Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for 11 Species of Picture-Wing Flies From the Hawaiian Islands, 46994-47054 [06-6840]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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



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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 fw1pie_
pwfchp@fws.gov. 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: https://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 fw1pie_pwfchp@fws.gov 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 fw1pie_pwfchp@fws.gov 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

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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.

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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 crit