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).