium var. repens and B. sonnei are considered to be synonyms for B. repens. Berberis repens occurs in open forest, grassland, and shrubland. Whittemore (1997) notes that Sonne's collections from Truckee are considered to be an aberrant form of B. repens, and that subsequent collections from this population show the morphology typical of B. repens (Whittemore 1997). The range for B. repens is similar to that described for B. aquifolium ssp. repens.

Previous Federal Action

Federal government actions on Berberis sonnei began as a result of section 12 of the Act, which directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct in the United States. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975, and included B. sonnei as Endangered. We published a notice on July 1, 1975 (40 FR 27823), of our acceptance of the report of the Smithsonian Institution as a petition within the context of section 4(c)(2) of the Act (petition provisions are now found in section 4(b)(3) of the Act) and our intention thereby to review the status of the plant taxa named therein. Berberis sonnei was included in the July 1, 1975, notice. On June 16, 1976, we published a proposal (41 FR 24523) to determine approximately 1,700 vascular plant species, including B. sonnei, to be endangered species pursuant to section 4 of the Act. The list of 1,700 plant taxa was assembled on the basis of comments and data received by the Smithsonian Institution and the Service in response to House Document No. 94-51 and our July 1, 1975, publication.

General comments received in relation to the 1976 proposal were summarized in an April 26, 1978, publication (43 FR 17909). We published the final rule to list Berberis sonnei as an endangered species on November 6, 1979 (44 FR 64246).

On February 2, 1997, we received a petition to delist Truckee barberry (“Mahonia sonnei” sic) from the National Wilderness Institute. However, in April 1995, the enactment of Public Law 104-6 (Pub. L. 104-6) prohibited the Service from expending any of the remaining appropriated funds for the final determinations and listing of plants and animals under the Act. Subsequent Listing Priority Guidance, published on December 5, 1996 (61 FR 64479), identified all delisting actions as Tier 4, and deferred action on all delisting packages until Fiscal Years 1998 and 1999. As a result of this guidance we were unable to address the petition to delist the species. In May 1998, the Final Listing Priority Guidance for Fiscal Years 1998 and 1999 (63 FR 25508) identified all delisting actions as Tier 2 priority actions. Beginning in 1999, funding for work on delisting actions was provided through the recovery program rather than the listing program (64 FR 57114, published October 22, 1999). The basis for the National Wilderness Institute petition was original taxonomic data error. This notice serves as our combined 90-day and 12-month findings on the petition and our proposal to delist B. sonnei.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) implementing the listing provisions of the Act set forth the procedures for listing, reclassifying, and delisting species on the Federal lists. A species may be listed if one or more of the five factors described in section 4(a)(1) of the Act threatens the continued existence of the species. A species may be delisted, according to 50 CFR 424.11(d), only if the best scientific and commercial data available substantiate that the species is neither endangered nor threatened because of (1) extinction, (2) recovery, and/or (3) because the original data for classification of the species were in error. We have carefully assessed the best scientific and commercial information available regarding the taxonomic classification of Berberis (=Mahonia) sonnei and have determined that the previous classification of the species is not taxonomically correct and therefore the species does not meet the definition of “species” as defined in the Act. Therefore, we propose to delist or remove Berberis (=Mahonia) sonnei from the List of Endangered and Threatened Plants.

The five factors affecting the species, as described in section 4(a)(1) of the Act, and their current application to Berberis (=Mahonia) sonnei (Abrams) McMinn (Truckee barberry) are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Berberis sonnei has been synonymized with B. repens, which ranges from California northward to British Columbia and Alberta and eastward to the Great Plains (Whittemore 1997). This widespread taxon is not significantly threatened. The final rule that designated B. sonnei as an endangered species identified urbanization and further modification of streamside habitat of the one known Truckee River population as threats. Because B. sonnei is not a distinct taxon and does not meet the definition of “species” as defined in the Act, and the taxon with which it has now been combined is common and wide ranging and is not threatened by habitat destruction or modification, this threat does not apply.

B. Overutilization for commercial, recreational, scientific, or educational purposes. The final rule cited removal of plants from the one known population as a threat because Berberis species are widely used as ornamentals. This threat is not applicable to the wide ranging and common Berberis repens. Since B. sonnei is now combined with B. repens, the identified threat does not apply.

C. Disease or predation. Neither disease nor predation were cited as threats in the final rule to list Berberis sonnei as an endangered species, and they do not threaten the common and widespread taxon B. repens, to which B. sonnei has been combined.

D. The inadequacy of existing regulatory mechanisms. The common and widespread taxon Berberis repens, with which B. sonnei has been combined, does not require regulatory mechanisms to sustain it. The California Department of Fish and Game tentatively plans to prepare a proposal to delist B. sonnei sometime in the future (Kevin Shaffer, California Department of Fish and Game, pers. comm. 1994; Sandra Morey, California Department of Fish and Game, pers. comm. 2001).

E. Other natural or manmade factors affecting its continued existence. The final rule listing Berberis sonnei as an endangered species cited low seed set and seed viability as threats to the one known population. Neither of these factors threatens the common and widespread B. repens. No additional natural or manmade factors are known to threaten B. repens. Accordingly, there are no other natural or manmade factors affecting the continued existence of B. sonnei which has been combined with B. repens.

The regulations of 50 CFR 424.11(d) state that a species may be delisted if—(1) it becomes extinct, (2) it recovers, and/or (3) the original classification data were in error. We believe current scientific information demonstrates that Berberis sonnei does not represent a valid taxonomic entity and, therefore, does not meet the definition of “species” as defined in section 3(15) of the Act. Therefore, B. sonnei no longer warrants listing under the Act.

Effects of the Rule

If finalized, the proposed action would remove Berberis sonnei from the List of Endangered and Threatened Plants. The endangered designation under the Act for this species would be removed. The prohibitions and conservation measures provided by the Act would no longer apply to this species. Therefore, interstate commerce, import, and export of B. sonnei would no longer be prohibited under the Act. In addition, Federal agencies no longer would be required to consult with us to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of B. sonnei. The take and use of B. sonnei must comply with State regulations. There is no designated critical habitat for this species.

Future Conservation Measures

There are no specific preservation or management programs for this shrub that would be terminated. Section 4(g)(1) of the Act requires us to monitor a species for at least 5 years after it is delisted based on recovery. Because Berberis sonnei is being delisted due to new information that demonstrates that the original classification was in error, rather than due to recovery, the Act does not require us to monitor this plant species following its delisting.

Public Comments Solicited

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning the taxonomic classification of Berberis sonnei.

Submit comments as indicated under ADDRESSES. If you wish to submit comments by e-mail, please submit these comments as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: [RIN 1018-AH47]” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Sacramento Fish and Wildlife Office at phone number 916-414-6600. Please note that the e-mail address “[e-mail]” will be closed at the termination of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and other information received, as well as supporting information used to write this rule, will be available for public inspection, by appointment, during normal business hours at the above address.

In making a final decision on this proposal, we will take into consideration the comments and any additional information we receive. Such communications may lead to a final regulation that differs from this proposal.

Public Hearing

The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal. Such requests must be made in writing and addressed to the Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825.

Required Determinations

Executive Order 12866

Executive Order 12866 requires each Federal agency to write regulations that are easy to understand. We invite your comments on how to make this proposal easier to understand including answers to questions such as the following—(1) Is the discussion in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposal? (2) Does the proposal contain technical language or jargon that interferes with its clarity? (3) Does the format of the proposal (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? What else could we do to make the proposal easier to understand?

Send a copy of any comments that concern how we could make this proposal easier to understand to Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also send the comments by e-mail to [e-mail].

This rule has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

Paperwork Reduction Act

OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, require that Federal agencies obtain approval from OMB before collecting information from the public. Implementation of this rule does not include any collections of information that require approval by OMB under the Paperwork Reduction Act.

National Environmental Policy Act

We have determined that an Environmental Assessment or Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act as amended. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited herein is available upon request from the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service (see ADDRESSES section).

Author

The primary author of this document is Kirsten Tarp, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and record-keeping requirements
• Transportation

Proposed Regulation Promulgation

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

PART 17—[AMENDED]

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

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.

§ 17.12

[Amended]

2. Section 17.12(h) is amended by removing the entry for Berberis sonnei (=Mahonia s.), Truckee barberry, under “FLOWERING PLANTS,” from the List of Endangered and Threatened Plants.

Dated: August 15, 2002.

Steve Williams,

Director, Fish and Wildlife Service.