[Federal Register Volume 71, Number 157 (Tuesday, August 15, 2006)]
[Proposed Rules]
[Pages 46994-47054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6840]



[[Page 46993]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for 11 Species of Picture-Wing Flies From the Hawaiian 
Islands; Proposed Rule

Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / 
Proposed Rules

[[Page 46994]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU93


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for 11 Species of Picture-Wing Flies 
From the Hawaiian Islands

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 
designate critical habitat for 11 species of Hawaiian picture-wing 
flies (Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. substenoptera, and 
D. tarphytrichia) pursuant to the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 18 acres (ac) (7.3 hectares 
(ha)) fall within the boundaries of the proposed critical habitat 
designation. The proposed critical habitat is located in four counties 
(City and County of Honolulu, Hawaii, Maui, and Kauai) in Hawaii. 
Critical habitat has not been proposed for D. neoclavisetae, a species 
for which we determined critical habitat to be prudent, because the 
specific areas and physical and biological features essential to its 
conservation in the Puu Kukui Watershed Management Area are not in need 
of special management considerations or protection. Therefore, we are 
not proposing critical habitat for D. neoclavisetae because these 
specific areas and features do not meet the definition of critical 
habitat in the Act.

DATES: We will accept comments from all interested parties until 
October 16, 2006. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by September 29, 
2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Patrick 
Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office, 
U.S. Fish and Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, 
P.O. Box 50088, Honolulu, HI 96850.
    2. You may hand-deliver written comments to our Office at the above 
address.
    3. You may send comments by electronic mail (e-mail) to <a href="/cdn-cgi/l/email-protection#7c1a0b4d0c1519230c0b1a1f140c3c1a0b0f521b130a"><span class="__cf_email__" data-cfemail="c4a2b3f5b4ada19bb4b3a2a7acb484a2b3b7eaa3abb2">[email protected]</span></a>. Please see the Public Comments Solicited section below 
for file format and other information about electronic filing.
    4. You may fax your comments to 808/792-9581.
    5. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    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 Pacific Islands Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 
(telephone 808/792-9400; facsimile 808/792-9581).

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office, (see ADDRESSES section) 
(telephone 808/792-9400; facsimile 808/792-9581). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800/877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend 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) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether it is prudent to designate critical habitat.
    (2) Specific information on the amount and distribution of 
Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia habitat, and what 
areas should be included in the designations that were occupied at the 
time of listing that contain the features essential for the 
conservation of the species and why, and what areas that were not 
occupied at the time of listing that are essential to the conservation 
of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities; and
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (6) We are requesting specific information from the public on 
Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia and their habitat, 
and which habitat or habitat components (i.e., physical and biological 
features) are essential to the conservation of these 12 species and 
why; and
    (7) Whether the benefit of exclusion in any particular area will 
outweigh the benefits of inclusion of that area from critical habitat 
under Section 4(b)(2) of the Act.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to <a href="/cdn-cgi/l/email-protection#03657432736a665c737465606b73436574702d646c75"><span class="__cf_email__" data-cfemail="dbbdaceaabb2be84abacbdb8b3ab9bbdaca8f5bcb4ad">[email protected]</span></a> in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn: RIN 1018-AU93'' in your e-
mail subject header and your name and return address in the body of 
your message. If you do not receive a confirmation from the system that 
we have received your Internet message, contact us directly by calling 
our Pacific Islands Fish and Wildlife Office at phone number 808/792-
9400. Please note that the Internet address <a href="/cdn-cgi/l/email-protection#15736224657c704a656273767d65557362663b727a63"><span class="__cf_email__" data-cfemail="94f2e3a5e4fdf1cbe4e3f2f7fce4d4f2e3e7baf3fbe2">[email protected]</span></a> will 
be closed out 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. We will make all comments available for public 
inspection in their entirety. Comments and materials received, as well 
as supporting documentation used in preparation of the proposal to 
designate critical habitat, will be available for public inspection, by 
appointment during normal business hours at the Pacific Islands Fish 
and Wildlife Office (see ADDRESSES).

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of

[[Page 46995]]

critical habitat plays in protecting habitat of listed species, 
however, is often misunderstood. As discussed in more detail below in 
the discussion of exclusions under ESA section 4(b)(2), there are 
significant limitations on the regulatory effect of designation under 
ESA section 7(a)(2). In brief, (1) designation provides additional 
protection to habitat only where there is a federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat, but it does not 
require specific actions to restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
listed species through conservation mechanisms such as listing, section 
7 consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, the Section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004). 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this proposed designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). These costs, which are not 
required for many other conservation actions, directly reduce the funds 
available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the 11 species of Hawaiian picture-wing flies for which 
we are proposing to designate critical habitat, refer to the final 
listing rule for the 12 species picture-wing flies published in the 
Federal Register on May 9, 2006 (71 FR 26835--pages 26835-26852). For 
reasons explains later in this document, we are not proposing critical 
habitat for one of the listed species' Drosophila neoclavisetae.

Previous Federal Actions

    For more information on previous Federal actions concerning the 11 
species of Hawaiian picture-wing flies, refer to the Determination of 
Status for 12 Species of Picture-Wing Flies from the Hawaiian Islands, 
published in the Federal Register on May 9, 2006 (71 FR 26835). In 
accordance with an amended settlement agreement approved by the United 
States District Court for the District of Hawaii on August 31, 2005 
(CBD v. Allen, CV-05-274-HA), the Service published in the May 9, 2006, 
Federal Register, a determination that designation of critical habitat 
for the 12 species of Hawaiian picture-wing flies, pursuant to the 
Act's sections 4(b)(6)(A) and (C), is prudent. Since critical habitat 
is prudent, the settlement stipulates that we must submit, for 
publication in the Federal Register, a proposed critical habitat 
designation for the listed species for which critical habitat is 
prudent on or by September 15, 2006, and a final critical habitat 
determination by April 17, 2007.

[[Page 46996]]

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a 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 a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
to bring species to the point at which the protection under the Act 
measures is no longer necessary. Such methods and procedures include, 
but are not limited to, all activities associated with scientific 
resources management such as research, census, law enforcement, habitat 
acquisition and maintenance, propagation, live trapping, and 
transplantation, and, in the extraordinary case where population 
pressures within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. (As discussed below, such areas may also be 
excluded from critical habitat pursuant to section 4(b)(2).) 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require additional areas, we 
will not designate critical habitat in areas outside the geographical 
area occupied by the species at the time of listing. An area currently 
occupied by the species but was not known to be occupied at the time of 
listing will likely, but not always, be essential to the conservation 
of the species and, therefore, typically included in the critical 
habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, if there is one, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be appropriate for conservation 
actions implemented under section 7(a)(1) of the Act and subject to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas that contain the features that are 
essential to the conservation of Drosophila aglaia, D. differens, D. 
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. 
neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia.
    We have reviewed the available information that pertains to the 
habitat requirements for these species and evaluated all known 
occurrence locations using data from numerous sources. The following 
geospatial, tabular data sets were used in proposing critical habitat: 
occurrence data for all 12 species (K. Kaneshiro 2005a--pages 1-16); 
vegetation mapping data for the Hawaiian Islands (GAP Data--Hawaiian 
Islands 2005); color mosaic 1:19,000 scale digital aerial photographs 
for the Hawaiian Islands (dated April to May 2005); and 1:24,000 scale 
digital raster graphics of USGS topographic quadrangles. Land ownership 
was determined from geospatial data sets associated with parcel data 
from Oahu County (2006); Hawaii County (2005); Kauai County (2005); and 
Maui County (2004).
    We reviewed a variety of peer-reviewed and non-peer-reviewed 
articles for this proposal, which included background information on 
the species' biology (e.g., Montgomery 1975--pages 83, 94, 96-98, and 
100; Foote and Carson 1995--pages 1-4; Kaneshiro and Kaneshiro 1995--
pages 1-47), plant ecology and biology (e.g., Wagner et al. 1999--pages 
45, 52-53, 971, 1,314-1,315, and 1,351-1,352), and ecology of the 
Hawaiian Islands and the areas considered (e.g., Smith 1985--pages 227-
233; Stone 1985--pages 251-253, 256, and 260-263; Cuddihy and Stone 
1990--pages 59-66, 73-76, and 88-94). Additional information

[[Page 46997]]

available included the final rule listing the plant species Urera 
kaalae as endangered (Service 1995--pages 81-83; 56 FR 55770, October 
29, 1991,--page 55779); the final listing rule for these species (71 FR 
26835, May 9, 2006,--pages 26835-26852); unpublished reports by The 
Nature Conservancy of Hawaii (TNCH); and aerial photographs and 
satellite imagery of the Hawaiian Islands.
    Additional information was obtained through personal communications 
with scientists and land managers familiar with the species and 
habitats. Contributing individuals included Dr. Ken Kaneshiro (Director 
of the University of Hawaii at Manoa's Center for Conservation and 
Research Training Program; Dr. David Foote, research entomologist for 
the U.S. Geological Survey, Biological Resources Discipline; Dr. Steve 
Montgomery, Bishop Museum Research Associate; other staff from Bishop 
Museum; landowners; and staff from the Hawaii State Department of Land 
and Natural Resources, TNCH, and the U.S. Department of the Army (U.S. 
Army).
    Specific information from these sources included estimates of 
historic and current distribution, abundance, and territory sizes for 
the 12 species, as well as data on resources and habitat requirements. 
A recovery plan for this group of species has not been completed.
    As presented in the final listing rule (71 FR 26835; May 9, 2006), 
below is the specific information concerning the distribution and host-
plants for each of the 11 species for which we are proposing critical 
habitat. This information is directly relevant to the primary 
constituent elements and thus repeated below. Each species of Hawaiian 
picture-wing fly described in this document is found only on a single 
island, and the larvae of each are dependant upon only a single or a 
few related species of plants (summarized in Table 1).
    Critical habitat has not been proposed for D. neoclavisetae, a 
species for which we determined critical habitat to be prudent, 
because, the specific areas and physical and biological features 
essential to its conservation in the Puu Kukui Watershed Management 
Area are not in need of special management considerations or 
protection. Therefore, we are not proposing critical habitat for D. 
neoclavisetae because these specific areas and features does not meet 
the definition of critical habitat in the Act.

   Table 1.--Distribution of 12 Hawaiian Picture-Wing Flies by Island, General Habitat Type, and Primary Host
                                                    Plant(s).
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                                                                        General habitat
            Species                    Island        Elevation range          type          Primary host plants
----------------------------------------------------------------------------------------------------------------
                                                  Oahu Species
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia..............  Oahu.............  1,700 to 2,900 ft  Mesic forest.....  Urera glabra.
                                                     (520-885 m).
D. hemipeza ...................  Oahu.............  1,500 to 2,900 ft  Mesic forest.....  Cyanea sp., Lobelia
                                                     (460 to 885 m).                       sp., & Urera kaalae
                                                                                           (E).
D. montgomeryi.................  Oahu.............  1,900 to 2,900 ft  Mesic forest.....  Urera kaalae (E).
                                                     (580-885 m).
D. obatai......................  Oahu.............  1,500 to 2,500 ft  Dry to mesic       Pleomele aurea &
                                                     (460-760 m).       forest.            Pleomele forbesii.
D. substenoptera...............  Oahu.............  1,300 to 4,000 ft  Wet forest.......  Cheirodendron sp. &
                                                     (395 to 1,220 m).                     Tetraplasandra sp.
D. tarphytrichia...............  Oahu.............  1,300 to 4,000 ft  Mesic forest.....  Charpentiera sp.
                                                     (395 to 1,220 m).
----------------------------------------------------------------------------------------------------------------
                                           Hawaii (Big Island) Species
----------------------------------------------------------------------------------------------------------------
D. heteroneura.................  BI...............  3,400 to 6,000 ft  Mesic to wet       Cheirodendron sp.,
                                                     (1,035 to 1,830    forest.            Clermontia sp., and
                                                     m).                                   Delissea sp.
D. mulli.......................  BI...............  3,150 to 3,250 ft  Wet forest.......  Pritchardia
                                                     (960-990 m).                          beccariana.
D. ochrobasis..................  BI...............  3,400 to 5,400 ft  Mesic to wet       Clermontia sp.,
                                                     (1,035 to 1,645    forest.            Marattia sp., &
                                                     m).                                   Myrsine sp.
----------------------------------------------------------------------------------------------------------------
                                        Molokai, Kauai, and Maui Species
----------------------------------------------------------------------------------------------------------------
D. differens...................  Molokai..........  3,650 to 4,500 ft  Wet forest.......  Clermontia sp.
                                                     (1,115 to 1,370
                                                     m).
D. musaphilia..................  Kauai............  3,000 to 3,700 ft  Mesic forest.....  Acacia koa.
                                                     (915-1,130 m).
D. neoclavisetae...............  Maui.............  3,500 to 4,500 ft  Wet forest.......  Cyanea sp.
                                                     (1,070 to 1,370
                                                     m).
----------------------------------------------------------------------------------------------------------------

Oahu Species

Drosophila aglaia

    Drosophila aglaia is historically known from five localities in the 
Waianae Mountains of Oahu between 1,700 and 2,900 feet (ft) (520 to 885 
meters (m)) above sea level. Drosophila aglaia is restricted to the 
natural distribution of its host plant, Urera glabra (family 
Urticaceae), which is a small shrub-like endemic tree. The larvae of D. 
aglaia develop in the decomposing bark and stem of U. glabra. This 
plant does not form large stands, but is infrequently scattered 
throughout slopes and valley bottoms in mesic and wet forest habitat on 
Oahu.

Drosophila hemipeza

    Drosophila hemipeza is restricted to the island of Oahu where it is 
historically known from seven localities between 1,500 and 2,900 ft 
(460 to 885 m) above sea-level (not including the Pupukea site of 
discovery which is considered an extripated population). Montgomery 
(1975--page 96)

[[Page 46998]]

determined that D. hemipeza larvae feed within decomposing portions of 
several different mesic forest plants. The larvae inhabit the 
decomposing bark of Urera kaalae (family Urticaceae), a federally-
endangered plant (Service 1995--pages 81-83; 56 FR 55770--page 55779) 
that grows on slopes and in gulches of diverse mesic forest. In 2004, 
only 41 individuals of U. kaalae were known to remain in the wild 
(Service 2004--page 9). In 2005, TNCH outplanted many seedlings of this 
species within several locations within D. hemipeza's historic range 
(TNCH 2005--page 6). The larvae also feed within the decomposing stems 
of Lobelia sp. (family Campanulaceae) and the decomposing bark and 
stems of Cyanea sp. (family Campanulaceae) in mesic forest habitat 
(Kaneshiro and Kaneshiro 1995--page 17; Science Panel 2005--page 16).

Drosophila montgomeryi

    Drosophila montgomeryi is historically known from three localities 
in the Waianae Mountains on western Oahu between 1,900 and 2,900 ft 
(580 to 885 m) above sea level. Montgomery (1975--page 97) reported 
that the larvae of this species feed within the decaying bark of Urera 
kaalae, a federally-endangered plant (Service 1995--pages 81-83; 56 FR 
55770--page 55779) that grows on slopes and in gulches of diverse mesic 
forest (Wagner et al. 1999--pages 1,314-1,315). In 2004, only 41 
individuals of U. kaalae were known to remain in the wild (Service 
2004--page 9). In 2005, TNCH outplanted many seedlings of this species 
within several locations within D. montgomeryi's historic range (TNCH 
2005--page 6).

Drosophila obatai

    Drosophila obatai is historically known from two localities between 
1,500 and 2,500 ft (460 to 760 m) above sea level on the island of 
Oahu. Drosophila obatai larvae feed within decomposing portions of 
Pleomele forbesii (family Agavaceae), a candidate for Federal listing 
(70 FR 24870--page 24883) (Kaneshiro and Kaneshiro 1995--page 27; 
Montgomery 1975--page 98). These host plants grow on slopes in dry 
forest and diverse mesic forest, and occur singly or in small clusters, 
rarely forming large stands (Wagner et al. 1999--pages 1,351-1,352).

Drosophila substenoptera

    Drosophila substenoptera is historically known from seven 
localities in both the Koolau and Waianae Mountains on the island of 
Oahu at elevations between 1,300 and 4,000 ft (395 to 1,220 m) above 
sea level. Montgomery (1975--page 100) determined that D. substenoptera 
larvae inhabit only the decomposing bark of Cheirodendron sp. trees 
(family Araliaceae) and Tetraplasandra sp. trees (family Araliaceae) in 
localized patches of wet forest habitat.

Drosophila tarphytrichia

    Drosophila tarphytrichia was historically known from both the 
Koolau and the Waianae Mountains between 1,900 and 2,900 ft (580 to 885 
m) above sea level on the island of Oahu. Drosophila tarphytrichia is 
now apparently extirpated from the Koolau range where it was originally 
discovered near Manoa Falls, and is presently known from four 
localities in the Waianae Mountains (Kaneshiro and Kaneshiro 1995; HBMP 
2005; K. Kaneshiro 2005a). The larvae of D. tarphytrichia feed only 
within the decomposing portions of the stems and branches of 
Charpentiera obovata trees (family Amaranthaceae) in mesic forest 
habitat (Montgomery 1975--page 100).

Hawaii (Big Island) Species

Drosophila heteroneura

    Drosophila heteroneura has been the most intensely studied of the 
12 species discussed in this proposed rule (Kaneshiro and Kaneshiro 
1995--page 19). This species is restricted to the island of Hawaii 
where, historically, it was known to be relatively widely distributed 
between 3,400 and 6,000 ft (1,035 to 1,830 m) above sea level. 
Drosophila heteroneura has been recorded from 24 localities on 4 of the 
island's 5 volcanoes (Hualalai, Mauna Kea, Mauna Loa, and Kilauea) in 5 
different montane environments (K. Kaneshiro 2005a--pages 4-8). 
Drosophila heteroneura larvae primarily inhabit the decomposing bark 
and stems of Clermontia sp. (family Campanulaceae), including C. 
clermontioides, and Delissea sp. (family Campanulaceae), but it is also 
known to feed within decomposing portions of Cheirodendron sp. (family 
Araliaceae) in open mesic and wet forest habitat (Kaneshiro and 
Kaneshiro 1995--page 19).

Drosophila mulli

    Drosophila mulli is restricted to the island of Hawaii and is 
historically known from two locations between 3,150 and 3,250 ft (960 
to 990 m) above sea level. Adult flies are found only on the leaf 
undersides of the endemic fan palm, Pritchardia beccariana (family 
Arecaceae), which is the only known association of a Drosophila species 
with a native Hawaiian palm species. The larval feeding site on the 
plant remains unknown because attempts to rear this species from 
decaying parts of P. beccariana have thus far been unsuccessful (W.P. 
Mull, Biologist, pers. comm. 1994--page 1; Science Panel 2005--page 
21).

Drosophila ochrobasis

    Historically, Drosophila ochrobasis was relatively widely 
distributed between 3,400 and 5,400 ft (1,035 to 1,645 m) above sea 
level on the island of Hawaii. Drosophila ochrobasis has been recorded 
from 10 localities on 4 of the island's 5 volcanoes (Hualalai, Mauna 
Kea, Mauna Loa, and the Kohala mountains). The larvae of this species 
have been reported to use the decomposing portions of three different 
host plant groups--Myrsine sp. (family Myrsinaceae), Clermontia sp. 
(family Campanulaceae), and Marattia sp. (family Marattiaceae) 
(Montgomery 1975--page 98; Kaneshiro and Kaneshiro 1995--page 29).

Kauai Species

Drosophila musaphilia

    Drosophila musaphilia is historically known from only four sites, 
one at 1,900 ft (579 m) above sea level, and three sites between 2,600 
and 3,700 ft (790 to 1,130 m) above sea level on the island of Kauai. 
Montgomery (1975--page 97) determined that the host plant for D. 
musaphilia is Acacia koa. The females lay their eggs upon, and the 
larvae develop in, the moldy slime flux (seep) that occasionally 
appears on certain trees with injured plant tissue and seeping sap. 
Understanding the full range of D. musaphilia is difficult because its 
host plant, Acacia koa, is fairly common and stable within, and 
surrounding, its known range on Kauai; however, the frequency of 
suitable slime fluxes occurring on the host plant appears to be much 
more restricted and temporally unpredictable (Science Panel 2005--pages 
23-24).

Maui Species

Drosophila neoclavisetae

    Two populations of Drosophila neoclavisetae were found historically 
along the Puu Kukui Trail within montane wet ohia forests on State land 
in West Maui. One habitat site was found in 1969 at 4,500 ft (1,370 m) 
and the other in 1975 at 3,500 ft (1,070 m) above sea level (Kaneshiro 
and Kaneshiro 1995--page 26; K. Kaneshiro 2005a--page 11). The host 
plant of D. neoclavisetae has not yet been confirmed, although it is 
likely associated with Cyanea sp. (family

[[Page 46999]]

Campanulaceae). Because both collections of this species occurred 
within a small patch of Cyanea sp. and many other species in the D. 
adiastola species group use species in this genus and other plants in 
the family Campanulaceae, researchers believe the Cyanea sp. found at 
Puu Kukui is likely the correct host plant for D. neoclavisetae 
(Science Panel 2005--pages 19-20; Kaneshiro and Kaneshiro 1995--page 
26).

Molokai Species

Drosophila differens

    Drosophila differens is historically known from three sites on 
private land between 3,650 and 4,500 ft (1,115 to 1,370 m) above sea 
level, within montane wet ohia forest (K. Kaneshiro 2005a--page 2) on 
the island of Molokai. Montgomery (1975--page 83) found that D. 
differens larvae inhabit the bark and stems of Clermontia sp. (family 
Campanulaceae) in wet rainforest habitat (Kaneshiro and Kaneshiro 
1995--page 16).

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements (PCEs)) that are essential to the conservation of 
the species, and within areas occupied by the species at the time of 
listing, that may require special management considerations and 
protection. These include, but are not limited to space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing (or development) 
of offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific primary constituent elements required for these 12 
picture-wing flies are derived from the biological needs of these 
species as described in the listing rule, published in the Federal 
Register on May 9, 2006 (71 FR 26835--pages 26835-26840), with specific 
requirements described below.

Space for Individual and Population Growth and Normal Behavior

    The general life cycle of Hawaiian Drosophilidae is typical of that 
of most flies: after mating, females lay eggs from which larvae 
(immature stage) hatch; as larvae grow, they molt (shed their skin) 
through three successive stages (instars); when fully grown, the larvae 
change into pupae (a transitional form) in which they metamorphose and 
emerge as adults.
    Breeding for all 11 species of flies included in this proposal 
generally occurs year-round, but egg laying and larval development 
increase following the rainy season as the availability of decaying 
matter, which the flies feed on, increases in response to the heavy 
rains (K. Kaneshiro 2005b--pages 1-2). In general, Drosophila lay 
between 50 and 200 eggs in a single clutch. Eggs develop into adults in 
about a month, and adults generally become sexually mature 1 month 
later. Adults generally live for 1 to 2 months.
    It is unknown how much space is needed for these flies to engage in 
courtship and territorial displays and mating activities. Adult 
behavior may be disrupted or modified by less than ideal conditions 
such as decreased forest cover or loss of suitable food material (K. 
Kaneshiro 2005b--pages 1-2). Additionally, adult behavior may be 
disrupted and the flies themselves may be susceptible to the preying 
activities of nonnative hymenoptera including yellow jacket wasps and 
ants (Kaneshiro and Kaneshiro 1995--pages 41-42). The larvae generally 
pupate within the soil located below their host plant material, and it 
is presumed that they require relatively undisturbed and unmodified 
soil conditions to complete this stage before reaching adulthood 
(Science Panel 2005--page 5). Lastly, it is well-known that these and 
most picture-wing flies are susceptible to even slight temperature 
increases, an issue that may be exacerbated by loss of suitable forest 
cover (K. Kaneshiro 2005b--pages 1-2).

Food

    Each species of Hawaiian picture-wing fly described in this 
document is found only on a single island, and the larvae of each are 
dependent upon only a single or a few related species of plants 
(summarized in Table 1). The adult flies feed on a variety of 
decomposing plant matter. The water or moisture requirements for all 12 
of these species is unknown; however, during drier seasons or during 
times of drought, it is expected that available adult and larval stage 
food material in the form of decaying plant matter may decrease (K. 
Kaneshiro 2005b--pages 1-2).

Primary Constituent Elements for Drosophila aglaia, D. differens, D. 
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. 
neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to the conservation 
of Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia. All areas proposed 
as critical habitat for these species are based on documented 
occurrences within these species' historic geographic range, and 
contain sufficient PCEs to support at least one life history function.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
the following PCEs for Drosophila aglaia, D. differens, D. hemipeza, D. 
heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, 
D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia.

Oahu Species

    The PCEs for Drosophila aglaia are:
    (1) Dry to mesic, lowland, Diospyros sp., ohia and koa forest; and
    (2) The larval host plant Urera glabra.
    The PCEs for Drosophila hemipeza are:
    (1) Dry to mesic, lowland, ohia and koa forest; and
    (2) The larval host plants Cyanea angustifolia, C. calycina, C. 
grimesiana ssp. grimesiana, C. grimesiana ssp. obatae, C. membranacea, 
C. pinnatifida, C. sessifolia, C. superba ssp. superba, Lobelia 
hypoleuca, L. hiihauensis, L. yuccoides, and Urera kaalae.
    The PCEs for Drosophila montgomeryi are:
    (1) Dry to mesic, lowland, diverse ohia and koa forest; and
    (2) The larval host plant Urera kaalae.
    The PCEs for Drosophila obatai are:
    (1) Dry to mesic, lowland, ohia and koa forest; and
    (2) The larval host plant Pleomele forbesii.
    The PCEs for Drosophila substenoptera are:
    (1) Mesic to wet, lowland to montane, ohia and koa forest; and
    (2) The larval host plants Cheirodendron platyphyllum ssp. 
platyphyllum, C. trigynum ssp.

[[Page 47000]]

trigynum, Tetraplasandra kavaiensis, and T. oahuensis.
    The PCEs for Drosophila tarphytrichia are:
    (1) Dry to mesic, lowland, ohia and koa forest; and
    (2) The larval host plant Charpentiera obovata.

Hawaii (Big Island) Species

    The PCEs for Drosophila heteroneura are:
    (1) Mesic to wet, montane, ohia and koa forest; and
    (2) The larval host plants Cheirodendron trigynum ssp. trigynum, C. 
clermontioides, C. hawaiiensis, C. kohalae, C. lindseyana, C. montis-
loa, C. paviflora, C. peleana, and C. pyrularia.
    The PCEs for Drosophila mulli are:
    (1) Wet, montane, ohia forest; and
    (2) The larval host plant Pritchardia beccariana.
    The PCEs for Drosophila ochrobasis are:
    (1) Mesic to wet, montane, ohia, koa, and Cheirodendron sp. forest; 
and
    (2) The larval host plants Clermontia calophylla, C. 
clermontioides, C. drepanomorpha, C. hawaiiensis, C. kohalae, C. 
lindseyana, C. montis-loa, C. parviflora, C. peleana, C. pyrularia, C. 
waimeae, Myrsine lessertiana, and M. sandwicensis.

Kauai Species

    The PCEs for Drosophila musaphilia are:
    (1) Mesic, montane, ohia and koa forest; and
    (2) The larval host plant Acacia koa.

Maui Species

    The PCEs for Drosophila neoclavisetae are:
    (1) Wet, montane, ohia forest; and
    (2) The larval host plants Cyanea kunthiana and C. macrostegia ssp. 
macrostegia.

Molokai Species

    The PCEs for Drosophila differens are:
    (1) Wet, montane, ohia forest; and
    (2) The larval host plants Clermontia arborescens ssp. waihiae, C. 
granidiflora ssp. munroi, C. oblongifolia ssp. brevipes, and C. 
pallida.
    This proposed designation is for the conservation of PCEs necessary 
to support the life history functions which were the basis for the 
proposal. Each of the areas proposed in this rule have been determined 
to contain sufficient PCEs to provide for one or more of the life 
history functions of the Drosophila aglaia, D. differens, D. hemipeza, 
D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia. In some cases, the 
PCEs exist as a result of ongoing Federal actions. As a result, ongoing 
Federal actions at the time of designation will be included in the 
baseline in any consultation conducted subsequent to this designation.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Drosophila aglaia, 
D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. 
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia. We are proposing to designate critical habitat on lands 
with documented occurrences and that contain the primary constituent 
elements for these 11 Hawaiian picture-wing flies. The primary dataset 
we used to document observations of these 11 picture-wing flies spans 
the years 1965 to 1999 (K. Kaneshiro 2005a--pages 1-16). Additional 
data were obtained from individuals familiar with particular species 
and locations, and other sources of information as described above in 
the Methods section. Many sites were surveyed infrequently or have not 
been surveyed in a long time while others have relatively complete 
records from 1966 to 1999. We selected areas based on sites surveyed 
since 1971 that were occupied during the date of the last survey (or 
within 1 year of that last occupied survey date) and were identified as 
``occupied.'' Surveys locate adult flies, but adult flies are relative 
generalists and do not have the specific habitat requirements of the 
larval stage, which typically require a specific species (in some 
cases, several species or genera) of host plants for successful 
development. Though the primary constituent elements of the proposed 
critical habitat focus on these host plants, we use known adult 
locations as the starting center point for each critical habitat unit 
and include a surrounding area measuring 1 acre (0.405 ha) in size 
consisting of the features essential to the conservation species.
    While there has been considerable survey work conducted for 
Hawaiian picture-wing flies overall, some areas where these 11 species 
are found have not been surveyed in many years. We decided to propose 
critical habitat by relying on the results of the most recent surveys 
conducted since 1971. If that survey located adult flies of the 
particular species, we identified that site as occupied; if no adult 
flies of the species were found, we identified that site as not 
occupied. Because of the time that has passed since some of these 
surveys were conducted, it is possible that some of the sites we are 
considering as unoccupied (and so not included in the proposed critical 
habitat) have since been re-occupied by the species. However, we 
believe that the most recent survey results are the best information 
available to determine if a site is occupied.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including within the boundaries of the map 
contained within this proposed rule, developed areas such as buildings, 
paved areas, and other structures that lack PCEs for Drosophila aglaia, 
D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. 
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia. The scale of the maps prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed areas. Any such structures and the land 
under them inadvertently left inside critical habitat boundaries shown 
on the maps of this proposed rule are excluded by text in this proposed 
rule and are not proposed for designation as critical habitat. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultation, unless they affect the species or primary 
constituent elements in adjacent critical habitat.
    We are proposing to designate critical habitat on lands that we 
have determined are occupied by the 11 species at the time of listing 
and contain sufficient primary constituent elements to support life 
history functions essential for the conservation of the species.
    Twenty-two units are proposed based on sufficient PCEs being 
present to support life processes for Drosophila aglaia, D. differens, 
D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, 
D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia. Some 
units contained all PCEs and supported multiple life processes. Some 
segments contained only a portion of the PCEs necessary to support the 
particular use of that habitat for Drosophila aglaia, D. differens, D. 
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. 
obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia.

Special Management Considerations or Protections

    When designating critical habitat, we determine whether areas 
occupied at the time of listing and containing the primary constituent 
elements may

[[Page 47001]]

require special management considerations or protections.
    Nonnative plants and animals pose the greatest threats to these 11 
picture-wing flies. In order to alleviate and reverse the ongoing 
degradation and loss of habitat caused by feral ungulates and invasive 
nonnative plants, active management or control of nonnative species is 
necessary for the conservation of all populations of the 11 picture-
wing flies (Kaneshiro and Kaneshiro 1995--pages 37-38). Without active 
management or control, native habitat containing the features that are 
essential for the conservation of the 11 picture-wing flies is degraded 
and/or destroyed. In addition, habitat degradation and destruction as a 
result of fire and predation by nonnative insects, such as the western 
yellow-jacket wasp (Vespula pennsylvanica) and several species of ants, 
pose significant threats to many populations of the 12 picture-wing 
flies.
    All of the proposed critical habitat units for the 11 picture wing 
flies may require special management to address feral ungulates, 
invasive nonnative plants, and yellow-jacket wasps. In addition, the 
units in dry or mesic habitats may also require special management to 
address fire and ants. These threats are discussed below.

Feral Ungulates

    Feral ungulates have devastated native vegetation in many areas of 
the Hawaiian Islands (Cuddihy and Stone 1990--pages 60-66). Because the 
endemic Hawaiian flora evolved without the presence of browsing and 
grazing ungulates, many plant groups have lost their adaptive defenses 
such as spines, thorns, stinging hairs, and defensive chemicals 
(University of Hawaii Department of Geography 1998--page 138). Pigs 
(Sus scrofa), goats (Capra hircus), and cattle (Bos taurus) disturb the 
soil, and readily eat native plants, including the native host plants 
for 1 or more of the 11 picture-wing flies, as well as distribute 
nonnative plant seeds that can alter the ecosystem. In addition, 
browsing and grazing by feral ungulates in steep and remote terrain 
causes severe erosion of whole watersheds due to foraging and trampling 
behaviors (Cuddihy and Stone 1990--pages 60-64 and 66).

Feral Pigs (Sus scrofa)

    Feral pigs threaten all populations of the 11 picture-wing flies. 
Feral pigs are found from dry coastal grasslands through rain forests 
and into the subalpine zone on all of the main Hawaiian Islands 
(Cuddihy and Stone 1990--pages 64-65). An increase in pig densities and 
expansion of their distribution has caused widespread damage to native 
vegetation (Cuddihy and Stone 1990--pages 64-65). Feral pigs create 
open areas within forest habitat by digging up, eating, and trampling 
native species (Stone 1985--pages 262-263). These open areas become 
fertile ground for nonnative plant seeds spread through their excrement 
and by transport in their hair (Stone 1985--pages 262-263). In 
nitrogen-poor soils, feral pig excrement increases nutrient 
availability, enhancing establishment of nonnative weeds that are more 
adapted to richer soils than are native plants (Cuddihy and Stone 
1990--pages 64-65). In this manner, largely nonnative forests replace 
native forest habitat (Cuddihy and Stone 1990--pages 64-65).
    Foote and Carson (1995--pages 2-4) found that pig exclosures on the 
island of Hawaii supported significantly higher relative frequencies of 
picture-wing flies compared to other native and nonnative Drosophila 
species (7 percent of all observations outside of the exclosure and 18 
percent of all observations inside the exclosure) and their native host 
plants. Loope et al. (1991--pages 9-10 and 19) showed that excluding 
pigs from a montane bog on northeastern Haleakala, Maui, resulted in an 
increase in native plant cover from 6 to 95 percent after 6 years of 
protection.

Feral Goats (Capra hircus)

    Feral goats threaten populations of the picture-wing flies on Oahu 
(Drosophila aglaia), Hawaii (D. heteroneura), and Kauai (D. 
musaphilia). Feral goats occupy a wide variety of habitats on Kauai, 
Oahu, Molokai, Maui, and Hawaii, from lowland dry forests to montane 
grasslands where they consume native vegetation, trample roots and 
seedlings, accelerate erosion, and promote invasion of nonnative plants 
(van Riper and van Riper 1982--pages 34-35; Stone 1985--page 261). On 
Oahu, goat populations are increasing and spreading in the dry upper 
slopes of the Waianae Mountains, becoming an even greater threat to the 
native habitat (K. Kawelo, U.S. Army Environmental Division, pers. 
comm. 2005--page 1).

Feral Cattle (Bos taurus)

    Feral cattle threaten populations of Drosophila heteroneura on the 
island of Hawaii. Large-scale ranching of cattle began in the 19th 
century on the islands of Kauai, Oahu, Maui, and Hawaii (Cuddihy and 
Stone 1990--pages 59-62). Large ranches, tens of thousands of acres in 
size, still exist on the islands of Maui and Hawaii (Cuddihy and Stone 
1990--pages 59-62). In addition, cattle grazing continues in several 
lowland regions in the northern portion of the Waianae Mountains of 
Oahu. Degradation of native forests used for ranching activities is 
evident. Feral cattle occupy a wide variety of habitats from lowland 
dry forests to montane grasslands, where they consume native 
vegetation, trample roots and seedlings, accelerate erosion, and 
promote the invasion of nonnative plants (van Riper and van Riper 
1982--page 36; Stone 1985--pages 256 and 260).

Nonnative Plants

    The invasion of nonnative plants contributes to the degradation of 
native forests and the host plants of picture-wing flies (Kaneshiro and 
Kaneshiro 1995--pages 38-39; Wagner et al. 1999--pages 52-53 and 971; 
Science Panel 2005--page 28), and threatens all populations of the 11 
picture-wing flies. Some nonnative plants form dense stands, thickets, 
or mats that shade or out-compete native plants. Nonnative vines cause 
damage or death to native trees by overloading branches, causing 
breakage, or by forming a dense canopy cover, intercepting sunlight and 
shading out native plants below. Nonnative grasses burn readily and 
often grow at the border of forests, and carry fire into areas with 
woody native plants (Smith 1985--pages 228-229; Cuddihy and Stone 
1990--pages 88-94). The nonnative grasses are more fire-adapted and can 
spread prolifically after a fire, ultimately creating a stand of 
nonnative grasses where native forest once existed. Some nonnative 
plant species produce chemicals that inhibit the growth of other plant 
species (Smith 1985--page 228; Wagner et al. 1999--page 971).

Fire

    Fire threatens habitat of the Hawaiian picture-wing flies in dry to 
mesic grassland, shrubland, and forests on the islands of Kauai 
(Drosophila musaphilia), Oahu (D. aglaia, D. hemipeza, D. mongomeryi, 
D. obatai, and D. tarphytrichia), and Hawaii (D. heteroneura). Dry and 
mesic regions in Hawaii have been altered in the past 200 years by an 
increase in fire frequency, a condition to which the native flora is 
not adapted. The invasion of fire-adapted alien plants, facilitated by 
ungulate disturbance, has contributed to wildfire frequency. This 
change in fire regime has reduced the amount of forest cover for native 
species (Hughes et al.1991--page 743; Blackmore and Vitousek 2000--page 
625) and resulted in an intensification of feral ungulate herbivory in 
the remaining native forest areas. Habitat damaged or destroyed by fire 
is more likely to be revegetated by

[[Page 47002]]

nonnative plants that cannot be used as host plants by these picture-
wing flies (Kaneshiro and Kaneshiro 1995--page 47).

Nonnative Predatory Species

    Nonnative arthropods pose a serious threat to Hawaii's native 
Drosophila, both through direct predation or parasitism as well as 
competition for food or space (Howarth and Medeiros 1989--pages 82-83; 
Howarth and Ramsay 1991--pages 80-83; Kaneshiro and Kaneshiro 1995--
pages 40-45 and 47; Staples and Cowie 2001--pages 41, 54-57). Due to 
their large colony sizes and systematic foraging habits, species of 
social Hymenoptera (ants and some wasps) and parasitic wasps pose the 
greatest threat to the Hawaiian picture-wing flies (Carson 1982--page 
1, 1986--page 7; Gambino et al. 1987--pages 169-170; Kaneshiro and 
Kaneshiro 1995--pages 40-45 and 47).

Ants

    Ants are believed to threaten populations of picture-wing flies in 
mesic areas on Oahu (Drosophila aglaia, D. hemipeza, D. mongomeryi, D. 
obatai, and D. tarphytrichia) and Hawaii (D. heteroneura). At least 44 
species of ants are known to be established on the Hawaiian Islands 
(Hawaii Ecosystems at Risk Project (HEAR) database 2005--page 2) and 4 
particularly aggressive ant species have severely affected the native 
insect fauna (Zimmerman 1948--page 173; HEAR database 2005--page 4). 
Ants are not a natural component of Hawaii's arthropod fauna, and 
native species evolved in the absence of predation pressure from ants. 
Ants can be particularly destructive predators because of their high 
densities, recruitment behavior, aggressiveness, and broad range of 
diet (Reimer 1993--pages 14-15, 17). The threat to picture-wing flies 
is amplified by the fact that most ant species have winged reproductive 
adults (Borror 1989--pages 737-738) and can quickly establish new 
colonies, spreading throughout suitable habitats (Staples and Cowie 
2001--pages 55-57). These attributes and the lack of native species' 
defenses to ants allow some ant species to destroy isolated prey 
populations (Nafus 1993--page 151). Hawaiian picture-wing flies pupate 
in the ground where they are exposed to predation by ants. Newly 
emerging adults have been observed with ants attached to their legs 
(Kaneshiro and Kaneshiro 1995--page 43).

Western Yellow-jacket Wasp

    An aggressive race of the western yellow-jacket wasp became 
established in the State of Hawaii in 1978, and this species is now 
abundant between 1,969 and 3,445 ft (600 and 1,050 m) in elevation 
(Gambino et al. 1990-page 1,088). On Maui, yellow-jackets have been 
observed carrying and feeding upon recently captured adult Hawaiian 
Drosophila (Kaneshiro and Kaneshiro 1995--page 41). While there is no 
documentation that conclusively ties the decrease in picture-wing fly 
observations at historical sites with the establishment of yellow-
jacket wasps within their habitats, the concurrent arrival of wasps and 
decline of picture-wing fly observations for all 11 picture-wing flies 
on all islands (Kauai, Oahu, Maui, Molokai, and Hawaii) suggests that 
the wasps may have played a significant role in the decline of some 
picture-wing fly populations (Carson 1982--page 1, 1986--page 7; Foote 
and Carson 1995--page 3; Kaneshiro and Kaneshiro 1999; Science Panel 
2005--page 28).

Proposed Critical Habitat Designation

    Critical habitat has not been proposed for D. neoclavisetae, a 
species for which we determined critical habitat to be prudent, 
because, the specific areas and physical and biological features 
essential to its conservation in the Puu Kukui Watershed Management 
Area are not in need of special management considerations or 
protection. Therefore, we are not proposing critical habitat for D. 
neoclavisetae because these specific areas and features does not meet 
the definition of critical habitat in the Act.
    We are proposing 22 units as critical habitat for Drosophila 
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. 
mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and 
D. tarphytrichia. In total, approximately 18 acres (ac) (7.3 hectares 
(ha)) fall within the boundaries of the proposed critical habitat 
designation. The critical habitat areas described below constitute our 
best assessment at this time of areas determined to be occupied at the 
time of listing, contain the primary constituent elements, and that may 
require special management. The areas proposed as critical habitat are:
    (1) Island of Oahu: Drosophila aglaia--Unit 1--Palikea; Drosophila 
hemipeza--Unit 1--Makaha Valley East; Drosophila hemipeza--Unit 2--
Palikea; Drosophila montgomeryi--Unit 1--Kaluaa Gulch; Drosophila 
montgomeryi--Unit 2--Palikea; Drosophila obatai--Unit 1--Wailupe; 
Drosophila substenoptera--Unit 1--Mt. Kaala; Drosophila tarphytrichia--
Unit 1--Kaluaa Gulch; Drosophila tarphytrichia--Unit 2--Palikea;
    (2) Hawaii (Big Island): Drosophila heteroneura--Unit 1--Kau Forest 
Reserve; Drosophila heteroneura--Unit 2--Pauahi; Drosophila 
heteroneura--Unit 3--Waiea; Drosophila heteroneura--Unit 4--Waihaka 
Gulch; Drosophila heteroneura--Unit 5--Gaspar's Dairy; Drosophila 
heteroneura--Unit 6--Kipuka at 4,900 ft; Drosophila heteroneura--Unit 
7--Pit Crater; Drosophila mulli--Unit 1--Olaa Forest; Drosophila 
mulli--Unit 2--Waiakea Forest; Drosophila ochrobasis--Unit 1--Kipuka 
14; Drosophila ochrobasis--Unit 2--Kohala Mountains;
    (3) Island of Kauai: Drosophila musaphilia--Unit 1--Waimea Canyon 
Road at 2,600 ft;
    (4) Island of Molokai: Drosophila differens--Unit 1--Puu Kolekole.
    The areas identified as containing the features essential to the 
conservation of the 11 Hawaiian picture-wing flies for which we are 
proposing critical habitat includes a variety of undeveloped, forested 
areas that are used for larval stage development and adult fly stage 
foraging. Areas that meet the definition of critical habitat, but are 
proposed for exclusion pursuant to section 4(b)(2) include TNCH's 
Kamakou Preserve on Molokai (Drosophila differens) and lands owned by 
Kamehameha Schools on the island of Hawaii (D. heteroneura). Proposed 
critical habitat includes land under State, City and County, and 
private ownership, with excluded Federal lands being managed by the 
Department of the Interior. The approximate area and land ownership 
within each unit are shown in Table 2.

[[Page 47003]]



 Table 2.--Critical Habitat Units Proposed for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D.
     montgomeryi, D. mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia
----------------------------------------------------------------------------------------------------------------
     Proposed critical habitat unit             Land ownership        Acres/hectares        Proposed action
----------------------------------------------------------------------------------------------------------------
                                                      OAHU
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia--Unit 1--Palikea *....  James Campbell Estate.....  1 ac (.405 ha)  Proposed.
Drosophila hemipeza--Unit 1--Makaha       City & County of Honolulu.  1 ac (.405 ha)  Proposed.
 Valley East.
Drosophila hemipeza--Unit 2--Palikea *..  James Campbell Estate.....  1 ac (.405 ha)  Proposed.
Drosophila montgomeryi--Unit 1--Kaluaa    James Campbell Estate.....  1 ac (.405 ha)  Proposed.
 Gulch **.
Drosophila montgomeryi--Unit 2--Palikea   James Campbell Estate.....  1 ac (.405 ha)  Proposed.
 *.
Drosophila obatai--Unit 1--Wailupe......  State.....................  1 ac (.405 ha)  Proposed.
Drosophila substenoptera--Unit 1--Mt.     State.....................  1 ac (.405 ha)  Proposed.
 Kaala.
Drosophila tarphytrichia--Unit 1--Kaluaa  James Campbell Estate.....  1 ac (.405 ha)  Proposed.
 Gulch **.
Drosophila tarphytrichia--Unit 2--        James Campbell Estate.....  1 ac (.405 ha)  Proposed.
 Palikea *.
----------------------------------------------------------------------------------------------------------------
                                               HAWAII (Big Island)
----------------------------------------------------------------------------------------------------------------
Drosophila heteroneura--Unit 1--Kau       State.....................  1 ac (.405 ha)  Proposed.
 Forest Reserve.
Drosophila heteroneura--Unit 2--Pauahi..  Koa Road LLC..............  1 ac (.405 ha)  Proposed.
Drosophila heteroneura--Unit 3--Waiea...  State.....................  1 ac (.405 ha)  Proposed.
Drosophila heteroneura--Unit 4--Waihaka   State.....................  1 ac (.405 ha)  Proposed.
 Gulch.
Drosophila heteroneura--Unit 5--Gaspar's  Kamehameha Schools........  1 ac (.405 ha)  Proposed for exclusion
 Dairy.                                                                                under 4(b)2.
Drosophila heteroneura--Unit 6--Kipuka    Kamehameha Schools........  1 ac (.405 ha)  Proposed for exclusion
 at 4,900 ft.                                                                          under 4(b)2.
Drosophila heteroneura--Unit 7--Pit       Kamehameha Schools........  1 ac (.405 ha)  Proposed for exclusion
 Crater.                                                                               under 4(b)2.
Drosophila mulli--Unit 1--Olaa Forest...  State.....................  1 ac (.405 ha)  Proposed.
Drosophila mulli--Unit 2--Waiakea Forest  State.....................  1 ac (.405 ha)  Proposed.
Drosophila ochrobasis--Unit 1--Kipuka 14  State.....................  1 ac (.405 ha)  Proposed.
Drosophila ochrobasis--Unit 2--Kohala     State.....................  1 ac (.405 ha)  Proposed.
 Mountains.
----------------------------------------------------------------------------------------------------------------
                                                      KAUAI
----------------------------------------------------------------------------------------------------------------
Drosophila musaphilia--Unit 1--Waimea     State.....................  1 ac (.405 ha)  Proposed.
 Canyon Road at 2,600 ft.
----------------------------------------------------------------------------------------------------------------
                                                     MOLOKAI
----------------------------------------------------------------------------------------------------------------
Drosophila differens--Unit 1--Puu         Molokai Ranch Ltd.........  1 ac (.405 ha)  Proposed for exclusion
 Kolekole.                                                                             under 4(b)2 .
    Total...............................  ..........................  18 ac (7.3 ha)  22 units.
----------------------------------------------------------------------------------------------------------------
Several units overlap and, therefore, the proposed designation totals 18 acres:
* The units at Palikea for D. aglaia, D. hemipeza, D. montgomeryi, and D. tarphytrichia overlap each other.
** The units at Kaluaa Gulch for D. montgomeryi and D. tarphytrichia overlap each other.

    All of the proposed critical habitat units for 11 of the 12 
Hawaiian picture-wing flies were occupied by the species at the time of 
listing. We present brief descriptions of all units, and reasons why 
they meet the definition of critical habitat for Drosophila aglaia, D. 
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. 
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia, below. All of the critical habitat units are 1 acre 
(0.405 ha) in size. For each of the units, threats to PCEs that may 
require special management considerations or protections are described 
above in the Special Management Considerations or Protections section.

Oahu Species

Drosophila aglaia

    Drosophila aglaia--Unit 1--Palikea consists of lowland, mesic, koa, 
and ohia forest within the southern Waianae Mountains of Oahu. This 
unit was occupied by the species at the time of listing according to 
the most recent survey data (K. Kaneshiro 2005a--pages 1-2). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. Located at an elevation of 2,840 ft (865 m), the unit is 
entirely owned by the James Campbell Estate, and is part of a larger 
area called the Honouliuli Preserve, administered and managed by TNCH.

Drosophila hemipeza

    Drosophila hemipeza--Unit 1--Makaha Valley East consists of 
lowland, mesic, koa, and ohia forest within the southern Waianae 
Mountains of Oahu. This unit was occupied by the species at the time of 
listing according to the most recent survey data (K. Kaneshiro 2005a--
pages 2-4). This unit contains sufficient PCEs to support at least one 
of the species' life functions. Located at an elevation of 2,780 ft 
(850 m), the unit is entirely owned by the City and County of Honolulu, 
and is adjacent to and north of the State-owned Waianae Kai Forest 
Reserve.
    Drosophila hemipeza--Unit 2--Palikea consists of lowland, mesic, 
koa, and ohia forest within the southern Waianae Mountains of Oahu. 
This unit was occupied by the species at the time of listing according 
to the most recent survey data (K. Kaneshiro 2005a--page 3). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. Located at an elevation of 2,840 ft (865 m), the unit is 
entirely owned by the James Campbell Estate, and is part of a larger 
area called the

[[Page 47004]]

Honouliuli Preserve, administered and managed by TNCH.

Drosophila montgomeryi

    Drosophila montgomeryi--Unit 1--Kaluaa Gulch consists of diverse, 
mesic forest within the southern Waianae Mountains of Oahu. This unit 
was occupied by the species at the time of listing according to the 
most recent survey data (K. Kaneshiro 2005a). This unit contains 
sufficient PCEs to support at least one of the species' life functions. 
Located at an elevation of 1,940 ft (590 m), the unit is entirely owned 
by the James Campbell Estate, and is part of a larger area called the 
Honouliuli Preserve, administered and managed by TNCH.
    Drosophila montgomeryi--Unit 2--Palikea consists of lowland, mesic, 
koa, and ohia forest within the southern Waianae Mountains of Oahu. 
This unit was occupied by the species at the time of listing according 
to the most recent survey data (K. Kaneshiro 2005a--page 8-9). This 
unit contains sufficient PCEs to support at least one of the species' 
life functions. Located at an elevation of 2,840 ft (865 m), the unit 
is entirely owned by the James Campbell Estate, and is part of a larger 
area called the Honouliuli Preserve, administered and managed by TNCH.

Drosophila obatai

    Drosophila obatai--Unit 1--Wailupe consists of lowland, mesic, koa, 
and ohia forest within the southeastern Koolau Mountains of Oahu. This 
unit was occupied by the species at the time of listing according to 
the most recent survey data (K. Kaneshiro 2005a--page 12). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. Located at an elevation of 1,560 ft (475 m), the unit occurs 
on State-owned lands and is part of a Forest Reserve administered and 
managed by the State.

Drosophila substenoptera

    Drosophila substenoptera--Unit 1--Mt. Kaala consists of montane, 
wet, ohia forest within the northern Waianae Mountains of Oahu. This 
unit was occupied by the species at the time of listing according to 
the most recent survey data (K. Kaneshiro 2005a--page 14). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. Located at an elevation of 3,900 ft (1,190 m), the unit 
occurs on State-owned lands and is part of a Forest Reserve 
administered and managed by the State.

Drosophila tarphytrichia

    Drosophila tarphytrichia--Unit 1--Kaluaa Gulch consists of diverse, 
mesic forest within the southern Waianae Mountains of Oahu. This unit 
was occupied by the species at the time of listing according to the 
most recent survey data (K. Kaneshiro 2005a). This unit contains 
sufficient PCEs to support at least one of the species' life functions. 
Located at an elevation of 1,940 ft (590 m), the unit occurs on lands 
owned by the James Campbell Estate, and is part of a larger area called 
the Honouliuli Preserve, administered and managed by TNCH.
    Drosophila tarphytrichia--Unit 2--Palikea consists of lowland, 
mesic, koa, and ohia forest within the southern Waianae Mountains of 
Oahu. This unit was occupied by the species at the time of listing 
according to the most recent survey data (K. Kaneshiro 2005a--page 15). 
This unit contains sufficient PCEs to support at least one of the 
species' life functions. Located at an elevation of 2,840 ft (865 m), 
the unit occurs on lands owned by the James Campbell Estate, and is 
part of a larger area called the Honouliuli Preserve, administered and 
managed by TNCH.

Hawaii (Big Island) Species

Drosophila heteroneura

    Drosophila heteroneura--Unit 1--Kau Forest Reserve consists of 
montane, wet, closed and open ohia forest, and is located on the 
southern flank of Mauna Loa on the island of Hawaii. This unit was 
occupied by the species at the time of listing according to the most 
recent survey data (K. Kaneshiro 2005a--page 5). This unit contains 
sufficient PCEs to support at least one of the species' life functions. 
Located at an elevation of 5,380 ft (1,640 m), the unit occurs on 
State-owned lands and is part of a Forest Reserve administered and 
managed by the State.
    Drosophila heteroneura--Unit 2--Pauahi consists of montane, mesic, 
open koa and ohia forest, and is located on the western flank of Mauna 
Loa on the island of Hawaii. This unit was occupied by the species at 
the time of listing according to the most recent survey data (K. 
Kaneshiro 2005a--pages 7-8). This unit contains sufficient PCEs to 
support at least one of the species' life functions. The unit is 
located on privately-owned lands at an elevation of 4,395 ft (1,340 m).
    Drosophila heteroneura--Unit 3--Waiea consists of montane, mesic, 
closed koa and ohia forest, and is located on the western flank of 
Mauna Loa on the island of Hawaii. This unit was occupied by the 
species at the time of listing according to the most recent survey data 
(K. Kaneshiro 2005a--page 8). This unit contains sufficient PCEs to 
support at least one of the species' life functions. The unit is 
located on State-owned lands at an elevation of 5,400 (1,645 m).
    Drosophila heteroneura--Unit 4--Waihaka Gulch consists of montane, 
wet, closed and open koa and ohia forest, and is located on the 
southern flank of Mauna Loa on the island of Hawaii. This unit was 
occupied by the species at the time of listing according to the most 
recent survey data (K. Kaneshiro 2005a--page 8). This unit contains 
sufficient PCEs to support at least one of the species' life functions. 
Located at an elevation of 4,200 ft (1,280 m), the unit occurs on 
State-owned lands and is part of a Forest Reserve administered and 
managed by the State.
    Drosophila heteroneura--Unit 5--Gaspar's Dairy consists of montane, 
mesic, open koa and ohia forest with mixed grass species, and is 
located on the western flank of Mauna Loa on the island of Hawaii. This 
unit was occupied by the species at the time of listing according to 
the most recent survey data (K. Kaneshiro 2005a--page 4). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. The unit is located on privately-owned lands at an elevation 
of 4,430 ft (1,350 m).
    We are proposing to exclude this unit under section 4(b)(2) of the 
Act. Although the unit is being proposed for exclusion from final 
critical habitat designation, it still contributes to the conservation 
of the species.
    Drosophila heteroneura--Unit 6--Kipuka at 4,900 ft consists of 
montane, mesic, open koa and ohia forest with mixed grass species, and 
is located on the western flank of Mauna Loa on the island of Hawaii. 
This unit was occupied by the species at the time of listing according 
to the most recent survey data (K. Kaneshiro 2005a--page 6). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. The unit is located on privately-owned lands at an elevation 
of 4,975 ft (1,515 m).
    We are proposing to exclude this unit under section 4(b)(2) of the 
Act. Although the unit is being proposed for exclusion from final 
critical habitat designation, it still contributes to the conservation 
of the species.
    Drosophila heteroneura--Unit 7--Pit Crater consists of montane, 
mesic, open ohia forest with mixed grass species, and is located on the 
western flank of Hualalai and south of the Kaupulehu Lava Flow on the 
island of Hawaii. This unit was occupied by the species at the

[[Page 47005]]

time of listing according to the most recent survey data (K. Kaneshiro 
2005a--page 8). This unit contains sufficient PCEs to support at least 
one of the species' life functions. The unit is located on privately-
owned lands at an elevation of 3,580 ft (1,090 m).
    We are proposing to exclude this unit under section 4(b)(2) of the 
Act. Although the unit is being proposed for exclusion from final 
critical habitat designation, it still contributes to the conservation 
of the species.

Drosophila mulli

    Drosophila mulli--Unit 1--Olaa Forest consists of montane, wet, 
open and closed ohia forest and is located to the northeast of Kilauea 
Caldera on the southeastern flank of Mauna Loa on the island of Hawaii. 
This unit was occupied by the species at the time of listing according 
to the most recent survey data (K. Kaneshiro 2005a--page 10). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. Located at an elevation of 3,210 ft (980 m), the unit occurs 
on State-owned lands and is part of the Olaa Forest Reserve 
administered and managed by the State.
    Drosophila mulli--Unit 2--Waiakea Forest consists of montane, wet, 
open and closed ohia forest, and is located to the northeast of Kilauea 
Caldera on the southeastern flank of Mauna Loa on the island of Hawaii. 
This unit was occupied by the species at the time of listing (K. 
Kaneshiro 2005a--page 10). This unit contains sufficient PCEs to 
support at least one of the species' life functions. Located at an 
elevation of 3,190 ft (970 m), the unit occurs on State-owned lands and 
is part of the Waiakea Forest Reserve administered and managed by the 
State.

Drosophila ochrobasis

    Drosophila ochrobasis--Unit 1--Kipuka 14 consists of montane, wet, 
open and closed ohia forest with native shrubs, and is located within 
the saddle road area on the north eastern flank of Mauna Loa on the 
island of Hawaii. This unit was occupied by the species at the time of 
listing (K. Kaneshiro 2005a--pages 12-13). This unit contains 
sufficient PCEs to support at least one of the species' life functions. 
Located at an elevation of 5,110 ft (1,560 m), the unit occurs on 
State-owned lands and is part of a Forest Reserve administered and 
managed by the State.
    Drosophila ochrobasis--Unit 2--Kohala Mountains consists of 
montane, wet, open and closed ohia forest with native shrubs and mixed 
grass species, and is located on the southeastern flank of the Kohala 
Mountains on the island of Hawaii. This unit was occupied by the 
species at the time of listing (K. Kaneshiro 2005a--page 12). This unit 
contains sufficient PCEs to support at least one of the species' life 
functions. Located at an elevation of 3,860 ft (1,165 m), the unit 
occurs on State-owned lands and is part of a Forest Reserve 
administered and managed by the State.

Kauai Species

Drosophila musaphilia

    Drosophila musaphilia--Unit 1--Waimea Canyon Road at 2,600 ft 
consists of lowland, mesic koa and ohia forest, and is located along 
the Waimea Canyon Road within the Waimea Canyon State Park on the 
island of Kauai. This unit was occupied by the species at the time of 
listing (K. Kaneshiro 2005a--page 11). This unit contains sufficient 
PCEs to support at least one of the species' life functions. Located at 
an elevation of 2,600 ft (2,545 m), the unit occurs on State-owned 
lands administered and managed by the Hawaii Division of State Parks.

Molokai Species

Drosophila differens

    Drosophila differens--Unit 1--Puu Kolekole consists of montane, 
wet, ohia forest within the Eastern Molokai Mountains on the island of 
Molokai. This unit was occupied by the species at the time of listing 
(K. Kaneshiro 2005a--page 2). This unit contains sufficient PCEs to 
support at least one of the species' life functions. Located at an 
elevation of 3,950 ft (1,200 m), the unit occurs on privately-owned 
lands that are part of a larger area called the Kamakou Preserve, 
managed and administered by TNCH.
    We are proposing to exclude this area under section 4(b)(2) of the 
Act. Although the unit is being proposed for exclusion from final 
critical habitat designation, it still contributes to the conservation 
of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. A recent 
decision by the 9th Circuit Court of Appeals invalidated our regulatory 
definition of `adverse modification' (see Gifford Pinchot Task Force v. 
U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and 
Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 
442F (5th Cir 2001)). Pursuant to the Director's memo of August 2004, 
destruction or adverse modification is determined on the basis of 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the primary constituent elements to be functionally 
established) to serve the intended conservation role for the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us 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. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act

[[Page 47006]]

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 (action agency) must 
enter into consultation with us. As a result of this consultation, the 
Service may issue: (1) A concurrence letter for Federal actions that 
may affect, but are not likely to adversely affect, listed species or 
critical habitat; or (2) a biological opinion for Federal actions that 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the 12 species of Hawaiian 
picture-wing flies or designated critical habitat for the 11 species 
addressed herein will require section 7 consultation under the Act. 
Activities on State, Tribal, local or private lands requiring a Federal 
permit (such as a permit from the Corps under section 404 of the Clean 
Water Act or a permit under section 10(a)(1)(B) of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local or 
private lands that are not federally-funded, authorized, or permitted, 
do not require section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Eleven Species of Hawaiian Picture-
wing Flies and Their Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
will apply an analytical framework for Drosophila aglaia, D. differens, 
D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, 
D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia jeopardy analyses that relies heavily areas identified as 
occupied in this rule and the listing rule. The jeopardy analysis is 
focused not only on these populations but also on the habitat 
conditions necessary to support them.
    The jeopardy analysis would likely express the survival and 
recovery needs of the 11 species of Hawaiian picture-wing flies in a 
qualitative fashion without making distinctions between what is 
necessary for survival and what is necessary for recovery. Generally, 
if a proposed Federal action is incompatible with the viability of the 
affected population(s), to such an extent that the continued existence 
of the species is jeopardized, a jeopardy finding would be considered.
Adverse Modification Standard
    The analytical framework described in the Director's December 9, 
2004, memorandum would be used to complete section 7(a)(2) analyses for 
Federal actions affecting Drosophila aglaia, D. differens, D. hemipeza, 
D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia critical habitat. 
The key factor related to the adverse modification determination would 
be whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the primary constituent elements to be functionally 
established) to serve the intended conservation role for the species. 
Generally, the conservation role of the 11 picture-wing flies' critical 
habitat units would be to support the populations identified in this 
rule.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs as described in the Director's memo of 
August, 2004. Activities that, when carried out, funded, or authorized 
by a Federal agency, may affect critical habitat and therefore result 
in consultation for Drosophila aglaia, D. differens, D. hemipeza, D. 
heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia include, but are not 
limited to:
    (1) Activities including, but not limited to: overgrazing; 
maintenance of feral ungulates; clearing or cutting of native live 
trees and shrubs, whether by burning or mechanical, chemical, or other 
means (e.g., woodcutting, bulldozing, construction, road building, 
mining, herbicide application); introducing or enabling the spread of 
nonnative species (e.g., nonnative plant species that may compete with 
native host plants, or nonnative arthropod pests that prey upon native 
host plants); and taking actions that pose a risk of fire.
    (2) Construction where a permit under section 404 of the Clean 
Water Act would be required by the U.S. Army Corps of Engineers. 
Construction in wetlands, where a 404 permit would be required, could 
affect the habitat of Drosophila heteroneura. 
    (3) Recreational activities that appreciably degrade vegetation.
    (4) Introducing or encouraging the spread of nonnative plant 
species into critical habitat units.
    (5) The purposeful release or augmentation of any dipteran predator 
or parasitoid.
    We consider all of the units proposed as critical habitat, as well 
as those that have been proposed for exclusion or not included, to 
contain features essential to the conservation of the 11 picture-wing 
flies. All units are within the geographic

[[Page 47007]]

range of each of the species, all were occupied by the 11 species at 
the time of listing (based on observations made within the last 35 
years), and are likely to be used by the 11 species of picture-wing 
flies. Federal agencies already consult with us on activities in areas 
currently occupied by the 12 picture-wing flies, or if the species may 
be affected by the action, to ensure that their actions do not 
jeopardize the continued existence of the 12 picture-wing flies.

Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographical area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species, and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographical area occupied by the species that do not contain the 
features essential to the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographical 
area occupied by the species that require no special management or 
protection also are not, by definition, critical habitat. Thus, for 
example, areas that do not need special management may not need 
protection if there is lack of pressure for change, such as areas too 
remote for anthropogenic disturbance.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole will provide the same 
level of protection that designation of critical habitat would provide. 
The plan need not lead to exactly the same result as a designation in 
every individual application, as long as the protection it provides is 
equivalent, overall. In making this determination, we examine whether 
the plan provides management or protection of the PCEs that is at least 
equivalent to that provided by a critical habitat designation, and 
whether there is a reasonable expectation that the management or 
protection actions will continue into the foreseeable future. Each 
review is particular to the species and the plan, and some plans may be 
adequate for some species and inadequate for others.
    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion and the 
Congressional record is clear that in making a determination under 
section 4(b)(2) the Secretary has discretion as to which factors to 
consider and how much weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species. In the following 
sections, we address a number of general issues that are relevant to 
the exclusions we considered. In addition, the Service is conducting an 
economic analysis of the impacts of the proposed critical habitat 
designation and related factors, which will be made available for 
public review and comment. Based on public comment on that document, 
the proposed designation, and the information in the final economic 
analysis, additional areas beyond those identified in this assessment 
may be excluded from critical habitat by the Secretary under the 
provisions of section 4(b)(2) of the Act. This is provided for in the 
Act, and in our implementing regulations at 50 CFR 424.19. Pursuant to 
50 CFR 424.19, we must propose an area as critical habitat prior to 
making an exclusion of that area pursuant to section 4(b)(2) of the Act 
from the final critical habitat designation to receive public comment. 
We have therefore included these units or portions thereof in the 
regulation portion of this proposed critical habitat rule.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995) and at least 80 percent of endangered or threatened species occur 
either partially or solely on private lands (Crouse et al. 2002--page 
720). Stein et al. (1995--page 3) found that only about 12 percent of 
listed species were found almost exclusively on Federal lands (i.e., 
90-100 percent of their known occurrences restricted to Federal lands) 
and that 50 percent of federally listed species are not known to occur 
on Federal lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-federal landowners 
(Wilcove and Chen 1998--page 1,407; Crouse et al. 2002--page 720; James 
2002--page 270). Building partnerships and promoting voluntary 
cooperation of landowners is essential to understanding the status of 
species on non-federal lands and is necessary to implement recovery 
actions such as reintroducing listed species, habitat restoration, and 
habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as Habitat Conservation Plans (HCPs), 
Safe Harbors, Candidate Conservation Agreements (CCAs), Candidate 
Conservation Agreements with Assurances (CCAAs), and conservation 
challenge cost-share grants. Many private landowners, however, are wary 
of the possible consequences of encouraging endangered species to their 
property, and there is mounting evidence that some regulatory actions 
by the Federal Government, while well-intentioned and required by law, 
can under certain circumstances have unintended negative consequences 
for the conservation of species on private lands (Wilcove et al. 1996--
pages 2 and 5; Bean 2002--pages 409, 412, 414-415, and 419-420; Conner 
and Mathews 2002--page 2; James 2002--page 270;

[[Page 47008]]

Koch 2002--pages 508-510). Many landowners fear a decline in their 
property value due to real or perceived restrictions on land-use 
options where threatened or endangered species are found. Consequently, 
harboring endangered species is viewed by many landowners as a 
liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999--pages 1,263-1,265).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999--pages 
1,263-1,265; Bean 2002--pages 409, 412, 414-415, and 419-420). The 
magnitude of this negative outcome is greatly amplified in situations 
where active management measures (e.g., reintroduction, fire 
management, control of invasive species) are necessary for species 
conservation (Bean 2002--pages 414 and 419-420).
    The Service believes that the judicious use of excluding specific 
areas of non-federally owned lands from critical habitat designations 
can contribute to species recovery and provide a superior level of 
conservation than critical habitat alone. For example, less than 17 
percent of Hawaii is federally owned, but the State is home to more 
than 24 percent of all federally listed species, most of which will not 
recover without State and private landowner cooperation. On the island 
of Lanai, Castle and Cooke Resorts, LLC, which owns 99 percent of the 
island, entered into a conservation agreement with the Service. The 
conservation agreement provides conservation benefits to target species 
through management actions that remove threats (e.g., axis deer, 
mouflon sheep, rats, invasive nonnative plants) from the Lanaihale and 
East Lanai Regions. Specific management actions include fire control 
measures, nursery propagation of native flora (including the target 
species) and planting of such flora. These actions will significantly 
improve the habitat for all currently occurring species. Due to the low 
likelihood of a Federal nexus on the island we believe that the 
benefits of excluding the lands covered by the MOA exceeded the 
benefits of including them. As stated in the final critical habitat 
rule for endangered plants on the Island of Lanai:

    On Lanai, simply preventing ``harmful activities'' will not slow 
the extinction of listed plant species. Where consistent with the 
discretion provided by the Act, the Service believes it is necessary 
to implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove 
or reduce disincentives to conservation. While the impact of 
providing these incentives may be modest in economic terms, they can 
be significant in terms of conservation benefits that can stem from 
the cooperation of the landowner. The continued participation of 
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and 
Watershed Partnership and other voluntary conservation agreements 
will greatly enhance the Service's ability to further the recovery 
of these endangered plants.

    Conservation through communication, consultation, and cooperation 
is the foundation for developing the tools of conservation. These tools 
include conservation grants, funding for Partners for Fish and Wildlife 
Program, the Coastal Program, and cooperative-conservation challenge 
cost-share grants. Our Private Stewardship Grant program and Landowner 
Incentive Program provide assistance to private land owners in their 
voluntary efforts to protect threatened, imperiled, and endangered 
species, including the development and implementation of HCPs.
    Conservation agreements with non-Federal landowners, contractual 
conservation agreements, easements, and stakeholder-negotiated State 
regulations enhance species conservation by extending species 
protections beyond those available through section 7 consultations. In 
the past decade we have encouraged non-Federal landowners to enter into 
conservation agreements, based on a view that we can achieve greater 
species conservation on non-Federal land through such partnerships than 
we can through coercive methods (61 FR 63854, December 2, 1996--page 
63856).

Maui Land and Pineapple Co., Ltd.

Maui Pineapple Company's Puu Kukui Watershed Management Area, Located 
in the West Maui Mountains

    Lands within Maui Land and Pineapple Company's (ML&P's) Puu Kukui 
Watershed Management Area (WMA), located in the West Maui Mountains, 
are occupied habitat and have the features essential for the 
conservation of Drosophila neoclavisetae. In a September 2002 letter to 
the Service, the Puu Kukui Watershed Supervisor stated that since 1988 
ML&P has proactively managed Puu Kukui Watershed and is currently in 
their second, 6-year contract with the State of Hawaii's NAP program to 
preserve the native biodiversity of their conservation lands. They are 
also receiving funding from the Service to survey for rare plants on 
their lands and build feral ungulate control fences for the protection 
of listed and other native plants, including the host plants for D. 
neoclavisetae. In other words, ML&P has a history of funding and 
conducting proactive conservation efforts in Puu Kukui that provide a 
benefit for D. neoclavisetae; they are enrolled in the State's NAP 
program; and they receive funding from the Service to support their 
conservation efforts. Therefore, we have determined that the private 
land within Puu Kukui WMA does not meet the definition of critical 
habitat under section 3(5)(A) of the Act as discussed below, and, 
therefore, are not proposing critical habitat for Drosophila 
neoclavisetae on ML&P land.
    At just over 3,483 ha (8,600 ac), the Puu Kukui WMA is the largest 
privately owned preserve in the State. In 1993, the Puu Kukui WMA 
became the first private landowner participant in the NAP program. In 
the NAP program, Puu Kukui WMA staff are pursuing four management 
programs stipulated in their Long Range Management Plan with an 
emphasis on reducing nonnative species that immediately threaten the 
management area (Maui Pineapple Company 1999--pages 2-21). There is a 
reasonable expectation, based on ML&P's management efforts to date, 
that the management programs currently implemented in Puu Kukui WMA and 
described below will continue into the foreseeable future.
    The primary management goals within Puu Kukui WMA are to (1) 
eliminate ungulate activity in all Puu Kukui management units; (2) 
reduce the range of habitat-modifying weeds and prevent introduction of 
nonnative plants; (3) reduce the negative impacts of nonnative 
invertebrates and small animals; (4) monitor and track biological and 
physical resources in the watershed in order to improve management 
understanding of the watershed's resources; and (5) prevent the 
extinction of rare species within the watershed. Implementation of the 
specific management actions (described below) addresses the threats to 
Drosophila neoclavisetae and the features essential for its 
conservation from feral ungulates

[[Page 47009]]

and nonnative plants and, thus, removes the need for special management 
and protection.
    Specific management actions to address feral ungulates include the 
construction of fences surrounding 10 management units and removal of 
ungulates within the Puu Kukui WMA. The nonnative plant control program 
within Puu Kukui WMA focuses on habitat-modifying weeds, prioritizing 
them according to the degree of threat to native ecosystems, and 
preventing the introduction of new weeds. The weed control program 
includes mapping and monitoring along established transects and manual/
mechanical control. Biological control of Clidemia hirta was attempted 
by releasing Antiblemma acclinalis moth larvae. Natural resource 
monitoring and research address the need to track biological and 
physical resources of the Puu Kukui WMA and evaluate changes to these 
resources in order to guide management programs. Vegetation is 
monitored through permanent photo points, nonnative species are 
monitored along permanent transects, and rare, endemic, and indigenous 
species are monitored. Additionally, logistical and other support for 
approved research projects, interagency cooperative agreements, and 
remote survey trips within the watershed is provided.
    For these reasons, Puu Kukui WMA meets the three criteria for 
determining that an area is not in need of special management or 
protections as discussed above. Therefore, we have determined that the 
private land within Puu Kukui WMA does not meet the definition of 
critical habitat pursuant to 3(5)(A) in the Act, and we are not 
proposing this land as critical habitat. Should the status of this 
reserve change, for example by non-renewal of a partnership agreement 
or termination of NAP funding, we will reconsider whether it then meets 
the definition of critical habitat. If so, we have the authority to 
propose to amend critical habitat to include such area at that time (50 
CFR 424.12(g)).
    In summary, we believe that the habitat within Puu Kukui WMA is 
being adequately protected and managed for the conservation of the 
listed Drosophila neoclavisetae, including all of its known sites and 
features that are essential to its conservation that occur within this 
area, and is not in need of special management considerations or 
protection. Therefore, we have determined that this specific area does 
not meet the definition of critical habitat pursuant to the Act, and 
we, therefore, do not propose this specific area as critical habitat 
for D. neoclavisetae.

Hakalau Forest National Wildlife Refuge, Kona Forest Unit, Island of 
Hawaii

    Lands within the U.S. Fish and Wildlife Service's Kona Forest Unit 
of the Hakalau Forest National Wildlife Refuge are occupied habitat and 
have the necessary features that are essential for the conservation of 
Drosophila heteroneura. The Kona Forest Unit of Hakalau Forest National 
Wildlife Refuge was established in 1997 to protect endangered forest 
birds and their habitat. Management actions for this refuge unit are 
outlined in our Conceptual Management Plan (Service 1997a--pages ii-
iii) and in our Wildland Fire Management Plan (Service 1997b--pages 2-
3). The Conceptual Management Plan for the Kona unit describes planned 
management activities (Service 1997a--pages 10-13) for the area 
including listed species recovery; monitoring; habitat management; 
maintenance of biodiversity; alien plant control; feral ungulate 
control; and wildfire management, all of which will benefit Drosophila 
heteroneura and its host plants. The Hakalau Wildland Fire Management 
Plan, details the Services wildfire management objectives, strategy, 
responsibilities, and consultation protocol (Service 1997b--pages 11-
20), all of which will benefit D. heteroneura and its host plants.
    The Hakalau Refuge has received 1.1 million dollars in Fiscal Year 
2006 to enclose a large portion of the Kona Refuge unit. This project 
will involve the construction of approximately 17 miles of fencing 
designed to exclude pigs, sheep, and cattle. Pigs and cattle are 
currently the most serious ungulate threats to this area and the 
construction of this large enclosure will remove the primary threats to 
D. heteroneura's host plant habitat and associated ecosystem. An 
environmental assessment is currently being prepared for this project 
and we expect that construction will commence sometime in late 2006 or 
early 2007 (Richard Wass, Service--Refuges Division, pers. comm. 2006). 
Additionally, the Kona Refuge unit has been identified as a high 
priority area for recovery of the Hawaiian crow. Accordingly, we are 
committed to protecting and managing this area to the best of our 
ability as future funding allows. Many of the planned management 
activities for the Hawaiian crow such as rat control will also benefit 
the host plant habitat of D. heteroneura (Gina Shultz, Service--
Ecological Services, pers. comm. 2006). We have, therefore, determined 
that this refuge land does not meet the definition of critical habitat 
under section 3(5)(A) of the Act, and, therefore, are not proposing 
critical habitat on the Kona Forest Unit of the Hakalau Forest National 
Wildlife Refuge.

Hawaii Volcanoes National Park, Island of Hawaii

    Lands within Hawaii Volcanoes National Park (HAVO) are occupied 
habitat and have the necessary features that are essential for the 
conservation of Drosophila heteroneura. Hawaii Volcanoes National Park 
was established in 1916 to preserve the significant resources that 
reflect Hawaii's geological, biological, and cultural heritage. In 
recognition of its outstanding values, the park has been designated an 
International Biosphere Reserve and a World Heritage Site. Management 
actions for the biological resources of this park are outlined in 
natural resources management plans and fire management plans (HAVO 
1974--page i, 2002--pages 11-14, 2004--pages 2-6). The natural 
resources plan broadly describes ongoing management activities within 
the park including the reestablishment of key plant ecosystem 
components of the area; the exclusion and removal of pigs and goats; 
research on rat control; localized rat control and prevention; and the 
control of numerous nonnative weed species, all of which benefit D. 
heteroneura and its host plants (HAVO 1974--pages 2-6, 8-14, and 16-
17). The fire management plan details wildfire management objectives 
and planned wildfire control within the park including the use of fire 
to rehabilitate areas infested with non-native grass species infested 
areas, all of which will benefit D. heteroneura once implemented (HAVO 
2004--pages 11-14). Within the area containing the Thurston Lava Tube 
population of D. heteroneura, the Park Service currently excludes pigs 
and targets for removal certain invasive weed species including 
Hedychium gardnerianum (Kahili ginger), Psidium cattleianum (strawberry 
guava), Morella faya (faya tree), and Rubus ellipticus (Himalayan 
raspberry) (Rhonda Loh, HAVO, pers. comm. 2006). Because the Park 
Service is addressing these primary threats to D. heteroneura's host 
plant habitat in this area, we have therefore, determined that this 
national park land does not meet the definition of critical habitat 
under section 3(5)(A) of the Act, and, therefore, are not proposing 
critical habitat in Hawaii Volcanoes National Park.

[[Page 47010]]

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
applies only where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it limits only destruction 
or adverse modification of critical habitat. By its nature, the 
prohibition on adverse modification is designed to ensure those areas 
that contain the physical and biological features essential to the 
conservation of the species or unoccupied areas that are essential to 
the conservation of the species are not eroded to the point that the 
unit does not perform its intended function. Critical habitat 
designation alone, however, does not require specific steps to improve 
habitat conditions.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We believe the conservation achieved through implementing habitat 
conservation plans (HCPs) or other habitat management plans can be 
greater than would be achieved through multiple site-by-site, project-
by-project, section 7 consultations involving consideration of critical 
habitat. Management plans commit resources to implement long-term 
management and protection to particular habitat for at least one and 
possibly other listed or sensitive species. Section 7 consultations 
only commit Federal agencies to prevent adverse modification to 
critical habitat caused by the particular project, and they are not 
committed to provide conservation or long-term benefits to areas not 
affected by the proposed project. Thus, any HCP or management plan 
which considers enhancement as the management standard will provide as 
much or more benefit than a consultation for critical habitat 
designation conducted under the standards required by the Ninth Circuit 
in the Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. ochrobasis, D. 
substenoptera, and D. tarphytrichia. In general the educational benefit 
of a critical habitat designation always exists, although in some cases 
it may be redundant with other educational effects. For example, HCPs 
have significant public input and may largely duplicate the educational 
benefit of a critical habitat designation. This benefit is closely 
related to a second, more indirect benefit: that designation of 
critical habitat would inform State agencies and local governments 
about areas that could be conserved under State laws or local 
ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are making in this rule because these areas have 
been identified and managed by the landowners as having habitat 
containing the features essential to the conservation of the species. 
Consequently, we believe that the informational benefits are already 
provided even though these areas are not designated as critical 
habitat. Additionally, the purpose normally served by the designation 
of informing State agencies and local governments about areas which 
would benefit from protection and enhancement of habitat for the 11 
picture-wing flies is already well established among State and local 
governments and Federal agencies. State and local governments and 
Federal agencies have existing knowledge in those areas that we are 
proposing to exclude from the final designation of critical habitat on 
the basis of other existing habitat management protections.
    The Service is conducting an economic analysis of the impacts of 
the proposed critical habitat designation and related factors, which 
will be available for public review and comment. Based on public 
comment on that document, the proposed designation itself, and the 
information in the final economic analysis, additional areas beyond 
those identified in this assessment may be excluded from critical 
habitat by the Secretary under the provisions of section 4(b)(2) of the 
Act. This is provided for in the Act, and in our implementing 
regulations at 50 CFR 424.19.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.
    We are considering excluding The Nature Conservancy of Hawaii's 
Kamakou Preserve on Molokai and lands owned by Kamehameha Schools on 
the island of Hawaii from the final designation of critical habitat 
because we believe that they are appropriate for exclusion pursuant to 
the ``other relevant factor'' provisions of section 4(b)(2). We 
specifically solicit comment, however, on the inclusion or exclusion of 
such areas.

The Nature Conservancy of Hawaii (TNCH)

    The Nature Conservancy of Hawaii's Kamakou Preserve is occupied by 
Drosophila differens and contains the necessary features essential to 
the conservation of the species. Special management considerations and 
protections for this area include active management such as nonnative 
species removal and ungulate fencings. Failure to implement these 
active management measures, all of which require voluntary landowner 
support and participation, virtually assures the extinction of this 
species. Many of these types of

[[Page 47011]]

conservation actions in the areas of Molokai are carried out as part of 
TNCH's participation with landowner incentive based programs and by the 
landowner's own initiative. These conservation activities, which are 
described in more detail below, require substantial voluntary 
cooperation by TNCH and other cooperating landowners and local 
residents.
    The following evaluation describes our reasoning in considering 
that the benefits of excluding the lands outweigh the benefits of 
including them, and that the exclusion will not result in the 
extinction of the species. The Service paid particular attention to the 
following issues: (1) To what extent a critical habitat designation 
would confer regulatory conservation benefits on this species; (2) to 
what extent the designation would educate members of the public such 
that conservation efforts would be noticeably enhanced; and (3) whether 
a critical habitat designation would have a positive, neutral, or 
negative impact on voluntary conservation efforts on this privately 
owned TNCH land, as well as other non-Federal lands on Molokai that 
could contribute to the recovery of the species. If a critical habitat 
designation reduces the likelihood that voluntary conservation 
activities will be carried out on Molokai, and at the same time fails 
to confer a counter-balancing positive regulatory or educational 
benefit to the species, then the benefits of excluding such areas from 
critical habitat outweigh the benefits of including them. Although the 
results of this type of evaluation will vary significantly depending on 
the landowners, geographic areas, and species involved, we believe the 
TNCH lands on Molokai merit this evaluation.

(1) Benefits of Inclusion

    The primary direct benefit of inclusion of TNCH's Kamakou Preserve 
as critical habitat would result from the requirement under section 7 
of the Act that Federal agencies consult with us to ensure that any 
proposed Federal actions do not destroy or adversely modify critical 
habitat. The benefit of a critical habitat designation would ensure 
that any actions authorized, funded, or carried out by a Federal agency 
would not likely destroy or adversely modify any critical habitat. 
Without critical habitat, some site-specific projects might not trigger 
consultation requirements under the Act in areas where species are not 
currently present; in contrast, Federal actions in areas occupied by 
listed species would still require consultation under section 7 of the 
Act. However, these lands are already occupied habitat for Drosophila 
differens. Therefore, any Federal activities that may affect these 
areas will in all likelihood require section 7 consultation.
    In the last 10 years, we have conducted 45 informal and 12 formal 
consultations under section 7 on the entire island of Molokai. None of 
these consultations involved this TNCH land. As a result of the low 
level of previous Federal activity on these TNCH lands, and after 
considering the future Federal activities that might occur on these 
lands, it is the Service's opinion that there is likely to be a low 
number of future Federal activities that would negatively affect the 
species' PCEs on TNCH lands. The land is in permanent conservation 
status and is not expected to be developed. Section 7 consultations are 
expected to be limited to projects involving Federal funding for 
conservation activities to improve the PCEs for this species, rather 
than negatively impact these features. The possibility of such activity 
cannot be ruled out entirely, but it can best be described as having a 
low likelihood of occurrence. Therefore, we anticipate little 
additional regulatory benefits from including this preserve in critical 
habitat beyond what is already provided by the existing section 7 nexus 
for habitat areas occupied by the listed species.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas that 
are occupied by the species and contain the necessary features 
essential to the conservation of the species. Information provided to a 
wide audience of the public, including other parties engaged in 
conservation activities, about Drosophila differens and the features 
that are essential to its conservation identified on TNCH lands on 
Molokai could have a positive conservation benefit. While we believe 
this educational outcome is important for the conservation of this 
species, we believe it has already been achieved through the existing 
management, education, and public outreach efforts carried out by TNCH 
and their conservation partners. TNCH has a well-developed public 
outreach infrastructure that includes magazines, newsletters, and well-
publicized public events on Molokai and other areas throughout Hawaii. 
These and other media provide the education benefits provided in this 
proposed rule and the conservation importance of this Molokai reserve 
and its conservation value for D. differens. A designation of critical 
habitat would add little to this effort and would simply affirm what is 
already known and widely accepted by Hawaii's conservationists, public 
agencies, and much of the general public concerning the conservation 
value of these lands.
    The following discussion about this preserve demonstrates that the 
public is already aware of the importance of this area for the 
conservation of this picture-wing fly. Drosophila differens is reported 
from TNCH's Kamakou Preserve, which is located in the East Molokai 
Mountains. Kamakou Preserve was established by a grant of a perpetual 
conservation easement from the private landowner to TNCH. This preserve 
is included in the State's Natural Area Partnership (NAP) program, 
which provides matching funds for the management of private lands that 
have been permanently dedicated to conservation (TNCH1998a--pages 1-10, 
1998b--pages 1-12).
    Under the NAP program, the State of Hawaii provides matching funds 
on a two-to-one basis for management of private lands dedicated to 
conservation. In order to qualify for this program, the land must be 
dedicated in perpetuity through transfer of fee title or a conservation 
easement to the State or a cooperating entity. The land must be managed 
by the cooperating entity or a qualified landowner according to a 
detailed management plan approved by the Board of Land and Natural 
Resources. Once approved, the 6-year partnership agreement between the 
State and the managing entity is automatically renewed each year so 
that there are always six years remaining in the term, although the 
management plan is updated and funding amounts are reauthorized by the 
board at least every six years. By April 1 of any year, the managing 
partner may notify the State that it does not intend to renew the 
agreement; however, in such case, the partnership agreement remains in 
effect for the balance of the existing 6-year term, and the 
conservation easement remains in full effect in perpetuity.
    The conservation easement may be revoked by the landowner only if 
State funding is terminated without the concurrence of the landowner 
and cooperating entity. Prior to terminating funding, the State must 
conduct one or more public hearings. The NAP program is funded through 
real estate conveyance taxes, which are placed in a Natural Area 
Reserve Fund. Participants in the NAP program must provide annual 
reports to the Hawaii Department of Land and Natural

[[Page 47012]]

Resources (DLNR), and DLNR makes annual inspections of the work in the 
reserve areas (See Haw. Rev. Stat. Secs. 195-1-195-11 and Hawaii 
Administrative Rules Secs. 13-210). Management programs within Kamakou 
preserve are documented in long-range management plans and yearly 
operational plans. These plans detail management measures that protect, 
restore, and enhance the native species and their habitats within the 
preserve and in adjacent areas (TNCH 1998a--pages 1-10, 1998b--pages 1-
12). These management measures address the factors that led to the 
listing of this species, including control of nonnative species of 
ungulates, rodents, weeds, and fire control. In addition, habitat 
restoration and monitoring are also included in these plans.
Kamakou Preserve
    The primary management goals within Kamakou Preserve are to prevent 
degradation of native forest by reducing feral ungulate damage, 
suppressing wildfires, and improving or maintaining the integrity of 
native ecosystems in selected areas of the preserve by reducing the 
effects of nonnative plants. Kamakou Preserve provides occupied habitat 
for one population of D. differens. Specific management actions to 
address feral ungulate impacts include the construction of fences, 
including strategic fencing (fences placed in proximity to natural 
barriers such as cliffs); staff hunting; and implementation of 
organized hunting through the Molokai Hunters Working Group. By 
monitoring ungulate activity within the preserve, the staff are able to 
direct hunters to problem areas (areas of high feral ungulate 
densities), thereby increasing hunting success. If increased hunting 
pressure does not reduce feral ungulate activity in the preserve, the 
preserve staff will work with the hunting group to identify and 
implement alternative methods for their control (TNCH 1998a--pages 1-
2).
    The nonnative plant control program within Kamakou Preserve focuses 
on habitat-modifying nonnative plants (weeds) and prioritizes their 
control according to the degree of threat to native ecosystems. A weed 
priority list has been compiled for the preserve, and control and 
monitoring of the highest priority species are ongoing. Weeds are 
controlled manually, chemically, or through a combination of both 
techniques. Preventive measures (prevention protocol to keep weeds out) 
are required by all who enter the preserve. This protocol includes such 
things as brushing footgear before entering the preserve to remove 
seeds of nonnative plants. In addition, the preserve staff are actively 
promoting awareness of detrimental nonnative plants in Hawaii and their 
impacts to native ecosystems in the local communities on Molokai 
through public education at schools, fairs, and displays at the 
airport.
    Wildfire pre-suppression and response plans are coordinated with 
the Maui County Fire Department and the DOFAW Maui District Forester. 
The Kamakou Wildfire Management Plan is reviewed annually with the fire 
department and updated as necessary (TNCH 1998b--pages 4-5). In the 
event of fires in areas bordering the preserve, staff from Kamakou 
assists with fire suppression in concert with Hawaii Department of 
Forestry and Wildlife (DOFAW) staff. Natural resource monitoring and 
research address the need to track the biological and physical 
resources of the preserve and evaluate changes in these resources to 
guide management programs. Vegetation is monitored throughout the 
preserve to document long-term ecological changes; rare plant species 
are monitored to assess population status; and, following fires on the 
boundaries or within the preserve, burned areas are assessed for 
ingress of weeds and recovery of native plants. In addition, the 
preserve staff provides logistical support to scientists and others who 
are conducting research within the preserve.
    In addition, TNCH, DOFAW, the Service, and other Federal agencies 
including the National Park Service, and neighboring landowners of East 
Molokai's watershed areas have formed a partnership (East Molokai 
Watershed Partnership) through a memorandum of understanding to ensure 
the protection of over 22,000 ac (8,903 ha) of land on the island. 
While the partnership is still in its infancy, the members have agreed, 
in principle, to participate in cooperative management activities 
within the East Molokai watershed because they believe that effective 
management is best achieved through the coordinated actions of all 
major landowners in the watershed.
    In sum, the Service believes that a critical habitat designation 
for Drosophila differens on TNCH lands on Molokai would provide a 
relatively low level of additional regulatory conservation benefit to 
the fly species and its PCEs beyond what is already provided by 
existing section 7 consultation requirements due to the physical 
presence of this species. Any minimal regulatory conservation benefits 
would accrue through the benefit associated with additional section 7 
consultation associated with critical habitat. Based on a review of 
past consultations and consideration of the likely future activities in 
this specific area, there is little Federal activity expected to occur 
on this privately owned land that would trigger section 7 consultation. 
The Service also believes that a critical habitat designation provides 
little additional educational benefits since the conservation value is 
already well known by the landowner, the State, Federal agencies, 
private organizations, and the general public.

(2) Benefits of Exclusion

    Proactive voluntary conservation efforts are necessary to prevent 
the extinction and promote the recovery of this listed species of 
picture-wing fly on Molokai (Shogren et al. 1999--page 1,260, Wilcove 
and Chen 1998--page 1,407, Wilcove et al. 1998--page 614). 
Consideration of this concern is especially important in areas where 
species have been extirpated and their recovery requires access and 
permission for reintroduction efforts (Bean 2002--page 414; Wilcove et 
al. 1998--page 614). As described earlier, TNCH has a history of 
entering into conservation agreements with various Federal and State 
agencies and other private organizations on their lands. The Nature 
Conservancy's mission is to preserve the plants, animals and natural 
communities that represent the diversity of life on Earth by protecting 
the lands and waters they need to survive. The Service believes that D. 
differens will benefit substantially from TNCH's voluntary management 
actions due to a reduction in ungulate browsing and habitat conversion, 
a reduction in competition with nonnative weeds, and a reduction in 
risk of fire. The conservation benefits of critical habitat are 
primarily regulatory or prohibitive in nature. But on Molokai, simply 
preventing ``harmful activities'' will not slow the extinction of 
listed plant species (Bean 2002--pages 409, 412, 414-415, and 419-420).
    Where consistent with the discretion provided by the Act, the 
Service believes it is necessary to implement policies that provide 
positive incentives to private landowners to voluntarily conserve 
natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1998--page 614). Thus, we believe it is 
essential for the recovery of this species to build on continued 
conservation activities such as these with a proven partner, and to 
provide positive incentives for other private landowners on Molokai who 
might be considering implementing voluntary conservation activities but

[[Page 47013]]

have concerns about incurring incidental regulatory or economic 
impacts.
    Approximately 80 percent of the habitat of one-half of all 
imperiled species in the United States occurs partly or solely on 
private lands where the Service has little management authority 
(Wilcove et al. 1996--page 2). In addition, recovery actions involving 
the reintroduction of listed species onto private lands require the 
voluntary cooperation of the landowner (Bean 2002--pages 409, 412, 414-
415, and 419-420; James 2002--page 270; Knight 1999--page 224; Main et 
al. 1999--page 1,264; Norton 2000--pages 1,221-1,222; Shogren et al. 
1999--page 1,260; Wilcove et al. 1998--page 614). Therefore, ``a 
successful recovery program is highly dependent on developing working 
partnerships with a wide variety of entities, and the voluntary 
cooperation of thousands of non-Federal landowners and others is 
essential to accomplishing recovery for listed species'' (Crouse et al. 
2002--page 720). Because the Federal Government owns relatively little 
land on Molokai, and because large tracts of land suitable for 
conservation of threatened and endangered species are mostly owned by 
private landowners, successful recovery of listed species on Molokai is 
especially dependent upon working partnerships and the voluntary 
cooperation of non-Federal landowners.
    Another benefit of excluding this area from the critical habitat 
designation includes relieving additional regulatory burden and costs 
associated with the preparation of portions of section 7 consultation 
documents related to critical habitat. While the cost of adding these 
additional sections to assessments and consultations is relatively 
minor, there could be delays which can generate real costs to some 
project proponents. However, because critical habitat in this case is 
only proposed for occupied areas already subject to section 7 
consultation and jeopardy analysis, we anticipate this reduction would 
be minimal.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, we have determined that the 
benefits of excluding TNCH's Kamakou Preserve from the final 
designation of critical habitat outweigh the benefits of including it 
as critical habitat for Drosophila differens. This conclusion is based 
on the following factors:
    (a) In the past, TNCH has cooperated with Federal and State 
agencies, and private organizations to implement on their lands 
voluntary conservation activities that have resulted in tangible 
conservation benefits.
    (b) Simple regulation of ``harmful activities'' is not sufficient 
to conserve this species. Landowner cooperation and support is required 
to prevent the extinction and promote the recovery of Drosophila 
differens on Molokai due to the need to implement proactive 
conservation actions such as ungulate management, weed control, and 
fire suppression. Future conservation efforts, such as control of 
nonnative species, will require the cooperation of TNCH and other non-
Federal landowners on Molokai. Exclusion of TNCH land from this 
critical habitat designation will help the Service maintain and improve 
this partnership by formally recognizing the positive contributions of 
TNCH to recovery of D. differens, and by streamlining or reducing 
unnecessary regulatory oversight.
    (c) Given the current partnership agreements between TNCH and many 
organizations, the Service believes the additional regulatory and 
educational benefits of including this land as critical habitat are 
relatively small. The designation of critical habitat can serve to 
educate the general public as well as conservation organizations 
regarding the potential conservation value of an area, but this goal is 
already being accomplished through the identification of this area in 
the management plans described above. Likewise, there will be little 
additional Federal regulatory benefit to the species because (i) there 
is a low likelihood that this area will be negatively affected to any 
significant degree by Federal activities requiring section 7 
consultation, and (ii) this area is already occupied by the listed 
species and a section 7 nexus already exists. The Service is unable to 
identify any other potential benefits associated with critical habitat 
for this TNCH preserve.
    (d) It is well documented that publicly owned lands and lands owned 
by conservation organizations such as TNCH, alone, are too small and 
poorly distributed to provide for the conservation of most listed 
species (Bean 2002--pages 409, 412, 414-415, and 419-420; Crouse et al. 
2002--page 720). Excluding this TNCH land from critical habitat may, by 
way of example, provide positive incentives to other non-Federal 
landowners on Molokai who own lands that could contribute to listed 
species recovery if voluntary conservation measures on these lands are 
implemented (Norton 2000--pages 1,221-1,222; Main et al. 1999--page 
1,263; Shogren et al. 1999--page 1,260; Wilcove and Chen 1998--page 
1,407). As resources and nondiscretionary workload allow, the Service 
will consider future revisions or amendments to this proposed critical 
habitat rule if landowners affected by this rule develop conservation 
programs or partnerships such that the Service can find the benefits of 
exclusion outweigh the benefits of inclusion.
    In conclusion, we find that the exclusion of critical habitat on 
TNCH's Kamakou Preserve from the final designation of critical habitat 
of Drosophila differens, would most likely have a net positive 
conservation effect on the recovery and conservation of the species and 
the features essential to its conservation when compared to the 
positive conservation effects of a critical habitat designation. As 
described above, the overall benefits to this species of a critical 
habitat designation for this TNCH area is relatively small. In 
contrast, we believe that this exclusion will enhance our existing 
partnership with TNCH, and it will set a positive example and provide 
positive incentives to other non-Federal landowners who may be 
considering implementing voluntary conservation activities on their 
lands. We conclude there is a higher likelihood of beneficial 
conservation activities occurring in this and other areas of Molokai 
without designated critical habitat than there would be with designated 
critical habitat in this TNCH preserve and, therefore, we are proposing 
to exclude these lands from the final designation of critical habitat 
for D. differens.

(4) Exclusion of This Unit Will Not Cause Extinction of the Species

    If this proposed exclusion is made final in our final critical 
habitat designation, no specific areas will be designated as critical 
habitat for Drosophila differens. In considering whether or not 
exclusion of this preserve might result in the extinction of Drosophila 
differens the Service first considered the impacts to this species. It 
is the Service's conclusion that the TNCH's mission and management 
plans will provide as much or more net conservation benefits as would 
be provided if this preserve was designated as critical habitat. These 
management plans, which are described above, will provide tangible 
proactive conservation benefits that will reduce the likelihood of 
extinction for D. differens in this area of Molokai and increase the 
likelihood of its recovery. Extinction for this species as a 
consequence of this exclusion is unlikely because there are no known 
threats in these preserves due to any current or reasonably anticipated 
Federal actions that might be regulated under section 7 of the Act. 
Further, this

[[Page 47014]]

area is already occupied by D. differens and thereby receives benefits 
from the section 7 protections of the Act, should such an unlikely 
Federal threat actually materialize. The exclusion of this preserve 
from the final designation of critical habitat will not increase the 
risk of extinction to this species, and it may increase the likelihood 
this species will recover by encouraging other landowners to implement 
voluntary conservation activities as TNCH has done.
    In sum, the Service finds that the benefits of excluding TNCH's 
Kamakou Preserve from critical habitat outweighs the benefits of 
including the area, and the proposed exclusion will not result in the 
extinction of the species because there are no known threats in these 
preserves due to any current or anticipated Federal actions.
Kamehameha Schools
    Lands owned by Kamehameha Schools are within three proposed units 
(Drosophila heteroneura--Unit 5--Gaspar's Dairy, D. heteroneura--Unit 
6--Kipuka at 4,900', and D. heteroneura--Unit 7--Pit Crater) and are 
occupied habitat with the features essential to the conservation of 
Drosophila heteroneura. Active management such as fire control, 
nonnative species removal, and ungulate fencing within these three 
units will benefit D. heteroneura. Failure to implement these active 
management measures, all of which require voluntary landowner support 
and participation, virtually assures the extirpation of D. heteroneura 
from these areas. Many of these types of conservation actions on the 
island of Hawaii are carried out as part of Kamehameha School's 
participation with landowner incentive based programs and by actions 
taken on the landowner's initiative. These activities, which are 
described in more detail below, require substantial voluntary 
cooperation by Kamehameha Schools and other cooperating landowners and 
local residents.
    The following analysis describes the likely conservation benefits 
of a critical habitat designation compared to the conservation benefits 
without critical habitat designation. We paid particular attention to 
the following issues: To what extent a critical habitat designation 
would confer regulatory conservation benefits on this species; to what 
extent the designation would educate members of the public such that 
conservation efforts would be enhanced; and whether a critical habitat 
designation would have a positive, neutral, or negative impact on 
voluntary conservation efforts on this privately owned land as well as 
other non-Federal lands on the island of Hawaii that could contribute 
to recovery. If a critical habitat designation reduces the likelihood 
that voluntary conservation activities will be carried out on the 
island of Hawaii, and at the same time, fails to confer a 
counterbalancing positive regulatory or educational benefit to the 
species, then the benefits of excluding such areas from critical 
habitat outweigh the benefits of including them. Although the results 
of this type of evaluation will vary significantly depending on the 
landowners, geographic areas, and the species involved, we believe the 
Kamehameha Schools lands on the island of Hawaii merit this evaluation.

(1) Benefits of Inclusion

    Critical habitat is proposed for Drosophila heteroneura in three 
units (see above) on lands owned by Kamehameha Schools. The primary 
direct benefit of inclusion of Kamehameha Schools' lands as critical 
habitat would result from the requirement under section 7 of the Act 
that Federal agencies consult with us to ensure that any proposed 
Federal actions do not destroy or adversely modify critical habitat. 
The benefit of a critical habitat designation would ensure that any 
actions funded by or permits issued by a Federal agency would not 
likely destroy or adversely modify any critical habitat. Without 
critical habitat, some site-specific projects might not trigger 
consultation requirements under the Act in areas where the species is 
not currently present; in contrast, Federal actions in areas occupied 
by listed species would still require consultation under section 7 of 
the Act. However, these lands are already occupied habitat for D. 
heteroneura. Therefore, any Federal activities that may affect these 
areas will in all likelihood require section 7 consultation.
    Historically, we have conducted no formal or informal consultations 
under section 7 on the island of Hawaii on these three areas owned by 
Kamehameha Schools. Each of these three areas are part of a larger 
parcel owned by Kamehameha Schools and on which are reported other 
listed species (both plants and animals). As a result of the low level 
of previous Federal activity on these Kamehameha Schools lands, and 
after considering that the likely future Federal activities that might 
occur on these lands would be minimal and associated with Federal 
funding for conservation activities, it is our opinion that there is 
likely to be a low number of future Federal activities that would 
negatively affect D. heteroneura habitat on Kamehameha Schools lands. 
Therefore, we anticipate little additional regulatory benefit from 
including the Kamehameha Schools lands in critical habitat beyond what 
is already provided for by the existing section 7 nexus for habitat 
areas occupied by the listed species.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas that 
are occupied by the species and contain the necessary features 
essential to the conservation of the species. Information provided to a 
wide audience of the public, including other parties engaged in 
conservation activities, about Drosophila heteroneura and the features 
that are essential to its conservation and identified on Kamehameha 
Schools lands on the island of Hawaii could have a positive 
conservation benefit. While we believe this educational outcome is 
important for the conservation of this species, we believe it has 
already been achieved through existing management, education, and 
public outreach efforts carried out by Kamehameha Schools.

(2) Benefits of Exclusion

    Proactive voluntary conservation efforts are necessary to prevent 
the extinction and promote the recovery of Drosophila heteroneura on 
the island of Hawaii (Shogren et al. 1991--page 1,260; Wilcove and Chen 
1998--page 1,407; Wilcove et al. 1998--page 614). Consideration of this 
concern is especially important in areas where the species has been 
extirpated and its recovery may require access and permission for 
reintroduction efforts (Bean 2002--page 414; Wilcove et al. 1998--page 
614). For example, D. heteroneura has been extirpated from many of its 
historical locations, including on other Kamehameha Schools lands, and 
reestablishment is likely not possible without human assistance and 
landowner cooperation.
    Kamehameha Schools are involved in several important voluntary 
conservation agreements and are currently carrying out some management 
activities which contribute to the conservation of this species. They 
have developed two programs that demonstrate their conservation 
commitments, Aina Ulu and Malama Aina. The Aina Ulu program implements 
land-based education programs, whereas Malama Aina

[[Page 47015]]

delivers focused stewardship of natural resources. Malama Aina has been 
focused in two distinct areas, Keauhou in Kau District and North-South 
Kona, with a budget commitment in 2002 of $1,000,000, not including 
staff expenses.
    Kamehameha Schools North-South Kona natural resource conservation 
efforts focus on three distinct areas: Honaunau Forest and Honaunau 
Uka, Kaupulehu Kauila Lama Forest and Kaupulehu Uka, and Pulehua. One 
proposed unit (Drosophila heteroneura--Unit 5--Gaspar's Dairy) is 
located in the Honaunau Forest and Honaunau Uka area while a second 
proposed unit (D. heteroneura--Unit 7--Pit Crater) is located in the 
Kaupulehu Kauila Lama Forest and Kaupulehu Uka area. Kamehameha Schools 
started a weed control program in 2002 in Honaunau Forest and Honaunau 
Uka. In both the Forest and Uka areas, they will continue the weed 
control program, along with a timber certification program to write 
certifiable plans and complete inventories. In the Honaunau Uka area, 
they will construct an ungulate exclosure fence and issue a contract 
for a botanical survey. Funds allocated for the implementation of these 
projects total $52,500 to Honaunau Forest and $29,500 to Honaunau Uka.
    Conservation activities in the Aina Ulu program at Kaupulehu Kauila 
Lama Forest include an intern program, an outreach coordinator, 
multimedia curriculum development, small mammal and weed control. Funds 
allocated for these projects total $70,700.
    Malama Aina projects at Kaupulehu Uka include timber certification, 
large mammal and weed control, ungulate exclosure fencing, inventory, 
monitoring and data analysis of conservation actions and road 
maintenance. Funds allocated for those projects total $101,000. 
Partners include Hawaii Forest Industry Association, the Service, 
DOFAW, local residents, PIA Sports Properties (lessee), U.S. Forest 
Service, National Tropical Botanical Garden (lessee), and Honokaa High 
School.
    A third proposed unit (Drosophila heteroneura--Unit 6--Kipuka at 
4,900 ft) is located near Puu Lehua, an area that is under development 
for protection and restoration of 6,000 ac (2,428 ha) of native forest 
habitat through fencing and feral ungulate control. Future additional 
management actions that are planned in this area include additional 
fencing, control and removal of nonnative species, fire prevention, and 
reintroduction of rare and listed species (Hawaiian Silversword 
Foundation 2006--page 1).
    As described earlier, Kamehameha Schools has a history of entering 
into conservation agreements with various Federal and State agencies 
and private organizations on biologically important portions of their 
lands. These arrangements have taken a variety of forms. They include 
partnership commitments such as the Dryland Forest Working Group which 
provides assistance in managing the Kaupulehu Kauila Lama Forest and 
Kaupulehu Uka area. Drosophila heteroneura will benefit substantially 
from their voluntary management actions because of a reduction in 
ungulate browsing and habitat conversion, a reduction in competition 
with nonnative weeds, and a reduction in risk of fire.
    The conservation benefits of critical habitat are primarily 
regulatory or prohibitive in nature. But on the island of Hawaii, 
simply preventing ``harmful activities'' will not slow the extinction 
of listed species including Drosophila heteroneura. Where consistent 
with the discretion provided by the Act, we believe it is necessary to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources, and that remove 
or reduce disincentives to conservation (Michael 2001--pages 34 and 36-
37). Thus, we believe it is essential for the recovery of D. 
heteroneura to build on continued conservation activities, such as 
these with a proven partner, and to provide incentives for other 
private landowners on the island of Hawaii who might be considering 
implementing voluntary conservation activities but have concerns about 
incurring incidental regulatory or economic impacts.
    Approximately 80 percent of imperiled species in the United States 
occur partly or solely on private lands where the Service has little 
management authority (Wilcove et al. 1996 page 2). In addition, 
recovery actions involving the reintroduction of listed species onto 
private lands require the voluntary cooperation of the landowner (Bean 
2002--page 414; James 2002--page 270; Knight 1999--page 224; Main et 
al. 1999--page 1,263; Norton 2000--pages 1,221-1,222; Shogren et al. 
1999--page 1,260; Wilcove et al. 1998--page 614). Therefore, ``a 
successful recovery program is highly dependent on developing working 
partnerships with a wide variety of entities, and the voluntary 
cooperation of thousands of non-Federal landowners and others is 
essential to accomplishing recovery for listed species'' (Crouse et al. 
2002--page 720).
    Because large tracts of land suitable for conservation of 
threatened and endangered species are mostly owned by private 
landowners, successful recovery of listed species on the island of 
Hawaii is especially dependent upon working partnerships and the 
voluntary cooperation of private landowners.
    Another benefit of excluding these areas from the critical habitat 
designation includes relieving additional regulatory burden and costs 
associated with the preparation of portions of section 7 consultation 
documents related to critical habitat. While the cost of adding these 
additional sections to assessments and consultations is relatively 
minor, there could be delays which can generate real costs to some 
project proponents. However, because critical habitat in this case is 
only proposed for occupied areas already subject to section 7 
consultation and jeopardy analysis, we anticipate that this reduction 
would be minimal.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, we have determined that the 
benefits of excluding lands owned by Kamehameha Schools from the final 
designation of critical habitat for Drosophila heteroneura outweigh the 
benefits of including them as critical habitat. This conclusion is 
based on the following factors:
    (a) In the past, Kamehameha Schools has cooperated with Federal and 
State agencies, and private organizations to implement on their lands 
voluntary conservation activities that have resulted in tangible 
conservation benefits.
    (b) Simple regulation of ``harmful activities'' is not sufficient 
to conserve these species. Landowner cooperation and support is 
required to prevent the extinction and promote the recovery of all of 
the listed species on this island, because of the need to implement 
proactive conservation actions such as ungulate management, weed 
control, and fire suppression. This need for landowner cooperation is 
especially acute because the three proposed units (Gaspar's Dairy, Pit 
Crater, and Kipuka at 4,900 ft) are occupied by Drosophila heteroneura. 
In addition, many previously occupied D. heteroneura habitat sites on 
other Kamehameha Schools lands remain unoccupied by this species. 
Future conservation efforts, such as translocation of this species back 
into unoccupied habitat on these lands, will require the cooperation of 
Kamehameha Schools. Exclusion of Kamehameha Schools lands from the 
final designation of critical habitat will

[[Page 47016]]

help the Service maintain and improve this partnership by formally 
recognizing the positive contributions of Kamehameha Schools to rare 
species recovery, and by streamlining or reducing unnecessary 
oversight.
    (c) Given the current partnership agreements between Kamehameha 
Schools and many other organizations, we believe the benefits of 
including Kamehameha Schools lands as critical habitat are relatively 
small. The designation of critical habitat can serve to educate the 
general public as well as conservation organizations regarding the 
potential conservation value of an area, but this goal is already being 
accomplished through the identification of this area in the management 
agreements described above. Likewise, there will be little Federal 
regulatory benefit to the species because: (i) There is a low 
likelihood that these three proposed critical habitat units will be 
negatively affected to any significant degree by Federal activities 
requiring section 7 consultation, and (ii) these areas are already 
occupied by the species and a section 7 nexus already exists. We are 
unable to identify any other potential benefits associated with 
critical habitat for these proposed units.
    (d) We believe it is necessary to establish positive working 
relationships with representatives of the Native Hawaiian community. 
This approach of excluding critical habitat and entering into a 
mutually agreeable conservation partnership strengthens this 
relationship and should lead to conservation benefits beyond the 
boundaries of Kamehameha Schools land. It is an important long-term 
conservation goal of the Service to work cooperatively with the Native 
Hawaiian community to help recover Hawaii's endangered species. This 
partnership with Kamehameha Schools is an important step toward this 
goal.
    (e) It is well documented that publicly owned lands and lands owned 
by private organizations alone are too small and poorly distributed to 
provide for the conservation of most listed species (Bean 2002--pages 
409, 412, 414-415, and 419-420; Crouse et al. 2002--page 720). 
Excluding these Kamehameha Schools lands from critical habitat may, by 
way of example, provide positive social, legal, and economic incentives 
to other non-Federal landowners on the island of Hawaii who own lands 
that could contribute to listed species recovery if voluntary 
conservation measures on these lands are implemented (Norton 2000--
pages 1,221-1,222; Main et al. 1999--page 1,263; Shogren et al. 1999--
page 1,260; Wilcove and Chen 1998--page 1,407).
    In conclusion, we find that the exclusion of lands owned by 
Kamehameha Schools from the final designation of critical habitat would 
most likely have a net positive conservation effect on the recovery and 
conservation of Drosophila heteroneura when compared to the positive 
conservation effects of a critical habitat designation. As described 
above, the overall benefits to this species of a critical habitat 
designation on Kamehameha Schools lands are relatively small. In 
contrast, we believe this exclusion will enhance our existing 
partnership with Kamehameha Schools, and it will set a positive example 
and provide positive incentives to other non-Federal landowners who may 
be considering implementing voluntary conservation activities on their 
lands. We conclude there is a greater likelihood of beneficial 
conservation activities occurring in these and other areas of the 
island of Hawaii without designated critical habitat than there would 
be with designated critical habitat on these Kamehameha Schools lands.

(4) Exclusion of This Unit Will Not Cause Extinction of the Species

    In considering whether or not exclusion of Kamehameha Schools lands 
from the final designation of critical habitat for Drosophila 
heteroneura, we first considered the impacts to the species. The 
agreements described above will provide tangible proactive conservation 
benefits that will reduce the likelihood of extinction for the species 
in these areas of the island of Hawaii and increase the likelihood of 
its recovery. Extinction of this species as a consequence of this 
proposed exclusion is unlikely because there are no known threats in 
the proposed units due to any current or reasonably anticipated Federal 
actions that might be regulated under section 7 of the Act. Further, 
these areas are already occupied by the species and thereby benefit 
from the section 7 protections of the Act, should such an unlikely 
Federal threat actually materialize.
    The exclusion of these Kamehameha Schools lands will not increase 
the risk of extinction to the species, and it may increase the 
likelihood the species will recover by encouraging other landowners to 
implement voluntary conservation activities as Kamehameha Schools has 
done. In addition, critical habitat is being proposed on other areas of 
the island of Hawaii for this species (Kau Forest, Pauahi, Waiea, and 
Waihaka Gulch units) within its historical range. In sum, the above 
analysis concludes that the proposed exclusion of Kamehameha Schools 
lands from the final designation of critical habitat on the island of 
Hawaii will have a net beneficial impact with little risk of negative 
impacts. Therefore, the exclusion of the Kamehameha Schools lands will 
not cause extinction and should in fact improve the chances of recovery 
for Drosophila heteroneura.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for 11 species of Hawaiian picture-wing flies is being prepared. We 
will announce the availability of the draft economic analysis as soon 
as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.fws.gov/pacificislands, or by contacting the Pacific Islands Fish and Wildlife 
Office directly (see ADDRESSES section).

Peer Review

    In accordance with the December 16, 2004, Office of Management and 
Budget's ``Final Information Quality Bulletin for Peer Review,'' we 
will obtain comments from at least three independent scientific 
reviewers regarding the scientific data and interpretations contained 
in this proposed rule. The purpose of such review is to ensure that our 
critical habitat decision is based on scientifically sound data, 
assumptions, and analyses. We have posted our proposed peer review plan 
on our Web site at http://www.fws.gov/midwest/Science/. Public comments 
on our peer review were obtained through May 26, 2006, after which we 
finalized our peer review plan and selected peer reviewers. We will 
provide those reviewers with copies of this proposal as well as the 
data used in the proposal. Peer reviewer comments that are received 
during the public comment period will be considered as we make our 
final decision on this proposal, and substantive peer reviewer comments 
will be specifically discussed in the final rule.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    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 in the Federal Register.

[[Page 47017]]

Such requests must be made in writing and be addressed to the Field 
Supervisor at the address in the ADDRESSES section above.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical language or jargon that interferes with its clarity? (3) Does 
the format of the proposed rule (grouping and order of the sections, 
use of headings, paragraphing, and so forth) aid or reduce its clarity? 
(4) Would the rule be easier to understand if it were divided into more 
(but shorter) sections? (5) Is the description of the rule in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? What else could we do to make this 
proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You also may e-mail your comments to this address: 
<a href="/cdn-cgi/l/email-protection#97d2efe4f2f4d7fef8e4b9f3f8feb9f0f8e1"><span class="__cf_email__" data-cfemail="b9fcc1cadcdaf9d0d6ca97ddd6d097ded6cf">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement Fairness Act, and Executive Order 12630.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Act, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register and 
in local newspapers so that it is available for public review and 
comments. The draft economic analysis can be obtained from the Internet 
Web site at http://www.fws.gov/pacificislands or by contacting the 
Pacific Islands Fish and Wildlife Office directly (see ADDRESSES 
section).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and Executive Order 12866. This draft economic analysis will provide 
the required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, the Service will publish a notice of 
availability of the draft economic analysis of the proposed designation 
and reopen the public comment period for the proposed designation. The 
Service will include with the notice of availability, as appropriate, 
an initial regulatory flexibility analysis or a certification that the 
rule will not have a significant economic impact on a substantial 
number of small entities accompanied by the factual basis for that 
determination. The Service has concluded that deferring the RFA finding 
until completion of the draft economic analysis is necessary to meet 
the purposes and requirements of the RFA. Deferring the RFA finding in 
this manner will ensure that the Service makes a sufficiently informed 
determination based on adequate economic information and provides the 
necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for 11 species of 
Hawaiian picture-wing flies is a significant regulatory action under 
Executive Order 12866 in that it may raise novel legal and policy 
issues, however, and it is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation,

[[Page 47018]]

statute or regulation that would impose an enforceable duty upon State, 
local, tribal governments, or the private sector and includes both 
``Federal intergovernmental mandates'' and ``Federal private sector 
mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. The lands being proposed for critical habitat 
designation are owned by the State of Hawaii or private citizens. None 
of these entities fit the definition of ``small governmental 
jurisdiction.'' As such, a Small Government Agency Plan is not 
required. We will, however, further evaluate this issue as we conduct 
our economic analysis and as appropriate, review and revise this 
assessment as warranted.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Hawaii. The designation of critical habitat in areas 
currently occupied by the 11 species of picture-wing flies may affect 
Federal actions and would have little incremental impact on State and 
local governments and their activities. The designation may have some 
benefit to these governments in that the areas that contain the 
features essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the conservation of the species are specifically identified. Thus it 
may assist these local governments in long-range planning (rather than 
waiting for case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the proposed areas to assist the 
public in understanding the habitat needs of the 11 species of Hawaiian 
picture-wing flies.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's requirement at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a Government-to-Government basis. We are not proposing to 
designate critical habitat for these species on Tribal lands as defined 
in the above documents. Additionally, the proposed designation does not 
contain any lands that we have identified as impacting Tribal trust 
resources.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the Field Supervisor, Pacific Islands Fish and 
Wildlife Office (see ADDRESSES section).

Author(s)

    The author of this document is the staff of the Fish and Wildlife 
Service.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

[[Page 47019]]

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. In Sec.  17.11(h), revise the entry for ``Drosophila aglaia, D. 
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. 
musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia'' under ``INSECTS'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Insects
 
                                                                      * * * * * * *
Fly, Hawaiian picture-wing.......  Drosophila aglaia...  U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
Fly, Hawaiian picture-wing.......  Drosophila differens  U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
Fly, Hawaiian picture-wing.......  Drosophila hemipeza.  U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
Fly, Hawaiian picture-wing.......  Drosophila            U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
                                    heteroneura.
Fly, Hawaiian picture-wing.......  Drosophila            U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
                                    montgomeryi.
Fly, Hawaiian picture-wing.......  Drosophila mulli....  U.S.A. (HI)........  NA.................  T                       756     17.95(h)           NA
Fly, Hawaiian picture-wing.......  Drosophila            U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
                                    musaphilia.
 
                                                                      * * * * * * *
Fly, Hawaiian picture-wing.......  Drosophila obatai...  U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
Fly, Hawaiian picture-wing.......  Drosophila            U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
                                    ochrobasis.
Fly, Hawaiian picture-wing.......  Drosophila            U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
                                    substenoptera.
Fly, Hawaiian picture-wing.......  Drosophila            U.S.A. (HI)........  NA.................  E                       756     17.95(h)           NA
                                    tarphytrichia.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.95(i), by adding critical habitat for 
``Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. obatai, D. ochrobasis, D. 
substenoptera, and D. tarphytrichia'' in the same alphabetical order in 
which these species appear in the table in Sec.  17.11(h) under 
``INSECTS'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *

Drosophila aglaia

    (1) Critical habitat units are depicted for County of Honolulu, 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Dry to mesic, lowland, Diospyros sp., ohia and koa forest; and
    (ii) The larval host plant Urera glabra.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: Map 1 (index map of critical habitat units for Drosophila 
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. 
mulli, D. musaphilia, D. obatai, D. ochrobasis, D. substenoptera, and 
D. tarphytrichia) follows:
BILLING CODE 4310-55-P

[[Page 47020]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.000

    (6) Drosophila aglaia--Unit 1--Palikea, City and County of 
Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila aglaia--Unit 1--Palikea: 593273, 2367958; 593273, 
2368022; 593337, 2368022; 593337, 2367958.
    (ii) Note: Map 2 of Drosophila aglaia--Unit 1--Palikea follows:

[[Page 47021]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.001


[[Page 47022]]



Drosophila differens

    (1) Critical habitat is depicted for County of Maui, island of 
Molokai, Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Wet, montane, ohia forest; and
    (ii) The larval host plants Clermontia arborescens ssp. waihiae, C. 
granidiflora ssp. munroi, C. oblongifolia ssp. brevipes, and C. 
pallida.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) The critical habitat unit is described below. Coordinates are 
in Universal Transverse Mercator (UTM) Zone 4 with units in meters 
using North American Datum of 1983 (NAD83).
    (5) Note: For an index map of the critical habitat unit for 
Drosophila differens and 10 other Hawaiian picture-wing fly species, 
see paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila differens--Unit 1--Puu Kolekole, Maui County, Island 
of Molokai, Hawaii.
    (i) Drosophila differens--Unit 1--Puu Kolekole: 718406, 2335494; 
718406, 2335558; 718470, 2335558; 718470, 2335494.
    (ii) Note: Map 1 of Drosophila differens--Unit 1--Puu Kolekole 
follows:

[[Page 47023]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.002


[[Page 47024]]



Drosophila hemipeza

    (1) Critical habitat units are depicted for County of Honolulu, 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Dry to mesic, lowland, ohia and koa forest; and
    (ii) The larval host plants Cyanea angustifolia, C. calycina, C. 
grimesiana ssp. grimesiana, C. grimesiana ssp. obatae, C. membranacea, 
C. pinnatifida, C. sessifolia, C. superba ssp. superba, Lobelia 
hypoleuca, L. hiihauensis, L. yuccoides, and Urera kaalae.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
hemipeza and 10 other Hawaiian picture-wing fly species, see paragraph 
(5) of the critical habitat entry for D. aglaia.
    (6) Drosophila hemipeza--Unit 1--Makaha Valley East, City and 
County of Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila hemipeza--Unit 1--Makaha Valley East: 587461, 
2377992; 587461, 2378055; 587524, 2378055; 587524, 2377992.
    (ii) Note: Map 1 of Drosophila hemipeza--Unit 1-Makaha Valley East 
follows:

[[Page 47025]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.003

    (7) Drosophila hemipeza--Unit 2--Palikea, City and County of 
Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila hemipeza--Unit 2--Palikea: 593273, 2367958; 593273, 
2368022; 593337, 2368022; 593337, 2367958.
    (ii) Note: Map 2 of Drosophila hemipeza--Unit 2--Palikea follows:

[[Page 47026]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.004


[[Page 47027]]



Drosophila heteroneura

    (1) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Mesic to wet, montane, ohia and koa forest; and
    (ii) The larval host plants Cheirodendron trigynum ssp. trigynum, 
C. clermontioides, C. hawaiiensis, C. kohalae, C. lindseyana, C. 
montis-loa, C. paviflora, C. peleana, and C. pyrularia.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (5) Note: For an index map of critical habitat units for Drosophila 
heteroneura and 10 other Hawaiian picture-wing fly species, see 
paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila heteroneura--Unit 1--Kau Forest Reserve, Hawaii 
County, Island of Hawaii, Hawaii.
    (i) Drosophila heteroneura--Unit 1--Kau Forest Reserve: 858986, 
2130883; 858986, 2130947; 859050, 2130947; 859050, 2130883.
    (ii) Note: Map 1 of Drosophila heteroneura--Unit 1--Kau Forest 
Reserve follows:

[[Page 47028]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.005

    (7) Drosophila heteroneura--Unit 2--Pauahi, Hawaii County, Island 
of Hawaii, Hawaii.
    (i) Drosophila heteroneura--Unit 2--Pauahi: 833211, 2159779; 
833211, 2159843; 833275, 2159843; 833275, 2159779.
    (ii) Note: Map 2 of Drosophila heteroneura--Unit 2--Pauahi follows:

[[Page 47029]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.006

    (8) Drosophila heteroneura--Unit 3--Waiea, Hawaii County, Island of 
Hawaii, Hawaii.
    (i) Drosophila heteroneura--Unit 3--Waiea: 836184, 2144180; 836184, 
2144244; 836248, 2144244; 836248, 2144180.
    (ii) Note: Map 3 of Drosophila heteroneura--Unit 3--Waiea follows:

[[Page 47030]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.007

    (9) Drosophila heteroneura--Unit 4--Waihaka Gulch, Hawaii County, 
Island of Hawaii, Hawaii.
    (i) Drosophila heteroneura--Unit 4--Waihaka Gulch: 868655, 2138565; 
868655, 2138629; 868718, 2138629; 868718, 2138565.
    (ii) Note: Map 4 of Drosophila heteroneura--Unit 4--Waihaka Gulch 
follows:

[[Page 47031]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.008

    (10) Drosophila heteroneura--Unit 5--Gaspar's Dairy, Hawaii County, 
Island of Hawaii, Hawaii.
    (i) Drosophila heteroneura--Unit 5--Gaspar's Dairy: 833811, 
2157064; 833811, 2157128; 833875, 2157128; 833875, 2157064.
    (ii) Note: Map 5 of Drosophila heteroneura--Unit 5--Gaspar's Dairy 
follows:

[[Page 47032]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.009

    (11) Drosophila heteroneura--Unit 6--Kipuka at 4,900 ft, Hawaii 
County, Island of Hawaii, Hawaii.
    (i) Drosophila heteroneura--Unit 6--Kipuka at 4,900 ft: 835692, 
2166366; 835692, 2166430; 835756, 2166430; 835756, 2166366.
    (ii) Note: Map 6 of Drosophila heteroneura--Unit 6--Kipuka at 4,900 
ft follows:

[[Page 47033]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.010

    (12) Drosophila heteroneura--Unit 7--Pit Crater, Hawaii County, 
Island of Hawaii, Hawaii.
    (i) -- heteroneura--Unit 7--Pit Crater: 820293, 2185168; 820293, 
2185232; 820357, 2185232; 820357, 2185168.
    (ii) Note: Map 7 of Drosophila heteroneura--Unit 7--Pit Crater 
follows:

[[Page 47034]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.011

    (13) Drosophila heteroneura--Kona Refuge, Hawaii County, Island of 
Hawaii, Hawaii, was considered but not proposed for critical habitat. 
Note: Map 8 of Drosophila heteroneura--Kona Refuge follows:

[[Page 47035]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.012

    (14) Drosophila heteroneura--Thurston Lava Tube, Hawaii County, 
Island of Hawaii, Hawaii, was considered but not proposed for critical 
habitat. Note: Map 9 of Drosophila heteroneura--Thurston Lava Tube 
follows:

[[Page 47036]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.013


[[Page 47037]]



Drosophila montgomeryi

    (1) Critical habitat units are depicted for County of Honolulu, 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Dry to mesic, lowland, diverse ohia and koa forest; and
    (ii) The larval host plant Urera kaalae.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
montgomeryi and 10 other Hawaiian picture-wing fly species, see 
paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila montgomeryi--Unit 1--Kaluaa Gulch, City and County 
of Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila montgomeryi--Unit 1--Kaluaa Gulch: 593285, 2373778; 
593285, 2373842; 593348, 2373842; 593348, 2373778.
    (ii) Note: Map 1 of Drosophila montgomeryi--Unit 1--Kaluaa Gulch 
follows:

[[Page 47038]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.014

    (7) Drosophila montgomeryi--Unit 2--Palikea, City and County of 
Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila montgomeryi--Unit 2--Palikea: 593273, 2367958; 
593273, 2368022; 593337, 2368022; 593337, 2367958.
    (ii) Note: Map 2 of Drosophila montgomeryi--Unit 2--Palikea 
follows:

[[Page 47039]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.015


[[Page 47040]]



Drosophila mulli

    (1) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Wet, montane, ohia forest; and
    (ii) The larval host plant Pritchardia beccariana.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
mulli and 10 other Hawaiian picture-wing fly species, see paragraph (5) 
of the critical habitat entry for D. aglaia.
    (6) Drosophila mulli--Unit 1--Olaa Forest, Hawaii County, Island of 
Hawaii, Hawaii.
    (i) Drosophila mulli--Unit 1--Olaa Forest: 898368, 2155813; 898368, 
2155877; 898432, 2155877; 898432, 2155813.
    (ii) Note: Map 1 of Drosophila mulli--Unit 1--Olaa Forest follows:

[[Page 47041]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.016

    (7) Drosophila mulli--Unit 2--Waiakea Forest, Hawaii County, Island 
of Hawaii, Hawaii.
    (i) Drosophila mulli--Unit 2--Waiakea Forest: 896950, 218903; 
896950, 2168967; 897014, 2168967; 897014, 2168903.
    (ii) Note: Map 2 of Drosophila mulli--Unit 2--Waiakea Forest 
follows:

[[Page 47042]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.017


[[Page 47043]]



Drosophila Musaphilia

    (1) Critical habitat is depicted for County of Kauai, Kauai, 
Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Mesic, montane, ohia and koa forest; and
    (ii) The larval host plant Acacia koa.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) The critical habitat unit is described below. Coordinates are 
in Universal Transverse Mercator (UTM) Zone 4 with units in meters 
using North American Datum of 1983 (NAD83).
    (5) Note: For an index map of the critical habitat units for 
Drosophila musaphilia and 10 other Hawaiian picture-wing fly species, 
see paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila musaphilia--Unit 1--Waimea Canyon Road at 2600 ft, 
Kauai County, Island of Kauai, Hawaii.
    (i) Drosophila musaphilia--Unit 1--Waimea Canyon Road at 2600 ft: 
431443, 2437498; 431443, 2437561; 431506, 2437561; 431506, 2437498.
    (ii) Note: Map 1 of Drosophila musaphilia--Unit 1--Waimea Canyon 
Road at 2,600 ft follows:

[[Page 47044]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.018


[[Page 47045]]



Drosophila obatai

    (1) Critical habitat is depicted for County of Honolulu, Oahu, 
Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Dry to mesic, lowland, ohia and koa forest; and
    (ii) The larval host plant Pleomele forbesii.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) The critical habitat unit is described below. Coordinates are 
in Universal Transverse Mercator (UTM) Zone 4 with units in meters 
using North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
obatai and 10 other Hawaiian picture-wing fly species, see paragraph 
(5) of the critical habitat entry for D. aglaia.
    (6) Drosophila obatai--Unit 1--Wailupe, City and County of 
Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila obatai--Unit 1--Wailupe: 628839, 2358049; 628839, 
2358112; 628903, 2358112; 628903, 2358049.
    (ii) Note: Map 1 of Drosophila obatai--Unit 1--Wailupe follows:

[[Page 47046]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.019


[[Page 47047]]



Drosophila ochrobasis

    (1) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Mesic to wet, montane, ohia, koa, and Cheirodendron sp. forest; 
and
    (ii) The larval host plants Clermontia calophylla, C. 
clermontioides, C. drepanomorpha, C. hawaiiensis, C. kohalae, C. 
lindseyana, C. montis-loa, C. parviflora, C. peleana, C. pyrularia, C. 
waimeae, Myrsine lessertiana, and M. sandwicensis.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
ochrobasis and 10 other Hawaiian picture-wing fly species, see 
paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila ochrobasis--Unit 1--Kipuka 14, Hawaii County, Island 
of Hawaii, Hawaii.
    (i) Drosophila ochrobasis--Unit 1--Kipuka 14: 884116, 2178983; 
884116, 2179047; 884180, 2179047; 884180, 2178983.
    (ii) Note: Map 1 of Drosophila ochrobasis--Unit 1--Kipuka 14 
follows:

[[Page 47048]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.020

    (7) Drosophila ochrobasis--Unit 2--Kohala Mountains, Hawaii County, 
Island of Hawaii, Hawaii.
    (i) Drosophila ochrobasis--Unit 2--Kohala Mountains: 848294, 
2222646; 848294, 2222710; 848358, 2222710; 848358, 2222646.
    (ii) Note: Map 2 of Drosophila ochrobasis--Unit 2--Kohala Mountains 
follows:

[[Page 47049]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.021


[[Page 47050]]



Drosophila substenoptera

    (1) Critical habitat is depicted for County of Honolulu, Oahu, 
Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Mesic to wet, lowland to montane, ohia and koa forest; and
    (ii) The larval host plants Cheirodendron platyphyllum ssp. 
platyphyllum, C. trigynum ssp. trigynum, Tetraplasandra kavaiensis, and 
T. oahuensis.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat is described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
substenoptera and 10 other Hawaiian picture-wing fly species, see 
paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila substenoptera--Unit 1--Mt. Kaala, City and County of 
Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila substenoptera--Unit 1--Mt. Kaala: 588297, 2378026; 
588297, 2378090; 588361, 2378090; 588361, 2378026.
    (ii) Note: Map 1 of Drosophila substenoptera--Unit 1--Mt. Kaala 
follows:

[[Page 47051]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.022


[[Page 47052]]



Drosophila tarphytrichia

    (1) Critical habitat units are depicted for County of Honolulu, 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat are the 
habitat components that provide:
    (i) Dry to mesic, lowland, ohia and koa forest; and
    (ii) The larval host plant Charpentiera obovata.
    (3) Critical habitat does not include man-made structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat units are described below. Coordinates are in 
Universal Transverse Mercator (UTM) Zone 4 with units in meters using 
North American Datum of 1983 (NAD83).
    (5) Note: For an index map of critical habitat units for Drosophila 
tarphytrichia and 10 other Hawaiian picture-wing fly species, see 
paragraph (5) of the critical habitat entry for D. aglaia.
    (6) Drosophila tarphytrichia--Unit 1--Kaluaa Gulch, City and County 
of Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila tarphytrichia--Unit 1--Kaluaa Gulch: 593285, 
2373778; 593285, 2373842; 593348, 2373842; 593348, 2373778.
    (ii) Note: Map 1 of Drosophila tarphytrichia--Unit 1--Kaluaa Gulch 
follows:

[[Page 47053]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.023

    (7) Drosophila tarphytrichia--Unit 2--Palikea, City and County of 
Honolulu, Island of Oahu, Hawaii.
    (i) Drosophila tarphytrichia--Unit 2--Palikea: 593273, 2367958; 
593273, 2368022; 593337, 2368022; 593337, 2367958.
    (ii) Note: Map 2 of Drosophila tarphytrichia--Unit 2--Palikea 
follows:

[[Page 47054]]

[GRAPHIC] [TIFF OMITTED] TP15AU06.024

* * * * *

    Dated: July 24, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-6840 Filed 8-14-06; 8:45 am]
BILLING CODE 4310-55-C


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