[Federal Register Volume 68, Number 190 (Wednesday, October 1, 2003)]
[Rules and Regulations]
[Pages 56564-56567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24858]


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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; Delisting of the 
Berberis (=Mahonia) sonnei (Truckee barberry)

AGENCY: Fish and Wildlife Service Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) have 
determined that it is appropriate to delist or remove Berberis 
(=Mahonia) sonnei (Truckee barberry) from the List of Endangered and 
Threatened Plants. This determination is based on a thorough 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) under the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). 
Berberis sonnei has been synonymized with B. repens, a common and wide-
ranging taxon with a distribution from California northward to British 
Columbia and Alberta, and eastward to the Great Plains. This rule 
eliminates Federal protection for Berberis sonnei under the Act.

DATES: This rule is effective October 1, 2003.

ADDRESSES: The administrative record for this rule is available for 
inspection, by appointment, during normal business hours at the 
Sacramento Fish and Wildlife Office of the U.S. Fish and Wildlife 
Service, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825-
1888 (telephone: 916-414-6600).

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp or Susan Moore, at the 
above address (telephone: 916-414-6600; facsimile: 916-414-6713).

SUPPLEMENTARY INFORMATION:

Background

    Berberis (=Mahonia) sonnei is a small colonial evergreen shrub 
known only from a 280-yard (250-meter) section of the Truckee River 
floodplain in the town of Truckee, Nevada County, CA. 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, 1986, 1987).

[[Page 56565]]

    The collections amateur botanist Charles Sonne made from 1884 to 
1886 around the Truckee River in Nevada County, CA, 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, CA, were the only specimens of Berberis sonnei 
available to botanists for many years. The actual location of Jones's 
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, CA, 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. 
Williams's 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 wide-ranging 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 an endangered species. 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 (P.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. We published a 
proposed rule to remove Berberis sonnei from the Federal List of 
Endangered and Threatened Plants on September 3, 2002 (67 FR 56254), 
based on information indicating that B. sonnei is not a discrete 
taxonomic entity and does not meet the definition of a species as 
defined by the Act. The proposed rule also served as our combined 90-
day and 12-month finding on this petition.

Summary of Issues and Recommendations

    In the September 3, 2002, proposed rule (67 FR 56254) and 
associated notifications, we invited all interested parties to submit 
comments or information that might contribute to the final delisting 
determination for this species. The public comment period ended 
November 4, 2002. We contacted

[[Page 56566]]

and sent announcements of the proposed rule to appropriate Federal and 
State agencies, county governments, scientific organizations, and other 
interested parties. We established an Internet web site for electronic 
submittal of comments and hearing requests by any party. In addition, 
we solicited formal scientific peer review of the proposal in 
accordance with our July 1, 1994, Interagency Cooperative Policy for 
Peer Review in Endangered Species Act Activities (59 FR 34270). We 
requested three individuals with expertise in one or several fields, 
including familiarity with the species, familiarity with the geographic 
region in which the species occurs, and familiarity with the principles 
of conservation biology, to review the proposed rule by the close of 
the comment period. We received comments from two parties, including 
one designated peer reviewer. The comment is addressed in the following 
summary. We did not receive any requests for a public hearing.
    Issue: Both commenters agreed with us that the morphological work 
and conclusion of both Michael Yoder-Williams and Alan Whittemore 
regarding the taxonomy of Berberis sonnei are scientifically sound as 
far as existing evidence, but requested that a molecular analysis of B. 
sonnei be conducted to determine if the molecular evidence correlates 
with the morphological evidence before delisting B. sonnei.
    Our Response: We base our delisting decisions upon the best 
available commercial and scientific information. Currently, no one has 
performed a molecular analysis of Berberis sonnei. After a review of 
all available data, we have made the determination that B. sonnei is 
not a discrete taxonomic entity and does not meet the definition of a 
species. Therefore, our recommendation to delist B. sonnei remains 
unchanged. If new information becomes available through molecular 
analyses that shows that B. sonnei is a discrete taxonomic entity, we 
will reexamine the threats to determine if it should be listed again.

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, or removing species from listed status. We may list a 
species as endangered or threatened because of one or more of the five 
factors described in section 4(a)(1) of the Act; we must consider these 
same five factors in delisting a species. According to 50 CFR 424.11(d) 
of our regulations, we may delist a species if the best available 
scientific and commercial data indicate that the species is neither 
endangered nor threatened for the following reasons: (1) The species is 
extinct; (2) the species has recovered and is no longer endangered or 
threatened; and/or (3) the original scientific data used at the time 
the species was classified 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 previous 
classification of the species is not taxonomically correct and that the 
entity listed as B. sonnei does not meet the definition of ``species'' 
in the Act. Therefore, we have determined that it is appropriate 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 repens, with which B. 
sonnei has been combined, is a common species ranging from California 
northward to British Columbia and Alberta and eastward to the Great 
Plains (Whittemore 1997). This wide-ranging taxon is not threatened. 
Although urbanization and other activities may destroy or modify its 
habitat in localized areas, there is no evidence that habitat 
destruction or modification threaten the continued existence of B. 
repens.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. The final rule adding Berberis sonnei to the 
endangered species list cited removal of plants from the one known 
population as a threat because Berberis species are widely used as 
ornamentals. Because Berberis repens, with which B. sonnei has been 
combined, is common and wide-ranging, removal of plants for ornamental 
purposes does not threaten this species.
    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 wide-ranging taxon B. 
repens, with which B. sonnei has been combined.
    D. The inadequacy of existing regulatory mechanisms. There is no 
evidence that the common and wide-ranging Berberis repens, with which 
B. sonnei has been combined, requires 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 (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 
wide-ranging B. repens, with which B. sonnei has been combined.
    In summary, our regulations at 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'' in section 3(15) of the Act. In addition, 
we have determined that B. repens, with which B. sonnei has been 
combined, is not an endangered or threatened species. We, therefore, 
conclude that B. sonnei no longer warrants listing under the Act.

Effects of the Rule

    This action removes Berberis sonnei from the List of Endangered and 
Threatened Plants. The prohibitions and conservation measures provided 
by the Act no longer apply to this species. Therefore, interstate 
commerce, import, and export of B. sonnei are no longer prohibited 
under the Act. In addition, Federal agencies no longer are 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 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 
Berberis sonnei. Section 4(g)(1) of the Act requires us to monitor for 
at least 5 years species that are delisted due to recovery. Because B. 
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.

Effective Date

    This rule relieves an existing restriction. Therefore, in 
accordance with 5 U.S.C. 553(d), we have determined that good cause 
exists to

[[Page 56567]]

make this rule effective immediately. Delay in implementation of this 
delisting could cost government agencies staff time and monies on 
conducting section 7 consultations. Relieving the existing restrictions 
associated with this listed species will enable Federal agencies to 
minimize any further delays in project planning and implementation.

Paperwork Reduction Act

    This rule does not include any collections of information that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). A Federal agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it has a current valid OMB control number.

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 
Act. We published a notice outlining our reasons for this determination 
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 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
For the reasons set out in the preamble, we hereby amend part 17, 
subchapter B of chapter I, Title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

0
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]

0
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: September 23, 2003.
Marshall Jones,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 03-24858 Filed 9-30-03; 8:45 am]
BILLING CODE 4310-55-P