[Federal Register Volume 60, Number 190 (Monday, October 2, 1995)]
[Proposed Rules]
[Pages 51443-51452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24333]



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50 CFR Part 17
RIN 1018-AD60

Endangered and Threatened Wildlife and Plants; Proposed 
Endangered and Threatened Status for Four Chaparral Plants From 
Southwestern California and Northwestern Baja California, Mexico
AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (Service) proposes to list 
Berberis nevinii (Nevin's barberry) and Fremontodendron mexicanum 
(Mexican flannelbush) as endangered, and Ceanothus ophiochilus (Vail 
Lake ceanothus) and Nolina interrata (Dehesa beargrass) as threatened 
throughout their respective ranges in southwestern California and 
northwestern Baja California, Mexico, pursuant to the Endangered 
Species Act of 1973, as amended (Act). These species are associated 
with chaparral plant communities and, in some cases, are endemic to 
specific types of clay soils.
    These species are threatened by habitat destruction, degradation, 
and fragmentation resulting from urban development, encroachment by 
exotic plant species, and disruption of a normal fire cycle. This 
proposed rule, if made final, would extend protection under the Act to 
these four plants.

DATES: Comments from all interested parties must be received by 
December 1, 1995. Public hearing requests must be received by November 
16, 1995.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad 
Field Office, 2730 Loker Avenue West, Carlsbad, California 92008. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Gail Kobetich at the above address 
(telephone 619/431-9440).

SUPPLEMENTARY INFORMATION:

Background

    Berberis nevinii (Nevin's barberry), Ceanothus ophiochilus (Vail 
Lake ceanothus), Fremontodendron mexicanum (Mexican flannelbush), and 
Nolina interrata (Dehesa beargrass) occur in restricted and localized 
populations from the interior foothills of Los Angeles, Riverside, and 
San Bernardino Counties, California, south through San Diego County to 
northwestern Baja California, Mexico. Most populations of these species 
are situated in relatively rugged terrain dominated by chaparral. 
Fremontodendron mexicanum is also known from closed cone coniferous 
forest dominated by Cupressus forbesii (Tecate cypress) while Berberis 
nevinii 

[[Page 51444]]
is also associated with sandy washes dominated by alluvial scrub 
vegetation associations. Ceanothus ophiochilus, F. mexicanum, and N. 
interrata are often found in association with specific soil types.
    The chaparrals of interior foothill southern California are dense 
shrub associations of moderate height that are dominated by Adenostoma 
fasciculatum (chamise), Ceanothus sp. (California lilac), Rhamnus 
ilicifolia (red berry), Arctostaphylos sp. (manzanita), Quercus 
berberidifolia (California scrub oak), Rhus ovata (sugar bush), Malosma 
laurina (laurel sumac), Heteromeles arbutifolia (toyon), Eriogonum 
fasciculatum (California buckwheat), and Salvia mellifera (black sage) 
(Beauchamp 1986, Holland 1986, and Wiggins 1980). Chaparral species are 
adapted to soils poor in nutrients, a cool, wet winter, and hot dry 
summers.
    Many chaparral species are adapted to periodic wildfires. For 
example, seeds of some plants require fire before they can germinate. 
Other plants reproduce vegetatively by sprouting from the burned stumps 
of the parent plant. Fires that occur too frequently, however, burn 
young plants before they become reproductively mature, thus depleting 
the seed bank. Sustained fire prevention can cause plant communities to 
become senescent (old) and thus they may not survive an unpredictable 
fire to reproduce vegetatively (Boyd 1991).
    Chaparral habitats occur on many different soil types but the 
plants under consideration herein, with the exception of Berberis 
nevinii, typically occur in clay soils derived from gabbro or 
metavolcanic bedrock (Boyd 1991, California Native Diversity Data Base 
(CNDDB) 1992, Oberbauer 1991). Berberis nevinii grows in sandy habitats 
(Mistretta 1989b, CNDDB 1992). Clay soils have unique physical and 
chemical properties that contribute to the disproportionally large 
number of rare plants found on this substrate, as compared to other 
soil types. For these reasons, clay soils are an important contributor 
to floristic diversity in the Riverside County and San Diego County 
region. The Vail Lake area in Riverside County has a large complex of 
highly unique habitats on clay soils formed from gabbro bedrock that 
support many sensitive or endangered plant and animal species including 
two of the species in this proposed rule (see Metropolitan Water 
District (MWD) 1991). The largest population of Berberis nevinii grows 
in this area adjacent to the type location of Ceanothus ophiochilus 
(California Natural Diversity Data Base (CNDDB 1992). The ranges of all 
four species are restricted to small areas.
    The population centers for two of the plants considered in this 
proposal, Berberis nevinii and Ceanothus ophiochilus, are located in 
the Vail Lake area of southwestern Riverside County. Populations of B. 
nevinii located outside the Vail Lake area are small and found in 
isolated patches in San Diego, San Bernardino, and Los Angeles 
Counties. Small populations of C. ophiochilus occur in the Agua Tibia 
Wilderness Area (Cleveland National Forest) adjacent to Vail Lake. 
Nolina interrata and Fremontodendron mexicanum are found only in 
southern San Diego County and northwestern Baja California, Mexico.

Discussion of the Four Species Proposed for Listing

    Ceanothus ophiochilus was first discovered and collected by S. 
Boyd, T. Ross, and L. Arnseth in 1989 on Oak Mountain (also known as 
Vail Mountain), west of Vail Lake in Riverside County, California. It 
was formally described by Boyd et al. (1991) based on the Vail Lake 
collection and was subsequently accepted by Schmidt (1993). Ceanothus 
ophiochilus is a rounded, divaricately-branched (widely forked) shrub 
of the buckthorn family (Rhamnaceae), from 12 to 15 decimeters (dm) (4 
to 5 feet (ft.)) in height with leaves about 3 to 7 millimeters (mm) 
(0.1 to 0.3 inches (in.)) long and 1.5 to 2.5 mm (0.1 in.) wide. Blue 
flowers, narrow leaves, and hornless fruit capsules differentiate C. 
ophiochilus from other members of the genus. This species resembles 
Adenostoma fasciculatum (chamise), the codominant shrub in its habitat. 
Ceanothus ophiochilus flowers from mid-February to March and fruit 
capsules mature from about May to mid-June (Boyd et al. 1991, Schmidt 
1993).
    Ceanothus ophiochilus is restricted to xeric (dry) habitats on 
ridgetops and north to northeast-facing slopes in chamise chaparral. It 
occurs on shallow soils formed from ultra-basic parent materials or 
deeply weathered gabbro, both of which are phosphorus deficient. This 
species is adapted to this harsh environment, whereas other members of 
the genus are not. Ceanothus ophiochilus hybridizes with the locally 
common C.crassifolius in places where the two species occur together. 
The strong association of C. ophiochilus with nutrient poor soils may 
be critical for the species to maintain reproductive isolation (Boyd et 
al. 1991).
    Ceanothus ophiochilus is found at four localities in southwestern 
Riverside County. One population of C. ophiochilus occurs on privately 
owned land at Vail Lake. Estimates for the Vail Lake population range 
from 3,000 to 5,000 plants; this population occupies about 8 hectares 
(ha) (20 acres (ac.)) within a 16 ha (40 ac.) area (Boyd 1991). 
Individual plants within the Vail Lake population exhibit indications 
of hybridization with C. crassifolius. Large populations of C. 
crassifolius are present approximately one-half mile south and east of 
the Vail Lake C. ophiochilus population (Boyd et al. 1991). The 
remaining three populations exist on land managed by the Forest 
Service, where over 4,000 plants exist within about 14 ha (35 ac.) of 
the Agua Tibia Wilderness Area. These populations are scattered along 
borders of creeks and dry canyons, and sometimes on gabbro soils 
(Shaffer 1993). At least two of the three Agua Tibia populations are 
hybridizing with C. crassifolius and these populations may represent 
hybrid swarms. The third Agua Tibia population consists of plants that 
are too young to determine the degree of hybridization taking place 
(Shaffer 1993; Steve Boyd, Rancho Santa Ana Botanical Garden, pers. 
comm. 1995). While these populations evidently are not pure C. 
ophiochilus, the Service continues to recognize their importance to the 
long-term survival of the species. These populations are important 
because they represent about 50 percent of the known acreage of the 
species and a significant number of individuals, and because 
conservation actions for C. ophiochilus would be unnecessarily limited 
to a single location.
    Fremontodendron mexicanum, a member of the cacao family 
(Sterculiaceae), is a small tree or shrub with evergreen, palmately 
lobed leaves, 25 to 50 mm (1 to 2 in.) wide. The inflorescence is about 
60 mm (2.4 in.) wide, and lacks petals. The showy orange sepals, which 
are reddish toward the bases, distinguish F. mexicanum from F. 
californicum, which has yellow sepals. The seeds of F. mexicanum are 
quite distinctive from other species of Fremontodendron (Kelman 1991). 
Fremontodendron mexicanum also has a unique petiole (leaf stalk) 
internal structure that is unlike that found in any other member of the 
family (Kelman 1991). Reliable distribution records for Fremontodendron 
mexicanum indicate that this species is found in southern San Diego 
County and northern Baja California, Mexico between 300 and 1,000 
meters (m) (900 to 3,000 ft.) in elevation. This species blooms from 
March to August and occurs primarily in closed cone coniferous forest 
and southern mixed chaparral often in association with metavolcanic 
soils 

[[Page 51445]]
(Oberbauer 1991, Rieser 1994). Fremontodendron mexicanum is found as 
far south as Arroyo Seco, north of San Quintin, in Baja California, 
Mexico (Wiggins 1980).
    Fremontodendron mexicanum was first described by Davidson (1917) 
(as F. mexicana). Macbride applied the name Fremontia mexicana to this 
species in 1918 (Abrams 1944). Jepson (1925) reduced Fremontia mexicana 
to Fremontia californica var. mexicana citing similarities between this 
species and Fremontia californica of central California. Abrams (1944) 
did not recognize Jepson's treatment, following Macbride. Recent 
treatments (Munz 1974, Kelman 1991, Whetstone and Atkinson 1993) 
recognize Davidson's original treatment. The genus name Fremontia was 
not conserved because Fremontodendron has taxonomic priority over the 
name Fremontia (Kelman 1991).
    Fremontodendron mexicanum is known from fewer than 10 native 
historical locations in the United States. The majority of these are 
situated in the vicinity of Otay Mountain, San Diego County. Although 
no populations of F. mexicanum are known to be extirpated, this species 
has only been observed at one location in recent years (Cedar Canyon). 
Surveys of other historical localities have been unsuccessful in 
relocating this species (Ogden Environmental and Energy Services, Inc. 
1992; Mitchell Beauchamp, botanist, in litt. 1993; Rieser 1994). The 
Bureau of Land Management (BLM) manages most of the Cedar Canyon 
population while other historical sites are divided between BLM and 
private landowners (CNNDB 1992). The total number of remaining plants 
of F. mexicanum in the United States is estimated to be fewer than 100 
(CNDDB 1992; Beauchamp, in litt. 1993). Two additional native 
historical populations are reported from Mexico, however, one 
population has not been seen recently and the other (Arroyo Seco) may 
have been extirpated by a substantial flood (Rieser 1994).
    Three historical localities that may represent native populations 
of Fremontodendron mexicanum have been reported north of San Diego 
County, California. These are Claremont Wash (Los Angeles County), near 
Quail Lake (Kern County), and from Junipero Sierra Peak in the Santa 
Lucia Mountains (Monterey County). These widely scattered and disjunct 
localities are based on single specimen collections that predate 1940 
and the populations have not been relocated in recent years (Kelman 
1991, CNDDB 1992). Identification of these specimens is tentative due 
to lack of seed material and is based solely on the shape of the leaf 
base (Kelman 1991; Susan Cochrane, Natural Heritage Division, 
California Department of Fish and Game (CDFG), in litt. 1993). 
Whetstone and Atkinson (1993) dismissed these localities as being 
unreliable and have limited F. mexicanum to San Diego County, 
California, and Mexico. Regardless, even if it should prove that one or 
more of these populations are F. mexicanum, the botanical flora of 
central California is fairly well known and this species would be a 
rare element in this flora.
    Several other recent localities have been reported in San Diego 
County and in Los Angeles County, California. However, these likely 
represent planted individuals readily available in the nursery trade or 
misidentifications (CNNDB 1992, Rieser 1994).
    Berberis nevinii (Nevin's barberry), an evergreen shrub from 1 to 4 
m (3 to 12 ft.) tall, is a member of the barberry family 
(Berberidaceae). It was first discovered by Reverend Nevin, a Los 
Angeles minister, in 1882 in the San Fernando Valley (Los Angeles 
County) and described by A. Gray in 1895 (Mistretta 1989a). Although 
Fedde (1901) applied the name Mahonia nevinii to this taxon, much of 
the current literature refers to Berberis rather than Mahonia (Moran 
1982). The leaves of B. nevinii are pinnately compound with 3 to 5 
lanceolate leaflets and serrate spine-tipped margins. Flowers, which 
appear from March through April, are yellow with six petals in two 
series and are clustered in a loosely flowered inflorescence 2.5 to 5 
cm (1.0 to 2 in.) long (McMinn 1939, Williams 1993). The fruit is a 
juicy yellowish red to red berry 6 to 8 mm (less than 0.3 in.) long 
with plump brownish seeds. Other Berberis species have wider leaves, 
somewhat folded at the midrib, with marginal spines vertical to the 
leaf surface and smaller, differently colored berries. Related species 
also grow at higher elevations, generally above 800 m (2,500 ft.).
    Berberis nevinii grows in two distinctive, yet related, habitat 
types: sandy and gravelly places along the margins of dry washes below 
the foothill zone of the Southern California Transverse and Peninsular 
ranges, and in coarse soils in chaparral communities (CDFG 1986). This 
species is typically found between 300 and 650 m (900 and 2,000 ft.) in 
elevation (CNDDB 1993). The association of B. nevinii with 
Lepidospartum squamatum, which requires groundwater flow, and its 
preference for sandy wash locations, suggest that B. nevinii may also 
require groundwater flow (Niehaus 1977).
    The range of Berberis nevinii includes Los Angeles, San Bernardino, 
Riverside, and San Diego Counties. The historical distribution of this 
species consisted of about 32 populations at 20 localities.
    Currently, the total number of individuals is likely fewer than 
1,000 (Boyd 1987, CNDDB 1992). At least seven populations have been 
extirpated. The largest remaining cluster of native populations, 
totalling about 300 individuals, occurs in Riverside County, California 
at the Vail Lake/Oak Mountain area. These populations occur on BLM 
lands north of Vail Lake, the Cleveland National Forest southeast of 
Vail Lake, and private ownerships in the Vail Lake region (Boyd et al. 
1989). The remaining populations are small, fewer than 10 or 20 
individuals, and occur on city park, Indian Reservation, or private 
lands (CNDDB 1992). An artificially established population of about 250 
individuals occurs on an alluvial terrace in San Francisquito Canyon on 
the Angeles National Forest in Los Angeles County (Boyd et al. 1989).
    The range of Berberis nevinii is well known and has been 
extensively surveyed. Additional populations are not likely to occur in 
the Vail Lake area (Boyd et al. 1989). A thorough search for B. nevinii 
on the San Bernardino National Forest and the Cleveland National Forest 
was completed in 1989, based on Boyd's (1987) habitat parameters. No 
new populations or individuals were found (Mistretta 1989b; Melody 
Lardner, Botanist, San Bernardino National Forest, in litt. 1993).
    Nolina interrata (Dehesa beargrass) is a member of the lily family 
(Liliaceae) and is similar in appearance to members of the genus Yucca. 
Nolina interrata was discovered in 1939 and it was later formally 
described by Howard S. Gentry (1946). The description was based on 
collections from the type location on Dehesa Road, east of El Cajon in 
San Diego County, California. Gentry's taxonomic treatment is followed 
by Munz (1974). However, Beauchamp (1986) considered N. interrata to be 
conspecific with N. parryi, which is closely related. The most recent 
taxonomic treatment on the genus (Dice 1988) and floristic treatment 
for California (Dice 1993) recognized this species as distinct from N. 
parryi by its lack of above ground stems, low number of leaves (45 or 
less), and short flowering stalk (1.6 m (5 ft.)) or shorter. Nolina 
parryi has distinct above ground stems, numerous leaves (45 to 200) and 
taller flowering stalks (1.6 to 4 m (5 to 13 ft.)) (Dice 1993). 

[[Page 51446]]

    Nolina interrata is a dioecious (male and female flowers on 
separate plants) perennial with an underground stem that forms a woody 
platform and produces many aerial rosettes of leaves. Each rosette 
consists of 10 to 45 lance-linear, glaucous (covered with a whitish 
powder) leaves with minutely serrate margins. In some years, rosettes 
produce a single stalk 1 to 2.5 m (3 to 7.5 ft.) tall with an elongate, 
compound panicle inflorescence at its apex. The flowers are minute (2 
to 4 mm (0.1 to 0.2 in.)) and creamy white. Nolina interrata can be 
distinguished by its short, thin-stalked panicle, which has 
inconspicuous bracts, and by the absence of any visible above-ground 
trunk or stem bearing individual rosettes of leaves, a greatly reduced 
number of leaves per rosette, and minimally expanded leaf bases. It can 
be distinguished from Yucca species by the absence of a rigid spinose 
leaf tip and leaves with shredding margins. In addition, Yucca species 
have larger flowers that branch from a single spike rather than a 
panicle (Dice 1988, 1993).
    Nolina interrata grows in chaparral habitat commonly associated 
with Adenostoma fasciculatum (chamise), Helianthemum scoparium (peak 
rush rose), Salvia clevelandii (Cleveland sage), and Tetracoccus 
dioicus (San Diego button bush). Nolina interrata is often associated 
with other rare plants such as Senecio ganderi (Gander's butterweed), 
Acanthomintha ilicifolia (San Diego thornmint), Monardella hypoleuca 
ssp. lanata (felt-leaved monardella), and Fritillaria biflora 
(chocolate lily) (Oberbauer 1979). The association of N. interrata with 
these species reflects the distribution of clay soils formed from 
gabbro soils in the region (Oberbauer 1979, 1991, Beauchamp 1986). 
Nolina interrata reproduces primarily by asexual means and it does not 
flower every year; this adaptation may compensate for its lack of 
consistent flowering. It also may require fire or other disturbance to 
induce flowering.
    The total population size of Nolina interrata is about 9,000 
plants. There are nine populations of N. interrata in San Diego County, 
all within a 6 square mile (15.6 square kilometer (km)) area in the 
Dehesa Valley, immediately east of El Cajon, California. There are no 
records of extirpated populations. About one-third to one-half of the 
known populations are protected on a reserve managed by The Nature 
Conservancy at McGinty Mountain. Another large population, located near 
Sycuan Peak, is owned by two private landowner consortiums. The 
remaining few populations are small and occur on private land 
(Oberbauer 1979, CNDDB 1992).
    Nolina interrata is known from 3 localities in Baja California and 
ranges as far south as Ensenada (Rancho de la Cruz) in Baja California, 
Mexico (Fred Hrusa, University of California at Davis, in litt. 1993). 
One population exists about 16 km (10 miles) northeast of La Mision. 
Both of these disjunct Mexican populations have fewer than 25 
individuals each. Another population has recently been discovered 
closer to the United States border and it appears to be of comparable 
size (Jim Dice, CDFG, pers. comm. 1995).

Previous Federal Action

    Federal government action on the four plant taxa considered in this 
rule began as a result of section 12 of the Endangered Species Act of 
1973, which directed the Secretary of the Smithsonian Institution to 
prepare a report on those plants considered to be endangered, 
threatened, or extinct. This report, designated as House Document No. 
94-51, and presented to Congress on January 9, 1975, recommended 
Berberis nevinii, Fremontodendron mexicanum, and Nolina interrata for 
endangered status. The Service published a notice in the Federal 
Register on July 1, 1975 (40 FR 27823), of its acceptance of the report 
as a petition within the context of section 4(c)(2) (now section 
4(b)(3)(A)) of the Act, and of the Service's intention thereby to 
review the status of the plant taxa named therein, including B. 
nevinii, F. mexicanum, and N. interrata. On June 16, 1976, the Service 
published a proposal in the Federal Register (42 FR 24523) to determine 
approximately 1,700 vascular plant species to be endangered species 
pursuant to section 4 of the Act. Berberis nevinii, Fremontodendron 
mexicanum, and Nolina interrata were included in this Federal Register 
proposal.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, Federal Register publication (43 FR 
17909). The Endangered Species Act amendments of 1978 required all 
proposals over 2 years old to be withdrawn, although a 1-year grace 
period was given to these proposals. In the December 10, 1979, Federal 
Register (44 FR 70796), the Service published a notice of withdrawal 
for that portion of the June 16, 1976, proposal that had not been made 
final, along with four other proposals that had expired.
    The Service published an updated notice of review of plants in the 
Federal Register on December 15, 1980 (45 FR 82480). This notice 
included Berberis nevinii, Fremontodendron mexicanum, and Nolina 
interrata as category 1 candidate taxa (species for which data in the 
Service's possession are sufficient to support a proposal for listing). 
On November 28, 1983, the Service published a supplement to the Notice 
of Review in the Federal Register (48 FR 53640). This supplement 
treated F. mexicanum as a category 2 candidate species (species for 
which data in the Service's possession indicates listing may be 
appropriate, but for which additional biological information is needed 
to support a proposed rule), whereas B. nevinii and N. interrata 
remained as category 1 species. The listing status of these species has 
remained unchanged since the 1983 Notice of Review.
    Section 4(b)(3)(B) of the Endangered Species Act of 1973, as 
amended in 1982, requires the Secretary to make findings on pending 
petitions within 12 months of their receipt. Section 2(b)(1) of the 
1982 amendments further requires that all petitions pending on October 
13, 1982, be treated as having been newly submitted on that date. This 
was the case for Berberis nevinii, Fremontodendron mexicanum, and 
Nolina interrata because the 1975 Smithsonian report had been accepted 
as a petition. On October 13, 1983, the Service found that the 
petitioned listing of these species was warranted, but precluded by 
other pending listing proposals of higher priority, pursuant to section 
4(b)(3)(B)(iii) of the Act. Notification of this finding was published 
in the Federal Register on January 20, 1984 (49 FR 2485). Such a 
finding requires the petition to be recycled, pursuant to section 
4(b)(3)(C)(i) of the Act. The finding was reviewed in October of 1984, 
1985, 1986, 1987, 1988, 1989, 1990, 1991, and 1992.
    The Service made a final ``not warranted'' finding on the 1975 
petition with respect to Fremontodendron mexicanum and 864 other 
species in the December 9, 1993, Federal Register (58 FR 64828-45). The 
species was thus retained under Category 2 on the basis that it may be 
subject to extinction or endangerment from uncontrolled loss of 
habitat, from other man-caused changes to its environment, or 
extinction due to low numbers (58 FR 64840). Since 1993, the Service 
has completed or obtained survey and other data that adequately 
describe those factors that are placing F. mexicanum at risk of 
extinction. The Service has proceeded to propose this species along 
with Berberis nevinii, Nolina interrata, and Ceanothus ophiochilus that 
occupy the same 

[[Page 51447]]
general distribution in southern California.
    On December 14, 1990, the Service received a petition dated 
December 5, 1990, from Mr. David Hogan of the San Diego Biodiversity 
Project, to list Nolina interrata as an endangered species (Hogan, in 
litt. 1990). The petitioner also requested the designation of critical 
habitat for this species. Since N. interrata was included in the 1975 
Smithsonian Institution Report, the Service regards the 1990 petition 
as a second petition for the same action.
    On September 16, 1991, the Service received a petition dated 
September 13, 1991, from Mr. Steve Boyd of the Rancho Santa Ana Botanic 
Garden, to list Ceanothus ophiochilus as an endangered species (Boyd 
1991). The Service published a 90-day finding in the Federal Register 
on August 10, 1992 (57 FR 37513), that substantial information was 
presented in the petition to indicate that the requested action may be 
warranted. This species was included as a category 2 species in the 
September 30, 1993, Notice of Review (50 CFR 51144). This proposed rule 
constitutes the 12-month finding on this petitioned action.
    On July 29, 1983, Nolina interrata was included in Appendix I of 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES). CITES is a treaty established to prevent 
international trade that may be detrimental to the survival of plants 
and animals.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1531 et seq.) 
and regulations (50 CFR part 424) promulgated to implement the listing 
provisions of the Act set forth the procedures for adding species to 
the Federal lists. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1). These factors and their application to Ceanothus 
ophiochilus S. Boyd, T. Ross and L. Arnseth (Vail Lake ceanothus), 
Berberis nevinii A. Gray (Nevin's barberry), Fremontodendron mexicanum 
Davidson (Mexican flannelbush), and Nolina interrata H. Gentry (Dehesa 
beargrass), are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of their habitat or range. The specific soil and/or 
hydrologic requirements of the four plant taxa considered herein, 
naturally limit their distribution to clay soils formed from gabbro and 
alluvial scrub (sandy washes and terraces) within the chaparral plant 
community. Generally, urban development and mining have impacted these 
habitats more than other activities within the chaparral community 
because the terrain is more accessible than the typically rugged and 
boulder covered terrain of the surrounding chaparral.
    A study conducted by the Metropolitan Water District of Southern 
California suggests that much of southwestern Riverside County will be 
converted to urban development within the decade (Monroe et al. 1992, 
California Department of Finance 1993). Urban development encroachment 
in the Vail Lake area of southwestern Riverside County threatens one of 
the two largest populations of Berberis nevinii and the only known 
population complex of Ceanothus ophiochilus. The Vail Lake area is 
included in a Community Plan, planned and approved by the County, which 
allows subdivision of parcels into 9-ha (20-acre) lots (Boyd 1991, 
Schaffer 1993). In 1995, a new land owner offered the Riverside County 
Habitat Conservation Agency (RCHCA) an option to acquire the portion 
(as a conservation bank) of the Vail Lake planned community that 
contains the C. ophiochilus population (see Factor D). However, the 
option is unlikely to be taken and the current land owner (a real 
estate management company) may sell the property to an entity, or 
multiple entities that may develop the property (Michelle Shaughnessy, 
Fish and Wildlife Service Biologist, pers. comm. 1995). Berberis 
nevinii populations at Vail Lake could be eliminated by development 
(Jeff David and Associates 1995). If the conservation bank is not 
adopted and if subdivision of this area occurs, several types of 
impacts would be expected in addition to the direct removal of B. 
nevinii and C. ophiochilus and their habitat. Fire management 
strategies for developed areas would impact the natural fire processes 
to which natural plant communities have become adapted (see Factor E 
below). Individual landowners are likely to convert existing habitat to 
gardens, lawns, and pastures. Development would introduce invasive 
plants that compete with these taxa, and degrade habitat quality as a 
result of conversion to later successional stages of plant communities 
(Boyd 1991).
    Several other sources of habitat degradation also threaten Berberis 
nevinii and Ceanothus ophiochilus in the Vail Lake area of Riverside 
County. State Route 79 (SR 79) has been proposed for widening from two 
to four lanes and may impact some populations of B. nevinii as well as 
promoting development in the area (Monroe et al. 1992). Grading for 
fire breaks can destroy populations and their habitat. For example, 
grading destroyed about 3 percent of the C. ophiochilus population at 
Vail Lake, north of SR 79 and 3 percent or more in the Agua Tibia 
Wilderness of the Cleveland National Forest, south of SR 79 (Boyd et 
al. 1989; Boyd 1991; S. Cochrane, in litt. 1993).
    Of 32 known populations of Berberis nevinii, those occurring in 
alluvial scrub habitats have been the most heavily impacted (CNDDB 
1992). Most of these populations have been extirpated by urban 
development, road widening, or habitat degradation from excessive 
recreational use. The quality of the remaining populations is poor 
compared to historical accounts (Boyd 1987). The vast San Fernando 
Valley alluvial scrub habitat has been largely urbanized, but once 
supported numerous populations, including the type locality for B. 
nevinii (Boyd 1987).
    Nolina interrata and Fremontodendron mexicanum are being affected 
by the same suite of threats that accompany the encroachment of 
urbanization described above. The Otay Ranch and BLM boundaries divide 
Cedar Canyon in southern San Diego County near the Mexican border, 
which is the only confirmed F. mexicanum population in the United 
States and consists of 2 groups of F. mexicanum (CNDDB 1992). About 50 
percent of the potentially occupied habitat of F. mexicanum exists on 
BLM land and about 50 percent is on private property designated as open 
space, which will be surrounded by residential development under the 
Otay Ranch Plan (Ogden Environmental and Energy Services, Inc. 1992). 
Habitat potentially occupied by F. mexicanum at Brown Field and Otay 
Lakes is degraded by four-wheel drive roads and deep gully erosion.
    Over 50 percent of the population of Nolina interrata exists on 
private land zoned for development (Dice, pers. comm. 1995). The 
primary population of N. interrata at McGinty Mountain is under 
management by The Nature Conservancy, however, the remaining population 
occurs in subdivided private ownerships (CNDDB 1993). Losses of N. 
interrata to easements and grading have already occurred at McGinty 
Mountain, and fragmentation and degradation of remaining habitat 
continues (Dice, pers. comm. 1995). The future of the very large Sycuan 
Mountain population is uncertain at the present even though the 
landowner possesses development entitlements and CDFG may purchase a 
portion of this population (Royce Riggan, RBR Associates, pers. comm. 

[[Page 51448]]
1993). Some of the smaller populations are on land owned by sand-mining 
interests where mining-related activities, trash dumping, and access 
roads are destroying and degrading its habitat.
    B. Overutilization for commercial, recreational, scientific or 
educational purposes. Fremontodendron mexicanum, Berberis nevinii and 
Nolina interrata are sold in the nursery trade. However, reportedly 
seed and cuttings of F. mexicanum and B. nevinii are derived from 
existing cultivars (Elena Benge, Tree of Life Nursery, San Juan 
Capistrano, California, pers. comm. 1995). Take of N. interrata plants 
from the wild for the nursery trade has been identified as a threat to 
the species (CDFG 1992). Access to most of the remaining locations of 
all four plant species is limited by private property boundaries and/or 
rugged terrain (CNNDB 1992, unpublished Service data).
    C. Disease or predation. No evidence suggests that disease or 
predation have affected the plant species under consideration herein.
    D. The inadequacy of existing regulatory mechanisms. Existing 
regulatory mechanisms that could provide some protection for these 
species in the United States include: (1) listing under the California 
Endangered Species Act; (2) adequate consideration under the California 
Environmental Quality Act (CEQA) and the National Environmental Policy 
Act (NEPA); (3) local laws and regulations; (4) section 404 of the 
Federal Clean Water Act, and section 1603 of the California Fish and 
Game Code; (5) occurrence with other species protected by the Federal 
Endangered Species Act; (6) adequate consideration in State or regional 
conservation planning efforts such as the Natural Community 
Conservation Planning Program and other wide range multispecies 
efforts; (7) land acquisition and management by Federal, State, or 
local agencies, or by private groups and organizations; and (8) 
inclusion in Appendix I of CITES.
    The California Fish and Game Commission has listed Nolina 
interrata, Mahonia (=Berberis) nevinii, and Ceanothus ophiochilus as 
endangered under the Native Plant Protection Act (NPPA) (California 
Fish and Game Code, Div. 2, Chapter 10, section 1900 et seq.) and the 
California Endangered Species Act (CESA) (Div. 3, Chapter 1.5, section 
2050 et seq.). Fremontodendron mexicanum is included on List 1B of the 
California Native Plant Society's Inventory of Rare and Endangered 
Plants, which, in accordance with section 1901, chapter 10 of the 
California Fish and Game Code, makes it eligible for State listing. 
Although NPPA and CESA both prohibit the ``take'' of State-listed 
plants (Chapters 10 and 1.5, sections 1908 and 2080 respectively), 
these statutes appear to inadequately protect against the taking of 
such plants via habitat modification or land use change by the 
landowner. After the California Department of Fish and Game notifies a 
landowner that a State-listed plant grows on his or her property, State 
law requires only that the landowner notify the agency ``at least 10 
days in advance of changing the land use to allow salvage of such 
plant'' (California Fish and Game Code, Chapter 10, section 1913).
    The California Environmental Quality Act (CEQA) (Public Resources 
Code, section 21000 et seq.) requires a full disclosure of the 
potential environmental impacts of proposed projects. The public agency 
with primary authority or jurisdiction over the project is designated 
as the lead agency, and is responsible for conducting a review of the 
project and consulting with the other agencies concerned with the 
resources affected by the project. Section 15065 of the CEQA Guidelines 
requires a finding of significance if a project has the potential to 
``reduce the number or restrict the range of a rare or endangered plant 
or animal'' including those that are eligible for listing under NPPA 
and CESA. Once significant effects are identified, the lead agency has 
the option to require mitigation for effects through changes in the 
project or to decide that ``overriding social and economic 
considerations'' make mitigation infeasible (California Public 
Resources Code, Guidelines, section 15093). In the latter case, 
projects may be approved that cause significant environmental damage, 
such as destruction of endangered plant species. Protection of listed 
plant species under CEQA is, therefore, dependent upon the discretion 
of the lead agency.
    While CEQA pertains to projects on non-Federal land, the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321 to 4347) requires 
disclosure of the environmental effects of projects within Federal 
jurisdiction. Species that are listed by the State, but not proposed or 
listed as threatened or endangered by the Federal government, are not 
protected when a proposed Federal action is considered a ``categorical 
exclusion.'' NEPA requires that each of the project alternatives 
recommend ways to ``protect, restore and enhance the environment'' and 
``avoid and minimize any possible adverse effects,'' when 
implementation poses significant adverse impacts. However, it does not 
require that the lead agency select an alternative with the least 
significant impact to the environment (40 CFR, 1500 et seq.).
    Land-use planning decisions, at the local level, are made on the 
basis of environmental review documents, prepared in accordance with 
CEQA or NEPA, which often do not adequately address ``foreseeable 
future'' or ``cumulative'' impacts to non-listed species and their 
habitat. As with section 404 permits described below, the Service's 
comments through the NEPA and CEQA review processes are only advisory.
    In 1991, the State of California established the Natural Community 
Conservation Planning (NCCP) Act to address conservation needs 
throughout the state. Chaparral and closed-coned coniferous forest 
habitats and two of the four species (Nolina interrata and 
Fremontodendron mexicanum) are being considered under the Multiple 
Species Conservation Program (MSCP) plan. This program, under 
development by the City of San Diego, County of San Diego, other 
coastal cities, and private land owners, is a component of the NCCP 
program. A draft plan for the MSCP has been developed but has not been 
approved. As currently proposed, while the plan will benefit the 
species, it will not preclude listing of F. mexicanum because of 
extremely limited numbers of populations (1 confirmed in the United 
States) and individuals (fewer than 100). While protection of N. 
interrata would likely be adequate within those areas covered by the 
MSCP (3 populations), the implementation of the MSCP would not likely 
preclude the need for listing this species because significant 
populations occur on unprotected lands east of the MSCP planning area. 
The County of San Diego is in the process of planning for conservation 
in the eastern portion of the county, but a draft plan is not expected 
in the near future.
    The Service is working with Riverside and San Bernardino counties 
to create multispecies plans that may benefit Ceanothus ophiochilus and 
Berberis nevinii. Both plans are in the planning stage and it is 
uncertain to what degree they will be successful in providing 
protection for these species. However, these multispecies plans will 
likely provide significant benefits to both species. While B. nevinii 
is distributed beyond San Bernardino and Riverside counties, the 
implementation of adequate biologically sound multispecies plans in 
these counties may fulfill Endangered Species Act 

[[Page 51449]]
requirements for this species within these counties.
    Section 404 of the Clean Water Act, administered by the U.S. Army 
Corps of Engineers (Corps), could provide for conservation or 
protection of Berberis nevinii populations along alluvial features. 
Alluvial scrub habitats, which historically supported Berberis nevinii, 
have been reduced in extent by 95 percent due to urban and agricultural 
development (CNDDB 1992, Rey-Vizgirdas 1994). These habitats must be 
considered under CEQA or NEPA and may be regulated, in part, by the 
permitting processes of the Corps under section 404 of the Clean Water 
Act. Under section 404 the Corps regulates, through a permitting 
program, the discharge of dredged or fill material into waters of the 
United States. Waters of the U.S. include lakes, rivers, streams and 
any wetlands adjacent to these features, as well as isolated wetland 
areas. However, upland (non-wetland) areas are not subject to 
regulation or protection under the Corps' regulatory program. Depending 
on the frequency and duration of inundation, soil characteristics and 
vegetative composition of B. nevinii habitat, potential habitat for the 
species may not be within the jurisdictional boundaries of section 404. 
As a result, any projects affecting such habitat likely would receive 
no environmental review. Federal candidate species receive no special 
consideration under section 404. In addition, emergency flood control 
measures may circumvent compliance with these statutes. For example, as 
part of emergency measures, vegetation stripping occurred in Riverside 
and San Bernardino counties throughout the potential range of B. 
nevinii after flooding subsided in the spring of 1993.
    The Act may incidentally afford protection to the species under 
consideration in this proposal if they co-exist with species already 
listed as threatened or endangered under the Act. The least Bell's 
vireo (Vireo bellii pusillus), coastal California gnatcatcher 
(Polioptila californica californica), southwestern willow flycatcher 
(Empidonax traillii extimus), arroyo toad (Bufo microscaphus 
californicus), slender-horned spineflower (Dodecahema leptoceras), and 
Santa Ana River woolly star (Eriastrum densiflorum ssp. sanctorum) are 
listed as endangered or threatened under the Act and occur within the 
same geographical area as the species proposed herein. However, these 
species are not found in the same habitat as three of the proposed 
plant taxa. Though Berberis nevinii is known to occur in alluvial fan 
scrub which is also known to be occupied by D. leptoceras, and E. 
densiflorum ssp. sanctorum, these species are not known from any 
specific site where B. nevinii also occurs.
    The Nature Conservancy has acquired lands on Sycuan Peak and 
McGinty Mountain in San Diego County, which protect part of the 
population of Nolina interrata (CDFG 1992), however the amount of 
habitat acquired is not adequate to ensure protection of the species. 
Acquisition of lands to protect Berberis nevinii and Fremontodendron 
mexicanum has been proposed by the Bureau of Land Management (1992), 
but the action has not yet been implemented. These actions would 
increase protection for a small segment of the B. nevinii population, 
and all of the known populations of F. mexicanum in the United States.
    The proposed land acquisitions and management practices discussed 
above would protect significant portions of the populations of the 
plant species considered herein, and the Service supports their 
implementation. However, these actions are only proposed and the 
likelihood of their implementation is uncertain. Even if implemented, 
they would not eliminate threats due to an alteration of the natural 
fire periodicity, habitat fragmentation, and randomly occurring natural 
events (discussed below). Significant portions of these plant 
populations would still not have appropriate management or would be 
outside the proposed areas of acquisition (with the exception of F. 
mexicanum).
    E. Other natural or manmade factors affecting their continued 
existence. Fire management practices are adversely affecting Ceanothus 
ophiochilus, Berberis nevinii, Nolina interrata, and Fremontodendron 
mexicanum because the habitat requirements for these species depend 
upon natural fire patterns. Alteration of natural fire periodicity can 
have various adverse effects on plants that evolved to survive in an 
ecosystem that included natural fires. Human population increases are 
generally accompanied by increased incidence of local accidental fires. 
As regional population density continues to increase, fire suppression 
measures are intensified in surrounding undeveloped areas. The natural 
period between fires in these areas then may be lengthened. Also, 
during fire events, bulldozers are used to scrape fire breaks through 
vegetation to stop the advance of a fire. Fire breaks may increase 
erosion on slopes which may slow chaparral (and species) recovery.
    Although Ceanothus ophiochilus is dependent on occasional fires for 
seed germination, it does not reproduce vegetatively after a fire. Very 
high fire frequencies prevent newly germinated plants from reaching 
reproductive maturity and will result in population declines or 
extirpation once the underground seed bank has been depleted.
    In other cases, the reduced frequency of fire due to fire 
suppression programs can adversely affect the viability of plant 
populations by reducing genetic diversity. While frequent fires are a 
threat to the survival of Ceanothus ophiochilus, fire suppression would 
also represent a threat to this species because it would inhibit seed 
germination. Therefore, controlled burns may be necessary, in some 
cases, to maintain population vigor and rejuvenation (Boyd 1991).
    Likewise, flowering of Nolina interrata is stimulated by fire. In 
the absence of fire, it reproduces primarily by cloning a new plant 
from its underground caudex. Genetic diversity for N. interrata can 
only be maintained if the plant flowers and reproduces sexually. One 
population is cloned from a single female plant. If populations are 
entirely female, pollen from disjunct populations would be required for 
flower fertilization. However, flowers in disjunct populations may not 
bloom simultaneously since flowering is, in part, dependent upon fire 
(Dice 1989).
    The effects of altered fire frequencies on Berberis nevinii are not 
known. Basal burls indicate that B. nevinii is able to stump sprout; 
however, vegetative propagation has been unsuccessful in cultivation. 
This species propagates in the wild by seed, but seed production and 
fertility are sporadic.
    Hybridization threatens Ceanothus ophiochilus throughout its 
populations. Potential hybrids have been observed at the edge of the 
Vail Lake population, near the contact zone with adjacent 
metasedimentary substrates. The other three populations, located nearby 
in the Agua Tibia Wilderness Area, have been significantly affected by 
hybridization with C. crassifolius. At least 10 to 15 percent of two of 
the Agua Tibia populations represent pure hybrid individuals and it is 
likely that a large portion, or possibly all of the individuals in 
these populations are introgressed to some degree (Shaffer 1993). The 
hybridization is likely the result of disturbance by fire and fire 
management practices such as bulldozed firebreaks (Chris Frazier, San 
Diego State University, in litt. 1993).
    Risk of extinction from naturally occurring events threatens all of 
the 

[[Page 51450]]
plant taxa discussed herein by virtue of their small population size 
and limited distribution (e.g., the extant population of 
Fremontodendron mexicanum is fewer than 100 individuals). Genetic 
viability is reduced in small populations, making them more vulnerable 
to extinction by manmade or natural events. Because N. interrata 
reproduces by cloning, the status of genetic diversity in the remaining 
populations is unkown. In addition, Barrett and Kohn (1991) maintain 
that characteristics such as low reproductive success may be the result 
of random genetic drift. Random genetic drift is the random change in 
the gene frequency of a populations due to ``reshuffling'' of gametes 
from generation to generation. This effect is amplified in small 
isolated populations and can result in the prevalence of detrimental 
characteristics in a population. The potential for local extirpation 
owing to small population size can be exacerbated by environmental 
conditions such as the recent drought. A single random event occurring 
in a population center can decimate a species beyond recoverable 
numbers. In the case of Berberis nevinii, most individuals are 
concentrated in one locality in the Vail Lake area of Riverside County 
(CNDDB 1992). The species is extremely vulnerable because its low 
reproductive success rate (Mistretta 1989a) and disjunct distribution 
decrease its ability to recover from naturally occurring events.
    Ceanothus ophiochilus occurs only in southwestern Riverside County. 
A few thousand individuals or less exist at each of three or four 
localities (Shaffer 1993). Hybridization with C. crassifolius may 
reduce the effective reproductive population and intensify the adverse 
effects of random genetic drift in the Agua Tibia populations (Barrett 
and Kohn 1991). Due to the very small number of individuals and the 
verified existence of only one U.S. population (CNNDB 1992), 
Fremontodendron mexicanum is subject to the same adverse genetic and 
naturally occurring random effects as C. ophiochilus (Barrett and Kohn 
1991). One of the Dehesa Valley populations of Nolina interrata is 
considered to be a single female clone (Dice, pers. comm. 1995). 
Cloning makes N. interrata more vulnerable to extinction from naturally 
occurring events, particularly when most of the populations are found 
at only one location (Oberbauer 1979).
    In summary, the decline of these species' ranges and populations 
are attributable to loss or adverse modification of habitat by urban 
development. The remaining habitat is more vulnerable to natural and 
human-caused threats because it is fragmented and disjunct. 
Recolonization of burned or modified habitats is unlikely because of 
the long dispersal distance from other, if any, populations. Edaphic 
(soil-related) endemism, a trait of all of these species, also limits 
areas suitable for colonization. Currently healthy populations are more 
subject to disease and disturbance because of the lack of gene flow 
from other populations due to isolation. The small numbers and 
concentrated populations of all these species also make them vulnerable 
to extinction from naturally occurring events. Vandalism and inadequate 
regulatory mechanisms exacerbate the threats arising from otherwise 
lawful activities. The cumulative effects of these multiple threats 
have placed two of these species in danger of extinction, and two in 
danger of potential extinction.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to propose this 
rule. Based on this evaluation, the preferred action is to list 
Berberis nevinii and Fremontodendron mexicanum as endangered. Other 
alternatives to this action were considered but not preferred because 
not listing these species, or listing them as threatened would not 
provide adequate protection and would not be in keeping with the 
purposes of the Act. Both of these species exist in small isolated 
populations. The entire population of Fremontodendron mexicanum is 
estimated to contain less than 100 plants. Urbanization of surrounding 
areas and fire management practices threaten both of these species with 
extinction throughout their ranges.
    The preferred action for Nolina interrata and Ceanothus ophiochilus 
is to list these taxa as threatened. While N. interrata and C. 
ophiochilus are not in danger of extinction throughout all or a 
significant portion of their ranges, they are likely to become 
endangered species within the foreseeable future. Both species are 
fire-dependent for successful proliferation, and disruption of the 
natural fire regime can prohibit future generations from establishing. 
Continued hybridization of C. ophiochilus populations will impair their 
reproductive success and alter the genetic makeup of the species.
    Critical habitat is not being proposed for these species, as 
discussed below.

Critical Habitat

    Critical habitat, as defined by section 3 of the Act, is: (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for these 
species at this time. Service regulations (50 CFR 424.12(a)(1)) state 
that designation of critical habitat is not prudent when one or both of 
the following situations exist--(1) The species is threatened by taking 
or other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    The Service finds that designation of critical habitat for Berberis 
nevinii, Ceanothus ophiochilus, Fremontodendron mexicanum, and Nolina 
interrata is not prudent for these species at this time. The additional 
protection provided by the designation of critical habitat is achieved 
through section 7 of the Act which requires consultation with the 
Service on any projects or activities authorized, funded or carried out 
by Federal agencies. While actions by the U.S. Army Corps of Engineers, 
the Forest Service, or may affect some populations of these species, 
the majority of the populations of these species are on private land 
with little or no Federal involvement. Therefore, the designation of 
critical habitat for these taxa would not appreciably benefit the 
species.
    In addition, the publication of precise maps and descriptions of 
critical habitat in the Federal Register would make these plants more 
vulnerable to incidents of vandalism and, therefore, could contribute 
to the decline of these species. The threat of potential vandalism in 
response to listing a species has been identified by several sources 
(Oberbauer 1979, Beauchamp 1993) and may be applicable to others 

[[Page 51451]]
given their occurrence on predominantly private lands. All Federal and 
state agencies and local planning agencies involved have been notified 
of the location and importance of protecting these species' habitat. 
Protection of these species' habitat will be addressed through the 
recovery process. Therefore, the Service finds that designation of 
critical habitat for these plants is not prudent at this time; such 
designation likely would not provide any additional benefit to these 
species beyond that provided through their listing as endangered or 
threatened species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery plans be 
developed for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with the Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agencies expected to have involvement with Berberis 
nevinii, Ceanothus ophiochilus, Fremontodendron mexicanum, and Nolina 
interrata include the United States Forest Service (USFS), BLM, Corps, 
Federal Highway Administration, and the Immigration and Naturalization 
Service. These agencies either administer lands containing these 
species or authorize, fund, or otherwise conduct activities that may 
affect these species.
    The Act and its implementing regulations found at 50 CFR section 
17.61, 17.62, and 17.63 set forth a series of general prohibitions and 
exceptions that apply to all endangered plants. With respect to the 
four plant taxa considered herein, all trade prohibitions of section 
9(a)(2) of the Act, implemented by 50 CFR 17.61, would apply. These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to import or export, transport in 
interstate or foreign commerce in the course of a commercial activity, 
sell or offer for sale in interstate or foreign commerce, or remove and 
reduce to possession any such species from areas under Federal 
jurisdiction. In addition, the 1988 amendments (P.L. 100-478) to the 
Act make it illegal to maliciously damage or destroy any such species 
on areas under Federal jurisdiction or remove, cut, dig up, damage or 
destroy any such species in knowing violation of any State law or 
regulation, including State criminal trespass law. Certain exceptions 
apply to agents of the Service and State conservation agencies.
    The Act and 50 CFR 17.62, 17.63 and 17.72 also provide for the 
issuance of permits to carry out otherwise prohibited activities 
involving endangered and threatened plants under certain circumstances. 
It is anticipated that trade permits will be sought and issued for at 
least two of the plant species considered herein that are common in 
cultivation, Berberis nevinii and Fremontodendron mexicanum. Requests 
for copies of regulations on listed plants and inquiries regarding them 
may be addressed the U.S. Fish and Wildlife Service, Ecological 
Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, 
Oregon, 97232-4181 (telephone 503/231-2063, FAX 503/231-6243).
    Nolina interrata is included in Appendix I of CITES. CITES is a 
treaty established to prevent international trade that may be 
detrimental to the survival of plants and animals.
    It is the policy of the Service (59 FR 34272) to identify to the 
maximum extent practicable at the time a species is listed those 
activities that would or would not be likely to constitute a violation 
of section 9 of the Act. Such information is intended to clarify the 
potential impacts of a species' listing on proposed and ongoing 
activities within the species' range. All four taxa have populations 
that occur on either USFS lands or lands managed by BLM. Collection, 
damage or destruction of these species on Federal lands would be 
prohibited, although in appropriate cases a Federal endangered species 
permit may be issued to allow collection. Such activities on non-
Federal lands would constitute a violation of section 9 if conducted in 
knowing violation of California State law or regulations, or in 
violation of State criminal trespass law.
    Three of the proposed species are of horticultural interest and 
both are currently in commercial trade, Berberis nevinii, 
Fremontodendron mexicanum, and Nolina interrata. Intrastate commerce is 
not prohibited under the Act. However, interstate and foreign commerce 
would require a Federal endangered species permit. However, 50 CFR Part 
17.71(a) does not prohibit any activities with seeds of cultivated 
threatened species provided that a statement that the seeds are of 
``cultivated origin'' accompanies the seeds or their container during 
the course of the activity. Other than possible interstate commerce by 
the public that would be affected by this proposed listing, the Service 
is not aware of any other activities being conducted by the public that 
would be affected by this proposal and result in a violation of section 
9. Questions regarding whether specific activities would constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Carlsbad Field Office (see ADDRESSES section).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial, or other relevant data concerning any 
threat (or lack thereof) to Berberis nevinii, Ceanothus ophiochilus, 
Fremontodendron mexicanum, and Nolina interrata;
    (2) The location of any additional populations of these species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;

[[Page 51452]]

    (3) Additional information concerning the range, distribution, and 
population size of these species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on these species.
    The final decision on this proposal will take into consideration 
the comments and any additional information received by the Service, 
and such communications may lead to a final regulation that differs 
from this proposal.
    The Act provides for a public hearing on this proposal, if 
requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and addressed to the Field Supervisor of the 
Carlsbad Field Office (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, 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 of 1973, as amended. A notice 
outlining the Service's 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 U.S. Fish and Wildlife Service, Carlsbad Field Office 
(see ADDRESSES above).

Author

    This proposed rule was prepared by the staff of the Carlsbad Field 
Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes 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.

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under FLOWERING PLANTS, to the List of Endangered 
and Threatened Plants, to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
              Species                                                                                           
-----------------------------------  Historic range       Family        Status      When     Critical   Special 
 Scientific name     Common name                                                   listed    habitat     rules  
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Flowering Plants                                                                                                
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Berberis nevinii  Nevin's barberry  U.S.A. (CA)....  Berberidaceae..  E                            NA         NA
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Ceanothus         Vail Lake         U.S.A. (CA)....  Rhamnaceae.....  T                            NA         NA
 ophiochilus.      ceanothus.                                                                                   
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Fremontodendron   Mexican           U.S.A. (CA),     Sterculiaceae..  E                            NA         NA
 mexicanum.        flannelbush.      Mexico.                                                                    
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Nolina interrata  Dehesa beargrass  U.S.A. (CA),     Liliaceae......  T          .........         NA         NA
                                     Mexico.                                                                    
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

    Dated: September 20, 1995.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 95-24333 Filed 9-29-95; 8:45 am]
BILLING CODE 4310-55-P