[Federal Register Volume 71, Number 89 (Tuesday, May 9, 2006)]
[Rules and Regulations]
[Pages 26835-26852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4299]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018 AG23


Endangered and Threatened Wildlife and Plants; Determination of 
Status for 12 Species of Picture-Wing Flies From the Hawaiian Islands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for 11 species of Hawaiian picture-wing flies--
Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, 
D. substenoptera, and D. tarphytrichia. We determine threatened status 
pursuant to the Act for one species of Hawaiian picture-wing fly--D. 
mulli. This final rule implements the Federal protections provided by 
the Act for these 12 species of Hawaiian picture-wing flies.

DATES: This final rule is effective June 8, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Pacific Islands Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Box 50088, 
Honolulu, HI 96850.

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

SUPPLEMENTARY INFORMATION:

Background

    Many of the major ecological zones of the earth are represented in 
Hawaii, from coral reef systems through rain forests to high alpine 
deserts, in less than 10,800 square kilometers (6,500 square miles) of 
land. The range of topographies creates a great diversity of climates. 
Windward (northeastern) slopes can receive up to 1,000 cm (400 in) of 
rain per year, while some leeward coasts that lie in the rain shadow of 
the high volcanoes are classified as deserts, receiving as little as 25 
cm (10 in) of rain annually. This topographic and climatic regime has 
given rise to a rich diversity of plant communities, including coastal, 
lowland, montane, subalpine, and alpine; dry, mesic, and wet; and 
herblands, grasslands, shrublands, forests, and mixed communities 
(Gagne and Cuddihy 1990). These habitats and plant communities in turn 
support one of the most unique arthropod faunas in the world, with an 
estimated 10,000 endemic species (Howarth 1990). Unusual 
characteristics of Hawaii's native arthropod fauna include the presence 
of relict species; the absence of social insects, such as ants and 
termites; endemic genera; extremely small geographic ranges; adaptation 
of species to very specific conditions or environments; novel 
ecological shifts; flightlessness; and loss of certain antipredator 
behaviors (Zimmerman 1948, 1970; Simon et al. 1984; Howarth 1990). 
Native vegetation on all the main Hawaiian Islands has undergone 
extreme alteration because of past and present land management 
practices, including ranching, introduction of nonnative plants and 
animals, and agricultural development (Cuddihy and Stone 1990).
    Each species of Hawaiian picture-wing fly described in this 
document is

[[Page 26836]]

found only on a single island, and the larvae of each are dependant 
upon only a single or a few related species of plants (see Table 1). 
These host plant species are threatened by a variety of factors, 
including their direct destruction by pigs, goats, cattle, rats, and 
competition with nonnative plants, and the indirect effects of soil 
disturbance which further promotes the spread of nonnative species (see 
Factors A and C below). In addition to the habitat alteration, the 
picture-wing flies included in this rule are threatened by a variety of 
introduced predatory species including yellow jackets and several ant 
species. This suite of threats to the picture-wing flies and its 
habitat are discussed in more detail in the Summary of Factors 
Affecting the Species section.
    Flies in the Drosophilidae family in Hawaii represent one of the 
most remarkable cases of specific adaptation to local conditions that 
has been found in any group of animals (Hardy and Kaneshiro 1981). 
These insects are distributed throughout the eight main Hawaiian 
Islands (i.e., Hawaii, Maui, Oahu, Kauai, Molokai, Lanai, Niihau, and 
Kahoolawe), and each species is typically found on a single island 
(Carson and Yoon 1982).
    The general life cycle of Hawaiian Drosophilidae is typical of that 
of most flies: After mating, females lay eggs from which larvae 
(immature stage) hatch; as larvae grow they molt (shed their skin) 
through three successive stages (instars); when fully grown, the larvae 
change into pupae (a transitional form) in which they metamorphose and 
emerge as adults.
    Breeding generally occurs year-round, but egg laying and larval 
development increase following the rainy season as the availability of 
decaying matter, which the flies feed on, increases in response to the 
heavy rains (K. Kaneshiro, in litt., 2005b). In general, Drosophila lay 
between 50 and 200 eggs in a single clutch. Eggs develop into adults in 
about a month, and adults generally become sexually mature one month 
later. Adults generally live for one to two months.
    As a group, Hawaiian Drosophilidae can be found in most of the 
natural communities in Hawaii. They have developed and adapted 
ecologically to a tremendous diversity of ecosystems ranging from 
desert-like habitats, to rain forests, to swampland (Kaneshiro and 
Kaneshiro 1995). While the larval stages of most species are 
saprophytic (feeding on decaying vegetation, such as rotting leaves, 
bark, flowers, and fruits), some have become highly specialized, being 
carnivorous on egg masses of spiders, or feeding on green algae growing 
underwater on boulders in streams (Kaneshiro and Kaneshiro 1995).
    Hawaiian Drosophila, and in particular picture-wing Drosophila, are 
unique among living organisms because adaptive radiation (the evolution 
of an ancestral species, which was adapted to a particular way of life, 
into many diverse species, each adapted to a different habitat) has 
resulted in unparalleled biological diversity within a single large, 
closely related group of species (Foote and Carson 1995). The banding 
patterns of all five major chromosome arms among 106 species of 
Hawaiian picture-winged Drosophila revealed a 5 million-year-old 
evolutionary history rooted to species on the island of Kauai (Carson 
1992). This work on the evolutionary history of Hawaiian Drosophila 
augments an extensive systematic treatment of the genus (Hardy 1965; 
Kaneshiro 1976).
    Unlike numerous Hawaiian insects known only from their original 
taxonomic descriptions, many aspects of Hawaiian Drosophilidae biology 
have been researched, including their internal and external morphology, 
behavior, ecology, physiology, biochemistry, the banding sequence of 
giant chromosomes, and the structure of their DNA (Kaneshiro and 
Kaneshiro 1995). More than 80 research scientists and over 350 
undergraduates, graduate students, and postdoctoral fellows have 
participated in research on many species of the Hawaiian Drosophilidae, 
resulting in over 600 scientific publications.
    Because a large number of sites across the Hawaiian Islands have 
been surveyed since the 1960s using bait stations that are not species-
specific, researchers have a relatively good understanding of the 
distribution of Drosophila species and how that distribution has 
changed over time. Biologists have observed a general decline of the 
Hawaiian Drosophilidae along with other components of the native 
ecosystem. As noted by Spieth (1980), during the early part of the 
century, the Tantalus area (northeast of Honolulu) was a major spot for 
collecting Drosophila species. Since 1971, routine sampling in the 
Tantalus area has documented dramatic declines in the abundance of some 
Drosophila species and in other cases local extirpations (Foote and 
Carson 1995).
    All 12 species described below belong to the species group commonly 
known as the picture-wing Drosophila. This group consists of 106 known 
species, most of which are relatively large with elaborate markings on 
the otherwise clear wings of both sexes, the pattern of which varies 
among species (Hardy and Kaneshiro 1981; Carson 1992). The picture-wing 
Drosophila have been referred to as the ``birds of paradise'' of the 
insect world because of their relatively large size, colorful wing 
patterns, and the males' elaborate courtship displays and territorial 
defense behaviors.
    Males occupy territories that serve as mating arenas, or leks, to 
which receptive females are attracted. The male Drosophila use 
different techniques to ward off competing suitors. One species, 
Drosophila heteroneura, butts heads like bighorn sheep. Others grasp 
one another with legs and wings in a wrestling match. Yet another tries 
to intimidate with noise, creating a buzzing roar with muscles from its 
abdomen. When the male has secured his position in the lek, he performs 
a detailed choreography of behaviors for the females visiting that 
site. If he does not convey the right moves and messages, she leaves 
without mating. Each species has its own ritual; some include dancing 
around the female, buzzing of wings at a specific pitch, placing the 
male's head under the female's wing, tongue-tasting, or dousing the 
female with pheromone.
    The primary dataset we used to document observations of these 
picture-wing flies spans the years 1965 to 1999 (K. Kaneshiro, in 
litt., 2005a). Additional data were obtained from individuals familiar 
with particular species and locations. Many sites were surveyed 
infrequently or have not been surveyed in a long time while others have 
relatively complete records from 1966 to 1999. In this rule, when we 
state the date a species was last observed in a particular year, we do 
not intend to imply that comprehensive surveys have been conducted in 
subsequent years, only that the specified year was the last year that 
the species was located.

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   Table 1.--Distribution of 12 Hawaiian Picture-Wing Flies by Island, General Habitat Type, and Primary Host
                                                    Plant(s)
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              Species                        Island           General habitat type      Primary host plant(s)
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia..................  Oahu..................  Mesic forest..........  Urera glabra
D. differens.......................  Molokai...............  Wet forest............  Clermontia sp.
D. hemipeza........................  Oahu..................  Mesic forest..........  Cyanea sp., Lobelia sp.,
                                                                                      and Urera kaalae
D. heteroneura.....................  Hawaii................  Mesic to wet forest...  Cheirodendron sp.,
                                                                                      Clermontia sp., Delissea
                                                                                      sp.
D. montgomeryi.....................  Oahu..................  Mesic forest..........  Urera kaalae
D. mulli...........................  Hawaii................  Wet forest............  Pritchardia beccariana
D. musaphilia......................  Kauai.................  Mesic forest..........  Acacia koa
D. neoclavisetae...................  Maui..................  Wet forest............  Cyanea sp.
D. obatai..........................  Oahu..................  Dry to mesic forest...  Pleomele aurea and Pleomele
                                                                                      forbesii
D. ochrobasis......................  Hawaii................  Mesic to wet forest...  Clermontia sp., Marattia
                                                                                      sp., and Myrsine sp.
D. substenoptera...................  Oahu..................  Wet forest............  Cheirodendron sp. and
                                                                                      Tetraplasandra sp.
D. tarphytrichia...................  Oahu..................  Mesic forest..........  Charpentiera sp.
----------------------------------------------------------------------------------------------------------------

Discussion of the Species

Drosophila aglaia

    Drosophila aglaia was first recorded in 1946, on Mount Kaala on the 
island of Oahu, and described by Hardy (1965). D. aglaia is a small 
species, 0.15 inches (in) (4.0 millimeters (mm)) in length, with wings 
0.2 in (5.0 mm) long. It has a yellow head that is approximately one-
third wider than long. The eyes are brown, and the antennae are yellow, 
tinged with brown. The thorax is clear yellow with three broad brown 
stripes on the top, and the legs are yellow. The abdomen is brown with 
a large yellow spot on each of the hind corners. The wings are 
predominantly clear with irregular but characteristic brown markings, 
and are about two and three-quarter times longer than wide.
    Drosophila aglaia is historically known from five localities in the 
Waianae Mountains of Oahu between 1,400 and 2,800 feet (ft) (427 to 853 
meters (m)) above sea level. During 50 survey dates between 1966 and 
1990, 28 individuals were observed (Kaneshiro in litt., 2005a). The 5 
sites include: One lowland mesic Diospyros sp. and Metrosideros sp. 
(ohia) forest site in Makaleha Valley; two lowland mesic Acacia koa 
(koa) and ohia forest sites at Peacock Flats (Kapuahikahi Gulch) and 
Palikea; one site in diverse mesic forest at Puu Kaua; and a lowland, 
dry to mesic forest site at Puu Pane (K. Kaneshiro, in litt., 2005a).
    The last observation of this species occurred in 1997 during the 
last survey of the Palikea site. The species has not been observed at 
the other four historic sites since 1970 or 1971 despite subsequent 
surveys. However, two of the sites (Kapuahikahi Gulch and Makaleha 
Valley) have not been surveyed since the 1970s and one site, Puu Pane, 
was surveyed only once again in 1991 (K. Kaneshiro, in litt., 2005a).
    Drosophila aglaia is restricted to the natural distribution of its 
host plant, Urera glabra (family Urticaceae), which is a small shrub-
like endemic tree. The larvae of D. aglaia develop in the decomposing 
bark and stem of  U. glabra. This plant does not form large stands, but 
is infrequently scattered throughout slopes and valley bottoms in mesic 
and wet forest habitat on Oahu. In the Waianae Mountains on the west 
side of Oahu, this tree occurs infrequently in mesic forest.

Drosophila differens

    Drosophila differens was described by Hardy and Kaneshiro (1975) 
from specimens first recorded at South Hanalilolilo, Molokai, in 1972. 
This species is larger than most picture-wings, approximately 0.3 in 
(7.0 mm) in length, with wings 0.3 in (8.3 mm) long. D. differens has 
an entirely or predominantly yellow face and characteristic markings 
extending to the tip of the wings.
    Drosophila differens is historically known from three sites on 
private land between 3,800 and 4,500 ft (1,158 to 1,372 m) above sea 
level, within montane wet ohia forest (HBMP, in litt., 2005; K. 
Kaneshiro, in litt., 2005a). During 40 surveys between 1965 and 1999, 
63 individuals were recorded. At Hanalilolilo, the species was observed 
on eight survey dates between 1967 and 1983, but was not observed on 
three subsequent survey dates, the most recent being 1999. At a second 
site, Kaunuohua, which was only surveyed twice, individuals were 
observed in 1969 but not in 1999. At the third site, Puu Kolekole, 
individuals were documented in 1969 and again in 1999 (K. Kaneshiro, in 
litt., 2005a). An estimated 75 to 90 percent of D. differens' total 
potential habitat has been surveyed (K. Kaneshiro, pers. comm. 2006).
    Montgomery (1975) found that Drosophila differens larvae inhabit 
the bark and stems of Clermontia sp. (family Campanulaceae) in wet 
rainforest habitat (Kaneshiro and Kaneshiro 1995). Approximately 10 to 
25 percent of D. differens' potential habitat on steep, difficult to 
access areas and on State Natural Reserve lands surrounding its known 
range remains unsurveyed for the species (Science Panel 2005; K. 
Kaneshiro, pers. comm. 2006).

Drosophila hemipeza

    Hardy (1965) described Drosophila hemipeza from specimens recorded 
at Pupukea, Oahu, in 1952. The thorax of D. hemipeza is predominantly 
yellow with two brown stripes on the top, and the legs are entirely 
yellow. This species is 0.2 in (5.0 mm) long; the front legs are very 
slender with short straight bristles; and the wings are 0.2 in (6.0 mm) 
in length, slender, and somewhat pointed.
    Drosophila hemipeza is restricted to the island of Oahu where it is 
historically known from seven localities between 1,600 and 2,800 ft 
(488 to 853 m) above sea-level (not including the Pupakea site of 
discovery which is considered an extripated population). Since formal 
surveys began for the species, 49 individuals were recorded during a 
total of 56 different survey dates between 1965 and 1999 (K. Kaneshiro, 
in litt., 2005a). The species has been documented from seven sites, 
with survey history at these sites as follows: (1) The species was 
documented in 1969 but not in subsequent surveys spanning until 1972 in 
the Makaleha Valley; (2) individuals were detected at Puu Kaua in 1971 
but not in subsequent surveys as recently as 1999; (3) at Kaluaa Gulch, 
the species was observed in 1971 but not in 1972; (4) in Makaha Valley, 
the species was detected in 1971 and no surveys have been conducted 
since; (5) at Palikea the last observation occurred in 1997, also the 
date of the last survey; and (6) the species has not been detected at 
the Mauna Kapu site since 1975 despite

[[Page 26838]]

subsequent surveys spanning until 1983; (7) the species was detected at 
Pauoa Flats in the Koolau Range that was surveyed three times between 
1973 and 1974, with one observation of one individual during the last 
survey in 1974 (K. Kaneshiro, in litt., 2005a).
    Montgomery (1975) determined that Drosophila hemipeza larvae feed 
within decomposing portions of several different mesic forest plants. 
The larvae inhabit the decomposing bark of Urera kaalae (family 
Urticaceae), a federally-endangered plant (USFWS 1991, 1995) that grows 
on slopes and in gulches of diverse mesic forest. In 2004, only 41 
individuals of U. kaalae were known to remain in the wild (USFWS, in 
litt., 2004). The larvae also feed within the decomposing stems of 
Lobelia sp. (family Campanulaceae) and the decomposing bark and stems 
of Cyanea sp. (family Campanulaceae) in mesic forest habitat (Kaneshiro 
and Kaneshiro 1995; Science Panel 2005).

Drosophila heteroneura

    R.C.L. Perkins initially described this species as Idiomyia 
heteroneura, based on specimens from Olaa on the island of Hawaii 
(Perkins 1910). This taxon was later transferred to the genus 
Drosophila (Hardy 1969), forming its presently accepted name. 
Drosophila heteroneura has very large spots on the bases of the wings 
and the males have a broad head with the eyes situated laterally, 
giving them a hammerhead appearance. The hammer-shaped head and 
entirely yellow face differentiate it from D. silvestris, a closely 
related species. The thorax is predominantly yellow with several black 
streaks and markings on top. The legs are yellow except for slight 
tinges of brown on the ends of the middle and hind femora and tibiae. 
The wings are hyaline (transparent) and are very similar in markings 
and venation (vein markings) to those of D. silvestris, except that the 
marking in the front margin of the wing of D. heteroneura extends 
nearly to the marking at the end of the wing. The abdomen is shiny 
black with a large yellow spot on the top of each segment. This species 
is about 0.22 in (5.7 mm) in length with wings approximately 0.3 in 
(7.0 mm) long (Kaneshiro and Kaneshiro 1995).
    Drosophila heteroneura has been the most intensely studied of the 
12 species discussed in this rule (Kaneshiro and Kaneshiro 1995). This 
species is restricted to the island of Hawaii where, historically, it 
was known to be relatively widely distributed between 3,800 and 5,500 
ft (1,158 to 1,675 m) above sea level. D. heteroneura has been recorded 
from 24 localities on 4 of the island's 5 volcanoes (Hualalai, Mauna 
Kea, Mauna Loa, and Kilauea) in 5 different montane environments 
(Kaneshiro and Kaneshiro 1995; HBMP, in litt., 2005; K. Kaneshiro, in 
litt., 2005a).
    Based on the relatively extensive survey data, the population 
decline of Drosophila heteroneura has been demonstrated clearly. For 
example, D. heteroneura was recorded 760 times during surveys between 
1975 and 1979. In the early 1980s, the first disappearance of a D. 
heteroneura population was recorded from the Olaa Forest site in Hawaii 
Volcanoes National Park (Carson 1986; Foote and Carson 1995). 
Subsequently, the absence of the species was noted in several other 
locations in southern and western parts of the island where D. 
heteroneura had previously been relatively common. By the late 1980s, 
D. heteroneura was believed to be extinct until an extremely small 
population was discovered on private land at Hualalai Volcano in 1993 
(Kaneshiro and Kaneshiro 1995). The species was not observed again 
until 1998 when Foote (2000) recorded six specimens of D. heteroneura 
inhabiting a site at approximately 4,436 ft (1,352 m) above sea level 
near a host plant species, Clermontia clermontioides. D. heteroneura 
was last observed in 2001, at the refuge (D. Foote, pers. comm., 2005).
    Drosophila heteroneura larvae primarily inhabit the decomposing 
bark and stems of Clermontia sp. (family Campanulaceae), including C. 
clermontioides, and Delissea sp. (family Campanulaceae), but it is also 
known to feed within decomposing portions of Cheirodendron sp. (family 
Araliaceae) in open mesic and wet forest habitat (Kaneshiro and 
Kaneshiro 1995).

Drosophila montgomeryi

    Drosophila montgomeryi was described by Hardy and Kaneshiro (1971) 
from specimens collected in the Waianae Mountains of Oahu in 1970. 
Morphologically, this species appears to be most closely related to D. 
pisonia from the island of Hawaii. It can be distinguished by the 
narrow, pale brown stripe on each side of the top of the thorax, the 
long hairs on the front legs, and the second antennal segment, which is 
yellow, tinged with brown on the top.
    Drosophila montgomeryi is historically known from three localities 
in the Waianae Mountains on western Oahu between 2,000 and 2,800 ft 
(610 to 853 m) above sea level. The best available information 
concerning the status of the species at these sites is as follows: (1) 
One individual was recorded from Kaluaa Gulch during the last survey in 
1972; (2) at Palikea, one individual was observed on the last survey 
date in March 1997; and (3) at Puu Kaua, historically the site with the 
highest number of total individuals observed, the species was last 
detected in 1971 despite five subsequent surveys between 1997 and 1999 
(K. Kaneshiro, in litt., 2005a).
    Montgomery (1975) reported that the larvae of this species feed 
within the decaying bark of Urera kaalae, a federally-endangered plant 
(USFWS 1991, 1995) that grows on slopes and in gulches of diverse mesic 
forest (Kaneshiro and Kaneshiro 1995). In 2004, only 41 individuals of 
U. kaalae were known to remain in the wild (USFWS, in litt., 2004).

Drosophila mulli

    Drosophila mulli was described by Perreira and Kaneshiro (1990) and 
named for William P. Mull, the Hawaiian naturalist who first discovered 
this species. The head of D. mulli is yellow on the front and covered 
with light, silvery grey fuzz. The face of the male is 
characteristically white, while that of the female is brown. The top of 
the thorax is brownish yellow and lacks conspicuous markings or 
stripes. The legs are predominantly yellow, and the front legs of males 
bear three distinct rows of long, curled hairs. The wings are two and 
one-half times longer than wide, with distinct brown markings at the 
base and the tip. The length of the body is 0.17 to 0.2 in (4.3 to 5.0 
mm), and the wings are 0.17 to 0.19 in (4.3 to 4.8 mm) long (Kaneshiro 
and Kaneshiro 1995).
    Drosophila mulli is restricted to the island of Hawaii and is 
historically known from two locations between 3,200 and 4,000 ft (985 
to 1,220 m) above sea level. Adult flies are found only on the leaf 
undersides of the endemic fan palm, Pritchardia beccariana (family 
Arecaceae) which is the only known association of a Drosophila species 
with a native Hawaiian palm species. Individual P. beccariana are long-
lived (approximately 100 years). Current regeneration of the host plant 
has been compromised by feral ungulates, rats, and scolytid beetles 
(see Summary of Factors Affecting the Species section below). The 
larval feeding site on the plant remains unknown because attempts to 
rear this species from decaying parts of P. beccariana have thus far 
been unsuccessful (W. P. Mull, Volcano, Hawaii, pers. comm., 1994; 
Science Panel 2005).
    The site of the discovery for Drosophila mulli is located within a

[[Page 26839]]

State-owned montane wet ohia forest at Olaa Forest Reserve at 
approximately 3,200 ft (985 m) above sea level. This site was surveyed 
at least 62 times between 1965 and 2001, with fewer than 10 individuals 
observed on 4 different dates. The last recorded observation at this 
site occurred in 2001 (K. Kaneshiro, in litt., 2005a; D. Foote, in 
litt., 2006). A second locality was discovered in 1999, approximately 
9.3 mi (15 km) from the original site within a State-owned montane wet 
ohia forest site at Upper Waiakea Reserve at approximately 4,000 ft 
(1,219 m) above sea level (Science Panel 2005; S. Montgomery, pers. 
comm., 2005a).

Drosophila musaphilia

    Hardy (1965) formally described Drosophila musaphilia from 
specimens collected at Kokee, Kauai, in 1952. Although Hardy (1965) 
originally indicated that D. musaphilia is very similar to D. 
villosipedis, more recent work indicates D. musaphilia is most closely 
related to D. hawaiiensis (Kaneshiro et al. 1995).
    Drosophila musaphilia is characterized by a predominantly black 
thorax with gray fuzz and a very narrow gray stripe extending down the 
top. The legs are dark brown to yellow, with the front tibia devoid of 
ornamentation, and the tips of the legs have abundant long, black hairs 
on top. The wings are three times longer than wide with characteristic 
markings of the D. hawaiiensis group. The abdomen is dark brown to 
black and densely covered with brown fuzz. The body length is about 0.2 
in (5.0 mm) and the wings 0.207 in (5.25 mm) long (Kaneshiro and 
Kaneshiro 1995).
    Drosophila musaphilia is historically known from only four sites, 
one at 1,900 ft (579 m) above sea level, and three sites between 3,000 
and 3,500 ft (915 to 1,065 m) above sea level. The species has been 
observed a total of 11 times during 52 different survey dates since its 
discovery (Kaneshiro and Kaneshiro 1995; K. Kaneshiro, in litt., 
2005a). Researchers estimate that 75 percent of D. musaphilia's total 
potential habitat has been surveyed (K. Kaneshiro, pers. comm. 2006). 
The best available information concerning the status of the species at 
these sites is as follows: (1) A single observation of D. musaphilia 
was recorded from one lowland, wet ohia forest site at Wahiawa 
(Alexander Reservior) in 1968 (this population is believed to be 
extirpated); (2) at the Halemanu site, the species was observed in 1970 
and last observed in 1972 but not in subsequent surveys as recent as 
1996; (3) one individual was observed in 1968 at the Kokee (Nualolo 
Trail) site and not again during numerous surveys through 1999; and (4) 
individuals were last observed in 1988 at the Pihea Trail site located 
at 3,000 ft (915 m), but was not relocated in five subsequent surveys 
between 1989 and 1999 in that area (HBMP, in litt., 2005; Kaneshiro, in 
litt., 2005a).
    Montgomery (1975) determined that the host plant for Drosophila 
musaphilia is Acacia koa. The females lay their eggs upon, and the 
larvae develop in, the moldy slime flux (seep) that occasionally 
appears on certain trees with injured plant tissue and seeping sap. 
Understanding the full range of D. musaphilia is difficult because its 
host plant, Acacia koa, is fairly common and stable within, and 
surrounding, its known range on Kauai; however, the frequency of 
suitable slime fluxes occurring on the host plant appears to be much 
more restricted and unpredictable (Science Panel 2005).

Drosophila neoclavisetae

    Drosophila neoclavisetae was described by William Perreira and 
Kenneth Kaneshiro (1990) from specimens collected at Puu Kukui, West 
Maui, in 1969. It was named for its obvious affinities with D. 
clavisetae from East Maui. Both species are similar in wing and thorax 
markings, and they share a specialized part of the courtship behavior. 
The male bends its abdomen up over its head, produces a bubble of 
liquid (believed to be a sex pheromone) from its anal gland and then 
vibrates the abdomen, fanning the scent toward the female. Both D. 
neoclavisetae and D. clavisetae are members of the D. adiastola species 
group (Perreira and Kaneshiro 1990), and while other species in this 
group perform similarly unusual mating dances, the behavior is highly 
exaggerated in D. clavisetae and D. neoclavisetae (Kaneshiro and 
Kaneshiro 1995).
    Drosophila neoclavisetae is between 0.2 and 0.25 in (6.0 and 6.4 
mm) in length, with wings 0.26 to 0.3 in (6.5 to 7.0 mm) long. It is 
distinguished by its amber brown head and yellow face, with the middle 
portion raised to form a prominent ridge. The thorax is predominantly 
reddish brown with a distinct brown median stripe, bordered on each 
side by two brown stripes. The legs are yellow, with brown on the 
femora and a distinct brown band on the tips of the tibiae. The wings 
are broad and rounded, more than twice as long as wide, and with the 
front portion covered with brown markings and large clear spots tinged 
light yellow. It shares with D. clavisetae an extra cross-vein in the 
wing, which distinguishes both these species from the other species of 
the D. adiastola group. The abdomen is dark brown and black with 
numerous long hairs on the hind segments of the male (Kaneshiro and 
Kaneshiro 1995).
    Two populations of Drosophila neoclavisetae were found historically 
along the Puu Kukui Trail within montane wet ohia forests on State land 
in West Maui. One habitat site was found in 1969 at 4,440 ft (1,353 m) 
and the other in 1975 at 3,500 ft (1,067 m) above sea level (Kaneshiro 
and Kaneshiro 1995; HBMP, in litt., 2005; K. Kaneshiro, in litt., 
2005a). Fewer than 10 individuals have been observed despite attempts 
to relocate the species through 1997 (Kaneshiro and Kaneshiro 1995; K. 
Kaneshiro, in litt., 2005a; K. Kaneshiro pers. comm. 2006). Researchers 
estimate that between 90 and 95 percent of D. neoclavisetae's total 
potential range has been surveyed (K. Kaneshiro, pers. comm., 2006).
    The host plant of Drosophila neoclavisetae has not yet been 
confirmed, although it is likely associated with Cyanea sp. (family 
Campanulaceae). Because both collections of this species occurred 
within a small patch of Cyanea sp. and because many other species in 
the D. adiastola species group use species in this genus and other 
plants in the family Campanulaceae, researchers believe the Cyanea sp. 
found at Puu Kukui is likely the correct host plant for D. 
neoclavisetae (Science Panel 2005; Kaneshiro and Kaneshiro 1995). Due 
to its inaccessibility, some potential habitat surrounding the known 
range of D. neoclavisetae remains unsurveyed for the species (Science 
Panel 2005).

Drosophila obatai

    Drosophila obatai was described by Hardy and Kaneshiro in 1972, 
from specimens collected in the Waianae Mountains of Oahu. D. obatai 
resembles D. sodomae from Maui and Molokai and is distinguished by 
small differences in wing markings and the black coloration of the 
abdomen.
    Drosophila obatai is historically known from two localities between 
1,500 and 2,200 ft (457 to 670 m) above sea level. Nine individuals 
were recorded during ten surveys between 1970 and 1991 (Kaneshiro, in 
litt., 2005a). Individuals of the species were detected in November 
1971 at the time of the last survey at Wailupe Gulch. The second site 
(Puu Pane), has been surveyed eight times between 1970 and 1991, with 
the last detection occurring in March 1971 (Kaneshiro, in litt., 
2005a).
    Drosophila obatai larvae feed within decomposing portions of 
Pleomele forbesii, a candidate for Federal listing

[[Page 26840]]

(90 FR 24870), and Pleomele aurea (both in the family Agavaceae) 
(Kaneshiro and Kaneshiro 1995; Montgomery 1975). These host plants grow 
on slopes in dry forest and diverse mesic forest, and occur singly or 
in small clusters, rarely forming large stands (Wagner et al. 1999).

Drosophila ochrobasis

    Drosophila ochrobasis was originally described by Hardy and 
Kaneshiro (1968) based on a specimen collected from Puu Hualalai on the 
island of Hawaii at an elevation of 5,550 ft (1,692 m) above sea level. 
Based on chromosomal studies, D. ochrobasis is a member of the D. 
adiastola group and appears to be most closely related to D. 
setosimentum (Kaneshiro et al. 1995).
    Both the body and wings of Drosophila ochrobasis are approximately 
0.18 in (4.6 mm) in length. The head is yellow in front and brown on 
top, and the face is white with a prominent ridge running down the 
middle. The thorax is yellow except for a large brown spot on each 
side. The legs are yellow tinged with brown. In males, the basal three-
fifths of the wings are predominantly clear to translucent with faint 
transverse streaks of brown. The outer two-thirds of the wing is dark 
brown with large clear spots similar to that portion of the wings in D. 
setosimentum. The females of D. ochrobasis are virtually 
indistinguishable from D. setosimentum females (Kaneshiro and Kaneshiro 
1995).
    Historically, Drosophila ochrobasis was relatively widely 
distributed between 3,900 and 5,300 ft (1,189 to 1,615 m) above sea 
level. D. ochrobasis has been recorded from 10 localities on 4 of the 
island's 5 volcanoes (Hualalai, Mauna Kea, Mauna Loa, and the Kohala 
mountains).
    Recorded almost every year from 1967 to 1975, sometimes in 
relatively large numbers (135 occurrences in the period between 1970 
and 1974), Drosophila ochrobasis is now largely absent from its 
historical localities. A single individual of D. ochrobasis was last 
observed at the 1855 lava flow (Kipuka 9 and Kipuka 14) in 1986 
(Kaneshiro and Kaneshiro 1995; K. Kaneshiro, in litt., 2005a). Several 
surveys between 1995 to 1997 failed to locate the species at many of 
its historical sites (K. Kaneshiro, in litt., 2005a).
    The larvae of this species have been reported to use the 
decomposing portions of three different host plant groups--Myrsine sp. 
(family Myrsinaceae), Clermontia sp. (family Campanulaceae), and 
Marattia sp. (family Marattiaceae) (Montgomery 1975; Kaneshiro and 
Kaneshiro 1995).

Drosophila substenoptera

    Hardy (1965) originally described this species as Idiomyia 
substenoptera. He later determined the genus Idiomyia to be synonymous 
with Drosophila (Hardy 1969), thus creating the current name of 
Drosophila substenoptera. This species is closely related to D. 
planitibia and its relatives (Kaneshiro et al. 1995), but is 
distinguished by its wing markings, narrow wing shape, and complexity 
of the male genitalia. D. substenoptera is predominantly yellow with 
two black stripes extending down the entire length of the top surface 
of the thorax. The legs are yellow and lack long hairs on the dorsal 
surfaces. Body length is 0.171 in (4.35 mm), and the wings are 0.2 to 
0.21 in (5.0 to 5.3 mm) long (Kaneshiro and Kaneshiro 1995).
    Drosophila substenoptera is historically known from seven 
localities in both the Koolau and Waianae Mountains at elevations 
between 1,300 and 3,900 ft (396 to 1,189 m) above sea level. Drosophila 
substenoptera is now only known to occur on the summit of Mt. Kaala. 
Drosophila researchers have devoted intensive efforts to relocating 
this species at other sites because the species is considered important 
for genetic studies of the D. planitibia phylogeny group; 
unfortunately, these efforts have failed to relocate this species at 
other sites (Kaneshiro and Kaneshiro 1995; Science Panel 2005).
    Montgomery (1975) determined that Drosophila substenoptera larvae 
inhabit only the decomposing bark of Cheirodendron sp. trees (family 
Araliaceae) and Tetraplasandra sp. trees (family Araliaceae) in 
localized patches of wet forest habitat.

Drosophila tarphytrichia

    Drosophila tarphytrichia was described by Hardy (1965) from 
specimens collected from Manoa Falls on Oahu in 1949. This species is 
closely related to D. vesciseta based on the structure of the male 
genitalia (Kaneshiro et al.1995), but can be differentiated by distinct 
wing markings and the ornamentation of the front legs of the male. The 
thorax is almost entirely yellow to red with a tinge of brown on the 
top. The legs are yellow, with the tip of the front leg strongly 
flattened laterally and with a dense clump of black hairs. This species 
is 0.148 in (3.70 mm) long with wings 0.2 in (4.0 mm) long (Kaneshiro 
and Kaneshiro 1995).
    Drosophila tarphytrichia was historically known from both the 
Koolau and the Waianae Mountains between 2,000 and 2,800 ft (610 to 853 
m) above sea level. A total of 31 individuals were recorded on 36 
survey dates between 1965 and 1999 (Kaneshiro, in litt., 2005a). 
Drosophila tarphytrichia is now apparently extirpated from the Koolau 
range where it was originally discovered near Manoa Falls, and is 
presently known from four localities in the Waianae Mountains 
(Kaneshiro and Kaneshiro 1995; HBMP, in litt., 2005; K. Kaneshiro, in 
litt., 2005a).
    The larvae of Drosophila tarphytrichia feed only within the 
decomposing portions of the stems and branches of Charpentiera sp. 
trees (family Amaranthaceae) in mesic forest habitat (Montgomery 1975).

Previous Federal Action

    Ten of these 12 species were classified as candidates for listing 
in the February 28, 1996, Notice of Review of Plant and Animal Taxa 
That Are Candidates for Listing as Endangered or Threatened Species 
(Notice of Review) (61 FR 7596). The remaining two species, Drosophila 
differens and D. ochrobasis, were classified as candidates for listing 
in the Notice of Review dated September 19, 1997 (62 FR 49398). 
Candidates are those taxa for which the Service has on file substantial 
information on biological vulnerability and threats to support 
preparation of listing proposals.
    On January 17, 2001, we published a proposed rule to list as 
endangered the 12 species of Hawaiian picture-wing flies (66 FR 3964), 
which included a detailed history of Federal actions completed prior to 
the publication of the proposal. At that time, we did not propose 
critical habitat for the 12 picture-wing flies. In the proposed rule 
and associated notifications, we requested that all interested parties 
submit comments, data, or other information that might contribute to 
the development of a final rule. A 60-day comment period on the January 
17, 2001, proposal closed on March 19, 2001; we later reopened the 
comment period, as discussed below (see Summary of Comments and 
Recommendations section).
    On February 28, 2005, the Center for Biological Diversity (CBD) 
filed a lawsuit in the District of Oregon alleging that the Service 
failed to take action following issuance of a proposed rule to list 12 
species of picture-wing flies and for failure to designate critical 
habitat for the species (Center for Biological Diversity v. Allen, CV-
05-274-HA). CBD and the Service subsequently agreed to settle the case. 
Pursuant to the settlement agreement approved by the

[[Page 26841]]

United States District Court for the District of Hawaii on August 31, 
2005, the Service must make a final listing decision for these 12 
Hawaiian picture-wing flies by May 1, 2006, and if prudent and 
determinable, propose critical habitat by September 15, 2006, and 
finalize critical habitat by April 17, 2007. However, the Service will 
propose critical habitat for 12 species of picture-wing flies within 60 
days of the publication of this final rule.

Summary of Comments and Recommendations

    In the proposed rule published on January 17, 2001 (66 FR 3964), we 
requested that all interested parties submit written comments on the 
proposal by March 19, 2001. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Honolulu Advertiser. No requests for a public hearing were received.
    Because the proposed rule was published in 2001, and public 
outreach was conducted in 2001, we sought additional public comment on 
the proposed rule by reopening the public comment period from October 4 
to November 3, 2005 (70 FR 57851). We again reopened the comment period 
from November 18 to December 2, 2005 (70 FR 69922). The reopened 
comment periods (and associated notifications in local media and via 
direct mailing) gave interested parties additional time to consider the 
information in the proposed rule and provide comments and new 
information.
    During the comment periods for the proposed rule, we received nine 
written comments. Of those comments received, one commenter opposed the 
final listing, five commenters stated support for the final listing, 
one commenter expressed concern about unrestricted collecting of the 
flies, one commenter provided additional information regarding a fire 
management plan, and one commenter stated concerns about the potential 
impacts of the listing and critical habitat designation on private 
lands.

Peer Review

    In 2005, in accordance with our peer review policy published on 
July 1, 1994 (59 FR 34270), we solicited opinions from researchers, 
land managers, and State officials. All 16 individuals solicited have 
expertise with the species and the geographic regions where the species 
occur, and are familiar with conservation biology principles. We 
received written comments from two experts and incorporated their 
information into this final rule. One of the peer reviewers has a 
doctorate degree based upon study and research concerning Hawaiian 
Drosophila biology, evolution, genetics, and ecology research. The 
other holds a doctorate in insect taxonomy and has studied Hawaiian 
picture-wing flies for the past 10 years while working as a research 
scientist for the U.S. Geological Survey.
    One peer reviewer suggested the threats described in the proposed 
rule may not include all of the factors affecting the 12 flies, 
including factors causing their reduction in numbers. The reviewer 
noted that at least 3 of the 12 flies proposed for listing have 
demonstrated an apparent habitat shift upward in elevation, and 
suggested that global warming and increased temperatures on the 
Hawaiian Islands may be the cause. The reviewer suggested additional 
research was needed to validate the theory.
    This same reviewer provided a synopsis, based partly on the 
reviewer's own 35 years of Hawaiian Drosophila research, surveys, and 
personal observations in the field and laboratory while employed as a 
researcher with the University of Hawaii, emphasizing three major 
threats to the Hawaiian picture-wing flies including predation by wasps 
(Vespula sp.), habitat destruction by feral ungulates, and the effects 
of global warming.
    The other peer reviewer provided specific information about 
firsthand observations and evidence of declines in numbers and 
populations of three Drosophila species found on the island of Hawaii. 
This peer reviewer provided information and observational accounts of 
the effects of feral ungulates, rats, tipulid flies, and scolytid 
beetles upon picture-wing fly host plants and habitat and also the 
effects of predation by wasps (Vespula sp.) upon the 12 species. This 
peer reviewer also provided comments detailing the taxonomic 
differences recognized by Drosophila experts which establish the 12 
flies as separate and distinct species.
    Substantive information provided in all public comments, including 
the peer review process, either has been incorporated directly into 
this final rule or is addressed below.
    Comment 1: The U.S. Army's Schofield Barracks Integrated Wildfire 
Management Plan significantly reduces the threats to Drosophila aglaia 
and D. obatai and therefore could reduce the imminent need to list 
these species.
    Our Response: We agree that the Department of the Army's 
implementation of the completed Integrated Wildfire Management Plan 
will reduce the threat of fire caused by the Department of the Army to 
the habitat of these two picture-wing flies. However, the Integrated 
Wildfire Management Plan does not address the additional threats to 
these species' habitat within the Puu Pane area, including feral 
ungulates, nonnative weed plants, and predation by insect predators.
    Comment 2: Several commenters were concerned that the listing, and 
especially the critical habitat designation for the flies, could impact 
native Hawaiian traditional and customary gathering rights and access, 
and could jeopardize cooperative conservation efforts.
    Our Response: Private lands are likely to be important to the 
conservation of many of the picture-wing flies, and we appreciate all 
opportunities to work in partnerships with private landowners, the 
State, and others to further their conservation. The Act requires the 
listing of a species to be based solely on whether a species is 
affected by any of the five factors (see Summary of Factors section) to 
such an extent that they are in danger of becoming extinct (endangered 
status) or likely to become endangered (threatened status).
    According to the court settlement related to this final listing, we 
are required to propose critical habitat if appropriate by September 
15, 2006. The public will be invited to comment on any such proposal. 
Unlike when a species is listed, economic factors and conservation 
partnerships are considered in a critical habitat designation. Under 
the Act, the Secretary has the discretion to exclude areas from 
critical habitat designation if the benefits of exclusion outweigh the 
benefits of designation and such exclusion would not result in 
extinction of the species.
    Comment 3: The proposed listing of the 12 picture-wing flies lacks 
stringent research, detailed surveys, and up-to-date population 
assessments, and the data were spotty, hearsay, incomprehensive, and 
not empirical.
    Our Response: Since 1963, a mutli-disciplinary team of biologists 
have researched Drosophila through the University of Hawaii affiliated 
Hawaiian Drosophila Project. This effort has resulted in over 500 
scientific papers being published and the taxonomic description of over 
500 species of Drosophila. The information used to prepare this rule 
includes peer reviewed publications, unpublished literature, and 
written and verbal communications from research and field studies 
covering

[[Page 26842]]

a period of over 40 years of Hawaiian Drosophila research. In addition, 
this final rule includes information gathered after the proposed rule 
was published and a review of all available information on these 
species was made during science and managers review panels conducted in 
November 2005. While we acknowledge that additional systematic surveys 
for the picture-wing fly species and host plants would assist with 
understanding population trends and status, we believe we have ample 
information on habitat threats and trends in distribution for the 
picture-wing flies covered by this final rule.

Extinction Risk Assessment and Listing Decision Making Process

    The Service convened a panel of three scientists from outside the 
Service with expertise in Hawaiian Drosophila to help synthesize and 
address uncertainties in the scientific information available for these 
12 picture-wing flies, particularly threats to their existence (Science 
Panel 2005). A second panel made up of four Service managers and a 
State manager participated in related policy discussions and considered 
the available information including assessment of status, threats, and 
extinction risks. These two panels reviewed the available information 
and participated in a combined panel meeting in November 2005, prior to 
the close of the final comment period.

Science Panel

    The purpose of the Science Panel was to assess threats for each of 
the 12 picture-wing flies, identify and resolve areas of scientific 
uncertainty, and discuss extinction risks in a carefully structured 
format. The panelists discussed taxonomy, adaptive radiation of 
picture-wing flies, hybridization, sexual selection, survey methods, 
Drosophila lifecycle, and species' distribution (Science Panel 2005). 
They then discussed specific threats to each of the flies. Following 
this information review, each expert was asked to rank independently 
the severity of each threat on a scale of 1 to 5 and explain why they 
assigned a given rank to a threat. Then the other scientists were given 
the opportunity to change their rankings based on the rationales 
presented. In this manner three ranks (one for each scientist) were 
assigned to each threat factor for each species (Science Panel 2005). 
The scientific panel discussed the strengths and weaknesses of the 
various data and hypotheses about threats to the flies. Results from 
these exercises revealed little disagreement among the scientists 
regarding the type and degree of threats faced by each species. Each 
scientist was separately asked, based on his/her threats assessment and 
experience, to categorize extinction risk for each species as high, 
medium, or low over the next 40 years. The results of this exercise are 
presented in Table 2.

 Table 2.--Science Panel Categorization of Extinction Risk (H=High, M=Medium, L=Low) Over the Next 40 Years for
                                         12 Hawaiian Picture-Wing Flies
----------------------------------------------------------------------------------------------------------------
                 Species                              Island                         Extinction risk
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia........................  Oahu........................  H H H
D. differens.............................  Molokai.....................  M H H
D. hemipeza..............................  Oahu........................  M M M
D. heteroneura...........................  Hawaii......................  H M M
D. montgomeryi...........................  Oahu........................  H M H
D. mulli.................................  Hawaii......................  M M M
D. musaphilia............................  Kauai.......................  H H H
D. neoclavisetae.........................  Maui........................  H H H
D. obatai................................  Oahu........................  H H H
D. ochrobasis............................  Hawaii......................  H H M
D. substenoptera.........................  Oahu........................  H M M
D. tarphytrichia.........................  Oahu........................  H H H
----------------------------------------------------------------------------------------------------------------

Manager Panel

    The manager panel reviewed background materials, interacted with 
the science panel during their risk assessment exercise, and 
participated in general and specific discussions about the definition 
of threatened and endangered. Following these discussions, the managers 
were asked to give their separate opinions as to whether each of the 12 
species of fly should be listed as endangered, listed as threatened, or 
withdrawn. The managers based their assessment on the information in 
the record, including comments previously received, the information 
presented by the individual mem bers of the science panel, information 
gaps and uncertainty, the number and severity of the threats affecting 
each species, and mitigating circumstances that might ameliorate one or 
more of those threats. Each manager was asked to explain their opinion 
and then the managers were given the opportunity to change their 
opinion based on the rationale presented by the other managers. The 
manager's panel presented its recommendations to the Regional Director. 
Subsequent to this, a recommendation of the Regional Director was 
forwarded to the Director for a final decision.
    This rule is based on the record of these discussions and all 
relevant and available information pertaining to the threats and status 
of the species.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal list of 
endangered and threatened species. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act. The five listing factors are: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; and 
(5) other natural or manmade factors affecting its continued existence.
A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range
    Native vegetation on all the main Hawaiian Islands has undergone 
extreme alteration because of past and present land management 
practices, including ranching, introduction of nonnative plants and 
animals, and agricultural development (Cuddihy and Stone 1990). The 
primary threat facing

[[Page 26843]]

these picture-wing flies is the ongoing loss of habitat caused by feral 
animals and nonnative plants (Kaneshiro and Kaneshiro 1995).
    Feral ungulates have devastated native vegetation in many areas of 
the Hawaiian Islands (Cuddihy and Stone 1990). Because the endemic 
Hawaiian flora evolved without the presence of browsing and grazing 
ungulates, many plant groups have lost their adaptive defenses such as 
spines, thorns, stinging hairs, and defensive chemicals (University of 
Hawaii Department of Geography 1998), and cattle (Bos taurus), goats 
(Capra hircus), pigs (Sus scrofa), sheep (Ovis aries), Mouflon sheep 
(Ovis musimon), axis deer (Axis axis), and mule deer (Odocoileus 
hemionus) readily eat these plants as well as disturbing the soil and 
distributing nonnative plant seeds that can alter the ecosystem. In 
addition to the damage these nonnative herbivores cause by browsing and 
grazing, goats, pigs, and other ungulates that inhabit steep and remote 
terrain cause severe erosion of whole watersheds due to their foraging 
and trampling behaviors (Cuddihy and Stone 1990).
Feral Pigs (Sus scrofa)
    On the island of Hawaii, feral pigs are found from dry coastal 
grasslands through rain forests and into the sub-alpine zone of Mauna 
Kea and Mauna Loa. On Maui, Kauai, Oahu, and Molokai feral pigs inhabit 
rain forests, mesic forests, and grasslands (Cuddihy and Stone 1990). 
An increase in pig densities and expansion of their distribution has 
caused widespread damage to native vegetation (Cuddihy and Stone 1990). 
Feral pigs create open areas within forest habitat by digging up, 
eating, and trampling native species (Stone 1985). These open areas 
become fertile ground for non-native plant seeds spread through their 
excrement and by transport in their hair (Stone 1985). In nitrogen-poor 
soils, feral pig excrement increases nutrient availability, enhancing 
establishment of non-native weeds that are more adapted to richer soils 
than are native plants (Cuddihy and Stone 1990). In this manner, 
largely non-native forests replace native forest habitat (Cuddihy and 
Stone 1990).
    Foote and Carson (1995) found that pig exclosures on the Big Island 
supported significantly higher relative frequencies of picture-wing 
flies compared to other native and nonnative Drosophila species (7 
percent of all observations outside of the exclosure and 18 percent of 
all observations inside the exclosure) and their native host plants. 
Loope et al. (1991) showed that excluding pigs from a montane bog on 
northeastern Haleakala, Maui, resulted in an increase in native plant 
cover from 6 to 95 percent after 6 years of protection.
Goats (Capra hircus)
    Goats native to the Middle East and India were first successfully 
introduced to the Hawaiian Islands in 1792. Feral goats now occupy a 
wide variety of habitats from lowland dry forests to montane grasslands 
on Kauai, Oahu, Molokai, Maui, and Hawaii, where they consume native 
vegetation, trample roots and seedlings, accelerate erosion, and 
promote the invasion of nonnative plants (van Riper and van Riper 1982; 
Stone 1985). On the island of Oahu, encroaching urbanization and 
hunting pressure have tended to concentrate the goat population in the 
dry upper slopes of the Waianae Mountains (Kaneshiro and Kaneshiro 
1995). The population is increasing and spreading, becoming an even 
greater threat to the native habitat (Kapua Kawelo, U.S. Army, 
Environmental Division, pers. comm., 2005).
Cattle (Bos taurus)
    Large-scale ranching of cattle on the Hawaiian Islands began in the 
middle of the 19th century on the islands of Kauai, Oahu, Maui, and 
Hawaii (Cuddihy and Stone 1990). Large ranches, tens of thousands of 
acres in size, were developed on East Maui and Hawaii (Cuddihy and 
Stone 1990) where most of the State's large ranches still exist. 
Degradation of native forests used for ranching activities became 
evident soon after full-scale ranching began. Feral cattle now occupy a 
wide variety of habitats from lowland dry forests to montane 
grasslands, where they consume native vegetation, trample roots and 
seedlings, accelerate erosion, and promote the invasion of nonnative 
plants (van Riper and van Riper 1982; Stone 1985). Cattle grazing 
continues in several lowland regions in the northern portion of the 
Waianae Mountains of Oahu, and within many areas on the island of 
Hawaii.
Rats (Rattus spp.)
    Several species of nonnative rats, including the Polynesian rat 
(Rattus exulans), the roof rat (Rattus rattus), and the Norway rat 
(Rattus norvegicus), are present on the Hawaiian Islands and cause 
considerable environmental degradation (Staples and Cowie 2001). The 
seeds, bark, and flowers of several of the picture-wing flies' host 
plants, including Clermontia sp., Pleomele sp., and Pritchardia 
beccariana, are susceptible to grazing by all the rat species (Science 
Panel 2005; K. Magnacca, in litt., 2005; S. Montgomery, pers. comm., 
2005b). The grazing by rats causes host plant mortality, diminished 
vigor, and seed predation, resulting in reduced host plant fecundity 
and viability (Science Panel 2005; K. Magnacca, in litt., 2005; S. 
Montgomery, pers. comm., 2005b).
Fire
    Fire threatens species of Hawaiian picture-wing flies living in dry 
to mesic grassland, shrubland, and forests on both the islands of 
Hawaii and Oahu. A large factor in the alteration of Hawaiian dry and 
mesic regions in the past 200 years has been the increase in fire 
frequency, a condition to which the native flora is not adapted. The 
invasion of fire-adapted alien plants, especially Melinis minutiflora 
on Oahu and Pennisetum setaceum on Hawaii, facilitated by ungulate 
disturbance, has increased the susceptibility of native areas to 
wildfire and increased wildfire frequency. These plants can quickly 
reestablish following a fire and effectively outcompete less fire-
adapted native plants. This change in fire regime has reduced the 
amount of forest cover for native species (Hughes et al. 1991; 
Blackmore and Vitousek 2000) and resulted in an intensification of 
feral ungulate herbivory in the remaining native forest areas. The 
impact of an altered wildfire regime to these areas is a serious and 
immediate threat to the viability of the dry and mesic habitats that 
support over one-third of Hawaii's threatened and endangered species as 
well as Hawaiian picture-wing flies and their host plants (Hughes et 
al. 1991; Kaneshiro and Kaneshiro 1995; Blackmore and Vitousek 2000). 
Furthermore, Hawaiian picture-wing fly habitat damaged or destroyed by 
fire is more likely to be invaded and re-vegetated by nonnative plants 
that cannot be used as host plants by picture-wing flies (Kaneshiro and 
Kaneshiro 1995).
Island of Oahu--Drosophila aglaia, D. hemipeza, D. montgomeryi, D. 
obatai, D. substenoptera, and D. tarphytrichia
    The picture-wing flies on Oahu that are addressed in this rule 
(Drosophila aglaia, D. hemipeza, D. montgomeryi, D. obatai, D. 
substenoptera, and D. tarphytrichia) are threatened by the loss of 
habitat due to a variety of factors. Feral pigs and goats have 
dramatically altered the native vegetation (Kaneshiro and Kaneshiro 
1995; Science Panel 2005). These feral ungulates destroy host plant 
seedlings and habitat by the trampling action of their hooves and 
through the spread of seeds of nonnative plants (Cuddihy and Stone 
1995). Goats

[[Page 26844]]

directly feed upon the host plants of D. aglaia, D. obatai, and D. 
substenoptera, and contribute to erosion on some steeper slopes where 
the host plants occur; rats feed upon the host plants of D. hemipeza 
and D. obatai; pigs feed upon the host plants of D. hemipeza, D. 
montgomeryi, D. obatai, and D. substenoptera; and cattle feed upon the 
host plants of D. obatai and contribute to erosion on some steeper 
slopes where the host plants occur (S. Montgomery, pers. comm., 2005b).
    The invasion of several nonnative plants, particularly Psidium 
cattleianum, Lantana camara, Melinis minutiflora, Schinus 
terebinthifolius, and Clidemia hirta, further contributes to the 
degradation of native forests and the host plants of picture-wing flies 
(Kaneshiro and Kaneshiro 1995; Wagner et al. 1999; Science Panel 2005). 
Psidium cattleianum, Lantana camara, Melinis minutiflora, and Schinus 
terebinthifolius form dense stands, thickets, or mats that shade or 
outcompete native plants. M. minutiflora is a grass that burns readily, 
often grows at the border of forests, and tends to carry fire into 
areas with woody native plants (Smith 1985; Cuddihy and Stone 1990). It 
is able to spread prolifically after a fire and effectively outcompete 
less fire-adapted native plant species, ultimately creating a stand of 
nonnative grass where forest once stood. Lantana camera produces 
chemicals that inhibit the growth of other plant species (Smith 1985; 
Wagner et al. 1999).
    Drosophila aglaia and D. obatai occur at Puu Pane, located above 
the United States Army's Schofield Barracks Military Reservation. The 
gently sloping lands below Puu Pane are used as a live firing range, 
and ordnance-induced fires have been a common occurrence in this area 
(U.S. Army, in litt., 2005). The U.S. Army recently completed and is 
implementing an Integrated Wildfire Management Plan to reduce the risk 
and improve control of training-related fires in this area. As part of 
the Integrated Wildfire Management Plan, firebreak roads have been 
constructed around the perimeter of the live-fire training area. We 
believe that the Integrated Wildfire Management Plan will reduce the 
threat and magnitude of wildfires caused by the U.S. Army; however 
wildfires caused by the Army and other sources, and which may escape 
control, remain a potential threat to these species and their habitat 
located in gullies up-slope from the firing ranges (Kaneshiro and 
Kaneshiro 1995; U.S. Army, in litt., 2005).
    In summary, the picture-wing flies on Oahu continue to experience a 
significant amount of habitat loss and degradation throughout their 
range. Furthermore, the host plant species for D. aglaia, D. hemipeza, 
D. montgomeryi, and D. obatai are rare or sparsely distributed and 
threatened by ongoing habitat degradation.
Island of Hawaii--Drosophila heteroneura, D. mulli, and D. ochrobasis
    The picture-wing flies on the island of Hawaii addressed in this 
rule (Drosophila heteroneura, D. mulli, and D. ochrobasis) are 
threatened by the loss of habitat due to a variety of factors. Feral 
pigs and goats have dramatically altered the native vegetation 
(Kaneshiro and Kaneshiro 1995; D. Foote, pers. comm., 2005; Science 
Panel 2005). These feral ungulates destroy host plant seedlings and 
habitat by the trampling action of their hooves and through the spread 
of seeds of nonnative plants (Cuddihy and Stone 1995; D. Foote, pers. 
comm., 2005). Goats, pigs, and rats directly feed upon D. heteroneura 
and D. ochrobasis host plants. Cattle also feed on D. ochrobasis host 
plants. Rats directly feed upon the seeds produced by D. mulli host 
plants (K. Magnacca, in litt., 2005; S. Montgomery, pers. comm., 
2005b), and feral cattle and goats contribute to erosion on some 
steeper slopes where D. heteroneura and D. ochrobasis host plants 
occur.
    The Hawaiian Islands now support several species of nonnative 
beetles (family Scolytidae, genus Coccotrypes), a few of which bore 
into and feed on the nuts produced by certain native plant species 
including Pritchardia beccariana, the host plant of Drosophila mulli. 
Affected Pritchardia sp., including P. beccariana, drop their palm nuts 
before the nuts reach maturity due to the boring action of the scolytid 
beetles. Little natural regeneration of this host plant species has 
been observed in the wild since the arrival of this scolytid beetle 
(Science Panel 2005; K. Magnacca, in litt., 2005). Compared to the host 
plants of the other picture-wing flies, P. beccariana is long lived (up 
to 100 years), but over time scolytid beetles may have a significant 
impact on the availability of habitat for D. mulli.
    Near the original discovery site for D. mulli in the State-owned 
Olaa Forest Reserve, fencing and pig and rat control has been 
implemented on Hawaii Volcanoes National Park lands, thereby providing 
some protection to the host plants and D. mulli's habitat there (K. 
Magnacca, pers. comm. 2006). Within the Upper Waikea Reserve site, 
fencing has recently been installed encompassing some of D. mulli's 
host plants, protecting them from feral ungulates (K. Magnacca, pers. 
comm. 2006).
    The invasion of several nonnative plants, particularly Psidium 
cattleianum, Rubus ellipticus, Passiflora mollissima, and Penniisetum 
setaceum, contributes to the degradation of picture-wing host plant 
habitat on the island of Hawaii (Kaneshiro and Kaneshiro 1995; Wagner 
et al. 1999; Science Panel 2005). Jacobi and Warshauer (1992) reported 
that nonnative plants, including Passiflora mollissima, Penniisetum 
setaceum, and Psidium cattleianum, were found in 72 percent of 64 
vegetation types sampled in a 5,000 km2 (1,930 
mi2) study area on the island of Hawaii. Psidium cattleianum 
and Rubus ellipticus form dense stands that exclude other plant species 
(Cuddihy and Stone 1990; Wagner et al. 1999). Passiflora mollissima is 
a vine that causes damage or death to native trees by overloading 
branches, causing breakage, or by forming a dense canopy cover, 
intercepting sunlight and shading out native plants below (Wagner et 
al. 1999). Penniisetum setaceum has greatly increased fire risk in some 
regions, especially on the dry slopes of Hualalai, Kilauea, and Mauna 
Loa Volcanoes on the island of Hawaii (Wagner et al. 1999). This 
species quickly reestablishes itself after fires, unlike its native 
Hawaiian plant counterparts (Wagner et al. 1999).
    In summary, picture-wing flies on the island of Hawaii addressed in 
this rule continue to experience a significant amount of habitat loss 
and degradation throughout their range. The threats to D. mulli, in 
light of the ongoing management efforts and the long-lived nature of 
its host plant, do not appear to be of sufficient magnitude to warrant 
a listing as endangered at this time; however, the current lack of host 
plant regeneration and other threats suggest that D. mulli is likely to 
become an endangered species within the foreseeable future.
Island of Molokai--Drosophila differens
    Drosophila differens is threatened by the loss of habitat due to a 
variety of factors. The primary threats to this species' habitat are 
from feral pigs and the nonnative weed, Psidium cattleianum, in a 
manner similar to picture-wing fly habitat on Oahu and Hawaii (see 
above). In addition, axis deer are present on Molokai, and they 
continue to degrade native forest habitat by trampling and overgrazing 
vegetation, which removes ground cover and exposes the soil to erosion. 
Although goats were described as a threat to at least one population of 
D.

[[Page 26845]]

differens at Pu'u Kolekole in the proposed rule, we have subsequently 
learned that they may not be present in this area (K. Kaneshiro, pers. 
comm. 2006).
Island of Kauai--Drosophila musaphilia
    Degradation and modification of Drosophila musaphilia habitat, 
particularly from the effects of feral ungulates and the nonnative weed 
Psidium cattleianum, have occurred and are likely to continue into the 
future (Kaneshiro and Kaneshiro 1995; Science Panel 2005). In addition 
to pigs and goats (see Oahu and Hawaii species for a discussion of the 
effects of these ungulates on picture-wing fly habitat), D. musaphilia 
habitat is threatened by black-tailed deer, which feed on a variety of 
alien and native plants, including the host plant, Acacia koa (van 
Riper and van Riper 1982).
    The invasion of several nonnative plants, particularly Psidium 
cattleianum, Lantana camara, Melinis minutiflora, Rubus argutus, 
Clidemia hirta, and Passiflora mollissima, further contributes to the 
degradation of native forests and the host plants of D. musaphilia 
(Kaneshiro and Kaneshiro 1995; Wagner et al. 1999; Science Panel 2005). 
Psidium cattleianum, Lantana camara, Melinis minutiflora, and Rubus 
argutus form dense stands, thickets, or mats that shade or outcompete 
native plants. Passiflora mollissima is a vine that causes damage or 
death to native trees by overloading branches, causing breakage, or by 
forming a dense canopy cover, intercepting sunlight and shading out 
native plants below (Wagner et al. 1999). Lantana camera produces 
chemicals that inhibit the growth of other plant species (Smith 1985; 
Wagner et al. 1999).
    Fire and the resultant invasion by alien species remains a 
significant threat to the mesic forests that Drosophila musaphilia 
inhabits on Kauai (Science Panel 2005). M. minutiflora is a grass that 
burns readily, often grows at the border of forests, and tends to carry 
fire into areas with woody native plants (Smith 1985; Cuddihy and Stone 
1990). It is able to spread prolifically after a fire and effectively 
outcompete less fire-adapted native plant species, ultimately creating 
a stand of nonnative grass where forest once stood.
    D. musaphilia is known to be inherently rare since the larvae feed 
within slime fluxes, which develop on Acacia koa. Yet, while threats 
from feral ungulates and nonnative weeds are affecting the regeneration 
of Acacia koa, the adult trees within this area remain relatively 
stable (Science Panel 2005).
Island of Maui-- Drosophila neoclavisetae
    Drosophila neoclavisetae is limited to the highlands of West Maui, 
where degradation and modification of its habitat, particularly from 
the effects of feral pigs, have occurred (Kaneshiro and Kaneshiro 1995; 
Science Panel 2005). Rats are also a significant factor threatening D. 
neoclavisetae habitat and are abundant in the areas where D. 
neoclavisetae has been observed (Science Panel 2005).
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Overutilization is not known to be a threat to any of the 12 
picture-wing fly species addressed in this rule.
C. Disease or Predation
    Commercial shipping and air cargo to Hawaii have resulted in the 
establishment of over 3,372 species of nonnative insects (Howarth 1990; 
Howarth et al. 1995; Staples and Cowie 2001), with an estimated 
continuing establishment rate of 20 to 30 new species per year 
(Beardsley 1962, 1979; Staples and Cowie 2001).
    In addition to the accidental establishment of nonnative species, 
nonnative predators and parasites for biological control of pests have 
been purposefully imported and released in Hawaii since 1865. Between 
1890 and 2004, 387 nonnative species were introduced, sometimes with 
the specific intent of reducing populations of native Hawaiian insects 
(Funasaki et al. 1988; Lai 1988; Staples and Cowie 2001). Nonnative 
arthropods pose a serious threat to Hawaii's native Drosophila, both 
through direct predation or parasitism as well as competition for food 
or space (Howarth and Medeiros 1989; Howarth and Ramsay 1991; Kaneshiro 
and Kaneshiro 1995; Staples and Cowie 2001).
    Due to their large colony sizes and systematic foraging habits, 
species of social Hymenoptera (ants and some wasps) and parasitic wasps 
pose the greatest predation threat to the Hawaiian picture-wing flies 
(Carson 1982b; Gambino et al. 1987; Kaneshiro and Kaneshiro 1995). 
Several alien ant species have been implicated in the extinction or 
local loss of many native species, including much of the lowland 
Hawaiian insect fauna (Howarth and Medeiros 1989). According to 
Kaneshiro and Kaneshiro (1995), ``many of Hawaii's native species 
evolved in the absence of predators and thus do not have the adaptive 
traits to compete with these alien species. Therefore, when alien 
insects such as the yellow-jackets and various species of ants were 
introduced, many native insects including the Hawaiian Drosophila were 
decimated.''
Wasps
    In 1977, an aggressive race of the western yellow-jacket wasp 
(Vespula pennsylvanica) became established in the State of Hawaii, and 
this species is now abundant between 1,969 and 3,445 ft (600 and 1,050 
m) in elevation (Gambino et al. 1990). On Maui, Gambino et al. (1990) 
reported a gap in nest distribution between 4,429 and 6,890 ft (1,350 
and 2,100 m) in elevation, with an increase in abundance above 7,546 ft 
(2,300 m). They attributed this distributional pattern to higher 
relative humidity and decreased insolation associated with a cloud 
layer that forms at middle elevations on Maui and appears to have an 
adverse effect on Vespula physiology.
    Compared with typical North American populations, yellow-jackets in 
Hawaii display a high incidence of colonies that overwinter and persist 
into at least a second year. The result is that numbers of workers at 
such colonies are much greater than at annual colonies (Gambino et al. 
1987). Yellow-jacket colonies in Hawaii can each produce over a half-
million foragers that consume tens of millions of arthropods (Gambino 
and Loope 1992). In Haleakala National Park on Maui, yellow-jackets 
were found to forage predominantly on native arthropods (Gambino et al. 
1987, 1990; Gambino and Loope 1992) and have been observed carrying and 
feeding upon recently captured adult Hawaiian Drosophila (Kaneshiro and 
Kaneshiro 1995). Picture-wing flies may be particularly vulnerable to 
predation by wasps due to their lekking behavior, conspicuous courtship 
displays that can last for several minutes, and relatively large size 
(K. Kaneshiro, pers. comm. 2006).
    The disappearance of several of the 12 picture-wing flies in this 
rule from historical observation sites, including Drosophila differens, 
D. neoclavisetae, D. heteroneura, and D. mulli, may be due to a variety 
of factors, and there is no documentation that conclusively ties this 
decrease in observations with the establishment of yellow-jacket wasps 
within their habitats, although the concurrent arrival of wasps and 
decline of picture-wing fly observations in some areas suggest that the 
wasps may have played a significant role in the decline of some of the 
picture-wing fly populations (Carson 1982b, 1986; Foote

[[Page 26846]]

and Carson 1995; Kaneshiro and Kaneshiro 1999; Science Panel 2005).
    The number of native parasitic Hymenoptera (parasitic wasps) in 
Hawaii is limited, and only species in the family Eucoiliidae are known 
to use Hawaiian picture-wing flies as hosts (Kaneshiro and Kaneshiro 
1995). However, species of nonnative braconid wasps, including 
Diaschasmimorpha tryoni, D. longicaudatus, Opius vandenboschi, and 
Biosteres arisanus, were purposefully introduced into Hawaii to control 
several species of nonnative pest tephritid fruit flies (Funasaki et 
al. 1988). These parasitic wasps are also known to attack other species 
of flies, including native flies in the family Tephritidae. While these 
parasitic wasps have not been recorded parasitizing Hawaiian picture-
wing flies, and may not successfully develop in Drosophilidae, females 
will sting any fly larva available in their attempts to oviposit (lay 
eggs) and can cause mortality (T. Duan, University of Hawaii, pers. 
comm., 1995).
Ants
    Ants are not a natural component of Hawaii's arthropod fauna, and 
native species evolved in the absence of predation pressure from ants. 
Ants can be particularly destructive predators because of their high 
densities, recruitment behavior, aggressiveness, and broad range of 
diet (Reimer 1993). The threat to picture-wing flies is amplified by 
the fact that most ant species have winged reproductive adults (Borror 
et al. 1989) and can quickly establish new colonies in additional 
suitable habitats (Staples and Cowie 2001). These attributes allow some 
ants to destroy isolated prey populations (Nafus 1993a, 1993b).
    At least 44 species of ants are known to be established on the 
Hawaiian Islands (Hawaiian Ecosystems at Risk Project (HEAR) database, 
2005), and at least 4 particularly aggressive species have severely 
affected the native insect fauna (Zimmerman 1948; HEAR database, 2005). 
Numerous other ant species are recognized as threats to native 
invertebrates, and additional species become established regularly. 
While the larvae of most of the Hawaiian picture-wing flies feed deep 
in the substrate of their host plants, they emerge and pupate in the 
ground, where they are exposed to predation by ants. Newly emerging 
adults are particularly susceptible to predation, and adult picture-
wing flies have been observed with ants attached to their legs 
(Kaneshiro and Kaneshiro 1995).
Big-headed ants (Pheidole megacephala)
    With few exceptions, native insects, including many fly species, 
have been eliminated in Hawaiian habitats where the big-headed ant is 
present (Perkins 1913; Gagne 1979; Gillespie and Reimer 1993). Although 
it has only been observed attacking laboratory populations of fruit 
flies (Wong et al. 1984), big-headed ants are thought to be a threat to 
picture-wing flies on Oahu and Hawaii occurring in mesic areas (i.e., 
D. aglaia, D. hemipeza, D. heteroneura, D. montgomeryi, D. obatai, D. 
ochrobasis, and D. tarphytrichia).
Argentine ants (Iridomyrmex humilis)
    The Argentine ant was discovered on the island of Oahu in 1940, and 
is now established on all the main Hawaiin Islands (Reimer et al. 
1990). Unlike the big-headed ant, the Argentine ant is primarily 
confined to higher elevations (Reimer et al. 1990). This species has 
been demonstrated to reduce populations, or even eliminate native 
arthropods, at high elevations in Haleakala National Park on Maui (Cole 
et al. 1992). Also on Maui, Argentine ants are significant predators on 
pest fruit flies (Wong et al. 1984). Argentine ants do not disperse by 
flight. Instead colonies are moved about with soil and construction 
material; a colony was recently discovered on an isolated peak on the 
island of Oahu under a radio tower. While we are not aware of 
documented occurrences of predation by Argentine ants on picture-wing 
flies, they are considered to be a threat to native arthropods 
generally at higher elevations (Cole et al. 1992) and thus potentially 
to picture-wing flies (Science Panel 2005).
Long-legged ants (Anoplolepis longipes)
    The long-legged ant appeared in Hawaii in 1952, and now occurs on 
Kauai, Oahu, Maui, and Hawaii (Reimer et al. 1990). Direct observations 
indicate that Hawaiian arthropods are susceptible to predation by this 
species. Gillespie and Reimer (1993), and Hardy (1979) documented the 
disappearance of most native insects from Kipahulu Stream on Maui after 
the area was invaded by the long-legged ant. Although only cursory 
observations exist, long-legged ants are thought to be a threat to 
picture-wing flies at the lower elevations of Oahu and Hawaii in mesic 
areas (i.e., D. aglaia, D. hemipeza, D. heteroneura, D. montgomeryi, D. 
obatai, D. ochrobasis, and D. tarphytrichia) (Science Panel 2005).
Fire ants (Solenopsis spp.)
    At least two species of fire ants, Solenopsis geminata and S. 
papuana, are also significant threats to native invertebrates 
(Gillespie and Reimer 1993) and occur on all the main Hawaiian Islands 
(Reimer et al. 1990; Nishida 1997). Solenopsis geminata is known to be 
a significant predator on pest fruit flies in Hawaii (Wong and Wong 
1988). Solenopsis papuana is the only abundant, aggressive ant that has 
invaded intact mesic forest above 2,000 ft (600 m), and it is expanding 
its range in Hawaii (Reimer 1993).
    Based on the findings discussed above, nonnative predatory and 
parasitic insects are considered significant factors contributing to 
the reduction in range and abundance of the Hawaiian picture-wing flies 
and, in combination with habitat loss, are a threat to their continued 
existence (Science Panel 2005). Some of these nonnative species were 
intentionally introduced by the State of Hawaii's Department of 
Agriculture or other agricultural agencies (Funasaki et al. 1988), and 
importations and augmentations of lepidopteran parasitoids continue. 
Although the State of Hawaii requires new introductions be reviewed 
before release (Hawaii State Department of Agriculture, in litt., 
1994), post-release biology and host range cannot be fully predicted 
from laboratory studies (Gonzalez and Gilstrap 1992; Roderick 1992), 
and the purposeful release or augmentation of any fly predator or 
parasitoid is a potential threat to the conservation of picture-wing 
flies (Kaneshiro and Kaneshiro 1995; Simberloff 1992).
    Disease is not known to be a threat to any of the 12 picture-wing 
flies addressed in this rule.
D. The Inadequacy of Existing Regulatory Mechanisms
    Currently, no Federal, State, or local laws, treaties, or 
regulations specifically apply to any of these 12 species of picture-
wing flies. However, regulations limiting release of biological 
controls in Hawaii and the fact that numerous host plants are listed as 
threatened or endangered provide indirect mechanisms which afford the 
picture-wing flies some protection.
Release of Biological Controls
    As discussed in the Disease and Predation section (above), 
regulatory mechanisms designed to prevent the establishment of 
nonnative insects are inadequate given that 3,372 species of nonnative 
insects have become established in Hawaii (Howarth 1990; Howarth et al. 
1995; Staples and Cowie 2001), with an estimated continuing 
establishment rate of 20 to 30 new

[[Page 26847]]

species per year (Beardsley 1962, 1979; Staples and Cowie 2001).
    Under Hawaii's Plant Quarantine Law (Hawaii Revised Statues Chapter 
150A), the State of Hawaii requires that introductions of biological 
controls be reviewed by the Board of Agriculture before release. The 
U.S. Department of Agriculture's Animal and Plant Health Inspection 
Service (APHIS) regulates the importation and release of biological 
controls through the Plant Protection Act of 2000 (7 U.S.C. 7701 et 
seq.). APHIS requires a risk analysis for each species proposed for 
release. In order for a species to be approved for releases, the risk 
analysis must ensure that introduced biological control agents are 
limited in host range and do not pose a threat to listed species or 
native plants, or crops. Nevertheless, some nonnative wasp species have 
been introduced by Federal and State agencies for biological control of 
pest flies to the possible detriment of picture-wing flies. Because the 
post-release biology and host range are difficult to predict from 
laboratory studies done prior to all releases (Gonzalez and Gilstrap 
1992; Roderick 1992), the purposeful release or augmentation of any 
dipteran predator or parasitoid is a potential threat to all picture-
wing flies (Kaneshiro and Kaneshiro 1995; Simberloff 1992).
Endangered Species Act Protections for Host Plants
    Some of the host plants used by the 12 picture-wing flies in this 
rule are listed as threatened or endangered under the Act (e.g., Urera 
kaalae, the only known host plant for Drosophila montgomeryi, is 
endangered). Under Hawaii State law, Federal listing automatically 
invokes State listing (HRS Sec.  195D-4(a)). Furthermore, critical 
habitat has also been designated for a number of these listed plants. 
As such, these plants and their habitats are afforded certain 
protections under sections 7 and 9 of the Act and under section 13-107-
3 of the Hawaii Administrative Rules.
    Under section 7, all Federal agencies must ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of any listed species 
or result in the destruction or adverse modification of critical 
habitat. This protection does not apply to activities conducted on non-
Federal land that do not involve Federal permitting or funding. 
Drosophila aglaia, D. obatai, and D. heteroneura are the only 3 flies 
addressed in this rule that have been recorded on federally-owned land. 
D. aglaia and D. obatai's host plants are not listed as threatened or 
endangered, and D. heteroneura is currently known from only two 
locations, one on Federal land and one on private land.
    Under section 9, endangered plants cannot be removed, reduced to 
possession, or maliciously damaged or destroyed from areas under 
Federal jurisdiction. Endangered plants outside of Federal jurisdiction 
cannot be cut, dug up, damaged, or destroyed in knowing violation of 
any State law or regulation. Because all federally-listed species 
automatically become State-listed species, listed plants on non-Federal 
land are protected under section 9 of the Act. They are also protected 
under section 13-107-3 of the Hawaii Administrative Rules which 
prohibits the take (i.e. cut, collect, uproot, destroy, injure, 
possess) and sale of native endangered or threatened plants on all 
lands in the State of Hawaii. However, these regulations are difficult 
to enforce because of limited funding and personnel.
E. Other Natural or Manmade Factors Affecting Their Continued Existence
    The Hawaiian Islands now support several established species of 
nonnative tipulid flies, and the larvae of a few of these feed within 
the decomposing bark of some host plants of the picture-wing flies, 
including Charpentiera, Cheirodendron, Clermontia, and Pleomele sp. 
(Science Panel 2005; K. Magnacca, in litt., 2005; S. Montgomery, pers. 
comm., 2005a). All of the picture-wing flies addressed in this rule, 
except for D. mulli and D. musaphilia, face larval-stage competition 
from nonnative tipulid flies. These tipulid larvae feed within the same 
portion of the decomposing host plant area normally occupied by the 
picture-wing fly larvae. The effect of this competition is a reduction 
in available host plant material for picture-wing fly larvae (Science 
Panel 2005). In laboratory studies, Grimaldi and Jaenike (1984) 
demonstrated that competition between Drosophila larvae and other fly 
larvae can exhaust food resources, which affects both the probability 
of larval survival and the body size of adults, resulting in reduced 
adult fitness, fecundity, and lifespan.
    Hawaiian picture-wing flies evolved in isolated habitats, resulting 
in tremendous speciation (Williamson 1981); as a result, small 
population size may be less of a threat component than small habitat 
size (Science Panel 2005). Many of these picture-wing flies are now 
reduced to just a few populations within localized patches of their 
host plants, compounding the effects of numerous other factors causing 
their decline. The destruction of native plants and host plants within 
their habitat exacerbates the opening of niches for additional, 
introduced nonnative plant species. Once nonnative species are 
established, it is difficult for native plants, including host plants, 
to recover (Kaneshiro and Kaneshiro 1995; Science Panel 2005).

Conclusion

Island of Oahu--Drosophila aglaia, D. hemipeza, D. montgomeryi, D. 
obatai, D. substenoptera, and D. tarphytrichia
    The major threats to Drosophila aglaia, D. hemipeza, D. 
montgomeryi, D. obatai, D. substenoptera, and D. tarphytrichia include 
current and future degradation and modification to the limited 
remaining habitat from feral ungulates, such as pigs; nonnative plants, 
particularly Psidium Cattleianum and Clidemia hirta; and fire (Cuddihy 
and Stone 1995; Kaneshiro and Kaneshiro 1995; Science Panel 2005). The 
picture-wing flies on Oahu continue to experience a significant amount 
of habitat loss and degradation throughout their range. Furthermore, 
the host plant species for D. aglaia, D. hemipeza, D. montgomeryi, and 
D. obatai are rare or sparsely distributed and threatened by ongoing 
habitat degradation.
    Additionally, D. aglaia, D. hemipeza, D. montgomeryi, D. obatai, D. 
substenoptera, and D. tarphytrichia face competition at the larval 
stage from nonnative tipulid flies, and all stages face substantial 
predation pressure from nonnative insects such as ants and yellow-
jacket wasps (Science Panel 2005; Kaneshiro and Kaneshiro 1995). 
Currently, existing regulations offer inadequate protection to these 
species.
    Because of the significance of the threats, we conclude that all of 
the Oahu picture-wing flies addressed in this rule are in danger of 
extinction throughout their range. Therefore, D. aglaia, D. hemipeza, 
D. montgomeryi, D. obatai, D. substenoptera, and D. tarphytrichia meet 
the Act's definition of endangered and warrant protection as endangered 
under the Act.
Island of Hawaii--Drosophila heteroneura, D. mulli, and D. ochrobasis
    Drosophila heteroneura and D. ochrobasis were historically widely 
distributed across Hawaii, known from 24 sites and 10 sites, 
respectively. However, these species have not been recently observed at 
many of these sites and may now be limited to two sites and one site, 
respectively (Kaneshiro and Kaneshiro 1995; K. Kaneshiro, in litt., 
2005a; Science Panel 2005). D. mulli

[[Page 26848]]

was historically known from two sites, both of which were still 
occupied as of the last survey.
    The major threats to Drosophila heteroneura and D. ochrobasis 
include current and future degradation and modification to their 
limited remaining habitat from feral ungulates, such as pigs; non-
native plants, particularly Psidium cattleianum and Pennisetum 
setaceum; and fire (Cuddihy and Stone 1995; Kaneshiro and Kaneshiro 
1995; Science Panel 2005). Feral pigs and goats have dramatically 
altered the native vegetation (Kaneshiro and Kaneshiro 1995; D. Foote, 
pers. comm., 2005; Science Panel 2005). These feral ungulates destroy 
host plant seedlings and habitat by the trampling action of their 
hooves and through the spread of seeds of nonnative plants (Cuddihy and 
Stone 1995; D. Foote, pers. comm., 2005). Goats, pigs, and rats 
directly feed upon D. heteroneura and D. ochrobasis host plants. Cattle 
also feed on D. ochrobasis host plants. Rats directly feed upon the 
seeds produced by D. mulli host plants (K. Magnacca, in litt., 2005; S. 
Montgomery, pers. comm., 2005b), and feral cattle and goats contribute 
to erosion on some steeper slopes where D. heteroneura and D. 
ochrobasis host plants occur.
    The Hawaiian Islands now support several species of nonnative 
beetles (family Scolytidae, genus Coccotrypes), a few of which bore 
into and feed on the nuts produced by certain native plant species 
including Pritchardia beccariana, the host plant of Drosophila mulli. 
Affected Pritchardia sp., including P. beccariana, drop their palm nuts 
before the nuts reach maturity due to the boring action of the scolytid 
beetles. Little natural regeneration of this host plant species has 
been observed in the wild since the arrival of this scolytid beetle 
(Science Panel 2005; K. Magnacca, in litt., 2005). Compared to the host 
plants of the other picture-wing flies, P. beccariana is long lived (up 
to 100 years), but over time scolytid beetles may have a significant 
impact on the availability of habitat for D. mulli.
    The invasion of several nonnative plants, particularly Psidium 
cattleianum, Rubus ellipticus, Passiflora mollissima, and Pennisetum 
setaceum, contributes to the degradation of picture-wing host plant 
habitat on the island of Hawaii (Kaneshiro and Kaneshiro 1995; Wagner 
et al. 1999; Science Panel 2005). Jacobi and Warshauer (1992) reported 
that nonnative plants, including Passiflora mollissima, Pennisetum 
setaceum, and Psidium cattleianum, were found in 72 percent of 64 
vegetation types sampled in a 5,000 km2 (1,930 
mi2) study area on the island of Hawaii. Psidium cattleianum 
and Rubus ellipticus form dense stands that exclude other plant species 
(Cuddihy and Stone 1990; Wagner et al. 1999). Passiflora mollissima is 
a vine that causes damage or death to native trees by overloading 
branches, causing breakage, or by forming a dense canopy cover, 
intercepting sunlight and shading out native plants below (Wagner et 
al. 1999). Pennisetum setaceum has greatly increased fire risk in some 
regions, especially on the dry slopes of Hualalai, Kilauea, and Mauna 
Loa Volcanoes on the island of Hawaii (Wagner et al. 1999). This 
species quickly reestablishes itself after fires, unlike its native 
Hawaiian plant counterparts (Wagner et al. 1999).
    Additionally, these species face competition at the larval stage 
from nonnative tipulid flies within the host plant, and all stages face 
substantial predation pressure from nonnative insects such as long-
legged ants and yellow-jacket wasps (Kaneshiro and Kaneshiro 1995; 
Science Panel 2005). Currently, existing regulations offer inadequate 
protection to these species.
    Because of the significance of the threats, we conclude that 
Drosophila heteroneura and D. ochrobasis are in danger of extinction 
throughout their range. Therefore, these species meet the Act's 
definition of endangered and warrant protection as endangered under the 
Act.
    Drosophila mulli faces similar threats but its host plant is long-
lived, and management efforts in Volcanoes National Park (in forest 
adjacent to a known D. mulli site) are being undertaken to reduce the 
severity of those threats to its host plant. As a result of these 
actions, some regeneration of the host plant has been observed (K. 
Magnacca, pers. comm., 2006). Within the second site, the Upper Waikea 
Reserve area, pig fencing is expected to reduce the effects of browsing 
pigs upon the host plant population (K. Magnacca, pers. comm., 2006). 
Because of ongoing management efforts benefiting D. mulli, and because 
its host plant can live for 100 years, we conclude that D. mulli is not 
immediately at risk of extinction. However, given the threats to the 
species and to the persistence of the host plant, as described above, 
we find that this species is likely to become endangered in the 
foreseeable future, and thus meets the Act's definition of a threatened 
species.
Island of Molokai--Drosophila differens
    Drosophila differens is historically known from only three sites. 
It is threatened by pigs, axis deer, rats, nonnative plants, tipulid 
competition, and yellow-jacket predation. The primary threats to this 
species' habitat are from feral pigs and the nonnative weed, Psidium 
cattleianum, in a manner similar to picture-wing fly habitat on Oahu 
and Hawaii (see above). In addition, axis deer are present on Molokai, 
and they continue to degrade native forest habitat by trampling and 
overgrazing vegetation, which removes ground cover and exposes the soil 
to erosion. Although goats were described as a threat to at least one 
population of D. differens at Pu'u Kolekole in the proposed rule, we 
have subsequently learned that they may not be present in this area (K. 
Kaneshiro, pers. comm. 2006). Nonnative predatory and parasitic insects 
are considered significant factors contributing to the reduction in 
range and abundance of the Hawaiian picture-wing flies and, in 
combination with habitat loss, are threats to their continued existence 
(Science Panel 2005).
    These threats, considered in the context of the small number of 
individuals of the species (as inferred from the lack of positive 
survey results, despite extensive, focused efforts to relocate this 
species), are magnified and place D. differens in danger of extinction. 
Therefore, D. differens meets the Act's definition of endangered and 
warrants protection as endangered under the Act.
Island of Kauai--Drosophila musaphilia
    Drosophila musaphilia is historically known from only four sites, 
but has only been observed once since 1972, in 1988 at the Pihea Trail. 
It is threatened by pigs, goats, black-tailed deer, nonnative plants, 
nonnative ants, yellow-jacket predation, and wildfire. Degradation and 
modification of Drosophila musaphilia habitat, particularly from the 
effects of feral ungulates and the nonnative weed Psidium cattleianum, 
have occurred and are likely to continue into the future (Kaneshiro and 
Kaneshiro 1995; Science Panel 2005). In addition to pigs and goats (see 
Oahu and Hawaii species for a discussion of the effects of these 
ungulates on picture-wing fly habitat), D. musaphilia habitat is 
threatened by black-tailed deer, which feed on a variety of alien and 
native plants, including the host plant, Acacia koa (van Riper and van 
Riper 1982).
    The invasion of several nonnative plants, particularly Psidium

[[Page 26849]]

cattleianum, Lantana camara, Melinis minutiflora, Rubus argutus, 
Clidemia hirta, and Passiflora mollissima, further contributes to the 
degradation of native forests and the host plants of D. musaphilia 
(Kaneshiro and Kaneshiro 1995; Wagner et al. 1999; Science Panel 2005). 
Psidium cattleianum, Lantana camara, Melinis minutiflora, and Rubus 
argutus form dense stands, thickets, or mats that shade or outcompete 
native plants. Passiflora mollissima is a vine that causes damage or 
death to native trees by overloading branches, causing breakage, or by 
forming a dense canopy cover, intercepting sunlight and shading out 
native plants below (Wagner et al. 1999). Lantana camera produces 
chemicals that inhibit the growth of other plant species (Smith 1985; 
Wagner et al. 1999).
    Fire and the resultant invasion by alien species remains a 
significant threat to the mesic forests that Drosophila musaphilia 
inhabits on Kauai (Science Panel 2005). M. minutiflora is a grass that 
burns readily, often grows at the border of forests, and tends to carry 
fire into areas with woody native plants (Smith 1985; Cuddihy and Stone 
1990). It is able to spread prolifically after a fire and effectively 
outcompete less fire-adapted native plant species, ultimately creating 
a stand of nonnative grass where forest once stood.
    D. musaphilia is known to be inherently rare since the larvae feed 
within slime fluxes, which develop on Acacia koa. Yet, while threats 
from feral ungulates and nonnative weeds are affecting the regeneration 
of Acacia koa, the adult trees within this area remain relatively 
stable (Science Panel 2005).
    These threats, considered in the context of the small number of 
individuals of the species (as inferred from the lack of positive 
survey results, despite substantial survey effort within potential 
habitat for the species), are magnified and place D. musaphilia in 
danger of extinction. Nonnative predatory and parasitic insects are 
considered significant factors contributing to the reduction in range 
and abundance of the Hawaiian picture-wing flies and, in combination 
with habitat loss, are a threat to their continued existence (Science 
Panel 2005). Therefore, D. musaphilia meets the Act's definition of 
endangered and warrants protection as endangered under the Act.
Island of Maui--Drosophila neoclavisetae
    Drosophila neoclavisetae has only been observed twice in one area 
of west Maui. It is threatened by pigs, nonnative plants, tipulid 
competition, and yellow-jacket predation. Drosophila neoclavisetae is 
limited to the highlands of West Maui, where degradation and 
modification of its habitat, particularly from the effects of feral 
pigs, have occurred (Kaneshiro and Kaneshiro 1995; Science Panel 2005). 
Rats are also a significant factor threatening D. neoclavisetae habitat 
and are abundant in the areas where D. neoclavisetae has been observed 
(Science Panel 2005). Nonnative predatory and parasitic insects are 
considered significant factors contributing to the reduction in range 
and abundance of the Hawaiian picture-wing flies and, in combination 
with habitat loss, are a threat to their continued existence (Science 
Panel 2005). These threats, considered in the context of the small 
number of individuals of the species (as inferred from the lack of 
positive survey results, despite extensive, focused efforts to relocate 
this species), are magnified and place D. neoclavisetae in danger of 
extinction. Therefore, D. neoclavisetae meets the Act's definition of 
endangered and warrants protection as endangered under the Act.
Summary
    The Service has assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the 12 picture-wing fly species in determining this final 
rule. Based on this evaluation, this final rule notice lists Drosophila 
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. 
musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. 
substenoptera, and D. tarphytrichia as endangered and lists D. mulli as 
threatened. These species are endangered or threatened by one or more 
of the following: Habitat degradation by pigs, goats, deer, rats, 
cattle, nonnative insects, and nonnative plants, all of which reduce 
the quality of habitat; direct host plant loss and host plant habitat 
loss from fire; direct predation by ants and nonnative wasps; and 
competition with nonnative insects.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species, and (II) that may require special management 
considerations or protection, and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which protection under the Act is no longer necessary.
    Pursuant to a settlement agreement approved by the United States 
District Court for the District of Hawaii on August 31, 2005 (CBD v. 
Allen, CV-05-274-HA), the Service must submit, for publication to the 
Federal Register, a prudency determination for designating critical 
habitat for the 12 species of picture-wing flies, pursuant to the Act's 
sections 4(b)(6)(A) and (C), concurrent with the final listing on or by 
April 17, 2006. The settlement further stipulates that if the final 
listing determination results in the listing of one or more of the 12 
species and a critical habitat designation is found to be prudent, the 
Service must submit, for publication in the Federal Register, a 
proposed critical habitat designation for the listed species for which 
critical habitat is prudent on or by September 15, 2006, and a final 
critical habitat determination by April 17, 2007. However, the Service 
will propose critical habitat for 12 species of picture-wing flies 
within 60 days of the publication of this final rule.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that designation of critical 
habitat is not prudent when one or both of the following situations 
exist--(1) The species is threatened by taking or other activity and 
the identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    Identification of critical habitat will not increase the degree of 
threats to the species because they are not threatened by 
overcollection or malicious destruction of habitat. Furthermore, 
designation may be beneficial through the protections afforded critical 
habitat areas under section 7 of the Act. Therefore, we believe that 
designation of critical habitat is prudent for those flies being listed 
in this final rule.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and

[[Page 26850]]

prohibitions against certain activities. Recognition through listing 
results in public awareness and encourages conservation actions by 
Federal, State, Tribal, and local agencies; non-governmental 
conservation organizations; and private individuals. The Act provides 
for possible land acquisition and cooperation with States and requires 
that recovery actions be carried out for listed species. Recovery 
planning and implementation, the protection required by Federal 
agencies, and the prohibitions against certain activities involving 
listed animals are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement plans for the conservation of endangered and threatened 
species (``recovery plans''). The recovery process involves halting or 
reversing the species' decline by addressing the threats to its 
survival. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems, thus allowing delisting.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, then preparation of draft and final 
recovery plans, and finally revision of the plan as significant new 
information becomes available. The recovery outline, the first step in 
recovery planning, guides the immediate implementation of urgent 
recovery actions and describes the process to be used to develop a 
recovery plan. The recovery plan identifies site-specific management 
actions that will achieve recovery of the species, measurable criteria 
that determine when a species may be downlisted or delisted, and 
methods for monitoring recovery progress. Recovery teams, consisting of 
species experts, Federal and State agencies, non-government 
organizations, and stakeholders, are often established to develop 
recovery plans. When completed, a copy of the recovery outline, draft 
recovery plan, or final recovery plan will be available from our Web 
site (http://endangered.fws.gov), or if unavailable or inaccessible, 
from our office (see FOR FURTHER INFORMATION CONTACT section).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, non-governmental organizations, businesses, and 
private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private lands as many occur 
primarily or solely on private lands.
    The funding for recovery actions can come from a variety of 
sources, including Federal budgets, State programs, and cost share 
grants for non-Federal landowners, the academic community, and non-
governmental organizations. In addition, pursuant to section 6 of the 
Act, we would be able to grant funds to the State of Hawaii for 
management actions that promote the protection and recovery of the 12 
Hawaiian picture-wing flies. Information on our grant programs that are 
available to aid species recovery can be found at: http://endangered.fws.gov/grants/index.html. In the event that our Internet 
connection is inaccessible, please check http://www.grants.gov or check 
with our grant programs contact at U.S. Fish and Wildlife Service, 
Ecological Services, 911 NE. 11th Avenue, Portland, OR 97232-4181 
(telephone 503/231-6154; facsimile 503/231-6846).
    Please let us know if you are interested in participating in 
recovery efforts for the 12 species of Hawaiian picture-wing flies. 
Additionally, we invite you to submit any further information on the 
species whenever it becomes available and any information you may have 
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT 
section).
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened, and with respect to its critical 
habitat if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) requires Federal agencies, including the 
Service, to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of a listed 
species or to destroy or adversely modify its critical habitat if any 
has been designated. If a Federal action may adversely affect a listed 
species or its critical habitat, the responsible Federal agency must 
enter into formal consultation with us.
    Federal agency actions that may require consultation for the 12 
picture-wing flies include, but are not limited to, actions within the 
jurisdiction of the U.S. Army Corps of Engineers, Federal Emergency 
Management Agency, Federal Highways Administration, Natural Resources 
Conservation Service, National Park Service, Fish and Wildlife Service, 
and branches of the Department of Defense (DOD). Activities will 
trigger consultation under section 7 if they may affect the picture-
wing flies addressed in this rule. Federally supported activities that 
could affect the picture-wing flies or their habitat in the future 
include, but are not limited to: Bombardment and live-fire exercises; 
troop movements; agricultural projects; and construction or improvement 
of roads, airports, firebreaks, radio towers, and housing and other 
buildings.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. The prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.21 and 17.31 for endangered and threatened 
species, make it illegal for any person subject to the jurisdiction of 
the United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, or collect; or attempt any of these), import or 
export, ship in interstate commerce in the course of a commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It is also illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Further, it is illegal for any person to attempt to commit, 
to solicit another person to commit, or to cause to be committed, any 
of these acts. Certain exceptions apply to our agents and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving threatened and endangered species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 and 17.32. Such permits are available for scientific purposes, to 
enhance the propagation or survival of the species, and/or for 
incidental take in connection with otherwise lawful activities. For 
threatened species, permits are also available for zoological 
exhibition, educational purposes, or special purposes consistent with 
the purposes of the Act. Requests for copies of the regulations 
regarding listed wildlife and inquiries about permits and prohibitions 
may be addressed to U.S. Fish and Wildlife Service, Endangered Species 
Permits, 911 NE. 11th Avenue, Portland, OR 97232-4181.

[[Page 26851]]

    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of this listing on 
proposed and ongoing activities within the range of the species. We 
believe, based on the best available information that most scientific 
or recreational activities that do not damage habitat within native 
forest areas that support the 12 Hawaiian picture-wings would not 
likely result in violations of section 9.
    We believe the following activities could potentially result in a 
violation of section 9, but possible violations are not limited to 
these actions alone:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries;
    (2) Introduction of exotic species that compete with or prey upon 
the flies, such as the introduction of parasitic flies or predatory 
wasps to the State of Hawaii;
    (3) Activities that disturb adult or larval fly feeding areas; and
    (4) Unauthorized destruction or alteration of forested areas that 
are required by the flies for foraging or breeding.
    Questions regarding whether specific activities would constitute a 
violation of section 9 should be sent to the Pacific Islands Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT section). Requests 
for copies of the regulations concerning listed animals and general 
inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Endangered Species Permits, 911 NE. 
11th Avenue, Portland, OR 97232-4181 (telephone 503/231-2063; facsimile 
503/231-6243).
    For the 12 Hawaiian picture-wing flies listed under the Act, the 
State of Hawaii Endangered Species Act (HRS, Sect. 195D-4(a)) is 
automatically invoked, prohibiting take and encouraging conservation by 
State government agencies. Further, the State may enter into agreements 
with Federal agencies to administer and manage any area required for 
the conservation, management, enhancement, or protection of endangered 
species (HRS, Sect. 195D-5(c)). Funds for these activities could be 
made available under section 6 of the Act (State Cooperative 
Agreements). Thus, the Federal protection afforded to these species by 
listing them as endangered and threatened species will be reinforced 
and supplemented by protection under State law.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

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

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

References Cited

    A complete list of all references cited herein is available upon 
request from our Pacific Islands Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT section).

Author

    The primary author of this document is Michael Richardson, Pacific 
Islands Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, part 17, subchapter B of chapter I, title 50 of the Code 
of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.11(h) by adding the following, in alphabetical order 
under Insects, to the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Species                                                       Vertebrate
---------------------------------------------------------------                           population
                                                                                            where                                 Critical     Special
                                                                     Historic range       endangered     Status    When listed    habitat       rules
             Common name                   Scientific name                                    or
                                                                                          threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
               INSECTS
 
                                                                      * * * * * * *
Fly, Hawaiian picture-wing...........  Drosophila aglaia......  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila differens...  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila hemipeza....  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila heteroneura.  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila montgomeryi.  U.S.A. (HI)............           NA            E          756           NA           NA

[[Page 26852]]

 
Fly, Hawaiian picture-wing...........  Drosophila mulli.......  U.S.A. (HI)............           NA            T          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila musaphilia..  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila               U.S.A. (HI)............           NA            E          756           NA           NA
                                        neoclavisetae.
Fly, Hawaiian picture-wing...........  Drosophila obatai......  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila ochrobasis..  U.S.A. (HI)............           NA            E          756           NA           NA
Fly, Hawaiian picture-wing...........  Drosophila               U.S.A. (HI)............           NA            E          756           NA           NA
                                        substenoptera.
Fly, Hawaiian picture-wing...........  Drosophila               U.S.A. (HI)............           NA            E          756           NA           NA
                                        tarphytrichia.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: May 2, 2006.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. 06-4299 Filed 5-8-06; 8:45 am]
BILLING CODE 4310-55-P