Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for 12 Species of Picture-Wing Flies From the Hawaiian Islands, 73794-73895 [E8-27664]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 234 (Thursday, December 4, 2008)]
[Rules and Regulations]
[Pages 73794-73895]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27664]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2007-0006; 92210-1117-0000-B4]
RIN 1018-AU93


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat 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), are 
designating critical habitat for 12 species of Hawaiian picture-wing 
flies (Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia) under the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 8,788 acres (ac) (3,556 hectares (ha)) fall within the 
boundaries of the final critical habitat designation. The critical 
habitat is located in four counties (City and County of Honolulu, 
Hawaii, Maui, and Kauai) in Hawaii.

DATES: This final rule becomes effective on January 5, 2009.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat are available on the Internet at https://www.regulations.gov. 
Supporting documentation we used in preparing this final rule will be 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and 
Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, P.O. Box 50088, 
Honolulu, HI 96850; telephone 808-792-9400; facsimile 808-792-9580.

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office (see ADDRESSES); telephone 
808-792-9400; facsimile 808-792-9581. If you use a telecommunications 
device for the deaf (TDD), call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this final rule. For additional 
information on the 12 Hawaiian picture-wing flies, refer to the final 
listing rule published in the Federal Register on May 9, 2006 (71 FR 
26835), the revised proposed critical habitat rule published in the 
Federal Register on November 28, 2007 (72 FR 67428), and the recovery 
outline for the 12 Hawaiian picture-wing flies available on the 
Internet at https://www.fws.gov/Pacific/ecoservices/endangered/recovery/
documents/Drosophilarecoveryoutline-final.pdf.

Previous Federal Actions

    On November 28, 2007, we published a revised proposed rule in the 
Federal Register to designate critical habitat for the 12 Hawaiian 
picture-wing flies (72 FR 67428). The publication of the revised 
proposal opened a 60-day public comment period, which closed on January 
28, 2008. On March 6, 2008, we published a document in the Federal 
Register announcing the reopening of the public comment period until 
April 25, 2008, and a notice of two public hearings (73 FR 12065). On 
April 4, 2008, we held a public hearing in Hilo, Hawaii, and on April 
10, 2008, we held a public hearing in Honolulu, Hawaii. On August 12, 
2008, we published a document in the Federal Register (73 FR 46860) 
announcing the availability of the draft economic analysis of the 
proposed critical habitat designation and reopening the public comment 
period until September 11, 2008. For more information on previous 
Federal actions concerning the 12 species of Hawaiian picture-wing 
flies, refer to the proposed designation of critical habitat published 
in the Federal Register on August 15, 2006 (71 FR 46994), and the final 
rule to list 11 picture-wing flies as endangered and one picture-wing 
fly as threatened published in the Federal Register on May 9, 2006 (71 
FR 26835).

Summary of Comments and Recommendations

    During the comment period that opened on November 28, 2007, and 
closed on January 28, 2008 (72 FR 67428), we received 10 comments, 
including 2 requests for public hearings. Three comments were from peer 
reviewers, three were from State of Hawaii agencies, and four were from 
nongovernmental organizations or individuals. During the comment period 
that opened on March 6, 2008, and closed on April 25, 2008 (73 FR 
12065), we received nine comments from organizations or individuals. We 
also conducted public hearings in Hilo on the Island of Hawaii and in 
Honolulu on the Island of Oahu, Hawaii. During the comment period that 
opened on August 12, 2008, and closed on September 11, 2008 (73 FR 
46860), we received seven comments. Three comments were from 
individuals (which includes two individuals that presented testimony at 
the public hearing in Honolulu, Hawaii on April 10, 2008), one comment 
was from the U.S. Navy, and three comments were received from the State 
of Hawaii Division of Forestry and Wildlife, Office of Hawaiian 
Affairs, and the State Historic Preservation Office.
    Twelve comments supported the designation of critical habitat for 
the Hawaiian picture-wing flies and four opposed the designation. Two 
comments were received from individuals expressing general views on the 
Endangered Species Act, but were unrelated to the proposed designation 
of

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critical habitat. We received two comments objecting to the exemption 
of military lands under section 4(a)(3) of the Act, and one comment 
requesting that we exclude a portion of one critical habitat unit based 
on ongoing private conservation activities. All comments that we 
received were reviewed for substantive issues and new information 
regarding the proposed critical habitat designation for the 12 Hawaiian 
picture-wing fly species. All comments that we received have been fully 
considered in the final rule.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from 15 knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. We received responses from four of the peer 
reviewers, as are discussed below.

Peer Reviewer Comments

    (1) Comment: Three peer reviewers recommended that the critical 
habitat designation include additional areas for 7 of the 12 picture-
wing fly species (Drosophila hemipeza, D. heteroneura, D. montgomeryi, 
D. neoclavisetae, D. obatai, D. substenoptera, and D. tarphytrichia). 
The additional areas that they recommended are either within historical 
habitat, or within potentially suitable habitat that has not been 
surveyed that is located adjacent to occupied habitat. These peer 
reviewers stated that the amount of habitat or the number of units we 
proposed is insufficient to provide for conservation of the species, 
and that the inclusion of additional lands adjacent to the areas 
proposed would improve the likelihood of conserving the species. The 
peer reviewers stated that for some species, the lands adjacent to the 
proposed units contain habitat that is known or likely to contain 
relatively intact native forest. Some peer reviewers stated that the 
designation of additional lands adjacent to the proposed critical 
habitat units may help preserve the species' historical distribution or 
facilitate dispersal between localized subpopulations. Some peer 
reviewers also recommended that we include unsurveyed areas believed to 
support undocumented populations of picture-wing species, and that we 
include areas that are likely to support host plant populations.
    Our Response: The Act defines critical habitat as:
     The specific areas within the geographical area occupied 
by the species at the time it is listed on which are found those 
physical and biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and
     Specific areas outside the geographical area occupied by 
the species at the time it is listed upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species. The Act also states that ``Except in those circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species.''
    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial data 
available. Although the peer reviewers recommended areas to add to the 
critical habitat designation, they did not provide information on 
habitat suitability or why they believed that the recommended areas 
contained the physical and biological features essential to the 
conservation of these species.
    The areas recommended by the peer reviewers are either unoccupied 
or they have not been surveyed. We did not include areas that were not 
occupied at the time of listing because: (1) It is unclear why the 
species were extirpated from previously occupied areas; and (2) we 
could not conclude from the available data whether or not the 
previously occupied areas currently support, or even could support in 
the future, the physical and biological features (including their host 
plants) essential for the conservation of the species. Furthermore, 
some of the areas recommended for inclusion have never been surveyed 
for the flies, nor surveyed for the presence of host plants. Therefore 
based on the available information, we are unable to conclude that 
these areas were occupied at the time of listing, or that they contain 
the physical and biological features essential for the conservation of 
the species.
    We used the best available, most recent survey data for adult flies 
to determine which sites we would identify as occupied and which sites 
we would identify as unoccupied. The primary dataset we used to 
document observations of these 12 picture-wing flies spans the years 
1965-1999 (K. Kaneshiro, in litt. 2005a, pp. 1-16). We also reviewed a 
variety of peer-reviewed and other articles for this final rule, which 
included background information on the biology of each of the 12 
species. Additional data were obtained from personal communications 
with landowners, scientists, and land managers familiar with particular 
species and locations. Specific information from all of these sources 
included estimates of historic and current distribution, abundance, and 
territory sizes for the 12 species, as well as information on habitat 
requirements. The physical and biological features essential to the 
conservation, or primary constituent elements (PCEs), of the 12 
picture-wing flies include both the host plants used by the larvae, as 
well as the native forest components used by foraging adults. We used 
known adult location data to identify each critical habitat unit, and 
included the surrounding area encompassing the physical and biological 
features essential to the conservation of the species. We did not 
include within this critical habitat designation sites in which a 
species had been observed according to the most recent survey data but 
that did not include the PCEs.
    Based on the best available information, we believe that our final 
designation accurately encompasses sufficient areas for the 
conservation of the 12 Hawaiian picture-wing fly species. Therefore, we 
have not included the additional areas proposed by the peer reviewers. 
However, surveying historical habitat sites and adjacent potentially 
suitable habitat for extant populations of picture-wing flies and host 
plants will be a high priority during the recovery planning process, 
and we may consider amending the critical habitat designation at that 
time if new information indicates that these areas are essential to the 
recovery of these species.
    (2) Comment: One peer reviewer commented that the Waiea Tract, 
which is adjacent to the proposed Drosophila heteroneura--Unit 2--Kona 
Refuge on the Island of Hawaii, contains higher densities of Clermontia 
sp. (the species' primary host plant) than the area that we proposed as 
critical habitat. The peer reviewer stated that the Waiea Tract should 
therefore be a high priority for conservation.
    Our Response: The peer reviewer did not present scientific data 
with which we could evaluate whether the Waiea Tract includes areas 
that contain the physical and biological features essential to the 
conservation of D. heteroneura, or whether the areas currently proposed 
for designation for this species are inadequate. The Act defines 
critical habitat in part as areas containing the physical or biological 
features (PCEs) essential to the conservation of the species. To 
determine what is essential, we

[[Page 73796]]

determine the amount and spatial arrangement of PCEs necessary to 
recover the species. We believe that the areas designated in this rule 
will adequately provide for the conservation and recovery of the 
species; that is, the currently designated areas provide the PCEs in 
the quantity and configuration sufficient to meet the conservation and 
recovery needs of the species. Although the Waiea Tract is known to be 
occupied and contains high densities of Clermontia species, we do not 
believe this additional area is essential to the conservation of D. 
heteroneura. We proposed a total of 4,628 ac (1,855 ha) of critical 
habitat for Drosophila heteroneura, which includes 3,604 ac (1,459 ha) 
of lands adjacent to the Waiea Tract (Drosophila heteroneura--Unit 2--
Kona Refuge). Based on the best scientific data available, we believe 
these areas accurately encompass the areas necessary for the 
conservation of D. heteroneura as required by the Act.
    (3) Comment: One peer reviewer stated that the absence of nonnative 
wasps (Vespula sp.) within suitable habitat should be included as a 
primary constituent element for Drosophila heteroneura. This peer 
reviewer stated that based on field surveys, nonnative wasps are 
capable of entirely excluding D. heteroneura from habitat that is 
otherwise suitable.
    Our Response: Primary constituent elements are those physical and 
biological features that are essential to the conservation of a species 
and that may require special management considerations or protection 
(50 CFR 424.12(b)). Predation by nonnative wasps has been identified as 
a significant threat to the 12 picture-wing fly species, and we intend 
to pursue recovery actions to minimize the impacts of nonnative wasps 
in currently occupied habitat and in areas within the flies' historical 
range. However, we disagree that the absence of predatory wasps should 
be included as a primary constituent element, since management 
strategies to address this specific threat remain to be developed.
    (4) Comment: Two peer reviewers stated that since each of the 12 
Hawaiian picture-wing flies feed within decomposing portions of their 
host plants, critical habitat should encompass all host plant life 
stages (e.g., from seedlings to senescent individuals), and be large 
enough to support healthy, reproducing host plant populations. One peer 
reviewer also recommended that reproducing host plant populations be 
included as a primary constituent element.
    Our Response: Based on the best scientific data available, we 
believe that the areas designated as critical habitat in this final 
rule are large enough to provide for all host plant life stages (see 
our response to Comment (1), above, for a discussion about the 
information we used to designate critical habitat for the 12 Hawaiian 
picture-wing flies). We agree with the peer reviewer that including 
reproducing host plant populations as an additional primary constituent 
element for each of the 12 Hawaiian picture-wing fly species would 
improve precision in identifying the physical and biological features 
essential to the conservation of a species in the field. Accordingly, 
we have incorporated this recommendation into this final rule, although 
the addition of this new primary constituent element did not result in 
any boundary changes to any of the designated critical habitat units.
    (5) Comment: One peer reviewer emphasized that additional in-field 
management activities are necessary on the Island of Oahu to protect 
Urera glabra and U. kaalae, which are host plants for Drosophila 
aglaia, D. hemipeza, and D. montgomeryi.
    Our Response: We agree that management of the remaining Urera spp. 
populations on the Island of Oahu is necessary to prevent their 
continued decline and to support the long-term conservation of 
Drosophila aglaia, D. hemipeza, and D. montgomeryi. On a broader scale, 
specific management actions that relate to the conservation of host 
plants for each of the 12 Hawaiian picture-wing fly species will likely 
be an important recovery task as recovery plans and other conservation 
programs are developed. However, identifying specific management is 
beyond the scope of this final critical habitat designation.
    (6) Comment: One peer reviewer noted that the proposed rule lacks a 
formal analysis of how the critical habitat proposed for the 12 
picture-wing flies will function under different scenarios of climate 
change. The reviewer suggested that the designation should take into 
account the potential for shifting distributions of both the picture-
wing flies and their host plants along natural temperature and moisture 
gradients in response to climate change.
    Our Response: Although we agree that the impact of climate change 
to the distribution of picture-wing flies and their host plant 
populations is a potential concern, the effects of climate change are 
difficult to predict at the local or regional level. In addition, 
future changes in precipitation are uncertain because they depend in 
part on how El Nino (a disruption of the ocean atmospheric system in 
the Tropical Pacific having important global consequences for weather 
and climate) might change, and reliable projections of changes in El 
Nino have yet to be made (Hawaii Climate Change Action Plan 1998, pp. 
2-10). As such, we do not have sufficient scientific information with 
which to formally analyze the potential effects of climate change on 
the Hawaiian picture-wing flies and their habitat at this time. To the 
extent that climate change leads to a future shift in the location of 
the PCEs for these species, we would need to address that in future 
critical habitat revisions.

Federal Agency Comments

    (7) Comment: The U.S. Navy, on behalf of the National Aeronautics 
and Space Administration requested that we exclude parts of Kokee Sites 
B and D that intersect the proposed critical habitat. They 
characterized the areas as being fenced and developed, stating that 
these areas would be unlikely to support Hawaiian picture-wing flies. 
They also advised that they planned to survey for the endangered fly, 
Drosophila musaphila, at the Kokee Sites to determine its presence or 
absence, and that measures to benefit the fly will be included in the 
Pacific Missile Range Facility Integrated Natural Resources Management 
Plan if the fly is discovered.
    Our Response: We have attempted to exclude manmade structures using 
aerial photos and other available imagery. However, we were not always 
able to successfully exclude these structures from critical habitat 
maps because the resolution of our imagery does not allow us to locate 
small structures. Existing manmade features and structures within the 
boundaries of the areas mapped as critical habitat, such as buildings, 
roads, existing fences, telecommunications equipment towers and 
associated structures and equipment, communication facilities and 
regularly maintained associated rights-of-way, radars, telemetry 
antennas, paved areas, and other landscaped areas, do not contain one 
or more of the primary constituent elements described for D. 
musaphilia. Accordingly, the text of the rule makes clear that these 
types of areas are not included in the critical habitat designation, 
even if they occur within the boundary of the mapped critical habitat 
unit Drosophila musaphilia--Unit 1--Kokee.

Comments From the State of Hawaii

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his

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failure to adopt regulations consistent with the agency's comments or 
petition.'' Comments received from the State regarding the proposal to 
designate critical habitat for Drosophila aglaia, D. differens, D. 
hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. 
neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia are addressed below.
    (8) Comment: The State of Hawaii Department of Land and Natural 
Resources, Division of Forestry and Wildlife (DOFAW) supported the 
critical habitat designations on private lands, provided the 
designations have landowner support. The DOFAW commented that it 
supports the targeted site-specific approach to designate critical 
habitat within larger areas being managed for watershed and native 
species protection and restoration of native ecosystems, and agrees 
with the proposals for the islands of Kauai, Oahu, and Molokai where 
designations are proposed on DOFAW lands. It requested additional 
review and coordination on sites proposed on DOFAW forest reserves on 
the Island of Hawaii that are included in the Tri-Mountain Watershed 
Partnership and Kohala Mountain Watershed Partnership for possible 
exclusion based on their protected status and adequacy of their 
management programs. It also requested that site visits be conducted 
for all areas proposed as critical habitat to confirm the adequacy of 
the site, to confirm appropriateness for exclusion, and to locate 
boundaries. Finally, it suggested that the critical habitat designation 
process could be improved if done concurrently with recovery planning. 
In addition, DOFAW stated that critical habitat designations for host 
plants may be adequate to meet the needs of the picture-wing flies.
    Our Response: We appreciate and commend the State's implementation 
of management plans that benefit the Hawaiian picture-wing flies' 
critical habitat areas that we are designating in this final rule. The 
Secretary has discretion to exclude lands that have been proposed under 
section 4(b)(2) of the Act, upon a determination that the benefits of 
such exclusion outweigh the benefits of specifying a particular area as 
part of the critical habitat (unless the failure to designate such an 
area would result in the extinction of the species). We have fully 
considered the State's request that we exclude certain parts of its 
lands from critical habitat designation. However, the units we are 
designating in this final rule meet the definition of critical habitat, 
contain the PCEs that are essential to the conservation of these 
species, and require special management. In addition, based on our 
economic analysis and the best available information, we are unaware of 
any substantive economic or other relevant impacts that would result 
from such designation on State lands. Accordingly, we have not excluded 
the State lands from the designation of critical habitat. On May 12, 
2008, and September 17, 2008, we met with DOFAW personnel regarding 
their comments on the proposed critical habitat units on the Island of 
Hawaii. The State provided us with a copy of the 2008 Waiakea Timber 
Management Map, which was developed based on their 1997 timber 
inventory. This map indicated that portions of two units, (Drosophila 
mulli--Unit 3--Waiakea Forest [373 acres/151 ha], and Drosophila 
mulli--Unit 2--Stainback Forest [76 acres/31 ha]), were planted in the 
1960s with several timber crop species including Eucalyptus sp., 
Flindersia brayleyana (Queensland maple), and Toona ciliata (Australia 
red cedar). The DOFAW staff advised us that Drosophila mulli's host 
plant (Pritchardia beccariana) is scattered within the timber-planted 
areas and within the above critical habitat units. Although the two 
critical habitat units encompass areas planted with Eucalyptus sp. and 
other nonnative timber species, they contain the primary constituent 
elements, are occupied by D. mulli, and incorporate the physical and 
biological features essential to the conservation of this species.
    We agree that the process of designating critical habitat may be 
improved if it were completed concurrently with the development of a 
recovery plan. However, the Act and its implementing regulations 
require that we specify critical habitat to the maximum extent prudent 
and determinable at the time a species is proposed for listing (50 CFR 
424.12(a)). In the case of the 12 picture-wing flies, we are also under 
a court-ordered deadline to complete the critical habitat designations 
by November 15, 2008 (Center for Biological Diversity v. Allen, CV-05-
274-HA).
    During the development of the revised proposed rule, we aligned the 
proposed critical habitat areas with areas that were already designated 
as critical habitat for other species to the maximum extent practicable 
on State and private lands. On the Island of Oahu, critical habitat has 
only been designated for one plant (Urera kaalae), which is a host 
plant for Drosophila hemipeza and D. montgomeryi. There is no 
designated critical habitat for the host plants of D. heteroneura, D. 
mulli, and D. ochrobasis on the Island of Hawaii. Therefore, we were 
not able to align existing host plant critical habitat with proposed 
critical habitat for the picture-wing flies on the Island of Hawaii. We 
believe that the lands designated as critical habitat in this final 
rule accurately represent areas that will provide for the conservation 
of the 12 picture-wing flies.
    (9) Comment: The State of Hawaii Department of Land and Natural 
Resources, Division of State Parks commented that four areas within the 
proposed unit Drosophila musaphilia--Unit 1--Kokee, appeared to include 
roads, lawns, and buildings, and other structures. The State presented 
maps depicting the areas in question, and requested that we remove them 
from the designation if the primary constituent elements were not 
present.
    Our Response: Our analysis of satellite imagery determined that the 
developed areas in question are not within the Drosophila musaphilia--
Unit 1--Kokee critical habitat unit. Accordingly, the area in question 
is not included in the area that we originally proposed and are herein 
designating as critical habitat.
    (10) Comment: The State of Hawaii Office of Hawaiian Affairs 
commented that they support the reconsideration of the Hawaiian 
picture-wing fly critical habitat, and that the revised designation 
more accurately reflects the best scientific data available as required 
by the Act. The State Historic Preservation Office commented that the 
designation of critical habitat does not affect historic properties.
    Our Response: Based on the best scientific data available, we agree 
that this final rule more accurately reflects the physical and 
biological requirements of the 12 Hawaiian picture-wing flies. We also 
agree that the designation of critical habitat does not affect historic 
properties.

Public Comments Related to the Military and Exemption of Military Lands 
From the Designation

    (11) Comment: Four individuals or non-governmental organizations 
submitted written comments or testimony at the public hearings stating 
opposition to the exemption of Oahu military lands from the 
designation. They also requested that we provide information on our 
finding that the Oahu Integrated Natural Resources Management Plan will 
protect the two picture-wing fly species involved (Drosophila 
substenoptera and D. aglaia), and that we justify the exemption of 
military lands from the critical habitat designation.

[[Page 73798]]

    Our Response: The National Defense Authorization Act for Fiscal 
Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for 
designation as critical habitat. Section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) states that ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.'' Accordingly, those portions of the Integrated Natural 
Resources Management Plan (INRMP) applicable to areas we were 
considering for critical habitat designation for Drosophila aglaia and 
D. substenoptera were evaluated according to the requirements of 
section 4(B)(i) of the Act.
    The U.S. Army Oahu INRMP for the West Range of the Schofield 
Barracks Military Reservation was completed in 2000. This INRMP 
includes several conservation measures that benefit Drosophila aglaia 
and D. substenoptera. The measures include: (1) Outplanting of native 
plants, which provides for the natural forest conditions necessary for 
adult fly foraging by both species; (2) feral ungulate control, which 
prevents both direct loss of the larval stage host plants and adult 
foraging substrate of both species and prevents habitat alteration by 
feral ungulates; (3) wildland wildfire control, which prevents both 
loss and alteration of habitat for D. aglaia; and (4) nonnative plant 
control, which prevents habitat alteration for both species. 
Accordingly, we determined that the plan provides a benefit to D. 
aglaia and D. subsenoptera, and we therefore did not designate 
approximately 78 acres (31 ha) as critical habitat for D. aglaia and D. 
substenoptera under section 4(a)(3)(B)(i) of the Act. However, since 
these areas are important for the recovery of these species, we intend 
to work closely with the U.S. Army to identify recovery tasks and 
implement recovery efforts for these two species as recovery plans are 
developed. The other 10 species of picture-wing flies do not occur on 
Army land.
    (12) Comment: One individual provided testimony at a public hearing 
stating that the military is continually expanding their presence in 
the Hawaiian Islands at the expense of environmental protection. This 
commenter cited the recent expansion of training activities by the U.S. 
Navy and introduction of the U.S. Army's Stryker Brigade as examples.
    Our Response: The Fish and Wildlife Service is the principal 
Federal agency responsible for conserving, protecting, and enhancing 
fish, wildlife, and plants and their habitats for the continuing 
benefit of the American people. In this regard, it is paramount that we 
work cooperatively with all partners (including the military) to 
promote environmental stewardship. Although the U.S. Navy training 
activities and the presence of the U.S. Army Stryker Brigade are beyond 
the scope of this final critical habitat designation, we look forward 
to working with them to improve the status of imperiled species on 
their lands.

Public Comments Related to the Effects of the Designation on Private 
Landownership

    (13) Comment: Two individuals provided written comments stating 
opposition to the designation because they believe it will negatively 
impact the rights of private landowners. One commenter did not want tax 
money to contribute to fruit flies stripping fellow citizens of their 
property rights.
    Our Response: The effect of a critical habitat designation is that 
activities authorized, funded, or carried out by a Federal agency 
require consultation with the Service under section 7 of the Act to 
ensure they are not likely to destroy or adversely modify critical 
habitat. For example, activities on private or State lands requiring a 
permit from a Federal agency, such as a permit from the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1344 
et seq.) or a section 10(a)(1)(B) permit from us, or activities on 
private or State lands funded by a Federal agency, such as the Federal 
Highway Administration or Federal Emergency Management Agency funding, 
would be subject to the section 7 consultation process. Activities on 
State, Tribal, local, or private lands that are not carried out, 
funded, or authorized by a Federal agency are not subject to any 
regulatory requirements as a result of critical habitat designation. 
The designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area, and the designation of critical habitat does not 
allow government or public access to private lands. Most activities 
that require a Federal agency to consult with us generally can proceed 
without modification.
    (14) Comment: One land manager expressed opposition to the 
designation of critical habitat on private lands within the proposed 
Drosophila neoclavisetae--Unit 1--Puu Kukui. This commenter questioned 
whether the current conservation program in place for the Puu Kukui 
Watershed Preserve by the Maui Land and Pineapple Company might 
preclude the need for designation in light of the perceived loss of 
real property rights within the area.
    Our Response: We agree with the commenter that developing and 
maintaining public and private partnerships for species conservation 
are important. After fully evaluating the Puu Kukui conservation 
program, we are excluding a portion of the proposed Drosophila 
neoclavisetae--Unit 1--Puu Kukui from the final designation, since the 
private landowner is proactively managing the area for the conservation 
benefit of the D. neoclavisetae and numerous other listed species. We 
believe that there is a higher likelihood that beneficial conservation 
activities will continue if we do not include this area in this 
critical habitat designation. We have determined that the benefits of 
exclusion outweigh the benefits of including this area as critical 
habitat, as is discussed in detail in the ``Exclusions Under Section 
4(b)(2) of the Act'' section below.

Other Public Comments

    (15) Comment: One individual expressed opposition to the listing 
process that determined Federal status for the 12 Hawaiian picture-wing 
flies, and criticized the fact that comprehensive surveys were not 
conducted during the listing process.
    Our Response: Our November 28, 2007, proposed rule (72 FR 67428) 
specifically solicited comments on the proposed critical habitat 
revision. Comments relating to the May 9, 2006, final listing rule (71 
FR 26835) are hereby acknowledged, but are beyond the scope of this 
final critical habitat designation.

Summary of Changes From the Proposed Rule

    In preparing the final critical habitat designation for the 12 
Hawaiian picture-wing flies, we reviewed and considered comments from 
the public and peer reviewers on the November 28, 2007, proposed 
designation of critical habitat (72 FR 67428), the March 6, 2008, 
document announcing the public hearings and the reopening of the 
comment period (73 FR 12065), and the August 12, 2008, document 
announcing the availability of the draft economic analysis and an 
amended required determinations section of the proposed rule and the 
reopening of the comment period (73 FR 46860). As a result of

[[Page 73799]]

comments received, we made the following changes to our proposed 
designation:
    (1) The final designation includes the following revision of the 
primary constituent elements used to identify critical habitat for each 
of the 12 picture-wing fly species: Populations of the larval stage 
host plant(s) that exhibit one or more life stages (from seedlings to 
senescent individuals). This change does not affect the boundaries of 
the proposed designation.
    (2) We have excluded 450 ac (182 ha) of lands owned by the Maui 
Land and Pineapple Company (MLP) that we proposed as critical habitat 
for Drosophila neoclavisetae, within the Drosophila neoclavisetae--Unit 
1--Puu Kukui, from the final designation (see the ``Exclusions under 
Section 4(b)(2) of the Act'' section of this final rule for further 
details on this exclusion).

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
    (a) essential to the conservation of the species and
    (b) 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, upon a determination 
that such areas are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures which are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary. Such methods 
and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7(a)(2) of the Act requires 
consultation on Federal actions that may affect critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow government or public 
access to private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
private landowners. Where a landowner requests Federal agency funding 
or authorization for an activity that may affect a listed species or 
critical habitat, the consultation requirements of section 7(a)(2) 
would apply, but even in the event of a destruction or adverse 
modification finding, the landowner's obligation is not to restore or 
recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of the 
critical habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time of listing must 
contain the physical and biological features essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas that provide essential life 
cycle needs of the species (i.e., areas on which are found those 
physical and biological features essential to the conservation of the 
species). Under the Act, we can designate critical habitat in areas 
outside the geographical area occupied by the species at the time it is 
listed only when we determine that those areas are essential for the 
conservation of the species. For the 12 Hawaiian picture-wing flies, we 
have determined that it is not necessary to designate critical habitat 
in unoccupied areas, as there are adequate occupied areas that contain 
the physical and biological features essential to the conservation of 
the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When determining which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designation is 
unimportant or may not promote the recovery of the species.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions. They are also subject to the regulatory protections afforded 
by the section 7(a)(2) jeopardy standard, as determined on the basis of 
the best available information at the time of the Federal agency 
action. Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may require 
consultation under section 7 of the Act and may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if information available at the time of 
these planning efforts calls for a different outcome.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas occupied by the species at 
the time of listing to designate as critical habitat, we consider the 
physical or biological features essential to the conservation of the 
species that may require special management considerations or 
protection. We consider the physical and biological features to be the 
primary

[[Page 73800]]

constituent elements laid out in the appropriate quantity and spatial 
arrangement for the conservation of the species. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring;
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    We derived the specific primary constituent elements required for 
the 12 species of picture-wing flies from their biological needs, as 
described in the revised proposed critical habitat rule published in 
the Federal Register on November 28, 2007 (72 FR 67428), and below.
    As required by 50 CFR 424.12(b), we are to list the known PCEs with 
our description of critical habitat. The PCEs provided by the physical 
and biological features upon which the designation is based may 
include, but are not limited to, the following: Roost sites, nesting 
grounds, spawning sites, feeding sites, seasonal wetland or dryland, 
water quality or quantity, host species or plant pollinators, 
geological formations, vegetation types, tides, and specific soil 
types.

Primary Constituent Elements (PCEs) for Drosophila aglaia, D. 
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. 
musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. 
substenoptera, and D. tarphytrichia

    We identified the PCEs for the 12 Hawaiian picture-wing flies based 
on our knowledge of the life history, biology, and ecology of the 
species, and the physical and biological features of the habitat 
necessary to sustain their essential life history functions. To 
determine what is essential for these species, we determined the amount 
and spatial arrangement of PCEs necessary to provide for their 
conservation. Not all areas that contain one or more of the PCEs would 
necessarily be included in the designation if those PCEs were not in 
the quantity and configuration requisite to meeting the conservation 
needs of the species. For example, areas may not be included in the 
designation if they are in excess of the habitat that has been 
determined to be sufficient to meet the conservation and recovery needs 
of the species. Additional information about how we identified the PCEs 
can also be found in the revised proposed critical habitat rule 
published on November 28, 2007 (72 FR 67428). All areas designated as 
critical habitat for the 12 picture-wing flies are currently occupied, 
within the species' historical geographic range, contain all relevant 
PCEs, and support both the larval and adult foraging stages of the 12 
Hawaiian picture-wing flies.

Space for Individual and Population Growth and for Normal Behavior

    The general life cycle of Hawaiian Drosophilidae is typical of that 
of most flies. After mating, females lay eggs from which larvae (the 
immature stage) hatch. As larvae grow, they molt (shed their skin) 
through three successive stages (instars). When they are fully grown, 
the larvae change into pupae (a transitional form) in which they 
metamorphose and emerge as adults. Breeding for each of the 12 species 
of Hawaiian picture-wing flies included in this final rule generally 
occurs year-round, but egg laying and larval development increase 
following the rainy season as the availability of decaying matter, upon 
which the flies feed, increases in response to the heavy rains (K. 
Kaneshiro, in litt. 2005b, pp. 1-2). In general, Drosophila lay between 
50 and 200 eggs at a single time. Eggs develop into adults in about a 
month, and adults generally become sexually mature 1 month later. 
Adults generally live for 1 to 2 months (Science Panel 2005).
    It is unknown how much space is needed for these flies to engage in 
courtship and territorial displays, and mating activities. Adult 
behavior may be disrupted or modified by less than ideal conditions, 
such as decreased forest cover or loss of suitable food material (K. 
Kaneshiro, in litt. 2005b, pp. 1-2). Additionally, adult behavior may 
be disrupted, and the flies themselves may be susceptible to the 
hunting activities of nonnative Hymenoptera, including yellow jacket 
wasps and ants (Kaneshiro and Kaneshiro 1995, pp. 41-42). The larvae 
generally pupate within the soil located below their host plant 
material, and it is presumed that they require relatively undisturbed 
and unmodified soil conditions to complete this stage before reaching 
adulthood (Science Panel 2005, p. 5). Lastly, it is well-known that 
these 12 species and most other picture-wing flies are susceptible to 
even slight temperature increases, an issue that may be exacerbated by 
loss of suitable forest cover or the impacts from drought (K. 
Kaneshiro, in litt. 2005b, pp. 1-2).

Food

    Each of the 12 species of Hawaiian picture-wing flies described in 
this document is found on a single island, and the larvae of each are 
dependent upon only a single or a few related species of plants. The 
adult flies feed on a variety of decomposing plant matter. The water or 
moisture requirements for all 12 of these species is unknown; however, 
during drier seasons or during times of drought, it is expected that 
available adult and larval stage food material in the form of decaying 
plant matter may decrease (K. Kaneshiro, in litt. 2005b, pp. 1-2). 
Because the larval stage of each of the 12 species feeds only on the 
decomposing portions of their specific host plants, designated lands 
must encompass an area sufficient to support healthy, reproducing host 
plant populations exhibiting one or more life stages (e.g., from 
seedlings to senescent individuals).
    Based on our current knowledge of the life history, biology, and 
ecology of each species, and the habitat requirements to sustain the 
essential life history functions of the 12 Hawaiian picture-wing flies, 
we provide the PCEs for the larval and adult life stages of Drosophila 
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. 
mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. 
substenoptera, and D. tarphytrichia below:

Oahu Species

    The PCEs for Drosophila aglaia are: (1) Dry to mesic, lowland, 
ohia, koa, and Diospyros sp., forest between the elevations of 1,865-
2,985 feet (ft) (568-910 meters (m)); and (2) the larval stage host 
plant Urera glabra, which exhibits one or more life stages (from 
seedlings to senescent individuals).
    The PCEs for Drosophila hemipeza are: (1) Dry to mesic, lowland, 
ohia and koa forest between the elevations of 1,720-3,005 ft (524-916 
m); and (2) the larval stage host plants Cyanea angustifolia, C. 
calycina, C. grimesiana ssp. grimesiana (Endangered (E)), C. grimesiana 
ssp. obatae (E), C. membranacea, C. pinnatifida (E), C. superba ssp. 
superba (E), Lobelia hypoleuca, L. niihauensis (E), L. yuccoides, and 
Urera kaalae (E), which exhibit one or more life stages (from seedlings 
to senescent individuals).
    The PCEs for Drosophila montgomeryi are: (1) Mesic, lowland, 
diverse ohia and koa forest between the elevations of 1,720-2,985 ft 
(524-910 m); and (2) the larval stage host plant Urera kaalae (E), 
which exhibits one or more life stages

[[Page 73801]]

(from seedlings to senescent individuals).
    The PCEs for Drosophila obatai are: (1) Dry to mesic, lowland, ohia 
and koa forest between the elevations of 1,475-2,535 ft (450-773 m); 
and (2) the larval stage host plant Pleomele forbesii, which exhibits 
one or more life stages (from seedlings to senescent individuals).
    The PCEs for Drosophila substenoptera are: (1) Mesic to wet, 
lowland to montane, ohia and koa forest between the elevations of 
1,920-4,030 ft (585-1,228 m); and (2) the larval stage host plants 
Cheirodendron platyphyllum ssp. platyphyllum, C. trigynum ssp. 
trigynum, Tetraplasandra kavaiensis, and T. oahuensis, which exhibit 
one or more of the life stages (from seedlings to senescent 
individuals).
    The PCEs for Drosophila tarphytrichia are: (1) Dry to mesic, 
lowland, ohia and koa forest between the elevations of 1,720-2,985 ft 
(524-910 m); and (2) the larval stage host plant Charpentiera obovata, 
which exhibits one or more life stages (from seedlings to senescent 
individuals).

Hawaii (Big Island) Species

    The PCEs for Drosophila heteroneura are: (1) Mesic to wet, montane, 
ohia and koa forest between the elevations of 2,980-5,755 ft (908-1,754 
m); and (2) the larval stage host plants Cheirodendron trigynum ssp. 
trigynum, Clermontia clermontioides, C. clermontioides ssp. rockiana, 
C. hawaiiensis, C. kohalae, C. lindseyana (E), C. montis-loa, C. 
parviflora, C. peleana (E), C. pyrularia (E), and Delissea parviflora, 
which exhibit one or more life stages (from seedlings to senescent 
individuals).
    The PCEs for Drosophila mulli are: (1) Wet, montane, ohia forest 
between the elevations of 1,955-3,585 ft (596-1,093 m); and (2) the 
larval stage host plant Pritchardia beccariana, which exhibits one or 
more life stages (from seedlings to senescent individuals).
    The PCEs for Drosophila ochrobasis are: (1) Mesic to wet, montane, 
ohia, koa, and Cheirodendron sp. forest between the elevations of 
3,850-5,390 ft (1,173-1,643 m); and (2) the larval stage host plants 
Clermontia calophylla, C. clermontioides, C. clermontioides ssp. 
rockiana, C. drepanomorpha (E), C. hawaiiensis, C. kohalae, C. 
lindseyana (E), C. montis-loa, C. parviflora, C. peleana (E), C. 
pyrularia (E), C. waimeae, Marattia douglasii, Myrsine lanaiensis, M. 
lessertiana, and M. sandwicensis, which exhibit one or more life stages 
(from seedlings to senescent individuals).

Kauai Species

    The PCEs for Drosophila musaphilia are: (1) Mesic, montane, ohia 
and koa forest between the elevations of 3,310-3,740 ft (1,009-1128 m); 
and (2) the larval stage host plant Acacia koa, which exhibits one or 
more life stages (from seedlings to senescent individuals).

Maui Species

    The PCEs for Drosophila neoclavisetae are: (1) Wet, montane, ohia 
forest between the elevations of 3,405-4,590 ft (1,036-1,399 m), and 
(2) the larval stage host plants Cyanea kunthiana and C. macrostegia 
ssp. macrostegia, which exhibit one or more life stages (from seedlings 
to senescent individuals).

Molokai Species

    The PCEs for Drosophila differens are: (1) Wet, montane, ohia 
forest between the elevations of 3,645-4,495 ft (1,111-1,370 m); and 
(2) the larval stage host plants Clermontia arborescens ssp. waihiae, 
C. granidiflora ssp. munroi, C. kakeana, C. oblongifolia ssp. brevipes 
(E), and C. pallida, which exhibit one or more life stages (from 
seedlings to senescent individuals).
    This final critical habitat designation identifies the known 
physical or biological features in the quantity and spatial arrangement 
on the landscape essential to support the life history functions of the 
species. Each of the areas designated in this rule contains the PCEs to 
provide for one or more of the life history functions of Drosophila 
aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. 
mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. 
substenoptera, and D. tarphytrichia.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
occupied at the time of listing contain the physical and biological 
features essential to the conservation of the species, and whether 
these features may require special management considerations or 
protections.
    Nonnative plants and animals pose the greatest threats to these 12 
picture-wing flies. In order to counter the ongoing degradation and 
loss of habitat caused by feral ungulates and invasive nonnative 
plants, active management or control of nonnative species is necessary 
for the conservation of all populations of the 12 picture-wing flies 
(Kaneshiro and Kaneshiro 1995, pp. 37-38). Without active management or 
control, native habitat containing the features that are essential for 
the conservation of the 12 picture-wing flies will continue to be 
degraded or destroyed. In addition, habitat degradation and destruction 
as a result of wildfire, competition with nonnative insects, and 
predation by nonnative insects, such as the western yellow-jacket wasp 
(Vespula pensylvanica), may significantly threaten many of the 
populations of the 12 picture-wing flies. Active management is 
necessary to control these threats, as well.
    The threats to the physical and biological features in the areas we 
are designating as critical habitat for the 12 picture-wing flies that 
may require special management considerations or protection include 
feral ungulates, rats, invasive nonnative plants, and yellow-jacket 
wasps. In addition, the units in dry or mesic habitats may also require 
special management to address wildfire and ants. Each of these threats 
is summarized below. For a more detailed discussion of each threat 
refer to the proposed revised critical habitat rule published in the 
Federal Register on November 28, 2007 (72 FR 67434).

Feral Ungulates

    Feral ungulates have devastated native vegetation in many areas of 
the Hawaiian Islands (Cuddihy and Stone 1990, pp. 60-66). Because the 
endemic Hawaiian flora evolved without the presence of browsing and 
grazing ungulates, many plant groups have lost their adaptive defenses 
such as spines, thorns, stinging hairs, and defensive chemicals 
(University of Hawaii Department of Geography 1998, p. 138). Pigs (Sus 
scrofa), goats (Capra hircus), and cattle (Bos taurus) disturb the 
soil, and readily eat native plants (including the native host plants 
for 1 or more of the 12 picture-wing flies), and distribute nonnative 
plant seeds that can alter the ecosystem. In addition, browsing and 
grazing by feral ungulates in steep and remote terrain causes severe 
erosion of entire watersheds due to foraging and trampling behaviors 
(Cuddihy and Stone 1990, pp. 60-64 and 66).
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 herbivory by all the rat species 
(Science Panel 2005; K.

[[Page 73802]]

Magnacca, in litt. 2005; S. Montgomery, pers. comm. 2005b). The 
herbivory 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).

Nonnative Plants

    The invasion of nonnative plants contributes to the degradation of 
native forests and the host plants of picture-wing flies (Kaneshiro and 
Kaneshiro 1995, pp. 38-39; Wagner et al. 1999, pp. 52-53 and 971; 
Science Panel 2005, p. 28), and threatens all populations of the 12 
picture-wing flies. Some nonnative plants form dense stands, thickets, 
or mats that shade or out-compete native plants. Nonnative vines cause 
damage or death to native trees by overloading branches, causing 
breakage, or forming a dense canopy cover that intercepts sunlight and 
shades out native plants below. Nonnative grasses readily burn. They 
often grow at the border of forests, and carry wildfire into areas with 
woody native plants (Smith 1985, pp. 228-229; Cuddihy and Stone 1990, 
pp. 88-94). The nonnative grasses are more wildfire-adapted and can 
spread prolifically after a wildfire, ultimately creating a stand of 
nonnative grasses where native forest once existed. These nonnative 
plants cannot be used as host plants by the flies. Some nonnative plant 
species produce chemicals that inhibit the growth of other plant 
species (Smith 1985, p. 228; Wagner et al. 1999, p. 971).

Wildfire

    Wildfire threatens habitat of the Hawaiian picture-wing flies in 
dry to mesic grassland, shrubland, and forests on the islands of Kauai 
(Drosophila musaphilia), Oahu (D. aglaia, D. hemipeza, D. mongomeryi, 
D. obatai, and D. tarphytrichia), and Hawaii (D. heteroneura). Dry and 
mesic regions in Hawaii have been altered in the past 200 years by an 
increase in wildfire frequency, a condition to which the native flora 
is not adapted. The invasion of wildfire-adapted alien plants, 
facilitated by ungulate disturbance, has contributed to wildfire 
frequency. This change in wildfire regime has reduced the amount of 
forest cover for native species (Hughes et al. 1991, p. 743; Blackmore 
and Vitousek 2000, p. 625) and resulted in an intensification of fire 
threat and feral ungulate disturbance in the remaining native forest 
areas. Habitat damaged or destroyed by wildfire is more likely to be 
revegetated by nonnative plants that cannot be used as host plants by 
these picture-wing flies (Kaneshiro and Kaneshiro 1995, p. 47).

Nonnative Insect Competitors

    The Hawaiian Islands now support several established species of 
nonnative insects which compete with some of the 12 picture-wing flies 
within their larval stage host plants. The most important group of 
nonnative insect competitors includes tipulid flies (crane flies, 
family Tipulidae). The larvae of some species within this group feed 
within the decomposing bark of some of the host plants utilized by 
picture-wing flies, including Charpentiera, Cheirodendron, Clermontia, 
and Pleomele spp. (Science Panel 2005, p. 11; K. Magnacca, U.S. 
Geological Survey, in litt. 2005, p. 1; S. Montgomery, in litt. 2005a, 
p. 1). Each of the picture-wing flies addressed in this rule, except 
for Drosophila mulli, D. musaphilia, and D. neoclavisetae, face larval-
stage resource competition from nonnative tipulid flies. The Hawaiian 
Islands also 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 
spp., including P. beccariana, drop their fruit 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 (K. Magnacca, in 
litt. 2005, p. 1; Science Panel 2005, p. 11). 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.

Nonnative Insect Predators

    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, pp. 82-83; 
Howarth and Ramsay 1991, pp. 80-83; Kaneshiro and Kaneshiro 1995, pp. 
40-45 and 47; Staples and Cowie 2001, pp. 41, 54-57). Due to their 
large colony sizes and systematic foraging habits, species of social 
Hymenoptera (ants and some wasps) and parasitic wasps pose the greatest 
predation threat to the Hawaiian picture-wing flies (Carson 1982, p. 1, 
1986, p. 7; Gambino et al. 1987, pp. 169-170; Kaneshiro and Kaneshiro 
1995, pp. 40-45 and 47).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial information available in determining the 
specific areas within the geographical occupied by each of the picture-
wing flies, Drosophila aglaia, D. differens, D. hemipeza, D. 
heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, 
D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia at the 
time of listing that (1) contain PCEs in the quantity and spatial 
arrangement to support life history functions essential for the 
conservation of each of these species; and (2) may require special 
management considerations or protection. We relied on information in 
our prior rulemaking and new information gained through the peer review 
and public comment process. Each area that we are designating as 
critical habitat is occupied, contains the PCEs, and supports both the 
larval and adult foraging stages of the 12 Hawaiian picture-wing fly 
species. The discussion below summarizes the criteria used to identify 
critical habitat. For additional information, refer to the proposed 
critical habitat rule that was published in the Federal Register on 
November 28, 2007 (72 FR 67435).
    The following geospatial, tabular data sets were used in preparing 
this final critical habitat designation: (1) Occurrence data for all 12 
species (K. Kaneshiro, in litt. 2005a, pp. 1-16); (2) vegetation 
mapping data for the Hawaiian Islands (Gap Analysis Program (GAP) 
Data--Hawaiian Islands 2005); (3) color mosaic 1:19,000 scale digital 
aerial photographs for the Hawaiian Islands dated April to May 2005; 
and (4) 1:24,000 scale digital raster graphics of U.S. Geological 
Survey (USGS) topographic quadrangles. Land ownership was determined 
from geospatial data sets associated with parcel data from