[Federal Register Volume 67, Number 170 (Tuesday, September 3, 2002)]
[Proposed Rules]
[Pages 56254-56257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22300]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH47


Endangered and Threatened Wildlife and Plants; Proposal To Delist 
the California Plant Berberis (=Mahonia) sonnei (Truckee barberry)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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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 [email protected]. 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 916/414-6600; 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

[[Page 56255]]

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

[[Page 56256]]

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 ``fw1--[email protected]'' 
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

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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 
[email protected].
    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.


Sec. 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.
[FR Doc. 02-22300 Filed 8-30-02; 8:45 am]
BILLING CODE 4310-55-P