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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 9, 2006 (Volume 71, Number 89)]
[Rules and Regulations]
[Page 26835-26852]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my06-11]

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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)
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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

? 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]

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

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

? 2. 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

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

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