[Federal Register: October 1, 2003 (Volume 68, Number 190)] [Rules and Regulations] [Page 56564-56567] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr01oc03-16] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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