Tuesday, August 15, 2006

Part III

Department of the Interior Fish and Wildlife Service

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 46994 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

DEPARTMENT OF THE INTERIOR [email protected]. Please see the impacts resulting from the proposed Public Comments Solicited section designation and, in particular, any Fish and Wildlife Service below for file format and other impacts on small entities; and information about electronic filing. (5) Whether our approach to 50 CFR Part 17 4. You may fax your comments to designating critical habitat could be RIN 1018–AU93 808/792–9581. improved or modified in any way to 5. Federal eRulemaking Portal: http:// provide for greater public participation Endangered and Threatened Wildlife www.regulations.gov. Follow the and understanding, or to assist us in and Plants; Proposed Designation of instructions for submitting comments. accommodating public concerns and Critical Habitat for 11 Species of Comments and materials received, as comments; Picture-Wing Flies From the Hawaiian well as supporting documentation used (6) We are requesting specific Islands in the preparation of this proposed rule, information from the public on will be available for public inspection, Drosophila aglaia, D. differens, D. AGENCY: Fish and Wildlife Service, by appointment, during normal business hemipeza, D. heteroneura, D. Interior. hours at the Pacific Islands Fish and montgomeryi, D. mulli, D. musaphilia, ACTION: Proposed rule. Wildlife Office, U.S. Fish and Wildlife D. neoclavisetae, D. obatai, D. Service, 300 Ala Moana Boulevard, ochrobasis, D. substenoptera, and D. SUMMARY: We, the U.S. Fish and Room 3–122, Honolulu, HI (telephone tarphytrichia and their habitat, and Wildlife Service (Service), propose to 808/792–9400; facsimile 808/792–9581). which habitat or habitat components designate critical habitat for 11 species FOR FURTHER INFORMATION CONTACT: (i.e., physical and biological features) of Hawaiian picture-wing flies Patrick Leonard, Field Supervisor, are essential to the conservation of these (Drosophila aglaia, D. differens, D. Pacific Islands Fish and Wildlife Office, 12 species and why; and hemipeza, D. heteroneura, D. (see ADDRESSES section) (telephone 808/ (7) Whether the benefit of exclusion montgomeryi, D. mulli, D. musaphilia, 792–9400; facsimile 808/792–9581). in any particular area will outweigh the D. obatai, D. substenoptera, and D. Persons who use a telecommunications benefits of inclusion of that area from tarphytrichia) pursuant to the device for the deaf (TDD) may call the critical habitat under Section 4(b)(2) of Endangered Species Act of 1973, as Federal Information Relay Service the Act. amended (Act). In total, approximately (FIRS) at 800/877–8339, 24 hours a day, If you wish to comment, you may 18 acres (ac) (7.3 hectares (ha)) fall 7 days a week. submit your comments and materials within the boundaries of the proposed SUPPLEMENTARY INFORMATION: concerning this proposal by any one of critical habitat designation. The several methods (see ADDRESSES proposed critical habitat is located in Public Comments Solicited section). Please submit Internet four counties (City and County of We intend that any final action comments to [email protected] in Honolulu, Hawaii, Maui, and Kauai) in resulting from this proposal will be as ASCII file format and avoid the use of Hawaii. Critical habitat has not been accurate and as effective as possible. special characters or any form of proposed for D. neoclavisetae, a species Therefore, comments or suggestions encryption. Please also include ‘‘Attn: for which we determined critical habitat from the public, other concerned RIN 1018–AU93’’ in your e-mail subject to be prudent, because the specific areas governmental agencies, the scientific header and your name and return and physical and biological features community, industry, or any other address in the body of your message. If essential to its conservation in the Puu interested party concerning this you do not receive a confirmation from Kukui Watershed Management Area are proposed rule are hereby solicited. the system that we have received your not in need of special management Comments particularly are sought Internet message, contact us directly by considerations or protection. Therefore, concerning: calling our Pacific Islands Fish and we are not proposing critical habitat for (1) The reasons any habitat should or Wildlife Office at phone number 808/ D. neoclavisetae because these specific should not be determined to be critical 792–9400. Please note that the Internet areas and features do not meet the habitat as provided by section 4 of the address [email protected] will be definition of critical habitat in the Act. Act, including whether it is prudent to closed out at the termination of the DATES: We will accept comments from designate critical habitat. public comment period. all interested parties until October 16, (2) Specific information on the Our practice is to make comments, 2006. We must receive requests for amount and distribution of Drosophila including names and home addresses of public hearings, in writing, at the aglaia, D. differens, D. hemipeza, D. respondents, available for public review address shown in the ADDRESSES section heteroneura, D. montgomeryi, D. mulli, during regular business hours. We will by September 29, 2006. D. musaphilia, D. neoclavisetae, D. make all comments available for public ADDRESSES: If you wish to comment, obatai, D. ochrobasis, D. substenoptera, inspection in their entirety. Comments you may submit your comments and and D. tarphytrichia habitat, and what and materials received, as well as materials concerning this proposal by areas should be included in the supporting documentation used in any one of several methods: designations that were occupied at the preparation of the proposal to designate 1. You may submit written comments time of listing that contain the features critical habitat, will be available for and information to Patrick Leonard, essential for the conservation of the public inspection, by appointment Field Supervisor, Pacific Islands Fish species and why, and what areas that during normal business hours at the and Wildlife Office, U.S. Fish and were not occupied at the time of listing Pacific Islands Fish and Wildlife Office Wildlife Service, 300 Ala Moana that are essential to the conservation of (see ADDRESSES). Boulevard, Room 3–122, P.O. Box the species and why; Role of Critical Habitat in Actual 50088, Honolulu, HI 96850. (3) Land use designations and current 2. You may hand-deliver written or planned activities in the subject areas Practice of Administering and comments to our Office at the above and their possible impacts on proposed Implementing the Act address. critical habitat; Attention to and protection of habitat 3. You may send comments by (4) Any foreseeable economic, is paramount to successful conservation electronic mail (e-mail) to national security, or other potential actions. The role that designation of

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 46995

critical habitat plays in protecting analysis has been conducted that is impacts from critical habitat habitat of listed species, however, is informed by the Director’s guidance. designations challenge those often misunderstood. As discussed in On the other hand, to the extent that designations. The cycle of litigation more detail below in the discussion of designation of critical habitat provides appears endless, and is very expensive, exclusions under ESA section 4(b)(2), protection, that protection can come at thus diverting resources from there are significant limitations on the significant social and economic cost. In conservation actions that may provide regulatory effect of designation under addition, the mere administrative relatively more benefit to imperiled ESA section 7(a)(2). In brief, (1) process of designation of critical habitat species. designation provides additional is expensive, time-consuming, and The costs resulting from the protection to habitat only where there is controversial. The current statutory a federal nexus; (2) the protection is framework of critical habitat, combined designation include legal costs, the cost relevant only when, in the absence of with past judicial interpretations of the of preparation and publication of the designation, destruction or adverse statute, make critical habitat the subject designation, the analysis of the modification of the critical habitat of excessive litigation. As a result, economic effects and the cost of would in fact take place (in other words, critical habitat designations are driven requesting and responding to public other statutory or regulatory protections, by litigation and courts rather than comment, and in some cases the costs policies, or other factors relevant to biology, and made at a time and under of compliance with the National agency decision-making would not a time frame that limits our ability to Environmental Policy Act (NEPA). prevent the destruction or adverse obtain and evaluate the scientific and These costs, which are not required for modification); and (3) designation of other information required to make the many other conservation actions, critical habitat triggers the prohibition designation most meaningful. directly reduce the funds available for of destruction or adverse modification In light of these circumstances, the direct and tangible conservation actions. Service believes that additional agency of that habitat, but it does not require Background specific actions to restore or improve discretion would allow our focus to return to those actions that provide the habitat. It is our intent to discuss only those greatest benefit to the species most in Currently, only 475 species, or 36 topics directly relevant to the need of protection. percent of the 1,310 listed species in the designation of critical habitat in this U.S. under the jurisdiction of the Procedural and Resource Difficulties in proposed rule. For more information on Service, have designated critical habitat. Designating Critical Habitat the 11 species of Hawaiian picture-wing We address the habitat needs of all We have been inundated with flies for which we are proposing to 1,310 listed species through lawsuits for our failure to designate designate critical habitat, refer to the conservation mechanisms such as critical habitat, and we face a growing final listing rule for the 12 species listing, section 7 consultations, the number of lawsuits challenging critical picture-wing flies published in the Section 4 recovery planning process, the habitat determinations once they are Federal Register on May 9, 2006 (71 FR Section 9 protective prohibitions of made. These lawsuits have subjected the 26835—pages 26835–26852). For unauthorized take, Section 6 funding to Service to an ever-increasing series of reasons explains later in this document, the States, the Section 10 incidental take court orders and court-approved we are not proposing critical habitat for permit process, and cooperative, settlement agreements, compliance with one of the listed species’ Drosophila nonregulatory efforts with private which now consumes nearly the entire neoclavisetae. landowners. The Service believes that it listing program budget. This leaves the is these measures that may make the Service with little ability to prioritize its Previous Federal Actions difference between extinction and activities to direct scarce listing survival for many species. For more information on previous resources to the listing program actions Federal actions concerning the 11 In considering exclusions of areas with the most biologically urgent species of Hawaiian picture-wing flies, proposed for designation, we evaluated species conservation needs. refer to the Determination of Status for the benefits of designation in light of The consequence of the critical 12 Species of Picture-Wing Flies from Gifford Pinchot Task Force v. U.S. Fish habitat litigation activity is that limited the Hawaiian Islands, published in the and Wildlife Service, 378 F. 3d 1059 listing funds are used to defend active Federal Register on May 9, 2006 (71 FR (9th Cir 2004). In that case, the Ninth lawsuits, to respond to Notices of Intent Circuit invalidated the Service’s (NOIs) to sue relative to critical habitat, 26835). In accordance with an amended regulation defining ‘‘destruction or and to comply with the growing number settlement agreement approved by the adverse modification of critical habitat.’’ of adverse court orders. As a result, United States District Court for the In response, on December 9, 2004, the listing petition responses, the Service’s District of Hawaii on August 31, 2005 Director issued guidance to be own proposals to list critically (CBD v. Allen, CV–05–274–HA), the considered in making section 7 adverse imperiled species, and final listing Service published in the May 9, 2006, modification determinations. This determinations on existing proposals are Federal Register, a determination that proposed critical habitat designation all significantly delayed. designation of critical habitat for the 12 does not use the invalidated regulation The accelerated schedules of court- species of Hawaiian picture-wing flies, in our consideration of the benefits of ordered designations have left the pursuant to the Act’s sections 4(b)(6)(A) including areas in this proposed Service with limited ability to provide and (C), is prudent. Since critical habitat designation. The Service will carefully for public participation or to ensure a is prudent, the settlement stipulates that manage future consultations that defect-free rulemaking process before we must submit, for publication in the analyze impacts to designated critical making decisions on listing and critical Federal Register, a proposed critical habitat, particularly those that appear to habitat proposals, due to the risks habitat designation for the listed species be resulting in an adverse modification associated with noncompliance with for which critical habitat is prudent on determination. Such consultations will judicially imposed deadlines. This in or by September 15, 2006, and a final be reviewed by the Regional Office prior turn fosters a second round of litigation critical habitat determination by April to finalizing to ensure that an adequate in which those who fear adverse 17, 2007.

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 46996 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

Critical Habitat require special management or habitat outside the designation is Critical habitat is defined in section 3 protection. (As discussed below, such unimportant or may not be required for of the Act as: (i) The specific areas areas may also be excluded from critical recovery. Areas that support populations, but within the geographical area occupied habitat pursuant to section 4(b)(2).) are outside the critical habitat by a species, at the time it is listed in Accordingly, when the best available designation, will continue to be accordance with the Act, on which are scientific data do not demonstrate that appropriate for conservation actions found those physical or biological the conservation needs of the species implemented under section 7(a)(1) of features (I) essential to the conservation require additional areas, we will not the Act and subject to the regulatory of the species and (II) that may require designate critical habitat in areas protections afforded by the section special management considerations or outside the geographical area occupied by the species at the time of listing. An 7(a)(2) jeopardy standard, as determined protection; and (ii) specific areas area currently occupied by the species on the basis of the best available outside the geographical area occupied but was not known to be occupied at the information at the time of the action. by a species at the time it is listed in time of listing will likely, but not Federally funded or permitted projects accordance with the provisions of always, be essential to the conservation affecting listed species outside their section 4 of the Act, upon a of the species and, therefore, typically designated critical habitat areas may determination that such areas are included in the critical habitat still result in jeopardy findings in some essential for the conservation of the designation. cases. species. ‘‘Conservation’’ means the use The Service’s Policy on Information Methods of all methods and procedures to bring Standards Under the Endangered species to the point at which the Species Act, published in the Federal As required by section 4(b) of the Act, protection under the Act measures is no Register on July 1, 1994 (59 FR 34271), we used the best scientific data longer necessary. Such methods and and Section 515 of the Treasury and available in determining areas that procedures include, but are not limited General Government Appropriations contain the features that are essential to to, all activities associated with Act for Fiscal Year 2001 (Pub. L. 106– the conservation of Drosophila aglaia, scientific resources management such as 554; H.R. 5658) and the associated D. differens, D. hemipeza, D. research, census, law enforcement, Information Quality Guidelines issued heteroneura, D. montgomeryi, D. mulli, habitat acquisition and maintenance, by the Service, provide criteria, D. musaphilia, D. neoclavisetae, D. propagation, live trapping, and establish procedures, and provide obatai, D. ochrobasis, D. substenoptera, transplantation, and, in the guidance to ensure that decisions made and D. tarphytrichia. extraordinary case where population by the Service represent the best We have reviewed the available pressures within a given ecosystem scientific data available. They require information that pertains to the habitat cannot be otherwise relieved, may Service biologists to the extent requirements for these species and include regulated taking. consistent with the Act and with the use evaluated all known occurrence Critical habitat receives protection of the best scientific data available, to locations using data from numerous under section 7 of the Act through the use primary and original sources of sources. The following geospatial, prohibition against destruction or information as the basis for tabular data sets were used in proposing adverse modification of critical habitat recommendations to designate critical critical habitat: occurrence data for all with regard to actions carried out, habitat. When determining which areas 12 species (K. Kaneshiro 2005a—pages funded, or authorized by a Federal are critical habitat, a primary source of 1–16); vegetation mapping data for the agency. Section 7 requires consultation information is generally the listing Hawaiian Islands (GAP Data—Hawaiian on Federal actions that are likely to package for the species. Additional Islands 2005); color mosaic 1:19,000 result in the destruction or adverse information sources include the scale digital aerial photographs for the modification of critical habitat. The recovery plan for the species, if there is Hawaiian Islands (dated April to May designation of critical habitat does not one, articles in peer-reviewed journals, 2005); and 1:24,000 scale digital raster affect land ownership or establish a conservation plans developed by States graphics of USGS topographic refuge, wilderness, reserve, preserve, or and counties, scientific status surveys quadrangles. Land ownership was other conservation area. Such and studies, biological assessments, or determined from geospatial data sets designation does not allow government other unpublished materials and expert associated with parcel data from Oahu or public access to private lands. opinion or personal knowledge. All County (2006); Hawaii County (2005); Section 7 is a purely protective measure information is used in accordance with Kauai County (2005); and Maui County and does not require implementation of the provisions of Section 515 of the (2004). restoration, recovery, or enhancement Treasury and General Government We reviewed a variety of peer- measures. Appropriations Act for Fiscal Year 2001 reviewed and non-peer-reviewed To be included in a critical habitat (Pub. L. 106–554; H.R. 5658) and the articles for this proposal, which designation, the habitat within the area associated Information Quality included background information on the occupied by the species must first have Guidelines issued by the Service. species’ biology (e.g., Montgomery features that are essential to the Section 4 of the Act requires that we 1975—pages 83, 94, 96–98, and 100; conservation of the species. Critical designate critical habitat on the basis of Foote and Carson 1995—pages 1–4; habitat designations identify, to the the best scientific data available. Habitat Kaneshiro and Kaneshiro 1995—pages extent known using the best scientific is often dynamic, and species may move 1–47), plant ecology and biology (e.g., data available, habitat areas that provide from one area to another over time. Wagner et al. 1999—pages 45, 52–53, essential life cycle needs of the species Furthermore, we recognize that 971, 1,314–1,315, and 1,351–1,352), and (i.e., areas on which are found the designation of critical habitat may not ecology of the Hawaiian Islands and the primary constituent elements, as include all of the habitat areas that may areas considered (e.g., Smith 1985— defined at 50 CFR 424.12(b)). eventually be determined to be pages 227–233; Stone 1985—pages 251– Habitat occupied at the time of listing necessary for the recovery of the 253, 256, and 260–263; Cuddihy and may be included in critical habitat only species. For these reasons, critical Stone 1990—pages 59–66, 73–76, and if the essential features thereon may habitat designations do not signal that 88–94). Additional information

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 46997

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

Species Island Elevation range General habitat 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 (460 Mesic forest ...... Cyanea sp., Lobelia sp., & Urera kaalae (E). to 885 m). 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 forest .... Pleomele aurea & Pleomele forbesii. (460–760 m). D. substenoptera ...... Oahu ...... 1,300 to 4,000 ft (395 Wet forest ...... Cheirodendron sp. & Tetraplasandra sp. to 1,220 m). D. tarphytrichia ...... Oahu ...... 1,300 to 4,000 ft (395 Mesic forest ...... Charpentiera sp. to 1,220 m).

Hawaii (Big Island) Species

D. heteroneura ...... BI ...... 3,400 to 6,000 ft Mesic to wet forest .... Cheirodendron sp., Clermontia sp., and (1,035 to 1,830 m). Delissea sp. D. mulli ...... BI ...... 3,150 to 3,250 ft Wet forest ...... Pritchardia beccariana. (960–990 m). D. ochrobasis ...... BI ...... 3,400 to 5,400 ft Mesic to wet forest .... Clermontia sp., Marattia sp., & Myrsine sp. (1,035 to 1,645 m).

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 glabra (family Urticaceae), which is a Drosophila hemipeza small shrub-like endemic tree. The Drosophila aglaia larvae of D. aglaia develop in the Drosophila hemipeza is restricted to Drosophila aglaia is historically decomposing bark and stem of U. the island of Oahu where it is known from five localities in the glabra. This plant does not form large historically known from seven localities Waianae Mountains of Oahu between stands, but is infrequently scattered between 1,500 and 2,900 ft (460 to 885 1,700 and 2,900 feet (ft) (520 to 885 throughout slopes and valley bottoms in m) above sea-level (not including the meters (m)) above sea level. Drosophila mesic and wet forest habitat on Oahu. Pupukea site of discovery which is aglaia is restricted to the natural considered an extripated population). distribution of its host plant, Urera Montgomery (1975—page 96)

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 46998 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

determined that D. hemipeza larvae feed (395 to 1,220 m) above sea level. a native Hawaiian palm species. The within decomposing portions of several Montgomery (1975—page 100) larval feeding site on the plant remains different mesic forest plants. The larvae determined that D. substenoptera larvae unknown because attempts to rear this inhabit the decomposing bark of Urera inhabit only the decomposing bark of species from decaying parts of P. kaalae (family Urticaceae), a federally- Cheirodendron sp. trees (family beccariana have thus far been endangered plant (Service 1995—pages Araliaceae) and Tetraplasandra sp. trees unsuccessful (W.P. Mull, Biologist, pers. 81–83; 56 FR 55770—page 55779) that (family Araliaceae) in localized patches comm. 1994—page 1; Science Panel grows on slopes and in gulches of of wet forest habitat. 2005—page 21). diverse mesic forest. In 2004, only 41 Drosophila ochrobasis individuals of U. kaalae were known to Drosophila tarphytrichia remain in the wild (Service 2004—page Drosophila tarphytrichia was Historically, Drosophila ochrobasis 9). In 2005, TNCH outplanted many historically known from both the was relatively widely distributed seedlings of this species within several Koolau and the Waianae Mountains between 3,400 and 5,400 ft (1,035 to locations within D. hemipeza’s historic between 1,900 and 2,900 ft (580 to 885 1,645 m) above sea level on the island range (TNCH 2005—page 6). The larvae m) above sea level on the island of of Hawaii. Drosophila ochrobasis has also feed within the decomposing stems Oahu. Drosophila tarphytrichia is now been recorded from 10 localities on 4 of of Lobelia sp. (family Campanulaceae) apparently extirpated from the Koolau the island’s 5 volcanoes (Hualalai, and the decomposing bark and stems of range where it was originally discovered Mauna Kea, Mauna Loa, and the Kohala Cyanea sp. (family Campanulaceae) in near Manoa Falls, and is presently mountains). The larvae of this species mesic forest habitat (Kaneshiro and known from four localities in the have been reported to use the Kaneshiro 1995—page 17; Science Panel Waianae Mountains (Kaneshiro and decomposing portions of three different 2005—page 16). Kaneshiro 1995; HBMP 2005; K. host plant groups—Myrsine sp. (family Myrsinaceae), Clermontia sp. (family Drosophila montgomeryi Kaneshiro 2005a). The larvae of D. tarphytrichia feed only within the Campanulaceae), and Marattia sp. Drosophila montgomeryi is decomposing portions of the stems and (family Marattiaceae) (Montgomery historically known from three localities branches of Charpentiera obovata trees 1975—page 98; Kaneshiro and in the Waianae Mountains on western (family Amaranthaceae) in mesic forest Kaneshiro 1995—page 29). Oahu between 1,900 and 2,900 ft (580 habitat (Montgomery 1975—page 100). Kauai Species to 885 m) above sea level. Montgomery (1975—page 97) reported that the larvae Hawaii (Big Island) Species Drosophila musaphilia of this species feed within the decaying Drosophila heteroneura Drosophila musaphilia is historically bark of Urera kaalae, a federally- Drosophila heteroneura has been the known from only four sites, one at 1,900 endangered plant (Service 1995—pages ft (579 m) above sea level, and three 81–83; 56 FR 55770—page 55779) that most intensely studied of the 12 species discussed in this proposed rule sites between 2,600 and 3,700 ft (790 to grows on slopes and in gulches of 1,130 m) above sea level on the island diverse mesic forest (Wagner et al. (Kaneshiro and Kaneshiro 1995—page 19). This species is restricted to the of Kauai. Montgomery (1975—page 97) 1999—pages 1,314–1,315). In 2004, only determined that the host plant for D. 41 individuals of U. kaalae were known island of Hawaii where, historically, it was known to be relatively widely musaphilia is Acacia koa. The females to remain in the wild (Service 2004— lay their eggs upon, and the larvae page 9). In 2005, TNCH outplanted distributed between 3,400 and 6,000 ft (1,035 to 1,830 m) above sea level. develop in, the moldy slime flux (seep) many seedlings of this species within that occasionally appears on certain several locations within D. Drosophila heteroneura has been recorded from 24 localities on 4 of the trees with injured plant tissue and montgomeryi’s historic range (TNCH seeping sap. Understanding the full 2005—page 6). island’s 5 volcanoes (Hualalai, Mauna Kea, Mauna Loa, and Kilauea) in 5 range of D. musaphilia is difficult Drosophila obatai different montane environments (K. because its host plant, Acacia koa, is fairly common and stable within, and Drosophila obatai is historically Kaneshiro 2005a—pages 4–8). surrounding, its known range on Kauai; known from two localities between Drosophila heteroneura larvae primarily however, the frequency of suitable slime 1,500 and 2,500 ft (460 to 760 m) above inhabit the decomposing bark and stems fluxes occurring on the host plant sea level on the island of Oahu. of Clermontia sp. (family appears to be much more restricted and Drosophila obatai larvae feed within Campanulaceae), including C. temporally unpredictable (Science Panel decomposing portions of Pleomele clermontioides, and Delissea sp. (family 2005—pages 23–24). forbesii (family Agavaceae), a candidate Campanulaceae), but it is also known to for Federal listing (70 FR 24870—page feed within decomposing portions of Maui Species 24883) (Kaneshiro and Kaneshiro Cheirodendron sp. (family Araliaceae) Drosophila neoclavisetae 1995—page 27; Montgomery 1975— in open mesic and wet forest habitat page 98). These host plants grow on (Kaneshiro and Kaneshiro 1995—page Two populations of Drosophila slopes in dry forest and diverse mesic 19). neoclavisetae were found historically along the Puu Kukui Trail within forest, and occur singly or in small Drosophila mulli clusters, rarely forming large stands montane wet ohia forests on State land (Wagner et al. 1999—pages 1,351– Drosophila mulli is restricted to the in West Maui. One habitat site was 1,352). island of Hawaii and is historically found in 1969 at 4,500 ft (1,370 m) and known from two locations between the other in 1975 at 3,500 ft (1,070 m) Drosophila substenoptera 3,150 and 3,250 ft (960 to 990 m) above above sea level (Kaneshiro and Drosophila substenoptera is sea level. Adult flies are found only on Kaneshiro 1995—page 26; K. Kaneshiro historically known from seven localities the leaf undersides of the endemic fan 2005a—page 11). The host plant of D. in both the Koolau and Waianae palm, Pritchardia beccariana (family neoclavisetae has not yet been Mountains on the island of Oahu at Arecaceae), which is the only known confirmed, although it is likely elevations between 1,300 and 4,000 ft association of a Drosophila species with associated with Cyanea sp. (family

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 46999

Campanulaceae). Because both through three successive stages (instars); Primary Constituent Elements for collections of this species occurred when fully grown, the larvae change Drosophila aglaia, D. differens, D. within a small patch of Cyanea sp. and into pupae (a transitional form) in hemipeza, D. heteroneura, D. many other species in the D. adiastola which they metamorphose and emerge montgomeryi, D. mulli, D. musaphilia, species group use species in this genus as adults. D. neoclavisetae, D. obatai, D. and other plants in the family ochrobasis, D. substenoptera, and D. Breeding for all 11 species of flies Campanulaceae, researchers believe the tarphytrichia included in this proposal generally Cyanea sp. found at Puu Kukui is likely occurs year-round, but egg laying and Pursuant to our regulations, we are the correct host plant for D. required to identify the known physical neoclavisetae (Science Panel 2005— larval development increase following the rainy season as the availability of and biological features (PCEs) essential pages 19–20; Kaneshiro and Kaneshiro to the conservation of Drosophila aglaia, 1995—page 26). decaying matter, which the flies feed on, increases in response to the heavy rains D. differens, D. hemipeza, D. Molokai Species (K. Kaneshiro 2005b—pages 1–2). In heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. Drosophila differens general, Drosophila lay between 50 and 200 eggs in a single clutch. Eggs develop obatai, D. ochrobasis, D. substenoptera, Drosophila differens is historically and D. tarphytrichia. All areas proposed into adults in about a month, and adults known from three sites on private land as critical habitat for these species are generally become sexually mature 1 between 3,650 and 4,500 ft (1,115 to based on documented occurrences 1,370 m) above sea level, within month later. Adults generally live for 1 within these species’ historic geographic montane wet ohia forest (K. Kaneshiro to 2 months. range, and contain sufficient PCEs to 2005a—page 2) on the island of It is unknown how much space is support at least one life history Molokai. Montgomery (1975—page 83) needed for these flies to engage in function. found that D. differens larvae inhabit the courtship and territorial displays and Based on our current knowledge of bark and stems of Clermontia sp. (family mating activities. Adult behavior may be the life history, biology, and ecology of Campanulaceae) in wet rainforest disrupted or modified by less than ideal the species and the requirements of the habitat (Kaneshiro and Kaneshiro conditions such as decreased forest habitat to sustain the essential life 1995—page 16). cover or loss of suitable food material history functions of the species, we have determined the following PCEs for Primary Constituent Elements (K. Kaneshiro 2005b—pages 1–2). Additionally, adult behavior may be Drosophila aglaia, D. differens, D. In accordance with section 3(5)(A)(i) disrupted and the flies themselves may hemipeza, D. heteroneura, D. of the Act and regulations at 50 CFR be susceptible to the preying activities montgomeryi, D. mulli, D. musaphilia, 424.12, in determining which areas to of nonnative hymenoptera including D. neoclavisetae, D. obatai, D. propose as critical habitat, we consider yellow jacket wasps and ants (Kaneshiro ochrobasis, D. substenoptera, and D. those physical and biological features tarphytrichia. and Kaneshiro 1995—pages 41–42). The (primary constituent elements (PCEs)) that are essential to the conservation of larvae generally pupate within the soil Oahu Species the species, and within areas occupied located below their host plant material, The PCEs for Drosophila aglaia are: by the species at the time of listing, that and it is presumed that they require (1) Dry to mesic, lowland, Diospyros may require special management relatively undisturbed and unmodified sp., ohia and koa forest; and considerations and protection. These soil conditions to complete this stage (2) The larval host plant Urera glabra. include, but are not limited to space for before reaching adulthood (Science The PCEs for Drosophila hemipeza individual and population growth and Panel 2005—page 5). Lastly, it is well- are: for normal behavior; food, water, air, known that these and most picture-wing (1) Dry to mesic, lowland, ohia and light, minerals, or other nutritional or flies are susceptible to even slight koa forest; and physiological requirements; cover or temperature increases, an issue that may (2) The larval host plants Cyanea shelter; sites for breeding, reproduction, be exacerbated by loss of suitable forest angustifolia, C. calycina, C. grimesiana and rearing (or development) of cover (K. Kaneshiro 2005b—pages 1–2). ssp. grimesiana, C. grimesiana ssp. offspring; and habitats that are protected obatae, C. membranacea, C. pinnatifida, from disturbance or are representative of Food C. sessifolia, C. superba ssp. superba, the historic geographical and ecological Each species of Hawaiian picture- Lobelia hypoleuca, L. hiihauensis, L. distributions of a species. wing fly described in this document is yuccoides, and Urera kaalae. The PCEs for Drosophila montgomeryi The specific primary constituent found only on a single island, and the are: elements required for these 12 picture- larvae of each are dependent upon only wing flies are derived from the (1) Dry to mesic, lowland, diverse a single or a few related species of biological needs of these species as ohia and koa forest; and plants (summarized in Table 1). The described in the listing rule, published (2) The larval host plant Urera kaalae. in the Federal Register on May 9, 2006 adult flies feed on a variety of The PCEs for Drosophila obatai are: (71 FR 26835—pages 26835–26840), decomposing plant matter. The water or (1) Dry to mesic, lowland, ohia and with specific requirements described moisture requirements for all 12 of these koa forest; and below. species is unknown; however, during (2) The larval host plant Pleomele drier seasons or during times of drought, forbesii. Space for Individual and Population it is expected that available adult and The PCEs for Drosophila Growth and Normal Behavior larval stage food material in the form of substenoptera are: The general life cycle of Hawaiian decaying plant matter may decrease (K. (1) Mesic to wet, lowland to montane, Drosophilidae is typical of that of most Kaneshiro 2005b—pages 1–2). ohia and koa forest; and flies: after mating, females lay eggs from (2) The larval host plants which larvae (immature stage) hatch; as Cheirodendron platyphyllum ssp. larvae grow, they molt (shed their skin) platyphyllum, C. trigynum ssp.

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47000 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

trigynum, Tetraplasandra kavaiensis, In some cases, the PCEs exist as a result that has passed since some of these and T. oahuensis. of ongoing Federal actions. As a result, surveys were conducted, it is possible The PCEs for Drosophila tarphytrichia ongoing Federal actions at the time of that some of the sites we are considering are: designation will be included in the as unoccupied (and so not included in (1) Dry to mesic, lowland, ohia and baseline in any consultation conducted the proposed critical habitat) have since koa forest; and subsequent to this designation. been re-occupied by the species. (2) The larval host plant Charpentiera However, we believe that the most Criteria Used To Identify Critical obovata. recent survey results are the best Habitat information available to determine if a Hawaii (Big Island) Species As required by section 4(b)(1)(A) of site is occupied. The PCEs for Drosophila heteroneura the Act, we use the best scientific data When determining proposed critical are: available in determining areas that habitat boundaries, we made every (1) Mesic to wet, montane, ohia and contain the features that are essential to effort to avoid including within the koa forest; and the conservation of Drosophila aglaia, boundaries of the map contained within (2) The larval host plants D. differens, D. hemipeza, D. this proposed rule, developed areas Cheirodendron trigynum ssp. trigynum, heteroneura, D. montgomeryi, D. mulli, such as buildings, paved areas, and C. clermontioides, C. hawaiiensis, C. D. musaphilia, D. obatai, D. ochrobasis, other structures that lack PCEs for kohalae, C. lindseyana, C. montis-loa, C. D. substenoptera, and D. tarphytrichia. Drosophila aglaia, D. differens, D. paviflora, C. peleana, and C. pyrularia. We are proposing to designate critical hemipeza, D. heteroneura, D. The PCEs for Drosophila mulli are: habitat on lands with documented montgomeryi, D. mulli, D. musaphilia, (1) Wet, montane, ohia forest; and occurrences and that contain the D. obatai, D. ochrobasis, D. (2) The larval host plant Pritchardia primary constituent elements for these substenoptera, and D. tarphytrichia. The beccariana. 11 Hawaiian picture-wing flies. The scale of the maps prepared under the The PCEs for Drosophila ochrobasis primary dataset we used to document parameters for publication within the are: observations of these 11 picture-wing Code of Federal Regulations may not (1) Mesic to wet, montane, ohia, koa, flies spans the years 1965 to 1999 (K. reflect the exclusion of such developed and Cheirodendron sp. forest; and Kaneshiro 2005a—pages 1–16). areas. Any such structures and the land (2) The larval host plants Clermontia Additional data were obtained from under them inadvertently left inside calophylla, C. clermontioides, C. individuals familiar with particular critical habitat boundaries shown on the drepanomorpha, C. hawaiiensis, C. species and locations, and other sources maps of this proposed rule are excluded kohalae, C. lindseyana, C. montis-loa, C. of information as described above in the by text in this proposed rule and are not parviflora, C. peleana, C. pyrularia, C. Methods section. Many sites were proposed for designation as critical waimeae, Myrsine lessertiana, and M. surveyed infrequently or have not been habitat. Therefore, Federal actions sandwicensis. surveyed in a long time while others limited to these areas would not trigger have relatively complete records from section 7 consultation, unless they affect Kauai Species 1966 to 1999. We selected areas based the species or primary constituent The PCEs for Drosophila musaphilia on sites surveyed since 1971 that were elements in adjacent critical habitat. are: occupied during the date of the last We are proposing to designate critical (1) Mesic, montane, ohia and koa survey (or within 1 year of that last habitat on lands that we have forest; and occupied survey date) and were determined are occupied by the 11 (2) The larval host plant Acacia koa. identified as ‘‘occupied.’’ Surveys locate species at the time of listing and contain adult flies, but adult flies are relative sufficient primary constituent elements Maui Species generalists and do not have the specific to support life history functions The PCEs for Drosophila habitat requirements of the larval stage, essential for the conservation of the neoclavisetae are: which typically require a specific species. (1) Wet, montane, ohia forest; and species (in some cases, several species Twenty-two units are proposed based (2) The larval host plants Cyanea or genera) of host plants for successful on sufficient PCEs being present to kunthiana and C. macrostegia ssp. development. Though the primary support life processes for Drosophila macrostegia. constituent elements of the proposed aglaia, D. differens, D. hemipeza, D. critical habitat focus on these host Molokai Species heteroneura, D. montgomeryi, D. mulli, plants, we use known adult locations as D. musaphilia, D. obatai, D. ochrobasis, The PCEs for Drosophila differens are: the starting center point for each critical D. substenoptera, and D. tarphytrichia. (1) Wet, montane, ohia forest; and habitat unit and include a surrounding Some units contained all PCEs and (2) The larval host plants Clermontia area measuring 1 acre (0.405 ha) in size supported multiple life processes. Some arborescens ssp. waihiae, C. granidiflora consisting of the features essential to the segments contained only a portion of ssp. munroi, C. oblongifolia ssp. conservation species. the PCEs necessary to support the brevipes, and C. pallida. While there has been considerable particular use of that habitat for This proposed designation is for the survey work conducted for Hawaiian Drosophila aglaia, D. differens, D. conservation of PCEs necessary to picture-wing flies overall, some areas hemipeza, D. heteroneura, D. support the life history functions which where these 11 species are found have montgomeryi, D. mulli, D. musaphilia, were the basis for the proposal. Each of not been surveyed in many years. We D. obatai, D. ochrobasis, D. the areas proposed in this rule have decided to propose critical habitat by substenoptera, and D. tarphytrichia. been determined to contain sufficient relying on the results of the most recent PCEs to provide for one or more of the surveys conducted since 1971. If that Special Management Considerations or life history functions of the Drosophila survey located adult flies of the Protections aglaia, D. differens, D. hemipeza, D. particular species, we identified that When designating critical habitat, we heteroneura, D. montgomeryi, D. mulli, site as occupied; if no adult flies of the determine whether areas occupied at the D. musaphilia, D. obatai, D. ochrobasis, species were found, we identified that time of listing and containing the D. substenoptera, and D. tarphytrichia. site as not occupied. Because of the time primary constituent elements may

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47001

require special management densities and expansion of their grazing continues in several lowland considerations or protections. distribution has caused widespread regions in the northern portion of the Nonnative plants and animals pose damage to native vegetation (Cuddihy Waianae Mountains of Oahu. the greatest threats to these 11 picture- and Stone 1990—pages 64–65). Feral Degradation of native forests used for wing flies. In order to alleviate and pigs create open areas within forest ranching activities is evident. Feral reverse the ongoing degradation and habitat by digging up, eating, and cattle occupy a wide variety of habitats loss of habitat caused by feral ungulates trampling native species (Stone 1985— from lowland dry forests to montane and invasive nonnative plants, active pages 262–263). These open areas grasslands, where they consume native management or control of nonnative become fertile ground for nonnative vegetation, trample roots and seedlings, species is necessary for the conservation plant seeds spread through their accelerate erosion, and promote the of all populations of the 11 picture-wing excrement and by transport in their hair invasion of nonnative plants (van Riper flies (Kaneshiro and Kaneshiro 1995— (Stone 1985—pages 262–263). In and van Riper 1982—page 36; Stone pages 37–38). Without active nitrogen-poor soils, feral pig excrement 1985—pages 256 and 260). management or control, native habitat increases nutrient availability, Nonnative Plants containing the features that are essential enhancing establishment of nonnative for the conservation of the 11 picture- weeds that are more adapted to richer The invasion of nonnative plants wing flies is degraded and/or destroyed. soils than are native plants (Cuddihy contributes to the degradation of native In addition, habitat degradation and and Stone 1990—pages 64–65). In this forests and the host plants of picture- destruction as a result of fire and manner, largely nonnative forests wing flies (Kaneshiro and Kaneshiro predation by nonnative insects, such as replace native forest habitat (Cuddihy 1995—pages 38–39; Wagner et al. the western yellow-jacket wasp and Stone 1990—pages 64–65). 1999—pages 52–53 and 971; Science (Vespula pennsylvanica) and several Foote and Carson (1995—pages 2–4) Panel 2005—page 28), and threatens all species of ants, pose significant threats found that pig exclosures on the island populations of the 11 picture-wing flies. to many populations of the 12 picture- of Hawaii supported significantly higher Some nonnative plants form dense wing flies. relative frequencies of picture-wing flies stands, thickets, or mats that shade or All of the proposed critical habitat compared to other native and nonnative out-compete native plants. Nonnative units for the 11 picture wing flies may Drosophila species (7 percent of all vines cause damage or death to native require special management to address observations outside of the exclosure trees by overloading branches, causing feral ungulates, invasive nonnative and 18 percent of all observations inside breakage, or by forming a dense canopy plants, and yellow-jacket wasps. In the exclosure) and their native host cover, intercepting sunlight and shading addition, the units in dry or mesic plants. Loope et al. (1991—pages 9–10 out native plants below. Nonnative habitats may also require special and 19) showed that excluding pigs grasses burn readily and often grow at management to address fire and ants. from a montane bog on northeastern the border of forests, and carry fire into These threats are discussed below. Haleakala, Maui, resulted in an increase areas with woody native plants (Smith in native plant cover from 6 to 95 1985—pages 228–229; Cuddihy and Feral Ungulates percent after 6 years of protection. Stone 1990—pages 88–94). The Feral ungulates have devastated nonnative grasses are more fire-adapted native vegetation in many areas of the Feral Goats (Capra hircus) and can spread prolifically after a fire, Hawaiian Islands (Cuddihy and Stone Feral goats threaten populations of the ultimately creating a stand of nonnative 1990—pages 60–66). Because the picture-wing flies on Oahu (Drosophila grasses where native forest once existed. endemic Hawaiian flora evolved aglaia), Hawaii (D. heteroneura), and Some nonnative plant species produce without the presence of browsing and Kauai (D. musaphilia). Feral goats chemicals that inhibit the growth of grazing ungulates, many plant groups occupy a wide variety of habitats on other plant species (Smith 1985—page have lost their adaptive defenses such as Kauai, Oahu, Molokai, Maui, and 228; Wagner et al. 1999—page 971). spines, thorns, stinging hairs, and Hawaii, from lowland dry forests to Fire defensive chemicals (University of montane grasslands where they Hawaii Department of Geography consume native vegetation, trample Fire threatens habitat of the Hawaiian 1998—page 138). Pigs (Sus scrofa), goats roots and seedlings, accelerate erosion, picture-wing flies in dry to mesic (Capra hircus), and cattle (Bos taurus) and promote invasion of nonnative grassland, shrubland, and forests on the disturb the soil, and readily eat native plants (van Riper and van Riper 1982— islands of Kauai (Drosophila plants, including the native host plants pages 34–35; Stone 1985—page 261). On musaphilia), Oahu (D. aglaia, D. for 1 or more of the 11 picture-wing Oahu, goat populations are increasing hemipeza, D. mongomeryi, D. obatai, flies, as well as distribute nonnative and spreading in the dry upper slopes and D. tarphytrichia), and Hawaii (D. plant seeds that can alter the ecosystem. of the Waianae Mountains, becoming an heteroneura). Dry and mesic regions in In addition, browsing and grazing by even greater threat to the native habitat Hawaii have been altered in the past 200 feral ungulates in steep and remote (K. Kawelo, U.S. Army Environmental years by an increase in fire frequency, terrain causes severe erosion of whole Division, pers. comm. 2005—page 1). a condition to which the native flora is watersheds due to foraging and not adapted. The invasion of fire- Feral Cattle (Bos taurus) trampling behaviors (Cuddihy and adapted alien plants, facilitated by Stone 1990—pages 60–64 and 66). Feral cattle threaten populations of ungulate disturbance, has contributed to Drosophila heteroneura on the island of wildfire frequency. This change in fire Feral Pigs (Sus scrofa) Hawaii. Large-scale ranching of cattle regime has reduced the amount of forest Feral pigs threaten all populations of began in the 19th century on the islands cover for native species (Hughes et the 11 picture-wing flies. Feral pigs are of Kauai, Oahu, Maui, and Hawaii al.1991—page 743; Blackmore and found from dry coastal grasslands (Cuddihy and Stone 1990—pages 59– Vitousek 2000—page 625) and resulted through rain forests and into the 62). Large ranches, tens of thousands of in an intensification of feral ungulate subalpine zone on all of the main acres in size, still exist on the islands of herbivory in the remaining native forest Hawaiian Islands (Cuddihy and Stone Maui and Hawaii (Cuddihy and Stone areas. Habitat damaged or destroyed by 1990—pages 64–65). An increase in pig 1990—pages 59–62). In addition, cattle fire is more likely to be revegetated by

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47002 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

nonnative plants that cannot be used as emerging adults have been observed of listing, contain the primary host plants by these picture-wing flies with ants attached to their legs constituent elements, and that may (Kaneshiro and Kaneshiro 1995—page (Kaneshiro and Kaneshiro 1995—page require special management. The areas 47). 43). proposed as critical habitat are: Nonnative Predatory Species Western Yellow-jacket Wasp (1) Island of Oahu: Drosophila Nonnative arthropods pose a serious An aggressive race of the western aglaia—Unit 1—Palikea; Drosophila threat to Hawaii’s native Drosophila, yellow-jacket wasp became established hemipeza—Unit 1—Makaha Valley East; both through direct predation or in the State of Hawaii in 1978, and this Drosophila hemipeza—Unit 2—Palikea; parasitism as well as competition for species is now abundant between 1,969 Drosophila montgomeryi—Unit 1— food or space (Howarth and Medeiros and 3,445 ft (600 and 1,050 m) in Kaluaa Gulch; Drosophila 1989—pages 82–83; Howarth and elevation (Gambino et al. 1990-page montgomeryi—Unit 2—Palikea; Ramsay 1991—pages 80–83; Kaneshiro 1,088). On Maui, yellow-jackets have Drosophila obatai—Unit 1—Wailupe; and Kaneshiro 1995—pages 40–45 and been observed carrying and feeding Drosophila substenoptera—Unit 1—Mt. 47; Staples and Cowie 2001—pages 41, upon recently captured adult Hawaiian Kaala; Drosophila tarphytrichia—Unit 54–57). Due to their large colony sizes Drosophila (Kaneshiro and Kaneshiro 1—Kaluaa Gulch; Drosophila and systematic foraging habits, species 1995—page 41). While there is no tarphytrichia—Unit 2—Palikea; of social Hymenoptera (ants and some documentation that conclusively ties (2) Hawaii (Big Island): Drosophila wasps) and parasitic wasps pose the the decrease in picture-wing fly heteroneura—Unit 1—Kau Forest greatest threat to the Hawaiian picture- observations at historical sites with the Reserve; Drosophila heteroneura—Unit wing flies (Carson 1982—page 1, 1986— establishment of yellow-jacket wasps 2—Pauahi; Drosophila heteroneura— page 7; Gambino et al. 1987—pages within their habitats, the concurrent Unit 3—Waiea; Drosophila 169–170; Kaneshiro and Kaneshiro arrival of wasps and decline of picture- heteroneura—Unit 4—Waihaka Gulch; 1995—pages 40–45 and 47). wing fly observations for all 11 picture- Drosophila heteroneura—Unit 5— wing flies on all islands (Kauai, Oahu, Ants Gaspar’s Dairy; Drosophila Maui, Molokai, and Hawaii) suggests heteroneura—Unit 6—Kipuka at 4,900 Ants are believed to threaten that the wasps may have played a ft; Drosophila heteroneura—Unit 7—Pit populations of picture-wing flies in significant role in the decline of some Crater; Drosophila mulli—Unit 1—Olaa mesic areas on Oahu (Drosophila aglaia, picture-wing fly populations (Carson Forest; Drosophila mulli—Unit 2— D. hemipeza, D. mongomeryi, D. obatai, 1982—page 1, 1986—page 7; Foote and Waiakea Forest; Drosophila and D. tarphytrichia) and Hawaii (D. Carson 1995—page 3; Kaneshiro and heteroneura). At least 44 species of ants ochrobasis—Unit 1—Kipuka 14; Kaneshiro 1999; Science Panel 2005— Drosophila ochrobasis—Unit 2—Kohala are known to be established on the page 28). Hawaiian Islands (Hawaii Ecosystems at Mountains; Risk Project (HEAR) database 2005— Proposed Critical Habitat Designation (3) Island of Kauai: Drosophila page 2) and 4 particularly aggressive ant Critical habitat has not been proposed musaphilia—Unit 1—Waimea Canyon species have severely affected the native for D. neoclavisetae, a species for which Road at 2,600 ft; insect fauna (Zimmerman 1948—page we determined critical habitat to be (4) Island of Molokai: Drosophila 173; HEAR database 2005—page 4). prudent, because, the specific areas and differens—Unit 1—Puu Kolekole. Ants are not a natural component of physical and biological features Hawaii’s arthropod fauna, and native essential to its conservation in the Puu The areas identified as containing the species evolved in the absence of Kukui Watershed Management Area are features essential to the conservation of predation pressure from ants. Ants can not in need of special management the 11 Hawaiian picture-wing flies for be particularly destructive predators considerations or protection. Therefore, which we are proposing critical habitat because of their high densities, we are not proposing critical habitat for includes a variety of undeveloped, recruitment behavior, aggressiveness, D. neoclavisetae because these specific forested areas that are used for larval and broad range of diet (Reimer 1993— areas and features does not meet the stage development and adult fly stage pages 14–15, 17). The threat to picture- definition of critical habitat in the Act. foraging. Areas that meet the definition wing flies is amplified by the fact that We are proposing 22 units as critical of critical habitat, but are proposed for most ant species have winged habitat for Drosophila aglaia, D. exclusion pursuant to section 4(b)(2) reproductive adults (Borror 1989—pages differens, D. hemipeza, D. heteroneura, include TNCH’s Kamakou Preserve on 737–738) and can quickly establish new D. montgomeryi, D. mulli, D. Molokai (Drosophila differens) and colonies, spreading throughout suitable musaphilia, D. obatai, D. ochrobasis, D. lands owned by Kamehameha Schools habitats (Staples and Cowie 2001— substenoptera, and D. tarphytrichia. In on the island of Hawaii (D. pages 55–57). These attributes and the total, approximately 18 acres (ac) (7.3 heteroneura). Proposed critical habitat lack of native species’ defenses to ants hectares (ha)) fall within the boundaries includes land under State, City and allow some ant species to destroy of the proposed critical habitat County, and private ownership, with isolated prey populations (Nafus 1993— designation. The critical habitat areas excluded Federal lands being managed page 151). Hawaiian picture-wing flies described below constitute our best by the Department of the Interior. The pupate in the ground where they are assessment at this time of areas approximate area and land ownership exposed to predation by ants. Newly determined to be occupied at the time within each unit are shown in Table 2.

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 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 Valley East .... City & County of Honolulu ...... 1 ac (.405 ha) Proposed. Drosophila hemipeza—Unit 2—Palikea * ...... James Campbell Estate ...... 1 ac (.405 ha) Proposed. Drosophila montgomeryi—Unit 1—Kaluaa Gulch ** ...... James Campbell Estate ...... 1 ac (.405 ha) Proposed. 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. Kaala ...... State ...... 1 ac (.405 ha) Proposed. Drosophila tarphytrichia—Unit 1—Kaluaa Gulch ** ...... James Campbell Estate ...... 1 ac (.405 ha) Proposed. Drosophila tarphytrichia—Unit 2—Palikea * ...... James Campbell Estate ...... 1 ac (.405 ha) Proposed.

HAWAII (Big Island)

Drosophila heteroneura—Unit 1—Kau Forest Reserve State ...... 1 ac (.405 ha) Proposed. 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 Gulch ...... State ...... 1 ac (.405 ha) Proposed. Drosophila heteroneura—Unit 5—Gaspar’s Dairy ...... Kamehameha Schools ...... 1 ac (.405 ha) Proposed for exclusion under 4(b)2. Drosophila heteroneura—Unit 6—Kipuka at 4,900 ft .... Kamehameha Schools ...... 1 ac (.405 ha) Proposed for exclusion under 4(b)2. Drosophila heteroneura—Unit 7—Pit Crater ...... Kamehameha Schools ...... 1 ac (.405 ha) Proposed for exclusion 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 Mountains ..... State ...... 1 ac (.405 ha) Proposed.

KAUAI

Drosophila musaphilia—Unit 1—Waimea Canyon State ...... 1 ac (.405 ha) Proposed. Road at 2,600 ft.

MOLOKAI

Drosophila differens—Unit 1—Puu Kolekole ...... Molokai Ranch Ltd...... 1 ac (.405 ha) Proposed for exclusion 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 Oahu Species This unit was occupied by the species units for 11 of the 12 Hawaiian picture- at the time of listing according to the Drosophila aglaia wing flies were occupied by the species most recent survey data (K. Kaneshiro at the time of listing. We present brief Drosophila aglaia—Unit 1—Palikea 2005a—pages 2–4). This unit contains descriptions of all units, and reasons consists of lowland, mesic, koa, and sufficient PCEs to support at least one why they meet the definition of critical ohia forest within the southern Waianae of the species’ life functions. Located at habitat for Drosophila aglaia, D. Mountains of Oahu. This unit was an elevation of 2,780 ft (850 m), the unit differens, D. hemipeza, D. heteroneura, occupied by the species at the time of is entirely owned by the City and D. montgomeryi, D. mulli, D. listing according to the most recent County of Honolulu, and is adjacent to survey data (K. Kaneshiro 2005a—pages musaphilia, D. obatai, D. ochrobasis, D. and north of the State-owned Waianae 1–2). This unit contains sufficient PCEs Kai Forest Reserve. substenoptera, and D. tarphytrichia, to support at least one of the species’ Drosophila hemipeza—Unit 2— below. All of the critical habitat units life functions. Located at an elevation of Palikea consists of lowland, mesic, koa, are 1 acre (0.405 ha) in size. For each 2,840 ft (865 m), the unit is entirely and ohia forest within the southern of the units, threats to PCEs that may owned by the James Campbell Estate, Waianae Mountains of Oahu. This unit require special management and is part of a larger area called the was occupied by the species at the time considerations or protections are Honouliuli Preserve, administered and of listing according to the most recent described above in the Special managed by TNCH. survey data (K. Kaneshiro 2005a—page Management Considerations or 3). This unit contains sufficient PCEs to Protections section. Drosophila hemipeza support at least one of the species’ life Drosophila hemipeza—Unit 1— functions. Located at an elevation of Makaha Valley East consists of lowland, 2,840 ft (865 m), the unit is entirely mesic, koa, and ohia forest within the owned by the James Campbell Estate, southern Waianae Mountains of Oahu. and is part of a larger area called the

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47004 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

Honouliuli Preserve, administered and Drosophila tarphytrichia of listing according to the most recent managed by TNCH. Drosophila tarphytrichia—Unit 1— survey data (K. Kaneshiro 2005a—page 8). This unit contains sufficient PCEs to Drosophila montgomeryi Kaluaa Gulch consists of diverse, mesic forest within the southern Waianae support at least one of the species’ life Drosophila montgomeryi—Unit 1— Mountains of Oahu. This unit was functions. The unit is located on State- Kaluaa Gulch consists of diverse, mesic occupied by the species at the time of owned lands at an elevation of 5,400 forest within the southern Waianae listing according to the most recent (1,645 m). Drosophila heteroneura—Unit 4— Mountains of Oahu. This unit was survey data (K. Kaneshiro 2005a). This unit contains sufficient PCEs to support Waihaka Gulch consists of montane, occupied by the species at the time of wet, closed and open koa and ohia listing according to the most recent at least one of the species’ life functions. Located at an elevation of 1,940 ft (590 forest, and is located on the southern survey data (K. Kaneshiro 2005a). This flank of Mauna Loa on the island of unit contains sufficient PCEs to support m), the unit occurs on lands owned by the James Campbell Estate, and is part Hawaii. This unit was occupied by the at least one of the species’ life functions. species at the time of listing according Located at an elevation of 1,940 ft (590 of a larger area called the Honouliuli Preserve, administered and managed by to the most recent survey data (K. m), the unit is entirely owned by the Kaneshiro 2005a—page 8). This unit James Campbell Estate, and is part of a TNCH. Drosophila tarphytrichia—Unit 2— contains sufficient PCEs to support at larger area called the Honouliuli Palikea consists of lowland, mesic, koa, least one of the species’ life functions. Preserve, administered and managed by and ohia forest within the southern Located at an elevation of 4,200 ft (1,280 TNCH. Waianae Mountains of Oahu. This unit m), the unit occurs on State-owned Drosophila montgomeryi—Unit 2— was occupied by the species at the time lands and is part of a Forest Reserve Palikea consists of lowland, mesic, koa, of listing according to the most recent administered and managed by the State. and ohia forest within the southern survey data (K. Kaneshiro 2005a—page Drosophila heteroneura—Unit 5— Gaspar’s Dairy consists of montane, Waianae Mountains of Oahu. This unit 15). This unit contains sufficient PCEs mesic, open koa and ohia forest with was occupied by the species at the time to support at least one of the species’ mixed grass species, and is located on of listing according to the most recent life functions. Located at an elevation of the western flank of Mauna Loa on the survey data (K. Kaneshiro 2005a—page 2,840 ft (865 m), the unit occurs on island of Hawaii. This unit was 8–9). This unit contains sufficient PCEs lands owned by the James Campbell occupied by the species at the time of to support at least one of the species’ Estate, and is part of a larger area called listing according to the most recent life functions. Located at an elevation of the Honouliuli Preserve, administered survey data (K. Kaneshiro 2005a—page and managed by TNCH. 2,840 ft (865 m), the unit is entirely 4). This unit contains sufficient PCEs to owned by the James Campbell Estate, Hawaii (Big Island) Species support at least one of the species’ life and is part of a larger area called the functions. The unit is located on Drosophila heteroneura Honouliuli Preserve, administered and privately-owned lands at an elevation of managed by TNCH. Drosophila heteroneura—Unit 1—Kau 4,430 ft (1,350 m). Drosophila obatai Forest Reserve consists of montane, wet, We are proposing to exclude this unit closed and open ohia forest, and is under section 4(b)(2) of the Act. Drosophila obatai—Unit 1—Wailupe located on the southern flank of Mauna Although the unit is being proposed for consists of lowland, mesic, koa, and Loa on the island of Hawaii. This unit exclusion from final critical habitat ohia forest within the southeastern was occupied by the species at the time designation, it still contributes to the Koolau Mountains of Oahu. This unit of listing according to the most recent conservation of the species. was occupied by the species at the time survey data (K. Kaneshiro 2005a—page Drosophila heteroneura—Unit 6— of listing according to the most recent 5). This unit contains sufficient PCEs to Kipuka at 4,900 ft consists of montane, survey data (K. Kaneshiro 2005a—page support at least one of the species’ life mesic, open koa and ohia forest with 12). This unit contains sufficient PCEs functions. Located at an elevation of mixed grass species, and is located on to support at least one of the species’ 5,380 ft (1,640 m), the unit occurs on the western flank of Mauna Loa on the life functions. Located at an elevation of State-owned lands and is part of a island of Hawaii. This unit was 1,560 ft (475 m), the unit occurs on Forest Reserve administered and occupied by the species at the time of State-owned lands and is part of a managed by the State. listing according to the most recent Drosophila heteroneura—Unit 2— Forest Reserve administered and survey data (K. Kaneshiro 2005a—page Pauahi consists of montane, mesic, open managed by the State. 6). This unit contains sufficient PCEs to koa and ohia forest, and is located on support at least one of the species’ life Drosophila substenoptera the western flank of Mauna Loa on the functions. The unit is located on island of Hawaii. This unit was privately-owned lands at an elevation of Drosophila substenoptera—Unit 1— occupied by the species at the time of 4,975 ft (1,515 m). Mt. Kaala consists of montane, wet, ohia listing according to the most recent We are proposing to exclude this unit forest within the northern Waianae survey data (K. Kaneshiro 2005a—pages under section 4(b)(2) of the Act. Mountains of Oahu. This unit was 7–8). This unit contains sufficient PCEs Although the unit is being proposed for occupied by the species at the time of to support at least one of the species’ exclusion from final critical habitat listing according to the most recent life functions. The unit is located on designation, it still contributes to the survey data (K. Kaneshiro 2005a—page privately-owned lands at an elevation of conservation of the species. 14). This unit contains sufficient PCEs 4,395 ft (1,340 m). Drosophila heteroneura—Unit 7—Pit to support at least one of the species’ Drosophila heteroneura—Unit 3— Crater consists of montane, mesic, open life functions. Located at an elevation of Waiea consists of montane, mesic, ohia forest with mixed grass species, 3,900 ft (1,190 m), the unit occurs on closed koa and ohia forest, and is and is located on the western flank of State-owned lands and is part of a located on the western flank of Mauna Hualalai and south of the Kaupulehu Forest Reserve administered and Loa on the island of Hawaii. This unit Lava Flow on the island of Hawaii. This managed by the State. was occupied by the species at the time unit was occupied by the species at the

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47005

time of listing according to the most of Hawaii. This unit was occupied by destruction or adverse modification is recent survey data (K. Kaneshiro the species at the time of listing (K. determined on the basis of whether, 2005a—page 8). This unit contains Kaneshiro 2005a—page 12). This unit with implementation of the proposed sufficient PCEs to support at least one contains sufficient PCEs to support at Federal action, the affected critical of the species’ life functions. The unit least one of the species’ life functions. habitat would remain functional (or is located on privately-owned lands at Located at an elevation of 3,860 ft (1,165 retain the current ability for the primary an elevation of 3,580 ft (1,090 m). m), the unit occurs on State-owned constituent elements to be functionally We are proposing to exclude this unit lands and is part of a Forest Reserve established) to serve the intended under section 4(b)(2) of the Act. administered and managed by the State. conservation role for the species. Although the unit is being proposed for Section 7(a)(4) of the Act requires exclusion from final critical habitat Kauai Species Federal agencies to confer with us on designation, it still contributes to the Drosophila musaphilia any action that is likely to jeopardize conservation of the species. the continued existence of a proposed Drosophila musaphilia—Unit 1— species or result in destruction or Drosophila mulli Waimea Canyon Road at 2,600 ft adverse modification of proposed Drosophila mulli—Unit 1—Olaa consists of lowland, mesic koa and ohia critical habitat. This is a procedural Forest consists of montane, wet, open forest, and is located along the Waimea requirement only. However, once a and closed ohia forest and is located to Canyon Road within the Waimea proposed species becomes listed, or the northeast of Kilauea Caldera on the Canyon State Park on the island of proposed critical habitat is designated southeastern flank of Mauna Loa on the Kauai. This unit was occupied by the as final, the full prohibitions of section island of Hawaii. This unit was species at the time of listing (K. 7(a)(2) apply to any Federal action. The occupied by the species at the time of Kaneshiro 2005a—page 11). This unit primary utility of the conference listing according to the most recent contains sufficient PCEs to support at procedures is to maximize the survey data (K. Kaneshiro 2005a—page least one of the species’ life functions. opportunity for a Federal agency to 10). This unit contains sufficient PCEs Located at an elevation of 2,600 ft (2,545 adequately consider proposed species to support at least one of the species’ m), the unit occurs on State-owned and critical habitat and avoid potential life functions. Located at an elevation of lands administered and managed by the delays in implementing their proposed 3,210 ft (980 m), the unit occurs on Hawaii Division of State Parks. action as a result of the section 7(a)(2) State-owned lands and is part of the Molokai Species compliance process, should those Olaa Forest Reserve administered and species be listed or the critical habitat managed by the State. Drosophila differens designated. Drosophila mulli—Unit 2—Waiakea Drosophila differens—Unit 1—Puu Under conference procedures, the Forest consists of montane, wet, open Kolekole consists of montane, wet, ohia Service may provide advisory and closed ohia forest, and is located to forest within the Eastern Molokai conservation recommendations to assist the northeast of Kilauea Caldera on the Mountains on the island of Molokai. the agency in eliminating conflicts that southeastern flank of Mauna Loa on the This unit was occupied by the species may be caused by the proposed action. island of Hawaii. This unit was at the time of listing (K. Kaneshiro The Service may conduct either occupied by the species at the time of 2005a—page 2). This unit contains informal or formal conferences. Informal listing (K. Kaneshiro 2005a—page 10). sufficient PCEs to support at least one conferences are typically used if the This unit contains sufficient PCEs to of the species’ life functions. Located at proposed action is not likely to have any support at least one of the species’ life an elevation of 3,950 ft (1,200 m), the adverse effects to the proposed species functions. Located at an elevation of unit occurs on privately-owned lands or proposed critical habitat. Formal 3,190 ft (970 m), the unit occurs on that are part of a larger area called the conferences are typically used when the State-owned lands and is part of the Kamakou Preserve, managed and Federal agency or the Service believes Waiakea Forest Reserve administered administered by TNCH. the proposed action is likely to cause and managed by the State. We are proposing to exclude this area adverse effects to proposed species or critical habitat, inclusive of those that Drosophila ochrobasis under section 4(b)(2) of the Act. Although the unit is being proposed for may cause jeopardy or adverse Drosophila ochrobasis—Unit 1— exclusion from final critical habitat modification. Kipuka 14 consists of montane, wet, The results of an informal conference designation, it still contributes to the open and closed ohia forest with native are typically transmitted in a conference conservation of the species. shrubs, and is located within the saddle report, while the results of a formal road area on the north eastern flank of Effects of Critical Habitat Designation conference are typically transmitted in a Mauna Loa on the island of Hawaii. conference opinion. Conference Section 7 Consultation This unit was occupied by the species opinions on proposed critical habitat are at the time of listing (K. Kaneshiro Section 7 of the Act requires Federal typically prepared according to 50 CFR 2005a—pages 12–13). This unit contains agencies, including the Service, to 402.14, as if the proposed critical sufficient PCEs to support at least one ensure that actions they fund, authorize, habitat were designated. We may adopt of the species’ life functions. Located at or carry out are not likely to destroy or the conference opinion as the biological an elevation of 5,110 ft (1,560 m), the adversely modify critical habitat. A opinion when the critical habitat is unit occurs on State-owned lands and is recent decision by the 9th Circuit Court designated if no substantial new part of a Forest Reserve administered of Appeals invalidated our regulatory information or changes in the action and managed by the State. definition of ‘adverse modification’ (see alter the content of the opinion (see 50 Drosophila ochrobasis—Unit 2— Gifford Pinchot Task Force v. U.S. Fish CFR 402.10(d)). As noted above, any Kohala Mountains consists of montane, and Wildlife Service, 378 F. 3d 1059 conservation recommendations in a wet, open and closed ohia forest with (9th Cir 2004) and Sierra Club v. U.S. conference report or opinion are strictly native shrubs and mixed grass species, Fish and Wildlife Service et al., 245 F.3d advisory. and is located on the southeastern flank 434, 442F (5th Cir 2001)). Pursuant to If a species is listed or critical habitat of the Kohala Mountains on the island the Director’s memo of August 2004, is designated, section 7(a)(2) of the Act

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47006 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

requires Federal agencies to ensure that private lands requiring a Federal permit functional (or retain the current ability activities they authorize, fund, or carry (such as a permit from the Corps under for the primary constituent elements to out are not likely to jeopardize the section 404 of the Clean Water Act or a be functionally established) to serve the continued existence of such a species or permit under section 10(a)(1)(B) of the intended conservation role for the to destroy or adversely modify its Act from the Service) or involving some species. Generally, the conservation role critical habitat. If a Federal action may other Federal action (such as funding of the 11 picture-wing flies’ critical affect a listed species or its critical from the Federal Highway habitat units would be to support the habitat, the responsible Federal agency Administration, Federal Aviation populations identified in this rule. (action agency) must enter into Administration, or the Federal Section 4(b)(8) of the Act requires us consultation with us. As a result of this Emergency Management Agency) will to briefly evaluate and describe in any consultation, the Service may issue: (1) also be subject to the section 7 proposed or final regulation that A concurrence letter for Federal actions consultation process. Federal actions designates critical habitat those that may affect, but are not likely to not affecting listed species or critical activities involving a Federal action that adversely affect, listed species or critical habitat, and actions on State, tribal, may destroy or adversely modify such habitat; or (2) a biological opinion for local or private lands that are not habitat, or that may be affected by such Federal actions that are likely to federally-funded, authorized, or designation. Activities that may destroy adversely affect, listed species or critical permitted, do not require section 7 or adversely modify critical habitat may habitat. consultations. also jeopardize the continued existence When we issue a biological opinion of the species. concluding that a project is likely to Application of the Jeopardy and Activities that may destroy or result in jeopardy to a listed species or Adverse Modification Standards for adversely modify critical habitat are the destruction or adverse modification Actions Involving Effects to the Eleven those that alter the PCEs as described in of critical habitat, we also provide Species of Hawaiian Picture-wing Flies the Director’s memo of August, 2004. reasonable and prudent alternatives to and Their Critical Habitat Activities that, when carried out, the project, if any are identifiable. Jeopardy Standard funded, or authorized by a Federal ‘‘Reasonable and prudent alternatives’’ agency, may affect critical habitat and are defined at 50 CFR 402.02 as Prior to and following designation of therefore result in consultation for alternative actions identified during critical habitat, the Service will apply Drosophila aglaia, D. differens, D. consultation that can be implemented in an analytical framework for Drosophila hemipeza, D. heteroneura, D. a manner consistent with the intended aglaia, D. differens, D. hemipeza, D. montgomeryi, D. mulli, D. musaphilia, purpose of the action, that are consistent heteroneura, D. montgomeryi, D. mulli, D. obatai, D. ochrobasis, D. with the scope of the Federal agency’s D. musaphilia, D. neoclavisetae, D. substenoptera, and D. tarphytrichia legal authority and jurisdiction, that are obatai, D. ochrobasis, D. substenoptera, include, but are not limited to: economically and technologically and D. tarphytrichia jeopardy analyses (1) Activities including, but not feasible, and that the Director believes that relies heavily areas identified as limited to: overgrazing; maintenance of would avoid jeopardy to the listed occupied in this rule and the listing feral ungulates; clearing or cutting of species or destruction or adverse rule. The jeopardy analysis is focused native live trees and shrubs, whether by modification of critical habitat. not only on these populations but also burning or mechanical, chemical, or Reasonable and prudent alternatives can on the habitat conditions necessary to other means (e.g., woodcutting, vary from slight project modifications to support them. bulldozing, construction, road building, extensive redesign or relocation of the The jeopardy analysis would likely mining, herbicide application); project. Costs associated with express the survival and recovery needs introducing or enabling the spread of implementing a reasonable and prudent of the 11 species of Hawaiian picture- nonnative species (e.g., nonnative plant alternative are similarly variable. wing flies in a qualitative fashion species that may compete with native Regulations at 50 CFR 402.16 require without making distinctions between host plants, or nonnative arthropod Federal agencies to reinitiate what is necessary for survival and what pests that prey upon native host plants); consultation on previously reviewed is necessary for recovery. Generally, if a and taking actions that pose a risk of actions in instances where a new proposed Federal action is incompatible fire. species is listed or critical habitat is with the viability of the affected (2) Construction where a permit under subsequently designated that may be population(s), to such an extent that the section 404 of the Clean Water Act affected and the Federal agency has continued existence of the species is would be required by the U.S. Army retained discretionary involvement or jeopardized, a jeopardy finding would Corps of Engineers. Construction in control over the action or such be considered. wetlands, where a 404 permit would be discretionary involvement or control is Adverse Modification Standard required, could affect the habitat of authorized by law. Consequently, some Drosophila heteroneura. Federal agencies may request The analytical framework described (3) Recreational activities that reinitiation of consultation with us on in the Director’s December 9, 2004, appreciably degrade vegetation. actions for which formal consultation memorandum would be used to (4) Introducing or encouraging the has been completed, if those actions complete section 7(a)(2) analyses for spread of nonnative plant species into may affect subsequently listed species Federal actions affecting Drosophila critical habitat units. or designated critical habitat or aglaia, D. differens, D. hemipeza, D. (5) The purposeful release or adversely modify or destroy proposed heteroneura, D. montgomeryi, D. mulli, augmentation of any dipteran predator critical habitat. D. musaphilia, D. obatai, D. ochrobasis, or parasitoid. Federal activities that may affect the D. substenoptera, and D. tarphytrichia We consider all of the units proposed 12 species of Hawaiian picture-wing critical habitat. The key factor related to as critical habitat, as well as those that flies or designated critical habitat for the the adverse modification determination have been proposed for exclusion or not 11 species addressed herein will require would be whether, with implementation included, to contain features essential to section 7 consultation under the Act. of the proposed Federal action, the the conservation of the 11 picture-wing Activities on State, Tribal, local or affected critical habitat would remain flies. All units are within the geographic

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47007

range of each of the species, all were management or protection actions will portion of this proposed critical habitat occupied by the 11 species at the time continue into the foreseeable future. rule. of listing (based on observations made Each review is particular to the species Conservation Partnerships on Non- within the last 35 years), and are likely and the plan, and some plans may be Federal Lands to be used by the 11 species of picture- adequate for some species and wing flies. Federal agencies already inadequate for others. Most federally listed species in the consult with us on activities in areas Section 4(b)(2) of the Act states that United States will not recover without currently occupied by the 12 picture- critical habitat shall be designated, and the cooperation of non-Federal wing flies, or if the species may be revised, on the basis of the best landowners. More than 60 percent of the affected by the action, to ensure that available scientific data after taking into United States is privately owned their actions do not jeopardize the consideration the economic impact, (National Wilderness Institute 1995) and continued existence of the 12 picture- national security impact, and any other at least 80 percent of endangered or wing flies. relevant impact, of specifying any threatened species occur either partially particular area as critical habitat. The or solely on private lands (Crouse et al. Application of Section 3(5)(A) and Secretary may exclude an area from 2002—page 720). Stein et al. (1995— Exclusions Under Section 4(b)(2) of the critical habitat if he determines that the page 3) found that only about 12 percent Act benefits of such exclusion outweigh the of listed species were found almost Section 3(5)(A) of the Act defines benefits of specifying such area as part exclusively on Federal lands (i.e., 90– critical habitat as the specific areas of the critical habitat, unless he 100 percent of their known occurrences within the geographical area occupied determines, based on the best scientific restricted to Federal lands) and that 50 by the species on which are found those data available, that the failure to percent of federally listed species are physical and biological features (i) designate such area as critical habitat not known to occur on Federal lands at essential to the conservation of the will result in the extinction of the all. species, and (ii) which may require species. In making that determination, Given the distribution of listed special management considerations or the Secretary is afforded broad species with respect to land ownership, protection. Therefore, areas within the discretion and the Congressional record conservation of listed species in many geographical area occupied by the is clear that in making a determination parts of the United States is dependent species that do not contain the features under section 4(b)(2) the Secretary has upon working partnerships with a wide essential to the conservation of the discretion as to which factors to variety of entities and the voluntary species are not, by definition, critical consider and how much weight will be cooperation of many non-federal habitat. Similarly, areas within the given to any factor. landowners (Wilcove and Chen 1998— geographical area occupied by the Under section 4(b)(2), in considering page 1,407; Crouse et al. 2002—page species that require no special whether to exclude a particular area 720; James 2002—page 270). Building management or protection also are not, from the designation, we must identify partnerships and promoting voluntary by definition, critical habitat. Thus, for the benefits of including the area in the cooperation of landowners is essential example, areas that do not need special designation, identify the benefits of to understanding the status of species management may not need protection if excluding the area from the designation, on non-federal lands and is necessary to there is lack of pressure for change, such and determine whether the benefits of implement recovery actions such as as areas too remote for anthropogenic exclusion outweigh the benefits of reintroducing listed species, habitat disturbance. inclusion. If an exclusion is restoration, and habitat protection. There are multiple ways to provide contemplated, then we must determine Many non-Federal landowners derive management for species habitat. whether excluding the area would result satisfaction in contributing to Statutory and regulatory frameworks in the extinction of the species. In the endangered species recovery. The that exist at a local level can provide following sections, we address a number Service promotes these private-sector such protection and management, as can of general issues that are relevant to the efforts through the Four Cs lack of pressure for change, such as exclusions we considered. In addition, philosophy—conservation through areas too remote for anthropogenic the Service is conducting an economic communication, consultation, and disturbance. Finally, State, local, or analysis of the impacts of the proposed cooperation. This philosophy is evident private management plans as well as critical habitat designation and related in Service programs such as Habitat management under Federal agencies factors, which will be made available for Conservation Plans (HCPs), Safe jurisdictions can provide protection and public review and comment. Based on Harbors, Candidate Conservation management to avoid the need for public comment on that document, the Agreements (CCAs), Candidate designation of critical habitat. When we proposed designation, and the Conservation Agreements with consider a plan to determine its information in the final economic Assurances (CCAAs), and conservation adequacy in protecting habitat, we analysis, additional areas beyond those challenge cost-share grants. Many consider whether the plan, as a whole identified in this assessment may be private landowners, however, are wary will provide the same level of protection excluded from critical habitat by the of the possible consequences of that designation of critical habitat Secretary under the provisions of encouraging endangered species to their would provide. The plan need not lead section 4(b)(2) of the Act. This is property, and there is mounting to exactly the same result as a provided for in the Act, and in our evidence that some regulatory actions designation in every individual implementing regulations at 50 CFR by the Federal Government, while well- application, as long as the protection it 424.19. Pursuant to 50 CFR 424.19, we intentioned and required by law, can provides is equivalent, overall. In must propose an area as critical habitat under certain circumstances have making this determination, we examine prior to making an exclusion of that area unintended negative consequences for whether the plan provides management pursuant to section 4(b)(2) of the Act the conservation of species on private or protection of the PCEs that is at least from the final critical habitat lands (Wilcove et al. 1996—pages 2 and equivalent to that provided by a critical designation to receive public comment. 5; Bean 2002—pages 409, 412, 414–415, habitat designation, and whether there We have therefore included these units and 419–420; Conner and Mathews is a reasonable expectation that the or portions thereof in the regulation 2002—page 2; James 2002—page 270;

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47008 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

Koch 2002—pages 508–510). Many likelihood of a Federal nexus on the have the features essential for the landowners fear a decline in their island we believe that the benefits of conservation of Drosophila property value due to real or perceived excluding the lands covered by the neoclavisetae. In a September 2002 restrictions on land-use options where MOA exceeded the benefits of including letter to the Service, the Puu Kukui threatened or endangered species are them. As stated in the final critical Watershed Supervisor stated that since found. Consequently, harboring habitat rule for endangered plants on 1988 ML&P has proactively managed endangered species is viewed by many the Island of Lanai: Puu Kukui Watershed and is currently landowners as a liability, resulting in On Lanai, simply preventing ‘‘harmful in their second, 6-year contract with the anti-conservation incentives because activities’’ will not slow the extinction of State of Hawaii’s NAP program to maintaining habitats that harbor listed plant species. Where consistent with preserve the native biodiversity of their endangered species represents a risk to the discretion provided by the Act, the conservation lands. They are also future economic opportunities (Main et Service believes it is necessary to implement receiving funding from the Service to al. 1999—pages 1,263–1,265). policies that provide positive incentives to survey for rare plants on their lands and The purpose of designating critical private landowners to voluntarily conserve build feral ungulate control fences for habitat is to contribute to the natural resources and that remove or reduce the protection of listed and other native conservation of threatened and disincentives to conservation. While the plants, including the host plants for D. endangered species and the ecosystems impact of providing these incentives may be neoclavisetae. In other words, ML&P upon which they depend. The outcome modest in economic terms, they can be significant in terms of conservation benefits has a history of funding and conducting of the designation, triggering regulatory that can stem from the cooperation of the proactive conservation efforts in Puu requirements for actions funded, landowner. The continued participation of Kukui that provide a benefit for D. authorized, or carried out by Federal Castle and Cooke Resorts, LLC, in the neoclavisetae; they are enrolled in the agencies under section 7 of the Act, can existing Lanai Forest and Watershed State’s NAP program; and they receive sometimes be counterproductive to its Partnership and other voluntary conservation funding from the Service to support intended purpose on non-Federal lands. agreements will greatly enhance the Service’s their conservation efforts. Therefore, we According to some researchers, the ability to further the recovery of these have determined that the private land designation of critical habitat on private endangered plants. within Puu Kukui WMA does not meet lands significantly reduces the Conservation through the definition of critical habitat under likelihood that landowners will support communication, consultation, and section 3(5)(A) of the Act as discussed and carry out conservation actions cooperation is the foundation for below, and, therefore, are not proposing (Main et al. 1999—pages 1,263–1,265; developing the tools of conservation. critical habitat for Drosophila Bean 2002—pages 409, 412, 414–415, These tools include conservation grants, neoclavisetae on ML&P land. and 419–420). The magnitude of this funding for Partners for Fish and At just over 3,483 ha (8,600 ac), the negative outcome is greatly amplified in Wildlife Program, the Coastal Program, Puu Kukui WMA is the largest privately situations where active management and cooperative-conservation challenge owned preserve in the State. In 1993, measures (e.g., reintroduction, fire cost-share grants. Our Private the Puu Kukui WMA became the first management, control of invasive Stewardship Grant program and private landowner participant in the species) are necessary for species Landowner Incentive Program provide NAP program. In the NAP program, Puu conservation (Bean 2002—pages 414 assistance to private land owners in Kukui WMA staff are pursuing four and 419–420). their voluntary efforts to protect management programs stipulated in The Service believes that the threatened, imperiled, and endangered their Long Range Management Plan with judicious use of excluding specific areas species, including the development and an emphasis on reducing nonnative of non-federally owned lands from implementation of HCPs. species that immediately threaten the critical habitat designations can Conservation agreements with non- management area (Maui Pineapple contribute to species recovery and Federal landowners, contractual Company 1999—pages 2–21). There is a provide a superior level of conservation conservation agreements, easements, reasonable expectation, based on than critical habitat alone. For example, and stakeholder-negotiated State ML&P’s management efforts to date, that less than 17 percent of Hawaii is regulations enhance species the management programs currently federally owned, but the State is home conservation by extending species implemented in Puu Kukui WMA and to more than 24 percent of all federally protections beyond those available described below will continue into the listed species, most of which will not through section 7 consultations. In the foreseeable future. recover without State and private past decade we have encouraged non- The primary management goals within Puu Kukui WMA are to (1) landowner cooperation. On the island of Federal landowners to enter into Lanai, Castle and Cooke Resorts, LLC, eliminate ungulate activity in all Puu conservation agreements, based on a which owns 99 percent of the island, Kukui management units; (2) reduce the view that we can achieve greater species entered into a conservation agreement range of habitat-modifying weeds and conservation on non-Federal land with the Service. The conservation prevent introduction of nonnative through such partnerships than we can agreement provides conservation plants; (3) reduce the negative impacts through coercive methods (61 FR 63854, benefits to target species through of nonnative invertebrates and small December 2, 1996—page 63856). management actions that remove threats animals; (4) monitor and track biological (e.g., axis deer, mouflon sheep, rats, Maui Land and Pineapple Co., Ltd. and physical resources in the watershed invasive nonnative plants) from the in order to improve management Maui Pineapple Company’s Puu Kukui Lanaihale and East Lanai Regions. understanding of the watershed’s Specific management actions include Watershed Management Area, Located resources; and (5) prevent the extinction fire control measures, nursery in the West Maui Mountains of rare species within the watershed. propagation of native flora (including Lands within Maui Land and Implementation of the specific the target species) and planting of such Pineapple Company’s (ML&P’s) Puu management actions (described below) flora. These actions will significantly Kukui Watershed Management Area addresses the threats to Drosophila improve the habitat for all currently (WMA), located in the West Maui neoclavisetae and the features essential occurring species. Due to the low Mountains, are occupied habitat and for its conservation from feral ungulates

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47009

and nonnative plants and, thus, removes Hakalau Forest National Wildlife critical habitat under section 3(5)(A) of the need for special management and Refuge, Kona Forest Unit, Island of the Act, and, therefore, are not protection. Hawaii proposing critical habitat on the Kona Specific management actions to Lands within the U.S. Fish and Forest Unit of the Hakalau Forest address feral ungulates include the Wildlife Service’s Kona Forest Unit of National Wildlife Refuge. construction of fences surrounding 10 the Hakalau Forest National Wildlife Hawaii Volcanoes National Park, management units and removal of Refuge are occupied habitat and have Island of Hawaii ungulates within the Puu Kukui WMA. the necessary features that are essential The nonnative plant control program for the conservation of Drosophila Lands within Hawaii Volcanoes within Puu Kukui WMA focuses on heteroneura. The Kona Forest Unit of National Park (HAVO) are occupied habitat-modifying weeds, prioritizing Hakalau Forest National Wildlife Refuge habitat and have the necessary features them according to the degree of threat was established in 1997 to protect that are essential for the conservation of to native ecosystems, and preventing the endangered forest birds and their Drosophila heteroneura. Hawaii introduction of new weeds. The weed habitat. Management actions for this control program includes mapping and Volcanoes National Park was refuge unit are outlined in our established in 1916 to preserve the monitoring along established transects Conceptual Management Plan (Service and manual/mechanical control. significant resources that reflect 1997a—pages ii-iii) and in our Wildland Hawaii’s geological, biological, and Biological control of Clidemia hirta was Fire Management Plan (Service 1997b— cultural heritage. In recognition of its attempted by releasing Antiblemma pages 2–3). The Conceptual outstanding values, the park has been acclinalis moth larvae. Natural resource Management Plan for the Kona unit designated an International Biosphere monitoring and research address the describes planned management need to track biological and physical activities (Service 1997a—pages 10–13) Reserve and a World Heritage Site. resources of the Puu Kukui WMA and for the area including listed species Management actions for the biological evaluate changes to these resources in recovery; monitoring; habitat resources of this park are outlined in order to guide management programs. management; maintenance of natural resources management plans Vegetation is monitored through biodiversity; alien plant control; feral and fire management plans (HAVO permanent photo points, nonnative ungulate control; and wildfire 1974—page i, 2002—pages 11–14, species are monitored along permanent management, all of which will benefit 2004—pages 2–6). The natural resources transects, and rare, endemic, and Drosophila heteroneura and its host plan broadly describes ongoing indigenous species are monitored. plants. The Hakalau Wildland Fire management activities within the park Additionally, logistical and other Management Plan, details the Services including the reestablishment of key support for approved research projects, wildfire management objectives, plant ecosystem components of the area; interagency cooperative agreements, and strategy, responsibilities, and the exclusion and removal of pigs and remote survey trips within the consultation protocol (Service 1997b— goats; research on rat control; localized watershed is provided. pages 11–20), all of which will benefit rat control and prevention; and the For these reasons, Puu Kukui WMA D. heteroneura and its host plants. control of numerous nonnative weed meets the three criteria for determining The Hakalau Refuge has received 1.1 species, all of which benefit D. that an area is not in need of special million dollars in Fiscal Year 2006 to heteroneura and its host plants (HAVO management or protections as discussed enclose a large portion of the Kona 1974—pages 2–6, 8–14, and 16–17). The above. Therefore, we have determined Refuge unit. This project will involve fire management plan details wildfire that the private land within Puu Kukui the construction of approximately 17 management objectives and planned WMA does not meet the definition of miles of fencing designed to exclude wildfire control within the park critical habitat pursuant to 3(5)(A) in the pigs, sheep, and cattle. Pigs and cattle including the use of fire to rehabilitate Act, and we are not proposing this land are currently the most serious ungulate areas infested with non-native grass as critical habitat. Should the status of threats to this area and the construction species infested areas, all of which will this reserve change, for example by non- of this large enclosure will remove the benefit D. heteroneura once renewal of a partnership agreement or primary threats to D. heteroneura’s host implemented (HAVO 2004—pages 11– termination of NAP funding, we will plant habitat and associated ecosystem. 14). Within the area containing the reconsider whether it then meets the An environmental assessment is Thurston Lava Tube population of D. definition of critical habitat. If so, we currently being prepared for this project heteroneura, the Park Service currently have the authority to propose to amend and we expect that construction will excludes pigs and targets for removal critical habitat to include such area at commence sometime in late 2006 or certain invasive weed species including that time (50 CFR 424.12(g)). early 2007 (Richard Wass, Service— In summary, we believe that the Refuges Division, pers. comm. 2006). Hedychium gardnerianum (Kahili habitat within Puu Kukui WMA is being Additionally, the Kona Refuge unit has ginger), Psidium cattleianum adequately protected and managed for been identified as a high priority area (strawberry guava), Morella faya (faya the conservation of the listed Drosophila for recovery of the Hawaiian crow. tree), and Rubus ellipticus (Himalayan neoclavisetae, including all of its known Accordingly, we are committed to raspberry) (Rhonda Loh, HAVO, pers. sites and features that are essential to its protecting and managing this area to the comm. 2006). Because the Park Service conservation that occur within this area, best of our ability as future funding is addressing these primary threats to D. and is not in need of special allows. Many of the planned heteroneura’s host plant habitat in this management considerations or management activities for the Hawaiian area, we have therefore, determined that protection. Therefore, we have crow such as rat control will also benefit this national park land does not meet determined that this specific area does the host plant habitat of D. heteroneura the definition of critical habitat under not meet the definition of critical habitat (Gina Shultz, Service—Ecological section 3(5)(A) of the Act, and, pursuant to the Act, and we, therefore, Services, pers. comm. 2006). We have, therefore, are not proposing critical do not propose this specific area as therefore, determined that this refuge habitat in Hawaii Volcanoes National critical habitat for D. neoclavisetae. land does not meet the definition of Park.

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47010 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

General Principles of Section 7 than would be achieved through that the informational benefits are Consultations Used in the 4(b)(2) multiple site-by-site, project-by-project, already provided even though these Balancing Process section 7 consultations involving areas are not designated as critical The most direct, and potentially consideration of critical habitat. habitat. Additionally, the purpose largest, regulatory benefit of critical Management plans commit resources to normally served by the designation of habitat is that federally authorized, implement long-term management and informing State agencies and local funded, or carried out activities require protection to particular habitat for at governments about areas which would consultation pursuant to section 7 of the least one and possibly other listed or benefit from protection and Act to ensure that they are not likely to sensitive species. Section 7 enhancement of habitat for the 11 destroy or adversely modify critical consultations only commit Federal picture-wing flies is already well habitat. There are two limitations to this agencies to prevent adverse established among State and local regulatory effect. First, it applies only modification to critical habitat caused governments and Federal agencies. State by the particular project, and they are and local governments and Federal where there is a Federal nexus—if there not committed to provide conservation agencies have existing knowledge in is no Federal nexus, designation itself or long-term benefits to areas not those areas that we are proposing to does not restrict actions that destroy or affected by the proposed project. Thus, exclude from the final designation of adversely modify critical habitat. any HCP or management plan which critical habitat on the basis of other Second, it limits only destruction or considers enhancement as the existing habitat management adverse modification of critical habitat. management standard will provide as protections. By its nature, the prohibition on adverse much or more benefit than a The Service is conducting an modification is designed to ensure those consultation for critical habitat economic analysis of the impacts of the areas that contain the physical and designation conducted under the proposed critical habitat designation biological features essential to the standards required by the Ninth Circuit and related factors, which will be conservation of the species or in the Gifford Pinchot decision. available for public review and unoccupied areas that are essential to The information provided in this comment. Based on public comment on the conservation of the species are not section applies to all the discussions that document, the proposed eroded to the point that the unit does below that discuss the benefits of designation itself, and the information not perform its intended function. inclusion and exclusion of critical in the final economic analysis, Critical habitat designation alone, habitat in that it provides the framework additional areas beyond those identified however, does not require specific steps for the consultation process. in this assessment may be excluded to improve habitat conditions. from critical habitat by the Secretary Educational Benefits of Critical Habitat Once consultation under section 7 of under the provisions of section 4(b)(2) the Act is triggered, the process may A benefit of including lands in critical of the Act. This is provided for in the conclude informally when the Service habitat is that the designation of critical Act, and in our implementing concurs in writing that the proposed habitat serves to educate landowners, regulations at 50 CFR 424.19. Federal action is not likely to adversely State and local governments, and the The information provided in this affect the listed species or its critical public regarding the potential section applies to all the discussions habitat. However, if the Service conservation value of an area. This below that discuss the benefits of determines through informal helps focus and promote conservation inclusion and exclusion of critical consultation that adverse impacts are efforts by other parties by clearly habitat. likely to occur, then formal consultation delineating areas of high conservation We are considering excluding The would be initiated. Formal consultation value for Drosophila aglaia, D. differens, Nature Conservancy of Hawaii’s concludes with a biological opinion D. hemipeza, D. heteroneura, D. Kamakou Preserve on Molokai and issued by the Service on whether the montgomeryi, D. mulli, D. musaphilia, lands owned by Kamehameha Schools proposed Federal action is likely to D. obatai, D. ochrobasis, D. on the island of Hawaii from the final jeopardize the continued existence of a substenoptera, and D. tarphytrichia. In designation of critical habitat because listed species or result in destruction or general the educational benefit of a we believe that they are appropriate for adverse modification of critical habitat, critical habitat designation always exclusion pursuant to the ‘‘other with separate analyses being made exists, although in some cases it may be relevant factor’’ provisions of section under both the jeopardy and the adverse redundant with other educational 4(b)(2). We specifically solicit comment, modification standards. For critical effects. For example, HCPs have however, on the inclusion or exclusion habitat, a biological opinion that significant public input and may largely of such areas. concludes in a determination of no duplicate the educational benefit of a destruction or adverse modification may critical habitat designation. This benefit The Nature Conservancy of Hawaii contain discretionary conservation is closely related to a second, more (TNCH) recommendations to minimize adverse indirect benefit: that designation of The Nature Conservancy of Hawaii’s effects to primary constituent elements, critical habitat would inform State Kamakou Preserve is occupied by but it would not contain any mandatory agencies and local governments about Drosophila differens and contains the reasonable and prudent measures or areas that could be conserved under necessary features essential to the terms and conditions. Mandatory State laws or local ordinances. conservation of the species. Special reasonable and prudent alternatives to However, we believe that there would management considerations and the proposed Federal action would only be little additional informational benefit protections for this area include active be issued when the biological opinion gained from the designation of critical management such as nonnative species results in a jeopardy or adverse habitat for the exclusions we are making removal and ungulate fencings. Failure modification conclusion. in this rule because these areas have to implement these active management We believe the conservation achieved been identified and managed by the measures, all of which require voluntary through implementing habitat landowners as having habitat containing landowner support and participation, conservation plans (HCPs) or other the features essential to the conservation virtually assures the extinction of this habitat management plans can be greater of the species. Consequently, we believe species. Many of these types of

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47011

conservation actions in the areas of already occupied habitat for Drosophila reserve and its conservation value for D. Molokai are carried out as part of differens. Therefore, any Federal differens. A designation of critical TNCH’s participation with landowner activities that may affect these areas will habitat would add little to this effort incentive based programs and by the in all likelihood require section 7 and would simply affirm what is landowner’s own initiative. These consultation. already known and widely accepted by conservation activities, which are In the last 10 years, we have Hawaii’s conservationists, public described in more detail below, require conducted 45 informal and 12 formal agencies, and much of the general substantial voluntary cooperation by consultations under section 7 on the public concerning the conservation TNCH and other cooperating entire island of Molokai. None of these value of these lands. landowners and local residents. consultations involved this TNCH land. The following discussion about this The following evaluation describes As a result of the low level of previous preserve demonstrates that the public is our reasoning in considering that the Federal activity on these TNCH lands, already aware of the importance of this benefits of excluding the lands outweigh and after considering the future Federal area for the conservation of this picture- the benefits of including them, and that activities that might occur on these wing fly. Drosophila differens is the exclusion will not result in the lands, it is the Service’s opinion that reported from TNCH’s Kamakou extinction of the species. The Service there is likely to be a low number of Preserve, which is located in the East paid particular attention to the future Federal activities that would Molokai Mountains. Kamakou Preserve following issues: (1) To what extent a negatively affect the species’ PCEs on was established by a grant of a perpetual critical habitat designation would confer TNCH lands. The land is in permanent conservation easement from the private regulatory conservation benefits on this conservation status and is not expected landowner to TNCH. This preserve is species; (2) to what extent the to be developed. Section 7 consultations included in the State’s Natural Area designation would educate members of are expected to be limited to projects Partnership (NAP) program, which the public such that conservation efforts involving Federal funding for provides matching funds for the would be noticeably enhanced; and (3) conservation activities to improve the management of private lands that have whether a critical habitat designation PCEs for this species, rather than been permanently dedicated to would have a positive, neutral, or negatively impact these features. The conservation (TNCH1998a—pages 1–10, negative impact on voluntary possibility of such activity cannot be 1998b—pages 1–12). conservation efforts on this privately ruled out entirely, but it can best be Under the NAP program, the State of owned TNCH land, as well as other non- described as having a low likelihood of Hawaii provides matching funds on a Federal lands on Molokai that could occurrence. Therefore, we anticipate two-to-one basis for management of contribute to the recovery of the species. little additional regulatory benefits from private lands dedicated to conservation. If a critical habitat designation reduces including this preserve in critical In order to qualify for this program, the the likelihood that voluntary habitat beyond what is already provided land must be dedicated in perpetuity conservation activities will be carried by the existing section 7 nexus for through transfer of fee title or a out on Molokai, and at the same time habitat areas occupied by the listed conservation easement to the State or a fails to confer a counter-balancing species. cooperating entity. The land must be positive regulatory or educational Another possible benefit is that the managed by the cooperating entity or a benefit to the species, then the benefits designation of critical habitat can serve qualified landowner according to a of excluding such areas from critical to educate the public regarding the detailed management plan approved by habitat outweigh the benefits of potential conservation value of an area, the Board of Land and Natural including them. Although the results of and this may focus and contribute to Resources. Once approved, the 6-year this type of evaluation will vary conservation efforts by other parties by partnership agreement between the significantly depending on the clearly delineating areas that are State and the managing entity is landowners, geographic areas, and occupied by the species and contain the automatically renewed each year so that species involved, we believe the TNCH necessary features essential to the there are always six years remaining in lands on Molokai merit this evaluation. conservation of the species. Information the term, although the management plan provided to a wide audience of the is updated and funding amounts are (1) Benefits of Inclusion public, including other parties engaged reauthorized by the board at least every The primary direct benefit of in conservation activities, about six years. By April 1 of any year, the inclusion of TNCH’s Kamakou Preserve Drosophila differens and the features managing partner may notify the State as critical habitat would result from the that are essential to its conservation that it does not intend to renew the requirement under section 7 of the Act identified on TNCH lands on Molokai agreement; however, in such case, the that Federal agencies consult with us to could have a positive conservation partnership agreement remains in effect ensure that any proposed Federal benefit. While we believe this for the balance of the existing 6-year actions do not destroy or adversely educational outcome is important for term, and the conservation easement modify critical habitat. The benefit of a the conservation of this species, we remains in full effect in perpetuity. critical habitat designation would believe it has already been achieved The conservation easement may be ensure that any actions authorized, through the existing management, revoked by the landowner only if State funded, or carried out by a Federal education, and public outreach efforts funding is terminated without the agency would not likely destroy or carried out by TNCH and their concurrence of the landowner and adversely modify any critical habitat. conservation partners. TNCH has a well- cooperating entity. Prior to terminating Without critical habitat, some site- developed public outreach funding, the State must conduct one or specific projects might not trigger infrastructure that includes magazines, more public hearings. The NAP program consultation requirements under the Act newsletters, and well-publicized public is funded through real estate in areas where species are not currently events on Molokai and other areas conveyance taxes, which are placed in present; in contrast, Federal actions in throughout Hawaii. These and other a Natural Area Reserve Fund. areas occupied by listed species would media provide the education benefits Participants in the NAP program must still require consultation under section provided in this proposed rule and the provide annual reports to the Hawaii 7 of the Act. However, these lands are conservation importance of this Molokai Department of Land and Natural

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47012 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

Resources (DLNR), and DLNR makes nonnative plants. In addition, the critical habitat. Based on a review of annual inspections of the work in the preserve staff are actively promoting past consultations and consideration of reserve areas (See Haw. Rev. Stat. Secs. awareness of detrimental nonnative the likely future activities in this 195–1–195–11 and Hawaii plants in Hawaii and their impacts to specific area, there is little Federal Administrative Rules Secs. 13–210). native ecosystems in the local activity expected to occur on this Management programs within Kamakou communities on Molokai through public privately owned land that would trigger preserve are documented in long-range education at schools, fairs, and displays section 7 consultation. The Service also management plans and yearly at the airport. believes that a critical habitat operational plans. These plans detail Wildfire pre-suppression and designation provides little additional management measures that protect, response plans are coordinated with the educational benefits since the restore, and enhance the native species Maui County Fire Department and the conservation value is already well and their habitats within the preserve DOFAW Maui District Forester. The known by the landowner, the State, and in adjacent areas (TNCH 1998a— Kamakou Wildfire Management Plan is Federal agencies, private organizations, pages 1–10, 1998b—pages 1–12). These reviewed annually with the fire and the general public. management measures address the department and updated as necessary (2) Benefits of Exclusion factors that led to the listing of this (TNCH 1998b—pages 4–5). In the event species, including control of nonnative of fires in areas bordering the preserve, Proactive voluntary conservation species of ungulates, rodents, weeds, staff from Kamakou assists with fire efforts are necessary to prevent the and fire control. In addition, habitat suppression in concert with Hawaii extinction and promote the recovery of restoration and monitoring are also Department of Forestry and Wildlife this listed species of picture-wing fly on included in these plans. (DOFAW) staff. Natural resource Molokai (Shogren et al. 1999—page monitoring and research address the 1,260, Wilcove and Chen 1998—page Kamakou Preserve need to track the biological and physical 1,407, Wilcove et al. 1998—page 614). The primary management goals resources of the preserve and evaluate Consideration of this concern is within Kamakou Preserve are to prevent changes in these resources to guide especially important in areas where degradation of native forest by reducing management programs. Vegetation is species have been extirpated and their feral ungulate damage, suppressing monitored throughout the preserve to recovery requires access and permission wildfires, and improving or maintaining document long-term ecological changes; for reintroduction efforts (Bean 2002— the integrity of native ecosystems in rare plant species are monitored to page 414; Wilcove et al. 1998—page selected areas of the preserve by assess population status; and, following 614). As described earlier, TNCH has a reducing the effects of nonnative plants. fires on the boundaries or within the history of entering into conservation Kamakou Preserve provides occupied preserve, burned areas are assessed for agreements with various Federal and habitat for one population of D. ingress of weeds and recovery of native State agencies and other private differens. Specific management actions plants. In addition, the preserve staff organizations on their lands. The Nature to address feral ungulate impacts provides logistical support to scientists Conservancy’s mission is to preserve the include the construction of fences, and others who are conducting research plants, animals and natural including strategic fencing (fences within the preserve. communities that represent the diversity placed in proximity to natural barriers In addition, TNCH, DOFAW, the of life on Earth by protecting the lands such as cliffs); staff hunting; and Service, and other Federal agencies and waters they need to survive. The implementation of organized hunting including the National Park Service, and Service believes that D. differens will through the Molokai Hunters Working neighboring landowners of East benefit substantially from TNCH’s Group. By monitoring ungulate activity Molokai’s watershed areas have formed voluntary management actions due to a within the preserve, the staff are able to a partnership (East Molokai Watershed reduction in ungulate browsing and direct hunters to problem areas (areas of Partnership) through a memorandum of habitat conversion, a reduction in high feral ungulate densities), thereby understanding to ensure the protection competition with nonnative weeds, and increasing hunting success. If increased of over 22,000 ac (8,903 ha) of land on a reduction in risk of fire. The hunting pressure does not reduce feral the island. While the partnership is still conservation benefits of critical habitat ungulate activity in the preserve, the in its infancy, the members have agreed, are primarily regulatory or prohibitive preserve staff will work with the in principle, to participate in in nature. But on Molokai, simply hunting group to identify and cooperative management activities preventing ‘‘harmful activities’’ will not implement alternative methods for their within the East Molokai watershed slow the extinction of listed plant control (TNCH 1998a—pages 1–2). because they believe that effective species (Bean 2002—pages 409, 412, The nonnative plant control program management is best achieved through 414–415, and 419–420). within Kamakou Preserve focuses on the coordinated actions of all major Where consistent with the discretion habitat-modifying nonnative plants landowners in the watershed. provided by the Act, the Service (weeds) and prioritizes their control In sum, the Service believes that a believes it is necessary to implement according to the degree of threat to critical habitat designation for policies that provide positive incentives native ecosystems. A weed priority list Drosophila differens on TNCH lands on to private landowners to voluntarily has been compiled for the preserve, and Molokai would provide a relatively low conserve natural resources and that control and monitoring of the highest level of additional regulatory remove or reduce disincentives to priority species are ongoing. Weeds are conservation benefit to the fly species conservation (Wilcove et al. 1998—page controlled manually, chemically, or and its PCEs beyond what is already 614). Thus, we believe it is essential for through a combination of both provided by existing section 7 the recovery of this species to build on techniques. Preventive measures consultation requirements due to the continued conservation activities such (prevention protocol to keep weeds out) physical presence of this species. Any as these with a proven partner, and to are required by all who enter the minimal regulatory conservation provide positive incentives for other preserve. This protocol includes such benefits would accrue through the private landowners on Molokai who things as brushing footgear before benefit associated with additional might be considering implementing entering the preserve to remove seeds of section 7 consultation associated with voluntary conservation activities but

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47013

have concerns about incurring activities that have resulted in tangible workload allow, the Service will incidental regulatory or economic conservation benefits. consider future revisions or impacts. (b) Simple regulation of ‘‘harmful amendments to this proposed critical Approximately 80 percent of the activities’’ is not sufficient to conserve habitat rule if landowners affected by habitat of one-half of all imperiled this species. Landowner cooperation this rule develop conservation programs species in the United States occurs and support is required to prevent the or partnerships such that the Service partly or solely on private lands where extinction and promote the recovery of can find the benefits of exclusion the Service has little management Drosophila differens on Molokai due to outweigh the benefits of inclusion. authority (Wilcove et al. 1996—page 2). the need to implement proactive In conclusion, we find that the In addition, recovery actions involving conservation actions such as ungulate exclusion of critical habitat on TNCH’s the reintroduction of listed species onto management, weed control, and fire Kamakou Preserve from the final private lands require the voluntary suppression. Future conservation designation of critical habitat of cooperation of the landowner (Bean efforts, such as control of nonnative Drosophila differens, would most likely 2002—pages 409, 412, 414–415, and species, will require the cooperation of have a net positive conservation effect 419–420; James 2002—page 270; Knight TNCH and other non-Federal on the recovery and conservation of the 1999—page 224; Main et al. 1999—page landowners on Molokai. Exclusion of species and the features essential to its 1,264; Norton 2000—pages 1,221–1,222; TNCH land from this critical habitat conservation when compared to the Shogren et al. 1999—page 1,260; designation will help the Service positive conservation effects of a critical Wilcove et al. 1998—page 614). maintain and improve this partnership habitat designation. As described above, Therefore, ‘‘a successful recovery by formally recognizing the positive the overall benefits to this species of a program is highly dependent on contributions of TNCH to recovery of D. critical habitat designation for this developing working partnerships with a differens, and by streamlining or TNCH area is relatively small. In wide variety of entities, and the reducing unnecessary regulatory contrast, we believe that this exclusion voluntary cooperation of thousands of oversight. will enhance our existing partnership non-Federal landowners and others is (c) Given the current partnership with TNCH, and it will set a positive essential to accomplishing recovery for agreements between TNCH and many example and provide positive incentives listed species’’ (Crouse et al. 2002—page organizations, the Service believes the to other non-Federal landowners who 720). Because the Federal Government additional regulatory and educational may be considering implementing owns relatively little land on Molokai, benefits of including this land as critical voluntary conservation activities on and because large tracts of land suitable habitat are relatively small. The their lands. We conclude there is a for conservation of threatened and designation of critical habitat can serve higher likelihood of beneficial endangered species are mostly owned to educate the general public as well as conservation activities occurring in this by private landowners, successful conservation organizations regarding the and other areas of Molokai without recovery of listed species on Molokai is potential conservation value of an area, designated critical habitat than there especially dependent upon working but this goal is already being would be with designated critical partnerships and the voluntary accomplished through the identification habitat in this TNCH preserve and, cooperation of non-Federal landowners. of this area in the management plans therefore, we are proposing to exclude Another benefit of excluding this area described above. Likewise, there will be these lands from the final designation of from the critical habitat designation little additional Federal regulatory critical habitat for D. differens. includes relieving additional regulatory benefit to the species because (i) there (4) Exclusion of This Unit Will Not burden and costs associated with the is a low likelihood that this area will be Cause Extinction of the Species preparation of portions of section 7 negatively affected to any significant consultation documents related to degree by Federal activities requiring If this proposed exclusion is made critical habitat. While the cost of adding section 7 consultation, and (ii) this area final in our final critical habitat these additional sections to assessments is already occupied by the listed species designation, no specific areas will be and consultations is relatively minor, and a section 7 nexus already exists. designated as critical habitat for there could be delays which can The Service is unable to identify any Drosophila differens. In considering generate real costs to some project other potential benefits associated with whether or not exclusion of this proponents. However, because critical critical habitat for this TNCH preserve. preserve might result in the extinction habitat in this case is only proposed for (d) It is well documented that of Drosophila differens the Service first occupied areas already subject to publicly owned lands and lands owned considered the impacts to this species. section 7 consultation and jeopardy by conservation organizations such as It is the Service’s conclusion that the analysis, we anticipate this reduction TNCH, alone, are too small and poorly TNCH’s mission and management plans would be minimal. distributed to provide for the will provide as much or more net conservation of most listed species conservation benefits as would be (3) The Benefits of Exclusion Outweigh (Bean 2002—pages 409, 412, 414–415, provided if this preserve was designated the Benefits of Inclusion and 419–420; Crouse et al. 2002—page as critical habitat. These management Based on the above considerations, 720). Excluding this TNCH land from plans, which are described above, will we have determined that the benefits of critical habitat may, by way of example, provide tangible proactive conservation excluding TNCH’s Kamakou Preserve provide positive incentives to other benefits that will reduce the likelihood from the final designation of critical non-Federal landowners on Molokai of extinction for D. differens in this area habitat outweigh the benefits of who own lands that could contribute to of Molokai and increase the likelihood including it as critical habitat for listed species recovery if voluntary of its recovery. Extinction for this Drosophila differens. This conclusion is conservation measures on these lands species as a consequence of this based on the following factors: are implemented (Norton 2000—pages exclusion is unlikely because there are (a) In the past, TNCH has cooperated 1,221–1,222; Main et al. 1999—page no known threats in these preserves due with Federal and State agencies, and 1,263; Shogren et al. 1999—page 1,260; to any current or reasonably anticipated private organizations to implement on Wilcove and Chen 1998—page 1,407). Federal actions that might be regulated their lands voluntary conservation As resources and nondiscretionary under section 7 of the Act. Further, this

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47014 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

area is already occupied by D. differens conservation efforts on this privately low number of future Federal activities and thereby receives benefits from the owned land as well as other non-Federal that would negatively affect D. section 7 protections of the Act, should lands on the island of Hawaii that could heteroneura habitat on Kamehameha such an unlikely Federal threat actually contribute to recovery. If a critical Schools lands. Therefore, we anticipate materialize. The exclusion of this habitat designation reduces the little additional regulatory benefit from preserve from the final designation of likelihood that voluntary conservation including the Kamehameha Schools critical habitat will not increase the risk activities will be carried out on the lands in critical habitat beyond what is of extinction to this species, and it may island of Hawaii, and at the same time, already provided for by the existing increase the likelihood this species will fails to confer a counterbalancing section 7 nexus for habitat areas recover by encouraging other positive regulatory or educational occupied by the listed species. landowners to implement voluntary benefit to the species, then the benefits Another possible benefit is that the conservation activities as TNCH has of excluding such areas from critical designation of critical habitat can serve done. habitat outweigh the benefits of to educate the public regarding the In sum, the Service finds that the including them. Although the results of potential conservation value of an area, benefits of excluding TNCH’s Kamakou this type of evaluation will vary and this may focus and contribute to Preserve from critical habitat outweighs significantly depending on the conservation efforts by other parties by the benefits of including the area, and landowners, geographic areas, and the clearly delineating areas that are the proposed exclusion will not result species involved, we believe the occupied by the species and contain the in the extinction of the species because Kamehameha Schools lands on the necessary features essential to the there are no known threats in these island of Hawaii merit this evaluation. conservation of the species. Information preserves due to any current or provided to a wide audience of the anticipated Federal actions. (1) Benefits of Inclusion public, including other parties engaged Critical habitat is proposed for in conservation activities, about Kamehameha Schools Drosophila heteroneura in three units Drosophila heteroneura and the features Lands owned by Kamehameha (see above) on lands owned by that are essential to its conservation and Schools are within three proposed units Kamehameha Schools. The primary identified on Kamehameha Schools (Drosophila heteroneura—Unit 5— direct benefit of inclusion of lands on the island of Hawaii could Gaspar’s Dairy, D. heteroneura—Unit Kamehameha Schools’ lands as critical have a positive conservation benefit. 6—Kipuka at 4,900′, and D. habitat would result from the While we believe this educational heteroneura—Unit 7—Pit Crater) and requirement under section 7 of the Act outcome is important for the are occupied habitat with the features that Federal agencies consult with us to conservation of this species, we believe essential to the conservation of ensure that any proposed Federal it has already been achieved through Drosophila heteroneura. Active actions do not destroy or adversely existing management, education, and management such as fire control, modify critical habitat. The benefit of a public outreach efforts carried out by nonnative species removal, and critical habitat designation would Kamehameha Schools. ungulate fencing within these three ensure that any actions funded by or units will benefit D. heteroneura. permits issued by a Federal agency (2) Benefits of Exclusion Failure to implement these active would not likely destroy or adversely Proactive voluntary conservation management measures, all of which modify any critical habitat. Without efforts are necessary to prevent the require voluntary landowner support critical habitat, some site-specific extinction and promote the recovery of and participation, virtually assures the projects might not trigger consultation Drosophila heteroneura on the island of extirpation of D. heteroneura from these requirements under the Act in areas Hawaii (Shogren et al. 1991—page areas. Many of these types of where the species is not currently 1,260; Wilcove and Chen 1998—page conservation actions on the island of present; in contrast, Federal actions in 1,407; Wilcove et al. 1998—page 614). Hawaii are carried out as part of areas occupied by listed species would Consideration of this concern is Kamehameha School’s participation still require consultation under section especially important in areas where the with landowner incentive based 7 of the Act. However, these lands are species has been extirpated and its programs and by actions taken on the already occupied habitat for D. recovery may require access and landowner’s initiative. These activities, heteroneura. Therefore, any Federal permission for reintroduction efforts which are described in more detail activities that may affect these areas will (Bean 2002—page 414; Wilcove et al. below, require substantial voluntary in all likelihood require section 7 1998—page 614). For example, D. cooperation by Kamehameha Schools consultation. heteroneura has been extirpated from and other cooperating landowners and Historically, we have conducted no many of its historical locations, local residents. formal or informal consultations under including on other Kamehameha The following analysis describes the section 7 on the island of Hawaii on Schools lands, and reestablishment is likely conservation benefits of a critical these three areas owned by likely not possible without human habitat designation compared to the Kamehameha Schools. Each of these assistance and landowner cooperation. conservation benefits without critical three areas are part of a larger parcel Kamehameha Schools are involved in habitat designation. We paid particular owned by Kamehameha Schools and on several important voluntary attention to the following issues: To which are reported other listed species conservation agreements and are what extent a critical habitat (both plants and animals). As a result of currently carrying out some designation would confer regulatory the low level of previous Federal management activities which contribute conservation benefits on this species; to activity on these Kamehameha Schools to the conservation of this species. They what extent the designation would lands, and after considering that the have developed two programs that educate members of the public such that likely future Federal activities that demonstrate their conservation conservation efforts would be enhanced; might occur on these lands would be commitments, Aina Ulu and Malama and whether a critical habitat minimal and associated with Federal Aina. The Aina Ulu program designation would have a positive, funding for conservation activities, it is implements land-based education neutral, or negative impact on voluntary our opinion that there is likely to be a programs, whereas Malama Aina

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47015

delivers focused stewardship of natural (Hawaiian Silversword Foundation Because large tracts of land suitable resources. Malama Aina has been 2006—page 1). for conservation of threatened and focused in two distinct areas, Keauhou As described earlier, Kamehameha endangered species are mostly owned in Kau District and North-South Kona, Schools has a history of entering into by private landowners, successful with a budget commitment in 2002 of conservation agreements with various recovery of listed species on the island $1,000,000, not including staff Federal and State agencies and private of Hawaii is especially dependent upon expenses. organizations on biologically important working partnerships and the voluntary Kamehameha Schools North-South portions of their lands. These cooperation of private landowners. Kona natural resource conservation arrangements have taken a variety of Another benefit of excluding these efforts focus on three distinct areas: forms. They include partnership areas from the critical habitat Honaunau Forest and Honaunau Uka, commitments such as the Dryland designation includes relieving Kaupulehu Kauila Lama Forest and Forest Working Group which provides additional regulatory burden and costs Kaupulehu Uka, and Pulehua. One assistance in managing the Kaupulehu associated with the preparation of proposed unit (Drosophila Kauila Lama Forest and Kaupulehu Uka portions of section 7 consultation heteroneura—Unit 5—Gaspar’s Dairy) is area. Drosophila heteroneura will documents related to critical habitat. located in the Honaunau Forest and benefit substantially from their While the cost of adding these Honaunau Uka area while a second voluntary management actions because additional sections to assessments and proposed unit (D. heteroneura—Unit of a reduction in ungulate browsing and consultations is relatively minor, there 7—Pit Crater) is located in the habitat conversion, a reduction in could be delays which can generate real Kaupulehu Kauila Lama Forest and competition with nonnative weeds, and costs to some project proponents. Kaupulehu Uka area. Kamehameha a reduction in risk of fire. However, because critical habitat in this Schools started a weed control program The conservation benefits of critical case is only proposed for occupied areas in 2002 in Honaunau Forest and habitat are primarily regulatory or already subject to section 7 consultation Honaunau Uka. In both the Forest and prohibitive in nature. But on the island and jeopardy analysis, we anticipate Uka areas, they will continue the weed of Hawaii, simply preventing ‘‘harmful that this reduction would be minimal. control program, along with a timber activities’’ will not slow the extinction (3) The Benefits of Exclusion Outweigh certification program to write certifiable of listed species including Drosophila the Benefits of Inclusion plans and complete inventories. In the heteroneura. Where consistent with the Honaunau Uka area, they will construct discretion provided by the Act, we Based on the above considerations, an ungulate exclosure fence and issue a believe it is necessary to implement we have determined that the benefits of contract for a botanical survey. Funds policies that provide positive incentives excluding lands owned by Kamehameha allocated for the implementation of to private landowners to voluntarily Schools from the final designation of these projects total $52,500 to conserve natural resources, and that critical habitat for Drosophila Honaunau Forest and $29,500 to remove or reduce disincentives to heteroneura outweigh the benefits of Honaunau Uka. conservation (Michael 2001—pages 34 including them as critical habitat. This Conservation activities in the Aina and 36–37). Thus, we believe it is conclusion is based on the following Ulu program at Kaupulehu Kauila Lama essential for the recovery of D. factors: Forest include an intern program, an heteroneura to build on continued (a) In the past, Kamehameha Schools outreach coordinator, multimedia conservation activities, such as these has cooperated with Federal and State curriculum development, small with a proven partner, and to provide agencies, and private organizations to mammal and weed control. Funds incentives for other private landowners implement on their lands voluntary allocated for these projects total on the island of Hawaii who might be conservation activities that have $70,700. considering implementing voluntary resulted in tangible conservation Malama Aina projects at Kaupulehu conservation activities but have benefits. Uka include timber certification, large concerns about incurring incidental (b) Simple regulation of ‘‘harmful mammal and weed control, ungulate regulatory or economic impacts. activities’’ is not sufficient to conserve exclosure fencing, inventory, Approximately 80 percent of these species. Landowner cooperation monitoring and data analysis of imperiled species in the United States and support is required to prevent the conservation actions and road occur partly or solely on private lands extinction and promote the recovery of maintenance. Funds allocated for those where the Service has little management all of the listed species on this island, projects total $101,000. Partners include authority (Wilcove et al. 1996 page 2). because of the need to implement Hawaii Forest Industry Association, the In addition, recovery actions involving proactive conservation actions such as Service, DOFAW, local residents, PIA the reintroduction of listed species onto ungulate management, weed control, Sports Properties (lessee), U.S. Forest private lands require the voluntary and fire suppression. This need for Service, National Tropical Botanical cooperation of the landowner (Bean landowner cooperation is especially Garden (lessee), and Honokaa High 2002—page 414; James 2002—page 270; acute because the three proposed units School. Knight 1999—page 224; Main et al. (Gaspar’s Dairy, Pit Crater, and Kipuka A third proposed unit (Drosophila 1999—page 1,263; Norton 2000—pages at 4,900 ft) are occupied by Drosophila heteroneura—Unit 6—Kipuka at 4,900 1,221–1,222; Shogren et al. 1999—page heteroneura. In addition, many ft) is located near Puu Lehua, an area 1,260; Wilcove et al. 1998—page 614). previously occupied D. heteroneura that is under development for protection Therefore, ‘‘a successful recovery habitat sites on other Kamehameha and restoration of 6,000 ac (2,428 ha) of program is highly dependent on Schools lands remain unoccupied by native forest habitat through fencing and developing working partnerships with a this species. Future conservation efforts, feral ungulate control. Future additional wide variety of entities, and the such as translocation of this species management actions that are planned in voluntary cooperation of thousands of back into unoccupied habitat on these this area include additional fencing, non-Federal landowners and others is lands, will require the cooperation of control and removal of nonnative essential to accomplishing recovery for Kamehameha Schools. Exclusion of species, fire prevention, and listed species’’ (Crouse et al. 2002—page Kamehameha Schools lands from the reintroduction of rare and listed species 720). final designation of critical habitat will

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47016 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

help the Service maintain and improve In conclusion, we find that the exclusion of Kamehameha Schools this partnership by formally recognizing exclusion of lands owned by lands from the final designation of the positive contributions of Kamehameha Schools from the final critical habitat on the island of Hawaii Kamehameha Schools to rare species designation of critical habitat would will have a net beneficial impact with recovery, and by streamlining or most likely have a net positive little risk of negative impacts. Therefore, reducing unnecessary oversight. conservation effect on the recovery and the exclusion of the Kamehameha (c) Given the current partnership conservation of Drosophila heteroneura Schools lands will not cause extinction agreements between Kamehameha when compared to the positive and should in fact improve the chances Schools and many other organizations, conservation effects of a critical habitat of recovery for Drosophila heteroneura. we believe the benefits of including designation. As described above, the Economic Analysis Kamehameha Schools lands as critical overall benefits to this species of a habitat are relatively small. The critical habitat designation on An analysis of the economic impacts designation of critical habitat can serve Kamehameha Schools lands are of proposing critical habitat for 11 to educate the general public as well as relatively small. In contrast, we believe species of Hawaiian picture-wing flies is conservation organizations regarding the this exclusion will enhance our existing being prepared. We will announce the potential conservation value of an area, partnership with Kamehameha Schools, availability of the draft economic but this goal is already being and it will set a positive example and analysis as soon as it is completed, at accomplished through the identification provide positive incentives to other which time we will seek public review of this area in the management non-Federal landowners who may be and comment. At that time, copies of agreements described above. Likewise, considering implementing voluntary the draft economic analysis will be there will be little Federal regulatory conservation activities on their lands. available for downloading from the benefit to the species because: (i) There We conclude there is a greater Internet at http://www.fws.gov/ is a low likelihood that these three likelihood of beneficial conservation pacificislands, or by contacting the proposed critical habitat units will be activities occurring in these and other Pacific Islands Fish and Wildlife Office negatively affected to any significant areas of the island of Hawaii without directly (see ADDRESSES section). degree by Federal activities requiring designated critical habitat than there Peer Review section 7 consultation, and (ii) these would be with designated critical areas are already occupied by the habitat on these Kamehameha Schools In accordance with the December 16, species and a section 7 nexus already lands. 2004, Office of Management and exists. We are unable to identify any Budget’s ‘‘Final Information Quality other potential benefits associated with (4) Exclusion of This Unit Will Not Bulletin for Peer Review,’’ we will critical habitat for these proposed units. Cause Extinction of the Species obtain comments from at least three (d) We believe it is necessary to In considering whether or not independent scientific reviewers establish positive working relationships exclusion of Kamehameha Schools regarding the scientific data and with representatives of the Native lands from the final designation of interpretations contained in this Hawaiian community. This approach of critical habitat for Drosophila proposed rule. The purpose of such excluding critical habitat and entering heteroneura, we first considered the review is to ensure that our critical into a mutually agreeable conservation impacts to the species. The agreements habitat decision is based on partnership strengthens this described above will provide tangible scientifically sound data, assumptions, relationship and should lead to proactive conservation benefits that will and analyses. We have posted our conservation benefits beyond the reduce the likelihood of extinction for proposed peer review plan on our Web boundaries of Kamehameha Schools the species in these areas of the island site at http://www.fws.gov/midwest/ land. It is an important long-term of Hawaii and increase the likelihood of Science/. Public comments on our peer conservation goal of the Service to work its recovery. Extinction of this species as review were obtained through May 26, cooperatively with the Native Hawaiian a consequence of this proposed 2006, after which we finalized our peer community to help recover Hawaii’s exclusion is unlikely because there are review plan and selected peer endangered species. This partnership no known threats in the proposed units reviewers. We will provide those with Kamehameha Schools is an due to any current or reasonably reviewers with copies of this proposal important step toward this goal. anticipated Federal actions that might as well as the data used in the proposal. (e) It is well documented that publicly be regulated under section 7 of the Act. Peer reviewer comments that are owned lands and lands owned by Further, these areas are already received during the public comment private organizations alone are too small occupied by the species and thereby period will be considered as we make and poorly distributed to provide for the benefit from the section 7 protections of our final decision on this proposal, and conservation of most listed species the Act, should such an unlikely substantive peer reviewer comments (Bean 2002—pages 409, 412, 414–415, Federal threat actually materialize. will be specifically discussed in the and 419–420; Crouse et al. 2002—page The exclusion of these Kamehameha final rule. 720). Excluding these Kamehameha Schools lands will not increase the risk We will consider all comments and Schools lands from critical habitat may, of extinction to the species, and it may information received during the by way of example, provide positive increase the likelihood the species will comment period on this proposed rule social, legal, and economic incentives to recover by encouraging other during preparation of a final other non-Federal landowners on the landowners to implement voluntary rulemaking. Accordingly, the final island of Hawaii who own lands that conservation activities as Kamehameha decision may differ from this proposal. could contribute to listed species Schools has done. In addition, critical recovery if voluntary conservation habitat is being proposed on other areas Public Hearings measures on these lands are of the island of Hawaii for this species The Act provides for one or more implemented (Norton 2000—pages (Kau Forest, Pauahi, Waiea, and public hearings on this proposal, if 1,221–1,222; Main et al. 1999—page Waihaka Gulch units) within its requested. Requests must be received 1,263; Shogren et al. 1999—page 1,260; historical range. In sum, the above within 45 days of the date of publication Wilcove and Chen 1998—page 1,407). analysis concludes that the proposed of the proposal in the Federal Register.

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47017

Such requests must be made in writing 2003). Pursuant to Circular A–4, once it certifying that the rule will not have a and be addressed to the Field has been determined that the Federal significant economic impact on a Supervisor at the address in the regulatory action is appropriate, the substantial number of small entities. ADDRESSES section above. agency will need to consider alternative At this time, the Service lacks the regulatory approaches. Since the available economic information Clarity of the Rule determination of critical habitat is a necessary to provide an adequate factual Executive Order 12866 requires each statutory requirement pursuant to the basis for the required RFA finding. agency to write regulations and notices Act, we must then evaluate alternative Therefore, the RFA finding is deferred that are easy to understand. We invite regulatory approaches, where feasible, until completion of the draft economic your comments on how to make this when promulgating a designation of analysis prepared pursuant to section proposed rule easier to understand, critical habitat. 4(b)(2) of the ESA and Executive Order including answers to questions such as In developing our designations of 12866. This draft economic analysis will the following: (1) Are the requirements critical habitat, we consider economic provide the required factual basis for the in the proposed rule clearly stated? (2) impacts, impacts to national security, RFA finding. Upon completion of the Does the proposed rule contain and other relevant impacts pursuant to draft economic analysis, the Service will technical language or jargon that section 4(b)(2) of the Act. Based on the publish a notice of availability of the interferes with its clarity? (3) Does the discretion allowable under this draft economic analysis of the proposed format of the proposed rule (grouping provision, we may exclude any designation and reopen the public and order of the sections, use of particular area from the designation of comment period for the proposed headings, paragraphing, and so forth) critical habitat providing that the designation. The Service will include aid or reduce its clarity? (4) Would the benefits of such exclusion outweigh the with the notice of availability, as rule be easier to understand if it were benefits of specifying the area as critical appropriate, an initial regulatory divided into more (but shorter) sections? habitat and that such exclusion would flexibility analysis or a certification that (5) Is the description of the rule in the not result in the extinction of the the rule will not have a significant SUPPLEMENTARY INFORMATION section of species. As such, we believe that the economic impact on a substantial the preamble helpful in understanding evaluation of the inclusion or exclusion number of small entities accompanied the proposed rule? What else could we of particular areas, or combination by the factual basis for that do to make this proposed rule easier to thereof, in a designation constitutes our determination. The Service has understand? regulatory alternative analysis. concluded that deferring the RFA Send a copy of any comments that Within these areas, the types of finding until completion of the draft concern how we could make this Federal actions or authorized activities economic analysis is necessary to meet proposed rule easier to understand to: that we have identified as potential the purposes and requirements of the Office of Regulatory Affairs, Department concerns are listed above in the section RFA. Deferring the RFA finding in this of the Interior, Room 7229, 1849 C on Section 7 Consultation. The manner will ensure that the Service Street, NW., Washington, DC 20240. availability of the draft economic makes a sufficiently informed You also may e-mail your comments to analysis will be announced in the determination based on adequate this address: [email protected]. Federal Register and in local economic information and provides the newspapers so that it is available for necessary opportunity for public Required Determinations public review and comments. The draft comment. Regulatory Planning and Review economic analysis can be obtained from the Internet Web site at http:// Executive Order 13211 In accordance with Executive Order www.fws.gov/pacificislands or by On May 18, 2001, the President issued 12866, this document is a significant contacting the Pacific Islands Fish and an Executive Order (E.O. 13211) on rule in that it may raise novel legal and Wildlife Office directly (see ADDRESSES regulations that significantly affect policy issues, but it is not anticipated to section). energy supply, distribution, and use. have an annual effect on the economy Executive Order 13211 requires agencies of $100 million or more or affect the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to prepare Statements of Energy Effects economy in a material way. Due to the when undertaking certain actions. This tight timeline for publication in the Under the Regulatory Flexibility Act proposed rule to designate critical Federal Register, the Office of (5 U.S.C. 601 et seq., as amended by the habitat for 11 species of Hawaiian Management and Budget (OMB) has not Small Business Regulatory Enforcement picture-wing flies is a significant formally reviewed this rule. We are Fairness Act (SBREFA) of 1996), regulatory action under Executive Order preparing a draft economic analysis of whenever an agency is required to 12866 in that it may raise novel legal this proposed action, which will be publish a notice of rulemaking for any and policy issues, however, and it is not available for public comment, to proposed or final rule, it must prepare expected to significantly affect energy determine the economic consequences and make available for public comment supplies, distribution, or use. Therefore, of designating the specific area as a regulatory flexibility analysis that this action is not a significant energy critical habitat. This economic analysis describes the effects of the rule on small action and no Statement of Energy also will be used to determine entities (i.e., small businesses, small Effects is required. compliance with Executive Order organizations, and small government 12866, Regulatory Flexibility Act, Small jurisdictions). However, no regulatory Unfunded Mandates Reform Act (2 Business Regulatory Enforcement flexibility analysis is required if the U.S.C. 1501 et seq.) Fairness Act, and Executive Order head of the agency certifies the rule will In accordance with the Unfunded 12630. not have a significant economic impact Mandates Reform Act (2 U.S.C. 1501), Further, Executive Order 12866 on a substantial number of small the Service makes the following directs Federal Agencies promulgating entities. The SBREFA amended the findings: regulations to evaluate regulatory Regulatory Flexibility Act (RFA) to (a) This rule will not produce a alternatives (Office of Management and require Federal agencies to provide a Federal mandate. In general, a Federal Budget, Circular A–4, September 17, statement of the factual basis for mandate is a provision in legislation,

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47018 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

statute or regulation that would impose programs listed above on to State impose recordkeeping or reporting an enforceable duty upon State, local, governments. requirements on State or local tribal governments, or the private sector (b) We do not believe that this rule governments, individuals, businesses, or and includes both ‘‘Federal will significantly or uniquely affect organizations. An agency may not intergovernmental mandates’’ and small governments. The lands being conduct or sponsor, and a person is not ‘‘Federal private sector mandates.’’ proposed for critical habitat designation required to respond to, a collection of These terms are defined in 2 U.S.C. are owned by the State of Hawaii or information unless it displays a 658(5)–(7). ‘‘Federal intergovernmental private citizens. None of these entities currently valid OMB control number. mandate’’ includes a regulation that fit the definition of ‘‘small governmental National Environmental Policy Act ‘‘would impose an enforceable duty jurisdiction.’’ As such, a Small upon State, local, or tribal governments’’ Government Agency Plan is not It is our position that, outside the with two exceptions. It excludes ‘‘a required. We will, however, further Tenth Circuit, we do not need to condition of Federal assistance.’’ It also evaluate this issue as we conduct our prepare environmental analyses as excludes ‘‘a duty arising from economic analysis and as appropriate, defined by the NEPA in connection with participation in a voluntary Federal review and revise this assessment as designating critical habitat under the program,’’ unless the regulation ‘‘relates warranted. Endangered Species Act of 1973, as to a then-existing Federal program Federalism amended. We published a notice under which $500,000,000 or more is outlining our reasons for this provided annually to State, local, and In accordance with Executive Order determination in the Federal Register tribal governments under entitlement 13132, the rule does not have significant on October 25, 1983 (48 FR 49244). This authority,’’ if the provision would Federalism effects. A Federalism assertion was upheld in the courts of the ‘‘increase the stringency of conditions of assessment is not required. In keeping Ninth Circuit (Douglas County v. assistance’’ or ‘‘place caps upon, or with DOI and Department of Commerce Babbitt, 48 F.3d 1495 (9th Cir. Ore. otherwise decrease, the Federal policy, we requested information from, 1995), cert. denied 116 S. Ct. 698 (1996). Government’s responsibility to provide and coordinated development of, this Government-to-Government funding,’’ and the State, local, or tribal proposed critical habitat designation Relationship With Tribes governments ‘‘lack authority’’ to adjust with appropriate State resource agencies in Hawaii. The designation of critical accordingly. At the time of enactment, In accordance with the President’s habitat in areas currently occupied by these entitlement programs were: memorandum of April 29, 1994, the 11 species of picture-wing flies may Medicaid; AFDC work programs; Child ‘‘Government-to-Government Relations affect Federal actions and would have Nutrition; Food Stamps; Social Services with Native American Tribal little incremental impact on State and Block Grants; Vocational Rehabilitation Governments’’ (59 FR 22951), Executive local governments and their activities. State Grants; Foster Care, Adoption Order 13175, and the Department of The designation may have some benefit Assistance, and Independent Living; Interior’s requirement at 512 DM 2, we to these governments in that the areas Family Support Welfare Services; and readily acknowledge our responsibility that contain the features essential to the Child Support Enforcement. ‘‘Federal to communicate meaningfully with conservation of the species are more private sector mandate’’ includes a recognized Federal Tribes on a clearly defined, and the primary regulation that ‘‘would impose an Government-to-Government basis. We constituent elements of the habitat enforceable duty upon the private are not proposing to designate critical necessary to the conservation of the sector, except (i) a condition of Federal habitat for these species on Tribal lands species are specifically identified. Thus assistance or (ii) a duty arising from as defined in the above documents. it may assist these local governments in participation in a voluntary Federal Additionally, the proposed designation long-range planning (rather than waiting program.’’ does not contain any lands that we have for case-by-case section 7 consultations identified as impacting Tribal trust The designation of critical habitat to occur). does not impose a legally binding duty resources. Civil Justice Reform on non-Federal government entities or References Cited private parties. Under the Act, the only In accordance with Executive Order regulatory effect is that Federal agencies 12988, the Office of the Solicitor has A complete list of all references cited must ensure that their actions do not determined that the rule does not in this rule is available upon request destroy or adversely modify critical unduly burden the judicial system and from the Field Supervisor, Pacific habitat under section 7. While non- meets the requirements of sections 3(a) Islands Fish and Wildlife Office (see Federal entities that receive Federal and 3(b)(2) of the Order. We have ADDRESSES section). funding, assistance, or permits, or that proposed designating critical habitat in Author(s) otherwise require approval or accordance with the provisions of the authorization from a Federal agency for Endangered Species Act. This proposed The author of this document is the an action, may be indirectly impacted rule uses standard property descriptions staff of the Fish and Wildlife Service. by the designation of critical habitat, the and identifies the primary constituent List of Subjects in 50 CFR Part 17 legally binding duty to avoid elements within the proposed areas to destruction or adverse modification of assist the public in understanding the Endangered and threatened species, critical habitat rests squarely on the habitat needs of the 11 species of Exports, Imports, Reporting and Federal agency. Furthermore, to the Hawaiian picture-wing flies. recordkeeping requirements, and extent that non-Federal entities are Transportation. indirectly impacted because they Paperwork Reduction Act of 1995 (44 Proposed Regulation Promulgation receive Federal assistance or participate U.S.C. 3501 et seq.) in a voluntary Federal aid program, the This rule does not contain any new Accordingly, we propose to amend Unfunded Mandates Reform Act would collections of information that require part 17, subchapter B of chapter I, title not apply; nor would critical habitat approval by OMB under the Paperwork 50 of the Code of Federal Regulations, shift the costs of the large entitlement Reduction Act. This rule will not as set forth below:

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47019

PART 17—[AMENDED] 2. In § 17.11(h), revise the entry for Endangered and Threatened Wildlife to ‘‘Drosophila aglaia, D. differens, D. read as follows: 1. The authority citation for part 17 hemipeza, D. heteroneura, D. continues to read as follows: montgomeryi, D. mulli, D. musaphilia, § 17.11 Endangered and threatened wildlife. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. D. obatai, D. ochrobasis, D. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– substenoptera, and D. tarphytrichia’’ * * * * * 625, 100 Stat. 3500; unless otherwise noted. under ‘‘INSECTS’’ in the List of (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* INSECTS

******* Fly, Hawaiian pic- Drosophila aglaia .... U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. Fly, Hawaiian pic- Drosophila differens U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. hemipeza. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. heteroneura. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. montgomeryi. Fly, Hawaiian pic- Drosophila mulli ...... U.S.A. (HI) ...... NA ...... T 756 17.95(h) NA ture-wing. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. musaphilia.

******* Fly, Hawaiian pic- Drosophila obatai ... U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. ochrobasis. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. substenoptera. Fly, Hawaiian pic- Drosophila U.S.A. (HI) ...... NA ...... E 756 17.95(h) NA ture-wing. tarphytrichia.

*******

3. Amend § 17.95(i), by adding critical Drosophila aglaia this rule and not containing one or more habitat for ‘‘Drosophila aglaia, D. (1) Critical habitat units are depicted of the primary constituent elements. differens, D. hemipeza, D. heteroneura, for County of Honolulu, Oahu, Hawaii, (4) Critical habitat units are described D. montgomeryi, D. mulli, D. on the maps below. below. Coordinates are in Universal musaphilia, D. obatai, D. ochrobasis, D. (2) The primary constituent elements Transverse Mercator (UTM) Zone 4 with substenoptera, and D. tarphytrichia’’ in of critical habitat are the habitat units in meters using North American the same alphabetical order in which components that provide: Datum of 1983 (NAD83). these species appear in the table in (i) Dry to mesic, lowland, Diospyros (5) Note: Map 1 (index map of critical § 17.11(h) under ‘‘INSECTS’’ to read as sp., ohia and koa forest; and habitat units for Drosophila aglaia, D. follows: (ii) The larval host plant Urera glabra. differens, D. hemipeza, D. heteroneura, § 17.95 Critical habitat—fish and wildlife. (3) Critical habitat does not include D. montgomeryi, D. mulli, D. man-made structures, such as buildings, musaphilia, D. obatai, D. ochrobasis, D. * * * * * aqueducts, airports, and roads, and the substenoptera, and D. tarphytrichia) (i) Insects. land on which such structures are follows: * * * * * located, existing on the effective date of BILLING CODE 4310–55–P

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47020 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.000 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47021

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.001 47022 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47023

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.002 47024 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47025

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.003 47026 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.004 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47027

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47028 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.005 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47029

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.006 47030 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.007 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47031

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.008 47032 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.009 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47033

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.010 47034 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.011 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47035

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.012 47036 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.013 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47037

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47038 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.014 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47039

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.015 47040 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47041

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.016 47042 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.017 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47043

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47044 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.018 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47045

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47046 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.019 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47047

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 47048 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.020 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47049

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.021 47050 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47051

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4725 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.022 47052 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47053

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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.023 47054 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules

* * * * * 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

VerDate Aug<31>2005 15:58 Aug 14, 2006 Jkt 208001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 E:\FR\FM\15AUP3.SGM 15AUP3 jlentini on PROD1PC65 with PROPOSAL3 EP15AU06.024