[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 http://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 http://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

[[Page 73797]]

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 Oahu County 
(2006); Hawaii County (2005); Kauai County (2005); and Maui County 
(2004).
    We also reviewed a variety of peer-reviewed and other articles in 
preparing this final rule, including: (1) Background information on the 
biology of each of the 12 species (e.g., Montgomery 1975, pp. 83, 94, 
96-98, and 100; Foote and Carson 1995, pp. 1-4; Kaneshiro and Kaneshiro 
1995, pp. 1-47); (2) plant ecology and biology (Wagner et al. 1999, pp. 
45, 52-53, 971, 1,314-1,315, and 1,351-1,352); and (3) the ecology of 
the Hawaiian Islands and the areas we are designating in this final 
rule (e.g., Smith 1985, pp. 227-233;

[[Page 73803]]

Stone 1985, pp. 251-253, 256, and 260-263; Cuddihy and Stone 1990, pp. 
59-66, 73-76, and 88-94). Additional information reviewed included: (1) 
The October 29, 1991, final rule listing the plant species Urera kaalae 
(a host plant for two of the fly species) as endangered (56 FR 55770); 
(2) the June 17, 2003, final critical habitat designation for U. kaalae 
(68 FR 35950); (3) the May 9, 2006, final listing rule for the 12 
species of picture-wing flies (71 FR 26835); (4) the August 15, 2006, 
proposed critical habitat designation for 11 species of picture-wing 
flies (71 FR 46994); (5) unpublished reports by The Nature Conservancy 
of Hawaii (TNCH); and (6) aerial photographs and satellite imagery of 
the Hawaiian Islands.
    We obtained additional information through personal communications 
with landowners, scientists, and land managers familiar with the 12 
species and their habitats, including individuals affiliated with the 
University of Hawaii, University of California at Berkeley, the U.S. 
Geological Survey, the Bishop Museum, Hawaii State Department of Land 
and Natural Resources, TNCH, and the U.S. Army. Specific information 
from these sources included estimates of historic and current 
distribution, abundance, and territory sizes for the 12 species, as 
well as data on resources and habitat requirements.
    The primary constituent elements of this final critical habitat 
designation 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. While there has 
been considerable survey work conducted for Hawaiian picture-wing flies 
in an overall sense, some areas where these 12 species are found have 
not been surveyed in many years. 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. 
We did not designate critical habitat in areas where a species had been 
observed, but where the areas had either become degraded (e.g., due to 
loss or degradation of native vegetation, increase in nonnative 
vegetation, or documented presence of yellow-jacket wasps) and lacked 
PCEs, or if multiple surveys over the course of several years failed to 
detect the species. The final critical habitat unit boundaries included 
in this rule reflect the results of this analysis, after taking into 
account the presence of known developed areas, as described below.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as buildings, paved areas, and 
other structures that lack PCEs within the 32 critical habitat units 
designated by this final rule 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. However, because of the scale of the maps, the maps may 
not reflect the exclusion of such developed areas. Accordingly, any 
developed areas that fall within the critical habitat boundaries 
reflected on the maps in this final rule have been excluded by text in 
this rule, and are not included within the critical habitat 
designation. Federal actions limited to these areas would not trigger 
section 7 consultation, unless they affect the species or primary 
constituent elements in adjacent critical habitat.

Critical Habitat Designation

    We are designating 32 units as 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.
    In total, approximately 8,788 ac (3,556 ha) occur within the 
boundaries of this critical habitat designation. The critical habitat 
areas described below constitute our current best assessment of areas 
determined to be occupied at the time of listing, contain the primary 
constituent elements essential for the conservation of the 12 Hawaiian 
picture-wing flies, and may require special management. The 32 areas 
designated as critical habitat are:

                                   Table 1--Critical Habitat Units and Island
----------------------------------------------------------------------------------------------------------------
               Island                                                 Unit name
----------------------------------------------------------------------------------------------------------------
Oahu...............................  Drosophila aglaia--Unit 1--Palikea.
Oahu...............................  Drosophila aglaia--Unit 2--Puu Kaua.
Oahu...............................  Drosophila hemipeza--Unit 1--Kaluaa Gulch.
Oahu...............................  Drosophila hemipeza--Unit 2--Makaha Valley.
Oahu...............................  Drosophila hemipeza--Unit 3--Palikea.
Oahu...............................  Drosophila hemipeza--Unit 4--Puu Kaua.
Oahu...............................  Drosophila montgomeryi--Unit 1--Kaluaa Gulch.
Oahu...............................  Drosophila montgomeryi--Unit 2--Palikea.
Oahu...............................  Drosophila montgomeryi--Unit 3--Puu Kaua.
Oahu...............................  Drosophila obatai--Unit 1--Puu Pane.
Oahu...............................  Drosophila obatai--Unit 2--Wailupe.
Oahu...............................  Drosophila substenoptera--Unit 1--Mt. Kaala.
Oahu...............................  Drosophila substenoptera--Unit 2--Palikea.
Oahu...............................  Drosophila tarphytrichia--Unit 1--Kaluaa Gulch.
Oahu...............................  Drosophila tarphytrichia--Unit 2--Palikea.
Oahu...............................  Drosophila tarphytrichia--Unit 3--Puu Kaua.
Hawaii (Big Island)................  Drosophila heteroneura--Unit 1--Kau Forest.
Hawaii (Big Island)................  Drosophila heteroneura--Unit 2--Kona Refuge.
Hawaii (Big Island)................  Drosophila heteroneura--Unit 3--Lower Kahuku.
Hawaii (Big Island)................  Drosophila heteroneura--Unit 4--Pit Crater.
Hawaii (Big Island)................  Drosophila heteroneura--Unit 5--Waihaka Gulch.
Hawaii (Big Island)................  Drosphila mulli--Unit 1--Olaa Forest.
Hawaii (Big Island)................  Drosphila mulli--Unit 2--Stainback Forest.
Hawaii (Big Island)................  Drosphila mulli--Unit 3--Waiakea Forest.
Hawaii (Big Island)................  Drosophila ochrobasis--Unit 1--Kipuka 9.
Hawaii (Big Island)................  Drosophila ochrobasis--Unit 2--Kipuka 14.
Hawaii (Big Island)................  Drosophila ochrobasis--Unit 3--Kohala Mountains East.
Hawaii (Big Island)................  Drosophila ochrobasis--Unit 4--Kohala Mountains West.

[[Page 73804]]

 
Hawaii (Big Island)................  Drosophila ochrobasis--Unit 5--Upper Kahuku.
Kauai..............................  Drosophila musaphilia--Unit 1--Kokee.
Maui...............................  Drosophila neoclavisetae--Unit 1--Puu Kukui.
Molakai............................  Drosophila differens--Unit 1--Puu Kolekole.
----------------------------------------------------------------------------------------------------------------

    The areas identified as containing the features essential to the 
conservation of each of the 12 Hawaiian picture-wing flies for which we 
are designating critical habitat include a variety of undeveloped, 
forested areas that are used for larval stage development and adult fly 
stage foraging. Designated critical habitat includes land under 
Federal, State, City and County, and private ownership. The approximate 
area, land ownership, and area excluded from each designated critical 
habitat unit are shown in Table 2.

 Table 2--Designated Critical Habitat Units 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.
 [Area estimates reflect all land within critical habitat unit boundaries and are given in acres (ac) (hectares
 (ha)). Areas in parentheses overlap with other units; therefore, the total area designated as critical habitat
             for each species will not equal the total area designated for the 12 species combined]
----------------------------------------------------------------------------------------------------------------
                                              Land ownership [ac/ha]               Lands
                                   --------------------------------------------   meeting
                                                                                    the
                                                                                definition    Lands     Critical
           Species--unit                                   City and                 of       excluded   habitat
                                     Federal     State      Co. of    Private    critical    [ac/ha]    [ac/ha]
                                                           Honolulu               habitat
                                                                                  [ac/ha]
----------------------------------------------------------------------------------------------------------------
                                                   Oahu Units
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia--Unit 1--Palikea          0          4          0        204         208          0        208
                                                       2                    83          84          0         84
Drosophila aglaia--Unit 2--Puu              0          0          0         87          87          0         87
 Kaua.............................                                          35          35          0         35
Drosophila hemipeza--Unit 1--               0          0          0        527         527          0        527
 Kaluaa Gulch.....................                                         213         213          0        213
Drosophila hemipeza--Unit 2--               0         40         71          0         111          0        111
 Makaha Valley....................                    16         29                     45          0         45
Drosophila hemipeza--Unit 3--               0        (4)          0      (204)       (208)          0      (208)
 Palikea..........................                   (2)                  (83)        (84)          0       (84)
Drosophila hemipeza--Unit 4--Puu            0          0          0       (87)        (87)          0       (87)
 Kaua.............................                                        (35)        (35)          0       (35)
Drosophila montgomeryi--Unit 1--            0          0          0      (527)       (527)          0      (527)
 Kaluaa Gulch.....................                                       (213)       (213)          0      (213)
Drosophila montgomeryi--Unit 2--            0        (4)          0      (204)       (208)          0      (208)
 Palikea..........................                   (2)                  (84)        (84)          0       (84)
Drosophila montgomeryi--Unit 3--            0          0          0       (87)        (87)          0       (87)
 Puu Kaua.........................                                        (35)        (35)          0       (35)
----------------------------------------------------------------------------------------------------------------
Drosophila obatai--Unit 1--Puu              0         33          0          0          33          0         33
 Pane.............................                    13                                13          0         13
Drosophila obatai--Unit 2--Wailupe          0         45          0         32          77          0         77
                                                      18                    13          31          0         31
Drosophila substenoptera--Unit 1--          0         59         57          0         116          0        116
 Mt. Kaala........................                    24         23                     47          0         47
Drosophila substenoptera--Unit 2--          0        (4)          0      (204)       (208)          0      (208)
 Palikea..........................                   (2)                  (83)        (84)          0       (84)
Drosophila tarphytrichia--Unit 1--          0          0          0      (527)       (527)          0      (527)
 Kaluaa Gulch.....................                                       (213)       (213)          0      (213)
Drosophila tarphytrichia--Unit 2--          0        (4)          0      (204)       (208)          0      (208)
 Palikea..........................                   (2)                  (83)        (84)          0       (84)
Drosophila tarphytrichia--Unit 3--          0          0          0       (87)        (87)          0       (87)
 Puu Kaua.........................                                        (35)        (35)          0       (35)
----------------------------------------------------------------------------------------------------------------
                                                Big Island Units
----------------------------------------------------------------------------------------------------------------
Drosophila heteroneura--Unit 1--            0        125          0          0         125          0        125
 Kau Forest.......................                    51                                51          0         51
Drosophila heteroneura--Unit 2          3,604          0          0          0       3,604          0      3,604
 Kona Refuge......................      1,459                                        1,459          0      1,459
Drosophila heteroneura--Unit 3--          687          0          0          0         687          0        687
 Lower Kahuku.....................        278                                          278          0        278

[[Page 73805]]

 
Drosophila heteroneura--Unit 4--            0          0          0         46          46          0         46
 Pit Crater.......................                                          18          18          0         18
Drosophila heteroneura--Unit 5--            0        120          0          0         120          0        120
 Waihaka Gulch....................                    49                                49          0         49
Drosophila mulli--Unit 1--Olaa              0        244          0          0         244          0        244
 Forest...........................                    99                                99          0         99
Drosophila mulli--Unit 2--                  0         76          0          0          76          0         76
 Stainback Forest.................                    31                                31          0         31
Drosophila mulli--Unit 3--Waiakea           0        373          0          0         373          0        373
 Forest...........................                   151                               151          0        151
Drosophila ochrobasis--Unit 1--             0          9          0          0           9          0          9
 Kipuka 9.........................                     4                                 4          0          4
Drosophila ochrobasis--Unit 2--             0         15          0          0          15          0         15
 Kipuka 14........................                     6                                 6          0          6
Drosophila ochrobasis--Unit 3--             0        193          0          0         193          0        193
 Kohala Mountains East............                    78                                78          0         78
Drosophila ochrobasis--Unit 4--             0         41          0         91         132          0        132
 Kohala Mountains West............                    17                                54          0         54
Drosophila ochrobasis--Unit 5--            64         24          0          0          88          0         88
 Upper Kahuku.....................         26         10                                36          0         36
----------------------------------------------------------------------------------------------------------------
                                                   Kauai Unit
----------------------------------------------------------------------------------------------------------------
Drosophila musaphilia--Unit 1--             0        794          0          0         794          0        794
 Kokee............................                   321                               321          0        321
----------------------------------------------------------------------------------------------------------------
                                                    Maui Unit
----------------------------------------------------------------------------------------------------------------
Drosophila neoclavisetae--Unit 1--          0        134          0        450         584        450        134
 Puu Kukui........................                    54                   182         237        182         54
----------------------------------------------------------------------------------------------------------------
                                                  Molokai Unit
----------------------------------------------------------------------------------------------------------------
Drosophila differens--Unit 1--Puu           0          0          0        988         988          0        988
 Kolekole.........................                                         400         400          0        400
----------------------------------------------------------------------------------------------------------------
    Total (32 units)..............      4,356      2,331        128      2,424       9,238        450      8,788
                                        1,763        943         52        981       3,738        182      3,556
----------------------------------------------------------------------------------------------------------------

    The critical habitat areas described below constitute our best 
assessment of the physical and biological features essential for the 
recovery and conservation of the 12 Hawaiian picture-wing flies. Brief 
descriptions of all units and the rationale for why each unit meets the 
definition of critical habitat for the 12 picture-wing flies are 
presented below. Each of the designated critical habitat units for the 
12 Hawaiian picture-wing flies was occupied by the species at the time 
of listing, contains PCEs that provide for both the larval and adult 
life stage of one or more of the 12 species of picture-wing flies, and 
may require special management considerations or protection (see Table 
3).

[[Page 73806]]



      Table 3--Threats and Occupancy in Areas Containing Physical and Biological Features Essential to the
   Conservation 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
----------------------------------------------------------------------------------------------------------------
                                   Threats requiring special management or     Occupied at the      Currently
         Species--unit                           protections                   time of listing      occupied
----------------------------------------------------------------------------------------------------------------
                                                   Oahu Units
----------------------------------------------------------------------------------------------------------------
Drosophila aglaia--Unit 1--      Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Palikea.                         ants, nonnative competitors, and wildfire.
Drosophila aglaia--Unit 2--Puu   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kaua.                            ants, nonnative competitors, and wildfire.
Drosophila hemipeza--Unit 1--    Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kaluaa Gulch.                    ants, nonnative competitors, and wildfire.
Drosophila hemipeza--Unit 2--    Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Makaha Valley.                   ants, nonnative competitors, and wildfire.
Drosophila hemipeza--Unit 3--    Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Palikea.                         ants, nonnative competitors, and wildfire.
Drosophila hemipeza--Unit 4--    Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Puu Kaua.                        ants, nonnative competitors, and wildfire.
Drosophila montgomeryi--Unit 1-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kaluaa Gulch.                    ants, nonnative competitors, and wildfire.
Drosophila montgomeryi--Unit 2-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Palikea.                         ants, nonnative competitors, and wildfire.
Drosophila montgomeryi--Unit 3-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Puu Kaua.                        ants, nonnative competitors, and wildfire.
Drosophila obatai--Unit 1--Puu   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Pane.                            ants, nonnative competitors, and wildfire.
Drosophila obatai--Unit 2--      Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Wailupe.                         ants, nonnative competitors, and wildfire.
Drosophila substenoptera--Unit   Feral ungulates, nonnative plants, and       Yes.............  Yes.
 1--Mt. Kaala.                    nonnative competitors.
Drosophila substenoptera--Unit   Feral ungulates, nonnative plants, and       Yes.............  Yes.
 2--Palikea.                      nonnative competitors.
Drosophila tarphytrichia--Unit   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 1--Kaluaa Gulch.                 ants, nonnative competitors, and wildfire.
Drosophila tarphytrichia--Unit   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 2--Palikea.                      ants, nonnative competitors, and wildfire.
Drosophila tarphytrichia--Unit   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 3--Puu Kaua.                     ants, nonnative competitors, and wildfire.
----------------------------------------------------------------------------------------------------------------
                                                Big Island Units
----------------------------------------------------------------------------------------------------------------
Drosophila heteroneura--Unit 1-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kau Forest.                      yellow-jacket wasps, ants, and nonnative
                                  competitors.
Drosophila heteroneura--Unit 2-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kona Refuge.                     yellow-jacket wasps, ants, and nonnative
                                  competitors.
Drosophila heteroneura--Unit 3-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Lower Kahuku.                    yellow-jacket wasps, ants, and nonnative
                                  competitors.
Drosophila heteroneura--Unit 4-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Pit Crater.                      yellow-jacket wasps, ants, nonnative
                                  competitors, and wildfire.
Drosophila heteroneura--Unit 5-- Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Waihaka Gulch.                   yellow-jacket wasps, ants, and nonnative
                                  competitors.
Drosophila mulli--Unit 1--Olaa   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Forest.                          yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila mulli--Unit 2--       Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Stainback Forest.                yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila mulli--Unit 3--       Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Waiakea Forest.                  yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila ochrobasis--Unit 1--  Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kipuka 9.                        yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila ochrobasis--Unit 2--  Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kipuka 14.                       yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila ochrobasis--Unit 3--  Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kohala Mountains East.           yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila ochrobasis--Unit 4--  Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Kohala Mountains West.           yellow-jacket wasps, and nonnative
                                  competitors.
Drosophila ochrobasis--Unit 5--  Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Upper Kahuku.                    yellow-jacket wasps, and nonnative
                                  competitors.
----------------------------------------------------------------------------------------------------------------

[[Page 73807]]

 
                                                   Kauai Unit
----------------------------------------------------------------------------------------------------------------
Drosophila musaphilia--Unit 1--  Feral ungulates, nonnative plants, yellow-   Yes.............  Yes.
 Kokee.                           jacket wasps, ants, and wildfire.
----------------------------------------------------------------------------------------------------------------
                                                    Maui Unit
----------------------------------------------------------------------------------------------------------------
Drosophila neoclavisetae--Unit   Feral ungulates, nonnative plants, and       Yes.............  Yes.
 1--Puu Kukui.                    yellow-jacket wasps.
----------------------------------------------------------------------------------------------------------------
                                                  Molokai Unit
----------------------------------------------------------------------------------------------------------------
Drosophila differens--Unit 1--   Feral ungulates, rats, nonnative plants,     Yes.............  Yes.
 Puu Kolekole.                    yellow-jacket wasps, and nonnative
                                  competitors.
----------------------------------------------------------------------------------------------------------------

Oahu Units

    Drosophila aglaia--Unit 1--Palikea consists of 208 ac (84 ha) of 
lowland, mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 
m), this unit is privately and State-owned, and is part of a larger 
area called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. aglaia at the time of listing. 
This unit includes the known elevation range, moisture regime, and the 
native forest components used by foraging adults and identified as the 
PCEs for this species. This unit also includes populations of Urera 
glabra, the larval stage host plant associated with this species.
    Drosophila aglaia--Unit 2--Puu Kaua consists of 87 ac (35 ha) of 
lowland, diverse mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft (570-870 
m), this unit is privately owned and is part of a larger area called 
the Honouliuli Preserve, which is administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. aglaia at the time of listing. 
It includes the known elevation range, moisture regime, and native 
forest components used by foraging adults that have been identified as 
the PCEs for this species. This unit also includes populations of Urera 
glabra, the larval stage host plant associated with this species.
    Drosophila hemipeza--Unit 1--Kaluaa Gulch consists of 527 ac (213 
ha) of diverse, mesic forest within the southern Waianae Mountains of 
Oahu. Ranging in elevation between 1,720-2,785 ft (525-850 m), this 
unit is privately owned and is part of a larger area called the 
Honouliuli Preserve, administered and managed by TNCH. According to the 
most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this 
unit was occupied by D. hemipeza at the time of listing. This unit 
includes the known elevation range, moisture regime, and native forest 
components used by foraging adults that have been identified as the 
PCEs for this species. This unit also includes populations of Urera 
kaalae, Cyanea sp., and Lobelia sp., the larval stage host plants 
associated with this species.
    Drosophila hemipeza--Unit 2--Makaha Valley consists of 111 ac (45 
ha) of lowland, mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,995-3,005 ft (610-915 
m), this unit is owned by the City and County of Honolulu and the State 
of Hawaii, and is largely managed as a State forest reserve. According 
to the most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 4-5), 
this unit was occupied by D. hemipeza at the time of listing. This unit 
includes the known elevation range, moisture regime, and native forest 
components used by foraging adults that have been identified as the 
PCEs for this species. This unit also includes populations of Urera 
kaalae, Cyanea sp., and Lobelia sp., the larval stage host plants 
associated with this species.
    Drosophila hemipeza--Unit 3--Palikea consists of 208 ac (84 ha) of 
lowland, mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 
m), this unit is privately and State-owned, and is part of a larger 
area called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. hemipeza at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Urera kaalae, Cyanea sp., and Lobelia sp., the larval 
stage host plants associated with this species.
    Drosophila hemipeza--Unit 4--Puu Kaua consists of 87 ac (35 ha) of 
lowland, diverse, mesic, koa and ohia forest within the southern 
Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft 
(570-870 m), this unit is privately owned and is part of a larger area 
called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. hemipeza at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Urera kaalae, Cyanea sp., and Lobelia sp., the larval 
stage host plants associated with this species.
    Drosophila montgomeryi--Unit 1--Kaluaa Gulch consists of 527 ac 
(213 ha) of diverse, mesic forest within the southern Waianae Mountains 
of Oahu. Ranging in elevation between 1,720-2,785 ft (525-850 m), this 
unit is privately owned and is part of a larger area called the 
Honouliuli Preserve, administered and managed by TNCH.

[[Page 73808]]

According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. montgomeryi at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Urera kaalae, the larval stage host plant associated 
with this species.
    Drosophila montgomeryi--Unit 2--Palikea consists of 208 ac (84 ha) 
of lowland, mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 
m), this unit is both privately and State-owned, and is part of a 
larger area called the Honouliuli Preserve, administered and managed by 
TNCH. According to the most recent survey data (K. Kaneshiro, in litt. 
2005a, pp. 1-10), this unit was occupied by D. montgomeryi at the time 
of listing. This unit includes the known elevation range, moisture 
regime, and native forest components used by foraging adults that have 
been identified as the PCEs for this species. This unit also includes 
populations of Urera kaalae, the larval stage host plant associated 
with this species.
    Drosophila montgomeryi--Unit 3--Puu Kaua consists of 87 ac (35 ha) 
of lowland, diverse, mesic, koa and ohia forest within the southern 
Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft 
(570-870 m), this unit is privately owned and is part of a larger area 
called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. montgomeryi at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Urera kaalae, the larval stage host plant associated 
with this species.
    Drosophila obatai--Unit 1--Puu Pane consists of 33 ac (13 ha) of 
lowland, mesic, koa and ohia forest within the northeastern Waianae 
Mountains of Oahu. Ranging in elevation between 1,760-2,535 ft (535-770 
m), this unit is owned by the State of Hawaii and is largely managed as 
part of a State forest reserve. According to the most recent survey 
data (K. Kaneshiro, in litt. 2005a, p. 6), this unit was occupied by D. 
obatai at the time of listing. This unit includes the known elevation 
range, moisture regime, and native forest components used by foraging 
adults that have been identified as the PCEs for this species. This 
unit also includes populations of Pleomele forbesii, the larval stage 
host plant associated with this species.
    Drosophila obatai--Unit 2--Wailupe consists of 77 ac (31 ha) of 
lowland, mesic, koa and ohia forest within the southeastern Koolau 
Mountains of Oahu. Ranging in elevation between 1,475-2,155 ft (445-655 
m), this unit is privately and State-owned, and is largely managed as 
part of a State forest reserve. According to the most recent survey 
data (K. Kaneshiro, in litt. 2005a, p. 6), this unit was occupied by D. 
obatai at the time of listing. This unit includes the known elevation 
range, moisture regime, and native forest components used by foraging 
adults that have been identified as the PCEs for this species. This 
unit also includes populations of Pleomele forbesii, the larval stage 
host plant associated with this species.
    Drosophila substenoptera--Unit 1--Mt. Kaala consists of 116 ac (47 
ha) of montane, wet, ohia forest within the northern Waianae Mountains 
of Oahu. Ranging in elevation between 2,750-4,030 ft (840-1,230 m), 
this unit is owned by the City and County of Honolulu and the State of 
Hawaii, and is largely managed as part of a State forest reserve and 
natural area reserve. According to the most recent survey data (K. 
Kaneshiro, in litt. 2005a, p. 7), this unit was occupied by D. 
substenoptera at the time of listing. This unit includes the known 
elevation range, moisture regime, and native forest components used by 
foraging adults that have been identified as the PCEs for this species. 
This unit also includes populations of Cheirodendron sp. and 
Tetraplasandra sp., the larval stage host plants associated with this 
species.
    Drosophila substenoptera--Unit 2--Palikea consists of 208 ac (84 
ha) of lowland, mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 
m), this unit is privately and State-owned, and is part of a larger 
area called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. substenoptera at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Cheirodendron sp. and Tetraplasandra sp., the larval 
stage host plants associated with this species.
    Drosophila tarphytrichia--Unit 1--Kaluaa Gulch consists of 527 ac 
(213 ha) of diverse, mesic forest within the southern Waianae Mountains 
of Oahu. Ranging in elevation between 1,720-2,785 ft (525-850 m), this 
unit is privately owned and is part of a larger area called the 
Honouliuli Preserve, administered and managed by TNCH. According to the 
most recent survey data (K. Kaneshiro, in litt. 2005a, pp. 1-10), this 
unit was occupied by D. tarphytrichia at the time of listing. This unit 
includes the known elevation range, moisture regime, and native forest 
components used by foraging adults that have been identified as the 
PCEs for this species. This unit also includes populations of 
Charpenteira obovata, the larval stage host plant associated with this 
species.
    Drosophila tarphytrichia--Unit 2--Palikea consists of 208 ac (84 
ha) of lowland, mesic, koa and ohia forest within the southern Waianae 
Mountains of Oahu. Ranging in elevation between 1,920-2,985 ft (585-910 
m), this unit is privately and State-owned, and is part of a larger 
area called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. tarphytrichia at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Charpenteira obovata, the larval stage host plant 
associated with this species.
    Drosophila tarphytrichia--Unit 3--Puu Kaua consists of 87 ac (35 
ha) of lowland, diverse mesic, koa and ohia forest within the southern 
Waianae Mountains of Oahu. Ranging in elevation between 1,865-2,855 ft 
(570-870 m), this unit is privately owned and is part of a larger area 
called the Honouliuli Preserve, administered and managed by TNCH. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 1-10), this unit was occupied by D. tarphytrichia at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Charpenteira obovata, the larval stage host plant 
associated with this species.

Hawaii (Big Island) Units

    Drosophila heteroneura--Unit 1--Kau Forest consists of 125 ac (51 
ha) of

[[Page 73809]]

montane, wet, ohia forest, and is located on the southern flank of 
Mauna Loa on the island of Hawaii. Ranging in elevation between 5,215-
5,510 ft (1,590-1,680 m), this unit is owned by the State of Hawaii, 
and is largely managed as part of a State forest reserve. According to 
the most recent survey data (K. Kaneshiro, in litt. 2005a, p. 8), this 
unit was occupied by D. heteroneura at the time of listing. This unit 
includes the known elevation range, moisture regime, and native forest 
components used by foraging adults that have been identified as the 
PCEs for this species. This unit also includes populations of 
Cheirodendron trigynum, Clermontia sp., and Delissea parviflora, the 
larval stage host plants associated with this species.
    Drosophila heteroneura--Unit 2--Kona Refuge consists of 3,604 ac 
(1,459 ha) of montane, mesic, closed koa and ohia forest, and is 
located on the western flank of Mauna Loa on the island of Hawaii. 
Ranging in elevation between 2,980-5,755 (910-1,755 m), this unit is 
owned by the Service, and is managed as part of the Kona Unit of the 
Hakalau Forest National Wildlife Refuge. According to the most recent 
survey data (K. Kaneshiro, in litt. 2005a, p. 8), this unit was 
occupied by D. heteroneura at the time of listing. This unit includes 
the known elevation range, moisture regime, and native forest 
components used by foraging adults that have been identified as the 
PCEs for this species. This unit also includes populations of 
Cheirodendron trigynum, Clermontia sp., and Delissea parviflora, the 
larval stage host plants associated with this species.
    Drosophila heteroneura--Unit 3--Lower Kahuku consists of 687 ac 
(278 ha) of montane, mesic to wet, ohia forest, and is located on the 
southern flank of Mauna Loa on the island of Hawaii. Ranging in 
elevation between 3,705-4,685 ft (1,130-1,430 m), this unit is owned 
and managed by the National Park Service (NPS), Hawaii Volcanoes 
National Park. According to the most recent survey data (K. Kaneshiro, 
in litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the 
time of listing. This unit includes the known elevation range, moisture 
regime, and native forest components used by foraging adults that have 
been identified as the PCEs for this species. This unit also includes 
populations of Cheirodendron trigynum, Clermontia sp., and Delissea 
parviflora, the larval stage host plants associated with this species.
    Drosophila heteroneura--Unit 4--Pit Crater consists of 46 ac (18 
ha) of montane, mesic, open ohia forest with mixed grass species, and 
is located on the western flank of Hualalai and south of the Kaupulehu 
lava flow on the island of Hawaii. Ranging in elevation between 3,835-
4,525 ft (1,170-1,380 m), this unit is privately owned and managed. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
p. 8), this unit was occupied by D. heteroneura at the time of listing. 
This unit includes the known elevation range, moisture regime, and 
native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Cheirodendron trigynum, Clermontia sp., and Delissea 
parviflora, the larval stage host plants associated with this species.
    Drosophila heteroneura--Unit 5--Waihaka Gulch consists of 120 ac 
(49 ha) of montane, wet, koa and ohia forest, and is located on the 
southern flank of Mauna Loa on the island of Hawaii. Ranging in 
elevation between 4,065-4,390 ft (1,240-1,340 m), this unit is owned by 
the State of Hawaii, and is largely managed as part of a State forest 
reserve. According to the most recent survey data (K. Kaneshiro, in 
litt. 2005a, p. 8), this unit was occupied by D. heteroneura at the 
time of listing. This unit includes the known elevation range, moisture 
regime, and native forest components used by foraging adults that have 
been identified as the PCEs for this species. This unit also includes 
populations of Cheirodendron trigynum, Clermontia sp., and Delissea 
parviflora, the larval stage host plants associated with this species.
    Drosophila mulli--Unit 1--Olaa Forest consists of 244 ac (99 ha) of 
montane, wet, ohia forest and is located to the northeast of Kilauea 
Caldera on the southeastern flank of Mauna Loa on the island of Hawaii. 
Ranging in elevation between 3,120-3,300 ft (950-1,005 m), this unit is 
owned by the State of Hawaii and is largely managed as part of a State 
forest reserve. According to the most recent survey data (K. Kaneshiro, 
in litt. 2005a, p. 10), this unit was occupied by D. mulli at the time 
of listing. This unit includes the known elevation range, moisture 
regime, and native forest components used by foraging adults that have 
been identified as the PCEs for this species. This unit also includes 
populations of Pritchardia beccariana, the larval stage host plant 
associated with this species.
    Drosophila mulli--Unit 2--Stainback Forest consists of 76 ac (31 
ha) of montane, wet, ohia forest, and is located to the northeast of 
Kilauea Caldera on the southeastern flank of Mauna Loa on the island of 
Hawaii. Ranging in elevation between 1,955-2,165 ft (595-660 m), this 
unit is owned by the State of Hawaii and is largely managed as part of 
a State forest reserve. According to the most recent survey data (K. 
Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by D. mulli 
at the time of listing. This unit includes the known elevation range, 
moisture regime, and native forest components used by foraging adults 
that have been identified as the PCEs for this species. This unit also 
includes populations of Pritchardia beccariana, the larval stage host 
plant associated with this species.
    Drosophila mulli--Unit 3--Waiakea Forest consists of 373 ac (151 
ha) of montane, wet, ohia forest, and is located to the northeast of 
Kilauea Caldera on the southeastern flank of Mauna Loa on the island of 
Hawaii. Ranging in elevation between 3,130-3,585 ft (955-1,095 m), this 
unit is owned by the State of Hawaii and is largely managed as part of 
a State forest reserve. According to the most recent survey data (K. 
Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by D. mulli 
at the time of listing. This unit includes the known elevation range, 
moisture regime, and native forest components used by foraging adults 
that have been identified as the PCEs for this species. This unit also 
includes populations of Pritchardia beccariana, the larval stage host 
plant associated with this species.
    Drosophila ochrobasis--Unit 1--Kipuka 9 consists of 9 ac (4 ha) of 
montane, wet, ohia forest with native shrubs, and is located within the 
Saddle Road area on the northeastern flank of Mauna Loa on the island 
of Hawaii. Ranging in elevation between 5,075-5,125 ft (1,545-1,560 m), 
this unit is owned by the State of Hawaii and is largely managed as 
part of a State forest reserve. According to the most recent survey 
data (K. Kaneshiro, in litt. 2005a, p. 10), this unit was occupied by 
D. ochrobasis at the time of listing. This unit includes the known 
elevation range, moisture regime, and native forest components used by 
foraging adults that have been identified as the PCEs for this species. 
This unit also includes populations of Clermontia sp., Marattia 
douglasii, and Myrsine sp., the larval stage host plants associated 
with this species.
    Drosophila ochrobasis--Unit 2--Kipuka 14 consists of 15 ac (6 ha) 
of montane, wet, ohia forest with native shrubs, and is located within 
the Saddle Road area on the northeastern flank of Mauna Loa on the 
island of Hawaii. Ranging in elevation between 5,105-5,145 ft (1,555-
1,570 m), this unit is owned by the State of Hawaii and is largely 
managed as part of a State forest reserve. According to the most recent 
survey data (K. Kaneshiro, in litt. 2005a,

[[Page 73810]]

pp. 12-13), this unit was occupied by D. ochrobasis at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Clermontia sp., Marattia douglasii, and Myrsine sp., the 
larval stage host plants associated with this species.
    Drosophila ochrobasis--Unit 3--Kohala Mountains East consists of 
193 ac (78 ha) of montane, wet, ohia forest with native shrubs and 
mixed grass species, and is located on the southeastern flank of the 
Kohala Mountains on the island of Hawaii. Ranging in elevation between 
3,850-4,140 ft (1,175-1,260 m), this unit is owned by the State of 
Hawaii and is largely managed as part of a State forest reserve. 
According to the most recent survey data (K. Kaneshiro, in litt. 2005a, 
pp. 12-13), this unit was occupied by D. ochrobasis at the time of 
listing. This unit includes the known elevation range, moisture regime, 
and native forest components used by foraging adults that have been 
identified as the PCEs for this species. This unit also includes 
populations of Clermontia sp., Marattia douglasii, and Myrsine sp., the 
larval stage host plants associated with this species.
    Drosophila ochrobasis--Unit 4--Kohala Mountains West consists of 
132 ac (54 ha) of montane, wet, ohia forest with native shrubs and 
mixed grass species, and is located on the southwestern flank of the 
Kohala Mountains on the island of Hawaii. Ranging in elevation between 
4,945-5,325 ft (1,510-1,625 m), this unit is privately and State-owned, 
and is largely managed as part of a State forest reserve. Drosophila 
ochrobasis was not historically known from this area, but was first 
observed here during field surveys conducted in October of 2006 (K. 
Magnacca, in litt. 2006, p. 1), only four months from the date of 
listing of the species (June 2006). Given the fact that this area was 
surveyed so soon after the listing of the species, and contains 
relatively intact, closed-canopy, native forest, including the fly's 
host plant species, we have determined that it was occupied by D. 
ochrobasis at the time of the listing. This unit includes the known 
elevation range, moisture regime, and native forest components used by 
foraging adults that have been identified as the PCEs for this species. 
This unit also includes populations of Clermontia sp., Marattia 
douglasii, and Myrsine sp., the larval stage host plants associated 
with this species.
    Drosophila ochrobasis--Unit 5--Upper Kahuku consists of 88 ac (36 
ha) of montane, wet, ohia forest, and is located on the southern flank 
of Mauna Loa on the island of Hawaii. Ranging in elevation between 
5,235-5,390 ft (1,595-1,645 m), this unit is owned by the State of 
Hawaii and the NPS Hawaii Volcanoes National Park. The area within this 
unit is largely managed as part of a State forest reserve and as a 
national park. According to the most recent survey data (K. Kaneshiro, 
in litt. 2005a, pp. 12-13), this unit was occupied by D. ochrobasis at 
the time of listing. This unit includes the known elevation range, 
moisture regime, and native forest components used by foraging adults 
that have been identified as the PCEs for this species. This unit also 
includes populations of Clermontia sp., Marattia douglasii, and Myrsine 
sp., the larval stage host plants associated with this species.

Kauai Unit

    Drosophila musaphilia--Unit 1--Kokee consists of 794 ac (321 ha) of 
montane, mesic, koa and ohia forest, and is located in the Kokee region 
of northwestern Kauai. Ranging in elevation between 3,310-3,740 ft 
(1,010-1,140 m), this unit is owned by the State of Hawaii and occurs 
on lands managed as part of a State park, forest reserve, and natural 
area reserve. According to the most recent survey data (K. Kaneshiro, 
in litt. 2005a, p. 11), this unit was occupied by D. musaphilia at the 
time of listing. This unit includes the known elevation range, moisture 
regime, and native forest components used by foraging adults that have 
been identified as the PCEs for this species. This unit also includes 
populations of Acacia koa, the larval stage host plant associated with 
this species.

Maui Unit

    Drosophila neoclavisetae--Unit 1--Puu Kukui consists of 584 ac (237 
ha) of montane, wet, ohia forest within the west Maui mountains on the 
island of Maui. Ranging in elevation between 3,405-4,590 ft (1,040-
1,400 m), this unit is both privately and State-owned. All of the area 
within this unit occurs within the boundary of the Puu Kukui Watershed 
Preserve, lands jointly managed by TNCH, the State of Hawaii, and the 
MLP Company. According to the most recent survey data (K. Kaneshiro, in 
litt. 2005a, p. 11), this unit was occupied by D. neoclavisetae at the 
time of listing. This unit includes the known elevation range, moisture 
regime, and native forest components used by foraging adults that have 
been identified as the PCEs for this species. This unit also includes 
populations of Cyanea kunthiana and C. macrostegia ssp. macrostegia, 
the larval stage host plant associated with this species. As described 
below, we are excluding 450 ac (182 ha) of this unit from the critical 
habitat designation for D. neoclavisetae (see ``Exclusions Under 
Section 4(b)(2) of the Act'' section).

Molokai Unit

    Drosophila differens--Unit 1--Puu Kolekole consists of 988 ac (400 
ha) of montane, wet, ohia forest within the eastern Molokai mountains 
on the island of Molokai. Ranging in elevation between 3,645-4,495 ft 
(1,110-1,370 m), this unit is privately owned and is managed by TNCH as 
part of the Kamakou and Pelekunu preserves. According to the most 
recent survey data (K. Kaneshiro, in litt. 2005a, p. 11), this unit was 
occupied by D. differens at the time of listing. This unit includes the 
known elevation range, moisture regime, and native forest components 
used by foraging adults that have been identified as the PCEs for this 
species. This unit also includes populations of Clermontia sp., the 
larval stage host plant associated with this species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify designated critical habitat. Decisions by 
the Fifth and Ninth Circuit Court of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, destruction or adverse modification is 
determined on the basis of whether, with implementation of the proposed 
Federal action, the affected critical habitat would remain functional 
(or retain the current ability for the primary constituent elements to 
be functionally established) to serve its intended conservation role 
for the species.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry

[[Page 73811]]

out are not likely to jeopardize the continued existence of the species 
or to destroy or adversely modify its critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency (action agency) must enter into consultation 
with us. As a result of this consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion (BO) for Federal actions that may affect, 
but are likely to adversely affect, listed species or critical habitat.
    When we issue a BO concluding that a project is likely to 
jeopardize the continued existence of a listed species or destroy or 
adversely modify critical habitat, we also provide reasonable and 
prudent alternatives to the project, if any are identifiable. We define 
``Reasonable and prudent alternatives'' at 50 CFR 402.02 as alternative 
actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action;
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction;
     Are economically and technologically feasible; and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may need to request reinitiation of consultation with us on 
actions for which consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat in a 
manner not previously analyzed.
    Federal activities that may affect 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 or their designated critical habitat will require 
consultation under section 7(a)(2) of the Act. Activities on State, 
local, or private lands requiring a Federal permit, such as a permit 
from the U.S. Army Corps of Engineers under section 404 of the Clean 
Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under 
section 10(a)(1)(B) of the Act, or involving some other Federal action 
such as funding from the Federal Highway Administration, Federal 
Aviation Administration, or the Federal Emergency Management Agency are 
examples of agency actions that may be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local, or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7(a)(2) consultations.

Application of the Adverse Modification Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the 12 picture-wing flies.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may destroy 
or adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and, therefore, should 
result in consultation for the 12 picture-wing flies include, but are 
not limited to:
    (1) Actions that may degrade or remove host plant habitat or result 
in the loss and degradation of the 12 picture-wing flies' habitat. For 
example, this could occur through activities such as controlled burns, 
clearing or cutting of native live trees and shrubs, introducing or 
encouraging the spread of nonnative plants, recreational use, or the 
use of off-road vehicles in a manner that degrades native vegetation.
    (2) Actions that may result in the removal, thinning, or other 
modification of the 12 picture-wing flies' host plants. For example, 
this may occur through plowing, grading, development, road or fence 
building, burning or taking other actions that pose a risk of fire, 
mechanical weed control, herbicide application, recreational use, and 
activities associated with wildfire fighting (e.g., staging areas, 
surface disturbance).
    (3) Actions that may affect habitat value or quality through 
indirect effects (e.g., outplanting efforts that enable the spread of 
nonnative species or fragmentation).
    All of the units designated as critical habitat, including the Maui 
Land and Pineapple Co. portion of the Drosophila neoclavisetae--Unit 
1--Puu Kukui, which was excluded under section 4(b)(2) of the Act, 
contain the physical and biological features essential to the 
conservation of the 12 picture-wing flies. Each of the 32 units that 
have been designated as critical habitat are within the geographic 
ranges of these species, were known to be occupied by the species at 
the time of listing, and are currently occupied. Federal agencies 
already consult with us on activities in areas that are currently 
occupied by these species in cases where they may be affected, to 
ensure that their actions do not jeopardize the continued existence of 
the 12 picture-wing flies.

Exclusions

Application of Section 4(a)(3) of the Act

    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. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now 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.''
    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources

[[Page 73812]]

found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    We coordinate with the military on the development and 
implementation of INRMPs for installations with listed species. INRMPs 
developed by military installations located within the range of the 
critical habitat designation for Drosophila aglaia and D. substenoptera 
were analyzed for purposes of section 4(a)(3) of the Act.

Approved INRMPs

West Range of Schofield Barracks Military Reservation
    The U.S. Army completed its Oahu INRMP in 2000. Conservation 
measures included in the INRMP that benefit Drosophila aglaia and D. 
substenoptera 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.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the U.S. Army Garrison Hawaii Oahu Training Areas Natural 
Resource Management Final Report (U.S. Army, 2000(b)) and the 2002-2006 
Oahu Integrated Natural Resources Management Plan (U.S. Army, 2000(a)) 
provide benefits to Drosophila aglaia and D. substenoptera where they 
occur within or adjacent to the West Range of Schofield Barracks 
Military Reservation. Therefore, this installation is exempt from 
critical habitat designation under section 4(a)(3) of the Act. We are 
not including approximately 78 ac (31 ha) of habitat on Oahu in this 
final critical habitat designation because of this exemption. The other 
10 species of picture-wing flies do not occur on U.S. Army land, and 
are not subject to consideration under section 4(a)(3)(B)(i) of the 
Act.
    Recently, the Army informed us that they are updating their 2000 
INRMP and incorporating the conservation measures found in the 2002-
2006 Oahu Integrated Natural Resources Management Plan. Revisions to 
the INRMP are expected to be completed in 2009 (M. Mansker, in litt. 
2008).

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact, of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    Under section 4(b)(2) of the Act, in considering whether to exclude 
a particular area from the designation, we must identify the benefits 
of including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If based on 
this analysis we make this determination, then we can exclude the area 
only if such exclusion would not result in the extinction of the 
species.
    In the following sections, we address a number of general issues 
that are relevant to the exclusion considered in this final critical 
habitat rule.

Benefits of Designating Critical Habitat

    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands on which are found the 
physical or biological features essential to the conservation of the 
species that may require special management considerations or 
protection, and those areas outside the geographical area occupied by 
the species at the time of listing that are essential to the 
conservation of the species. In identifying those lands, the Service 
must consider the recovery needs of the species, such that, on the 
basis of the best scientific and commercial data available at the time 
of designation, the habitat that is identified, if managed, could 
provide for the survival and recovery of the species.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on actions that may affect 
critical habitat and must avoid destroying or adversely modifying 
critical habitat. Federal agencies must also consult with us on actions 
that may affect a listed species and refrain from undertaking actions 
that are likely to jeopardize the continued existence of such species. 
The analysis of effects to critical habitat is a separate and different 
analysis from that of the effects to the species. Therefore, the 
difference in outcomes of these two analyses represents the regulatory 
benefit of critical habitat. For some species, and in some locations, 
the outcome of these analyses will be similar, because effects on 
habitat will often result in effects on the species. However, the 
regulatory standard is different: The jeopardy analysis looks at the 
action's impact on survival and recovery of the species, while the 
adverse modification analysis looks at the action's effects on the 
designated habitat's contribution to the species' conservation. This 
will, in many instances, lead to different results and different 
regulatory requirements.
    For 30 years prior to the Ninth Circuit's decision in Gifford 
Pinchot, consistent with the 1986 regulations, we essentially combined 
the jeopardy standard with the standard for destruction or adverse 
modification of critical habitat when evaluating Federal actions that 
affected currently occupied critical habitat. However, the court of 
appeals ruled that the two standards are distinct and that adverse 
modification evaluations require consideration of impacts on species 
recovery. Thus, a critical habitat designation may provide greater 
regulatory benefits to the recovery of a species than would listing 
alone.
    There are two limitations to the regulatory effect of critical 
habitat. First, a section 7(a)(2) consultation is required only where 
there is a Federal nexus (an action authorized, funded, or carried out 
by any Federal agency)--if there is no Federal nexus, the critical 
habitat designation of private lands itself does not restrict any 
actions that destroy or

[[Page 73813]]

adversely modify critical habitat. Second, the designation only limits 
destruction or adverse modification. By its nature, the prohibition on 
adverse modification is designed to ensure that the conservation role 
and function of those areas that contain the physical and biological 
features essential to the conservation of the species or of unoccupied 
areas that are essential to the conservation of the species is not 
appreciably reduced as a result of a Federal action. Critical habitat 
designation alone, however, does not require property owners to 
undertake specific steps toward recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when we 
concur in writing that the proposed Federal action is not likely to 
adversely affect critical habitat. However, if we determine through 
informal consultation that adverse impacts are likely to occur, then we 
would initiate formal consultation, which would conclude when we issue 
a biological opinion on whether the proposed Federal action is likely 
to result in destruction or adverse modification of critical habitat.
    For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not suggest the 
implementation of any reasonable and prudent alternative. We suggest 
reasonable and prudent alternatives to the proposed Federal action only 
when our biological opinion results in an adverse modification 
conclusion.
    As stated above, the designation of critical habitat does not 
require that any management or recovery actions take place on the lands 
included in the designation. Even in cases where consultation has been 
initiated under section 7(a)(2) of the Act, the end result of 
consultation is to avoid jeopardy to the species or adverse 
modification of its critical habitat or both, but not specifically to 
manage remaining lands or institute recovery actions on remaining 
lands. Conversely, voluntary conservation efforts implemented through 
management plans institute proactive actions over the lands they 
encompass and are put in place to remove or reduce known threats to a 
species or its habitat. We believe that in many instances the benefit 
to a species or its habitat or both realized through the designation of 
critical habitat is low when compared to the conservation benefit that 
can be achieved through voluntary conservation efforts or management 
plans. The conservation achieved through implementing HCPs or other 
habitat management plans can be greater than what we achieve through 
multiple site-by-site, project-by-project, section 7(a)(2) 
consultations involving consideration of critical habitat. Management 
plans may commit resources to implement long-term management and 
protection to particular habitat for at least one and possibly 
additional listed or sensitive species. Section 7(a)(2) consultations 
commit Federal agencies to preventing adverse modification of critical 
habitat caused by the particular project only, and not to providing 
conservation or long-term benefits to areas not affected by the 
proposed project. Thus, implementation of any HCP or management plan 
that considers enhancement or recovery as the management standard may 
often provide as much or more benefit than a consultation for critical 
habitat designation.
    Another benefit of including lands in critical habitat is that 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the 12 picture-wing flies. In general, critical habitat designation 
always has educational benefits, and may inform State agencies and 
local governments about areas that could be conserved under State laws 
or local ordinances.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (US Department of Agriculture 
2002), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002, 
p. 720). Eighty-eight percent of the State of Hawaii is made up of non-
Federal lands. Stein et al. (1995, p. 400) found that only about 12 
percent of listed species in the United States were found almost 
exclusively on Federal lands (90-100 percent of their known occurrences 
restricted to Federal lands) and that 50 percent of listed species are 
not known to occur on Federal lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998, p. 1407; Crouse et al. 2002, p. 720; James 
2002, p. 271). Building partnerships and promoting voluntary 
cooperation of landowners is essential to understanding the status of 
species on non-Federal lands and is necessary to implement recovery 
actions such as reintroducing listed species, habitat restoration, and 
habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery, and the Service promotes these private-
sector efforts. Conservation agreements with non-Federal landowners 
(e.g., Habitat Conservation Plans, Safe Harbor Agreements, State and 
local regulations, and other conservation agreements or easements) 
enhance species conservation by extending species protections beyond 
those available through section 7 consultations. We encourage non-
Federal landowners to enter into conservation agreements, based on a 
view that we can achieve greater species conservation on non-Federal 
land through such partnerships than we can through regulatory methods 
(61 FR 63854; December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of promoting endangered species conservation on their 
property, and there is mounting evidence that some regulatory actions 
by the Federal government, while well-intentioned and required by law, 
can under certain circumstances have unintended negative consequences 
for the conservation of species on private lands (Wilcove et al. 1996, 
pp. 5-6; Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 
2002, pp. 270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-
1643). Many landowners fear a decline in the value of their property, 
based on real or perceived restrictions on land-use options where 
threatened or endangered species occur. Consequently, harboring 
endangered species is viewed by many landowners as a liability, 
resulting in anti-conservation incentives because of a perceived risk 
to future economic opportunities (Main et al. 1999, pp. 1264-1265; 
Brook et al. 2003, pp. 1644-1648).
    Some researchers believe that the designation of critical habitat 
on private lands significantly reduces the likelihood that landowners 
will support and carry out conservation actions (Main et al. 1999, p. 
1263; Bean 2002,

[[Page 73814]]

p. 2; Brook et al. 2003, pp. 1644-1648). The magnitude of this negative 
outcome is amplified in situations where active species conservation 
management measures (e.g., reintroduction, wildfire management, control 
of invasive species) are necessary (Bean 2002, pp. 3-4). We believe 
that, in some instances, the judicious exclusion of specific areas of 
non-federally owned lands from critical habitat designations can 
contribute to species recovery and provide a greater level of species 
conservation than critical habitat designation alone.
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7(a)(2) of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. Thus 
the benefits of excluding areas that are covered by effective 
partnerships or other conservation commitments can often be high.

Benefits of Excluding Lands With Approved Management Plans

    The benefits of excluding lands within approved long-term 
management plans from critical habitat designation include relieving 
landowners, communities, and counties of any additional regulatory 
burden that might be imposed by critical habitat. Many conservation 
plans provide conservation benefits to unlisted sensitive species. 
Imposing an additional regulatory review as a result of the designation 
of critical habitat may undermine conservation efforts and partnerships 
in many areas. Designation of critical habitat within the boundaries of 
management plans that provide conservation measures for a species could 
be viewed as a disincentive to entities currently developing these 
plans or contemplating them in the future, because one of the 
incentives for undertaking conservation is greater ease of permitting 
where listed species will be affected. Addition of a new regulatory 
requirement would remove a significant incentive for undertaking the 
time and expense of management planning.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered, continued ability it 
gives us to seek new partnerships with future plan participants, 
including States, counties, local jurisdictions, conservation 
organizations, and private landowners, which together can implement 
conservation actions that we would be unable to accomplish otherwise. 
Designating lands within approved management plan areas as critical 
habitat would likely have a negative effect on our ability to establish 
new partnerships to develop these plans, particularly plans that 
address landscape-level conservation of species and habitats. By 
preemptively excluding these lands, we preserve our current 
partnerships and encourage additional conservation actions in the 
future.
    Furthermore, both HCP and Natural Community Conservation Plan 
(NCCP)-HCP applications require consultation, which would review the 
effects of all HCP-covered activities that might adversely impact the 
species under a jeopardy standard, including possibly significant 
habitat modification (see definition of ``harm'' at 50 CFR 17.3), even 
without the critical habitat designation. In addition, Federal actions 
not covered by the HCP in areas occupied by listed species would still 
require consultation under section 7(a)(2) of the Act, and we would 
review these actions for possibly significant habitat modification, in 
accordance with the definition of harm referenced above.
    The information provided in the previous section applies to all the 
following discussions of benefits of inclusion or exclusion of critical 
habitat.

Areas Considered for Exclusion Under Section 4(b)(2) of the Act

    Under section 4(b)(2) of the Act, we evaluate the effectiveness of 
management plans that address the enhancement or recovery of listed 
species when we weigh and balance the benefits of inclusion or 
exclusion of a particular area from critical habitat designation. We 
consider the following guidelines in evaluating the management and 
protection provided by such plans:
    (1) The plan is complete and provides for the conservation and 
protection of the physical and biological features essential to the 
conservation of the species;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.

Maui Land and Pineapple (MLP) Company's Puu Kukui Watershed Preserve, 
Located in the West Maui Mountains

    Significant progress has been made in habitat restoration on MLP 
lands within the Puu Kukui Watershed Preserve (PKWP), located in the 
West Maui Mountains. We proposed to designate approximately 450 ac (182 
ha) within MLP's PKWP as critical habitat on Maui for Drosophila 
neoclavisetae within Drosophila neoclavisetae--Unit 1--Puu Kukui (72 FR 
67428). Since 1988, MLP has proactively managed their 450 ac (182 ha) 
within the PKWP and is currently in its 15th year of contract with the 
State of Hawaii's Natural Area Partnership (NAP) Program to preserve 
the native biodiversity of the company's conservation lands. At 
slightly over 8,600 ac (3,483 ha), the PKWP is the largest privately 
owned preserve in the State.
    In 1993, MLP became the first private landowner participant in the 
NAP program. They are pursuing four management programs stipulated in 
their PKWP Management Plan (2005) that emphasize reducing nonnative 
species that immediately threaten the management area (MLP 1999). The 
primary management goals within PKWP are to: (1) Eliminate ungulate 
activity in all Puu Kukui management units; (2) reduce the range of 
habitat-modifying weeds and prevent introduction of nonnative plants; 
(3) reduce the negative impacts of nonnative invertebrates and small 
animals; (4) monitor and track biological and physical resources in the 
watershed in order to improve management understanding of the 
watershed's resources; and (5) prevent the extinction of rare species 
within the watershed. Specific management actions that address feral 
ungulates include the construction of fences surrounding 10 management 
units and removal of ungulates within the PKWP.
    The nonnative plant control program within PKWP focuses on weeds 
that modify habitat, prioritizing weeds according to the degree of 
threat to native ecosystems, and preventing the introduction of new 
weeds. The weed control program includes mapping and monitoring along 
established transects and controlling weeds through manual or 
mechanical means. Monitoring and research activities conducted under 
the plan track biological and physical resources, and detect and 
evaluate changes to these resources to guide management programs. 
Vegetation is monitored using permanent photographic points. Nonnative 
species,

[[Page 73815]]

as well as rare, endemic, and indigenous species, are monitored along 
permanent transects. MLP also provides logistical and other support for 
approved research projects, interagency cooperative agreements, and 
remote survey trips within the watershed.

Benefits of Inclusion

    The benefits of including lands in critical habitat can be 
regulatory or educational, which can aid in promoting the recovery of 
species. The principal regulatory benefit of designating critical 
habitat in this area would be that Federal actions affecting D. 
neoclavisetae would require consultation under section 7 of the Act. 
Consultation would ensure that a proposed action does not result in the 
destruction or adverse modification of critical habitat. The most 
likely Federal nexus would be associated with Service funding for 
management activities that target invasive species removal, and a 
potential outcome of a section 7 consultation would be conservation 
recommendations to avoid stands of Cyanea kunthiana and Cyanea 
macrostegia ssp. macrostegia when, for example, constructing a new 
fence or applying herbicides. However, these conservation 
recommendations would still be included within the PKWP invasive 
species control program even in the absence of critical habitat 
designation. Accordingly, we believe that few additional regulatory 
benefits would be derived from including the MLP lands within the area 
designated as critical habitat for Drosophila neoclavisetae beyond 
those conservation benefits already being achieved through the 
implementation of the PKWP Management Plan (2005).
    In addition, we conclude that few regulatory benefits would be 
gained from a designation of critical habitat on these lands because 
the consultations conducted under both the jeopardy and adverse 
modification standards for this species would not be likely to result 
in materially different outcomes. The area is occupied by the species, 
and the most likely Federal nexus would be management activities funded 
in part through the Service's Partners for Fish and Wildlife and 
Private Stewardship Grants programs. These programs have historically 
contributed funds toward the construction of fences to exclude feral 
ungulates from the Preserve. Service funds may also be provided for new 
surveys of invasive, nonnative weeds within the Puu Kukui Watershed 
Preserve. While we acknowledge that the legal standards for jeopardy 
and adverse modification differ, with the latter focused on effects to 
recovery, in view of the nature of the actions likely to be consulted 
on--programs to enhance species habitat--the outcome of consultation is 
likely to be the same.
    There have been no section 7 consultations involving Drosophila 
neoclavisetae or its host plants with the PKWP to date. The economic 
analysis anticipates that there will be two informal consultations 
associated with projects in the PKWP to remove nonnative species over 
the next 13 years, although no formal consultations would be likely to 
occur over the 20-year timeframe of the analysis. The two informal 
section 7 consultations anticipated by the economic analysis would 
occur based on the species' presence in the area even if critical 
habitat is not designated. We do not foresee any additional 
consultations beyond those anticipated by the economic analysis, and 
predict that the section 7 consultation process for critical habitat 
would be unlikely to result in any additional protections for the 
species for the reasons discussed above. Consequently, there is little 
regulatory benefit of designating critical habitat on the MLP lands 
within Drosophila neoclavisetae--Unit 1--Puu Kukui.
    The final listing rule for the 12 picture-wing flies (71 FR 26835) 
acknowledged the importance of this area to the overall conservation of 
Drosophila neoclavisetae (Service 2006). Maui Land and Pineapple Co. is 
aware of the areas where D. neoclavisetae occurs on their property, and 
is implementing conservation actions to benefit the species (MLP 2008, 
p. 2). Because of this proactive approach, we believe that any 
additional educational benefits resulting from the designation of 
critical habitat on these lands would be minimal. Although the 
designation of critical habitat may provide benefits to the recovery of 
a species, in this case the MLP is already committed to implementing 
conservation actions on their lands under the existing PKWP Management 
Plan (2005). Accordingly, any additional benefits to the recovery of 
this species beyond those already being accrued would be limited.

Benefits of Exclusion

    The continued implementation of the PKWP Management Plan will 
provide conservation benefits to Drosophila neoclavisetae. Maui Land 
and Pineapple Co. is currently managing D. neoclavisetae habitat 
through the control of invasive species and the implementation of 
native species restoration activities. Implementation of the PKWP 
Management Plan also provides a significant conservation benefit to D. 
neoclavisetae's host plant populations in the area.
    Existing MLP conservation agreements with Federal and State 
agencies and other private organizations advance their mission of 
practicing prudent stewardship of their land and water resources to 
ensure the protection of rare and endangered plant and animal species, 
and water resources that are crucial to the community. Their continued 
implementation of the PKWP Management Plan will specifically benefit 
Drosophila neoclavisetae through actions that manage invasive species 
and restore native species habitat. The PKWP Management Plan provides a 
significant conservation benefit to D. neoclavisetae's host plant 
populations in the area, and we have a reasonable expectation that the 
strategies and measures will be effective. We have been informed by MLP 
that the area proposed for designation of critical habitat is already 
being preserved in perpetuity for the conservation and protection of 
native habitat for picture-wing flies and other native Hawaiian biota, 
and they believe that the designation of critical habitat is 
unnecessary (MLP 2008, p. 2). In addition, during an April 21, 2008, 
meeting between MLP and Service staff, MLP stated their objection to 
the designation of critical habitat on their lands (Scott McCarthy, 
Service, in litt. 2008).
    Drosophila neoclavisetae is benefiting substantially from MLP's 
voluntary management actions, which include reducing ungulate browsing 
and habitat conversion, reducing competition with nonnative weeds, and 
reducing the risk of wildfire. MLP's management actions also include 
the reintroduction of currently extirpated native species into restored 
habitats.
    We believe that exclusion of approximately 450 ac (182 ha) within 
MLP's portion of the proposed Drosophila neoclavisetae--Unit 1--Puu 
Kukui will acknowledge this conservation commitment and facilitate 
their continued cooperation and partnership with the Service. Since 
this area has been actively managed as a preserve since 1988, we have a 
reasonable expectation that the conservation management strategies and 
actions will continue to be implemented for the benefit of D. 
neoclavisetae and its habitat in the future. There is a risk that 
designating critical habitat on these MLP lands could undermine our 
existing conservation partnership, remove MLP's incentive to accept the 
additional time and expense of management planning, strain the positive 
working relationship we share,

[[Page 73816]]

and hinder future cooperative conservation projects with MLP and other 
potential partners.
    The economic analysis also identifies some incremental economic 
impacts of designating critical habitat in the proposed Drosophila 
neoclavisetae--Unit 1--Puu Kukui. These costs are attributed to habitat 
preservation and watershed management activities. The expected post-
designation incremental cost of watershed management activities is 
$18,150 using a 3 percent discount rate and $14,430 using a 7 percent 
discount rate. According to the economic analysis, these costs would be 
borne mostly by the MLP. While these amounts are small, excluding 
critical habitat from the MLP lands would remove these costs, and thus 
is a benefit of exclusion.
    We believe that excluding this area from critical habitat will help 
maintain and improve our partnership relationship with this landowner 
by acknowledging their positive contribution to conservation on Maui. 
This recognition may provide other landowners with a positive incentive 
to undertake voluntary conservation activities on their lands, 
particularly where there is no regulatory requirement to implement such 
actions. We also note a small economic benefit to excluding this area 
from critical habitat.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We believe the proactive management of Drosophila neoclavisetae 
habitat provided under MLP's PKWP Management Plan (2005) provides 
significant benefits to this species. Also, excluding this area from 
critical habitat will help maintain and improve our partnership 
relationship with this landowner. Furthermore, excluding this area from 
critical habitat will have a small economic benefit. In contrast, the 
benefits of including MLP's land as critical habitat would likely be 
minor. This determination is based on the fact that: (1) There have 
been no section 7 consultations in the area since D. neoclavisetae was 
listed in 2006; (2) we anticipate few future consultations in the PKWP 
management area; (3) any future Federal actions would be subject to 
section 7 consultation since the area is occupied; and (4) future 
Federal actions in this area are expected to be beneficial to the 
species.
    In conclusion, although there may be some limited regulatory, 
educational, or recovery benefits that would arise from the inclusion 
of the MLP lands as critical habitat, they are outweighed by the 
benefits of excluding these lands from the critical habitat 
designation. The continued implementation of MLP's ongoing management 
programs will provide comparable or greater net conservation benefits 
than those that would result from critical habitat designation. The 
significant conservation benefits that would result from the exclusion 
of these lands relate to MLP's ongoing and continued actions to control 
invasive species, protect and restore host plant habitat, and monitor 
native species. We, therefore, are excluding 450 ac (182 ha) of Maui 
Land and Pineapple Co.'s lands within the proposed Drosophila 
neoclavisetae--Unit 1--Puu Kukui from the critical habitat designation 
under section 4(b)(2) of the Act.

Exclusion Will Not Result in Extinction of the Species

    We have determined that the exclusion of MLP's portion of the 
proposed Drosophila neoclavisetae--Unit 1--Puu Kukui from the final 
designation of critical habitat will not result in the extinction of D. 
neoclavisetae. Maui Land and Pineapple Co.'s management programs 
provide tangible conservation benefits that reduce the likelihood of 
extinction for D. neoclavisetae and increase the species' recovery 
potential. Further, we are unaware of any threats in the PKWP 
associated with Federal actions that would require section 7 
consultation. As such, extinction of the species as a consequence of 
not designating critical habitat is unlikely. In addition, since this 
area is occupied by D. neoclavisetae, consultations under section 7 of 
the Act would be required, and any Federal actions that may affect the 
species would be evaluated under the jeopardy standard of section 7 of 
the Act. This evaluation provides assurances that the species would not 
become extinct as a result of those actions.
    With regard to other protections, section 195D-4 of Hawaii Revised 
Statutes (endangered species and threatened species) stipulates that 
species determined to be endangered or threatened under the Federal Act 
shall be deemed endangered or threatened under the State law. It is 
unlawful under the State law, with some exceptions, to ``take'' such 
species, or to possess, sell, carry or transport them. The statutory 
protections for this species under State law provide additional 
assurances that exclusion of this area from critical habitat will not 
result in extinction of Drosophila neoclavisetae.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. Section 4(b)(2) of the Act allows 
the Secretary to exclude areas from critical habitat for economic 
reasons if the Secretary determines that the benefits of such 
exclusions exceed the benefits of designating the area as critical 
habitat. However, this exclusion cannot occur if it will result in the 
extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effects of the designation. The draft analysis 
addressed the economic impacts of designating critical habitat for the 
12 Hawaiian picture-wing flies, and was made available for public 
review on August 12, 2008 (73 FR 46860). We accepted comments on the 
draft analysis until September 11, 2008. Following the close of the 
comment period, a final analysis of the potential economic effects of 
the designation was developed taking into consideration the public 
comments and any new information.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the 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). This information is intended to 
assist the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
addressed the distribution of any potential impacts of the designation, 
including an assessment of the potential effects on small entities. 
This information can be used by the Secretary to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector.
    This analysis focused on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans or best management practices applied by 
State and other Federal agencies. Economic

[[Page 73817]]

impacts that result from these types of protections are considered to 
be part of the regulatory and policy baseline. The economic impacts 
that were evaluated were divided into two periods: (1) Pre-designation, 
covering the time period from the date the picture-wing flies were 
listed (May 9, 2006; 71 FR 26835) to the date the final critical 
habitat designation was expected to occur (about year-end 2008), and 
(2) post-designation, covering the 20-year period following the 
designation (from about 2009 through 2028).
    The economic analysis considers the potential economic effects of 
all actions relating to the conservation of the 12 picture-wing flies, 
including costs associated with sections 4, 7, and 10 of the Act, as 
well as those attributable to designating critical habitat. It further 
considers the economic effects of protective measures taken as a result 
of other Federal, State, and local laws that assist in habitat 
conservation for the 12 picture-wing flies in those areas that contain 
the physical and biological features essential to their conservation. 
In the case of habitat conservation, economic effects generally reflect 
costs associated with committing resources to comply with habitat 
protection measures (such as lost economic opportunities associated 
with restrictions on land use).
    The analysis quantifies the economic impacts of picture-wing fly 
critical habitat designation associated primarily with the following 
activities: (1) Preservation and watershed management in all but the 
Pit Crater unit on the Big Island; (2) game management and public 
recreational hunting in most of the units where land is owned by the 
State; (3) potential future development of approximately 3 acres (1.2 
hectares) within the Pit Crater unit on the Big Island; (4) harvesting 
of commercial timber from portions of the Stainback Forest and Waiakea 
Forest units; and (5) section 7 consultation administrative costs.
    The total pre-designation baseline costs during the period from 
2006 to 2008 in the area proposed for critical habitat designation are 
estimated to range from $750,130 using a 3 percent discount rate to 
$808,100 using a 7 percent discount rate. Because these costs are 
projected to occur whether critical habitat is designated or not, they 
are not considered in the Service's determination of whether the 
benefits of including an area as critical habitat outweigh the benefits 
of excluding the area. These costs are related to preservation and 
watershed management activities, and all or nearly all of the pre-
designation baseline costs have been or will be borne by Federal and 
State agencies. A portion of the preservation and watershed management 
costs has been borne by a few private landowners.
    The annualized post-designation baseline costs during the period 
2009 to 2028 for preservation and water management activities are 
estimated to range from $348,845 using a 3 percent discount rate to 
$379,753 using a 7 percent discount rate. Because these costs are 
projected to occur whether critical habitat is designated or not, they 
are not considered in the Service's determination of whether the 
benefits of including an area as critical habitat outweigh the benefits 
of excluding the area. All or nearly all of the post-designation 
baseline costs would be borne by Federal and State agencies, although a 
portion of the preservation and watershed management costs would be 
borne by a few private landowners. The combined post-designation 
baseline cost for these conservation activities is estimated by the 
final economic analysis (FEA) to be $5,345,730 at a 3 percent discount 
rate, and $4,305,470 at a 7 percent discount rate.
    The economic analysis estimates that the annualized post-
designation incremental costs for the activities described below during 
the period 2009 to 2028 may range from $44,733 using a 3 percent 
discount rate to $46,916 using a 7 percent discount rate. The activity 
having the highest incremental cost ranking is preservation and 
watershed management, with an annualized value of approximately $23,969 
using a 3 percent discount rate to $25,568 using a 7 percent discount 
rate. The second highest cost reflects a possible opportunity loss of 
harvesting trees in Drosophila mulli--Unit 2--Stainback Forest and 
Drosophila mulli--Unit 3--Waiakea Forest, resulting in an annualized 
value of approximately $12,693 using a 3 percent discount rate to 
$12,176 using a 7 percent discount rate.
    There may also be post-designation incremental costs of $68,590 
using a 3 percent discount rate to $56,000 using a 7 percent discount 
rate from 2009-2028, related to future section 7 consultations for 
preservation and watershed management activities. All or nearly all of 
the post-designation incremental costs would be borne by Federal and 
State agencies, although a portion of the preservation and watershed 
management costs would be borne by a few private landowners. The 
combined total present values of estimated post-designation incremental 
impacts from 2009 through 2028 for all activities considered in the 
analysis are about $682,000 and $529,000, respectively, for the 3 and 7 
percent discount rates based on the FEA (USFWS 2008, ES-4).
    Only the incremental costs of designating critical habitat, over 
and above the costs associated with species protection under the Act 
more generally, are considered in determining whether areas should be 
excluded under section 4(b)(2). Therefore, the methodology for 
distinguishing these two categories of costs is important. This is 
particularly true in the current case, because approximately 90 percent 
of the total costs of species conservation over the next 20 years are 
projected to be baseline costs, and 10 percent are projected to be 
incremental costs attributable to critical habitat designation.
    In the absence of critical habitat, Federal agencies must ensure 
that any actions they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of any endangered species or 
threatened species. Costs associated with such actions are considered 
baseline costs. Once an area is designated as critical habitat, 
proposed actions that have a Federal nexus also require consultation 
and potential revision to ensure that the action does not result in the 
destruction or adverse modification of designated critical habitat. 
Costs associated with these actions are considered incremental costs. 
The economic analysis explains that incremental section 7 consultation 
that takes place as a result of critical habitat designation may fall 
into one of three categories: (1) Additional effort to address adverse 
modification in a consultation that also involves jeopardy; (2) re-
initiation of a previously concluded consultation to address adverse 
modification; and (3) new consultation resulting entirely from critical 
habitat designation (i.e., where a proposed action may affect 
unoccupied critical habitat). The economic analysis estimates that 
there would be three project-level informal consultations related to 
Federal grants that would need to be reinitiated in 2009 to address 
picture-wing fly critical habitat. There would also be one programmatic 
consultation that would need to be reinitiated in 2009 related to the 
Hawai'i Volcano National Park management plan, and subsequent 
programmatic consultations every 5 years. The economic analysis 
indicates that since these consultations would be for preservation and 
watershed management activities, no or only minimal project 
modifications would be anticipated.
    The final economic analysis is available on the Internet at http://

[[Page 73818]]

www.regulations.gov and http://www.fws.gov/ or upon request from the 
Pacific Islands Fish and Wildlife Office (see ADDRESSES).

Required Determinations

    In our November 28, 2007, proposed rule (72 FR 67428), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. In this final rule, we affirm the information contained in 
the proposed rule concerning Executive Order (E.O.) 13132, E.O. 12988, 
the Paperwork Reduction Act, and the President's memorandum of April 
29, 1994, ``Government-to-Government Relations with Native American 
Tribal Governments'' (59 FR 22951).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) 5 U.S.C. 802(2)), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
RFA to require Federal agencies to provide a statement of the factual 
basis for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA also 
amended the RFA to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; and small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this 
designation, as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., 
residential and commercial development and agriculture). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat affects only activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the 12 picture-wing flies. Federal agencies also must consult 
with us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities.
    In the final economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of the 12 picture-wing flies and proposed designation of their 
critical habitat. This analysis estimated prospective economic impacts 
due to the implementation of the 12 picture-wing flies' conservation 
efforts for the following activities: (a) Preservation and watershed 
management in all but the Pit Crater unit on the Big Island; (b) game 
management and public recreational hunting in most of the units where 
land is owned by the State; (c) potential for future development on 
about 3 acres (1.2 hectares) of the Pit Crater unit on the Big Island; 
(d) harvesting of commercial timber from portions of Drosophila mulli--
Unit 2--Stainback Forest and Drosophila mulli--Unit 3--Waiakea Forest; 
and (e) section 7 consultation administrative costs.
    Our economic analysis indicates that all or nearly all of the post-
designation incremental costs would be borne by Federal and State 
agencies, which are not small entities. In addition, according to our 
economic analysis, the following agencies, organizations, and private 
companies that may be impacted by the designation of critical habitat 
are not considered to be small entities: City and County of Honolulu, 
Kamehameha Schools, The Nature Conservancy, Queen Emma Foundation, 
James Campbell Co. LLC, MLP, and Molokai Ranch. Accordingly, we are 
certifying that this final designation of critical habitat for the 12 
Hawaiian picture-wing fly species will not have a significant economic 
impact on a substantial number of small entities. A regulatory 
flexibility analysis is not required.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply,

[[Page 73819]]

distribution, or use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. OMB has 
provided guidance for implementing this E.O. that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration. The 
economic analysis finds that none of these criteria are relevant to 
this analysis. Thus, based on information in the economic analysis, 
energy-related impacts associated with the 12 picture-wing flies' 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, a Small Government Agency Plan is 
not required. Based on the consultation history and the economic 
analysis on this critical habitat designation, we do not foresee any 
significant impact to small governments.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
critical habitat for the 12 picture-wing flies. The takings 
implications assessment concludes that this designation of critical 
habitat for the 12 picture-wing flies does not pose significant takings 
implications for lands within or affected by the designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this final rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this final critical habitat designation with 
appropriate State resource agencies in Hawaii. The designation of 
critical habitat in areas currently occupied by the 12 picture-wing 
flies is not likely to impose any additional restrictions to those 
currently in place and, therefore, has little incremental impact on 
State and local governments and their activities. The designation may 
have some benefit to these governments because the areas that contain 
the physical and biological features essential to the conservation of 
the species are more clearly defined, and the PCEs of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating critical habitat in accordance 
with the provisions of the ESA. This final rule uses standard property 
descriptions and identifies the physical and biological features 
essential to the conservation of the species within the designated 
areas to assist the public in understanding the habitat needs of the 12 
picture-wing flies.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). 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.

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the Jurisdiction of the Tenth 
Federal Circuit, we do not need to prepare environmental analyses as 
defined by

[[Page 73820]]

NEPA in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This assertion was 
upheld by the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. Ore. 1995), cert. denied 516 U.S.1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act,'' we readily acknowledge our responsibilities to work 
directly with tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to tribes. We have determined that there are 
no tribal lands occupied at the time of listing containing the features 
essential for the conservation and no tribal lands that are unoccupied 
areas that are essential for the conservation of the 12 picture-wing 
flies. Therefore, designation of critical habitat for the 12 picture-
wing flies has not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Pacific Islands Fish 
and Wildlife Office (see ADDRESSES), or on the Internet at http://
www.regulations.gov and at http://www.fws.gov/pacificislands.

Author(s)

    The primary authors of this notice are staff members of the Pacific 
Islands Fish and Wildlife Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


0
2. In Sec.  17.11(h), revise the entries for ``Fly, Hawaiian picture-
wing'' (Drosophila aglaia), ``Fly, Hawaiian picture-wing'' (Drosophila 
differens), ``Fly, Hawaiian picture-wing'' (Drosophila hemipeza), 
``Fly, Hawaiian picture-wing'' (Drosophila heteroneura), ``Fly, 
Hawaiian picture-wing'' (Drosophila montgomeryi), ``Fly, Hawaiian 
picture-wing'' (Drosophila mulli), ``Fly, Hawaiian picture-wing'' 
(Drosophila musaphilia), ``Fly, Hawaiian picture-wing'' (Drosophila 
neoclavisetae), ``Fly, Hawaiian picture-wing'' (Drosophila obatai), 
``Fly, Hawaiian picture-wing'' (Drosophila ochrobasis), ``Fly, Hawaiian 
picture-wing'' (Drosophila substenoptera), and ``Fly, Hawaiian picture-
wing'' (Drosophila tarphytrichia), under INSECTS in 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     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila differens...  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila hemipeza....  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila heteroneura.  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila montgomeryi.  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila milli.......  U.S.A. (HI)............           NA            T          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila musaphilia..  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila               U.S.A. (HI)............           NA            E          756     17.95(i)           NA
                                        neoclavisetae.
Fly, Hawaiian picture-wing...........  Drosophila obatai......  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila ochrobasis..  U.S.A. (HI)............           NA            E          756     17.95(i)           NA
Fly, Hawaiian picture-wing...........  Drosophila               U.S.A. (HI)............           NA            E          756     17.95(i)           NA
                                        substenoptera.
Fly, Hawaiian picture-wing...........  Drosophila               U.S.A. (HI)............           NA            E          756     17.95(i)           NA
                                        tarphytrichia.
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 73821]]


0
3. In Sec.  17.95, amend paragraph (i) by adding entries for ``Hawaiian 
picture-wing fly (Drosophila aglaia),'' ``Hawaiian picture-wing fly 
(Drosophila differens),'' ``Hawaiian picture-wing fly (Drosophila 
hemipeza),'' ``Hawaiian picture-wing fly (Drosophila heteroneura),'' 
``Hawaiian picture-wing fly (Drosophila montgomeryi),'' ``Hawaiian 
picture-wing fly (Drosophila mulli),'' ``Hawaiian picture-wing fly 
(Drosophila musaphilia),'' ``Hawaiian picture-wing fly (Drosophila 
neoclavisetae),'' ``Hawaiian picture-wing fly (Drosophila obatai),'' 
``Hawaiian picture-wing fly (Drosophila ochrobasis),'' ``Hawaiian 
picture-wing fly (Drosophila substenoptera),'' and ``Hawaiian picture-
wing fly (Drosophila tarphytrichia),'' in the same alphabetical order 
in which these species appear in that table at Sec.  17.11(h), to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
Hawaiian picture-wing fly (Drosophila aglaia)
    (1) Critical habitat units are depicted for County of Honolulu, 
island of Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila aglaia are:
    (i) Dry to mesic, lowland, Diospyros sp., ohia and koa forest 
between the elevations of 1,865-2,985 ft (568-910 m); and
    (ii) The larval host plant Urera glabra, which exhibits one or more 
life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila aglaia 
follows:
BILLING CODE 4310-55-P

[[Page 73822]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.000


[[Page 73823]]


    (6) Drosophila aglaia--Unit 1--Palikea, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593529, 2367854; 
593448, 2367801; 593302, 2367874; 593242, 2367927; 593193, 2367967; 
593165, 2368065; 593217, 2368150; 593314, 2368283; 593399, 2368425; 
593448, 2368578; 593505, 2368716; 593622, 2368833; 593703, 2368906; 
593764, 2368963; 593832, 2369044; 593901, 2369145; 594002, 2369262; 
594079, 2369331; 594104, 2369396; 594120, 2369485; 594124, 2369521; 
594148, 2369525; 594213, 2369525; 594310, 2369497; 594395, 2369473; 
594399, 2369392; 594396, 2369356; 594417, 2369313; 594461, 2369290; 
594551, 2369278; 594579, 2369250; 594559, 2369197; 594472, 2369183; 
594391, 2369179; 594354, 2369153; 594302, 2369072; 594257, 2369015; 
594213, 2368914; 594136, 2368809; 594083, 2368672; 594035, 2368550; 
593966, 2368417; 593966, 2368324; 593909, 2368259; 593792, 2368105; 
593675, 2368000.
    (ii) Note: Map of Drosophila aglaia--Unit 1--Palikea follows:

[[Page 73824]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.001


[[Page 73825]]


    (7) Drosophila aglaia--Unit 2--Puu Kaua, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 594166, 2370854; 
594166, 2370853; 594164, 2370854; 594122, 2370843; 594090, 2370815; 
594040, 2370789; 593996, 2370789; 593930, 2370827; 593852, 2370875; 
593778, 2370907; 593716, 2370947; 593642, 2370999; 593602, 2371041; 
593574, 2371067; 593558, 2371095; 593539, 2371118; 593531, 2371121; 
593534, 2371173; 593519, 2371375; 593533, 2371375; 593552, 2371390; 
593628, 2371404; 593716, 2371426; 593794, 2371431; 593876, 2371437; 
593974, 2371435; 594036, 2371431; 594138, 2371415; 594190, 2371399; 
594232, 2371385; 594246, 2371359; 594239, 2371354; 594170, 2370879; 
594172, 2370877; 594170, 2370855.
    (ii) Note: Map of Drosophila aglaia--Unit 2--Puu Kaua follows:

[[Page 73826]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.002


[[Page 73827]]


Hawaiian picture-wing fly (Drosophila differens)
    (1) Critical habitat is depicted for County of Maui, island of 
Molokai, Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat for 
Drosophila differens are:
    (i) Wet, montane, ohia forest between the elevations of 3,645-4,495 
ft (1,111-1,370 m); and
    (ii) The larval host plants Clermontia arborescens ssp. waihiae, C. 
granidiflora ssp. munroi, C. oblongifolia ssp. brevipes, C. kakeana, 
and C. pallida, which exhibit one or more life stages (from seedlings 
to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map unit. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Drosophila differens--Unit 1--Puu Kolekole, Maui County, island 
of Molokai, Hawaii.
    (i) Land bounded by the following coordinates: 718527, 2337536; 
718533, 2337451; 718538, 2337370; 718543, 2337298; 718547, 2337236; 
718551, 2337182; 718555, 2337138; 718560, 2337098; 718571, 2337055; 
718586, 2337010; 718607, 2336962; 718632, 2336912; 718662, 2336860; 
718698, 2336807; 718739, 2336754; 718784, 2336700; 718835, 2336646; 
718892, 2336593; 718958, 2336551; 719034, 2336520; 719119, 2336502; 
719215, 2336497; 719320, 2336503; 719420, 2336509; 719506, 2336508; 
719579, 2336500; 719639, 2336484; 719685, 2336462; 719675, 2336394; 
719613, 2336327; 718980, 2335781; 718332, 2335236; 718002, 2334953; 
717930, 2334932; 717877, 2334988; 717855, 2335060; 717846, 2335123; 
717848, 2335175; 717862, 2335217; 717888, 2335249; 717921, 2335272; 
717946, 2335291; 717961, 2335308; 717965, 2335322; 717958, 2335333; 
717942, 2335342; 717928, 2335356; 717919, 2335377; 717915, 2335404; 
717916, 2335438; 717923, 2335478; 717935, 2335515; 717952, 2335542; 
717974, 2335558; 718001, 2335564; 718034, 2335559; 718070, 2335550; 
718107, 2335553; 718144, 2335567; 718182, 2335593; 718221, 2335630; 
718257, 2335675; 718280, 2335710; 718286, 2335733; 718277, 2335745; 
718253, 2335744; 718213, 2335731; 718166, 2335721; 718115, 2335717; 
718060, 2335719; 718001, 2335728; 717937, 2335742; 717873, 2335764; 
717812, 2335793; 717753, 2335829; 717697, 2335873; 717643, 2335924; 
717591, 2335977; 717543, 2336020; 717499, 2336052; 717458, 2336073; 
717420, 2336083; 717385, 2336085; 717351, 2336089; 717319, 2336098; 
717288, 2336110; 717258, 2336127; 717230, 2336148; 717204, 2336180; 
717183, 2336223; 717165, 2336280; 717151, 2336348; 717140, 2336429; 
717130, 2336510; 717118, 2336579; 717103, 2336636; 717085, 2336680; 
717065, 2336713; 717041, 2336739; 717009, 2336769; 716968, 2336806; 
716919, 2336847; 716862, 2336894; 716800, 2336946; 716745, 2337000; 
716702, 2337055; 716669, 2337112; 716647, 2337171; 716635, 2337231; 
716632, 2337289; 716634, 2337341; 716644, 2337388; 716660, 2337430; 
716683, 2337468; 716713, 2337497; 716751, 2337516; 716797, 2337523; 
716850, 2337520; 716912, 2337507; 716976, 2337488; 717031, 2337481; 
717077, 2337486; 717126, 2337542; 717183, 2337585; 718403, 2337817; 
718484, 2337833; 718487, 2337824; 718499, 2337760; 718510, 2337691; 
718519, 2337616.
    (ii) Note: Map of Drosophila differens--Unit 1--Puu Kolekole 
follows:
BILLING CODE 4310-55-P

[[Page 73828]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.003


[[Page 73829]]


Hawaiian picture-wing fly (Drosophila hemipeza)
    (1) Critical habitat units are depicted for County of Honolulu, 
island of Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila hemipeza are:
    (i) Dry to mesic, lowland, ohia and koa forest between the 
elevations of 1,720-3,005 ft (524-916 m); and
    (ii) The larval host plants Cyanea angustifolia, C. calycina, C. 
grimesiana ssp. grimesiana, C. grimesiana ssp. obatae, C. membranacea, 
C. pinnatifida, C. superba ssp. superba, Lobelia hypoleuca, L. 
niihauensis, L. yuccoides, and Urera kaalae, which exhibit one or more 
life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila 
hemipeza follows:

[[Page 73830]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.004


[[Page 73831]]


    (6) Drosophila hemipeza--Unit 1--Kaluaa Gulch, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593240, 2374436; 
593231, 2374371; 593281, 2374410; 593315, 2374385; 593612, 2374173; 
593656, 2374138; 593621, 2374096; 593641, 2374077; 593676, 2374072; 
593703, 2374057; 593734, 2374039; 593758, 2374058; 593793, 2374029; 
593779, 2373964; 593731, 2373894; 593660, 2373784; 593609, 2373702; 
593592, 2373648; 593592, 2373594; 593598, 2373553; 593657, 2373561; 
593770, 2373549; 593792, 2373496; 593797, 2373417; 593842, 2373411; 
593842, 2373326; 593905, 2373404; 594053, 2373383; 594103, 2373292; 
594134, 2373228; 594156, 2373250; 594194, 2373256; 594178, 2373323; 
594196, 2373386; 594229, 2373390; 594312, 2373340; 594341, 2373350; 
594339, 2373421; 594383, 2373487; 594381, 2373513; 594460, 2373552; 
594496, 2373553; 594497, 2373518; 594526, 2373509; 594572, 2373460; 
594632, 2373519; 594649, 2373523; 594699, 2373475; 594728, 2373476; 
594762, 2373532; 594791, 2373529; 594828, 2373501; 594852, 2373465; 
594903, 2373501; 594933, 2373500; 594952, 2373489; 594974, 2373334; 
594800, 2373150; 594718, 2373120; 594718, 2373102; 594744, 2373091; 
594710, 2372721; 594720, 2372686; 594716, 2372633; 594678, 2372623; 
594566, 2372651; 594536, 2372666; 594506, 2372663; 594467, 2372672; 
594395, 2372663; 594406, 2372650; 594546, 2372567; 594558, 2372553; 
594551, 2372535; 594389, 2372452; 594395, 2372434; 594415, 2372428; 
594511, 2372449; 594603, 2372437; 594614, 2372421; 594607, 2372385; 
594593, 2372353; 594591, 2372317; 594618, 2372322; 594661, 2372357; 
594700, 2372384; 594696, 2372334; 594697, 2372333; 594697, 2372283; 
594652, 2372257; 594541, 2372266; 594454, 2372294; 594400, 2372294; 
594293, 2372267; 594231, 2372261; 594168, 2372241; 594126, 2372258; 
594075, 2372267; 594030, 2372303; 593999, 2372354; 593948, 2372388; 
593889, 2372397; 593812, 2372413; 593781, 2372425; 593756, 2372442; 
593742, 2372467; 593742, 2372490; 593736, 2372521; 593736, 2372560; 
593757, 2372587; 593790, 2372662; 593663, 2372772; 593543, 2372859; 
593558, 2372894; 593555, 2372910; 593526, 2372928; 593476, 2372912; 
593422, 2372953; 593420, 2372976; 593403, 2372997; 593400, 2373025; 
593373, 2373016; 593352, 2373044; 593328, 2373025; 593215, 2373118; 
593230, 2373171; 593214, 2373176; 593163, 2373154; 593095, 2373213; 
593091, 2373238; 593064, 2373243; 593019, 2373295; 592937, 2373388; 
592889, 2373462; 592897, 2373535; 592908, 2373597; 592923, 2373668; 
592914, 2373772; 592889, 2373866; 592868, 2373941; 592867, 2373950; 
592894, 2374029; 592908, 2374120; 592894, 2374162; 592860, 2374213; 
592854, 2374216; 593151, 2374494.
    (ii) Note: Map of Drosophila hemipeza--Unit 1--Kaluaa Gulch 
follows:

[[Page 73832]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.005


[[Page 73833]]


    (7) Drosophila hemipeza--Unit 2--Makaha Valley, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 586712, 2378108; 
586877, 2378091; 587049, 2378091; 587173, 2378087; 587333, 2378079; 
587506, 2378079; 587592, 2378075; 587641, 2378046; 587641, 2378038; 
587666, 2377980; 587543, 2377935; 587399, 2377931; 587243, 2377919; 
587090, 2377906; 586794, 2377943; 586696, 2377943; 586597, 2377869; 
586507, 2377767; 586449, 2377684; 586449, 2377458; 586408, 2377397; 
586305, 2377368; 586206, 2377405; 586054, 2377643; 585968, 2377726; 
585869, 2377775; 585803, 2377849; 585803, 2377915; 585869, 2377952; 
585894, 2377956; 585956, 2377952; 586050, 2377923; 586120, 2377869; 
586194, 2377824; 586317, 2377828; 586383, 2377878; 586391, 2377956; 
586420, 2378034; 586461, 2378116; 586482, 2378174; 586552, 2378190; 
586630, 2378149; 586655, 2378128.
    (ii) Note: Map of Drosophila hemipeza--Unit 2--Makaha Valley 
follows:

[[Page 73834]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.006


[[Page 73835]]


    (8) Drosophila hemipeza--Unit 3--Palikea, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593529, 2367854; 
593448, 2367801; 593302, 2367874; 593242, 2367927; 593193, 2367967; 
593165, 2368065; 593217, 2368150; 593314, 2368283; 593399, 2368425; 
593448, 2368578; 593505, 2368716; 593622, 2368833; 593703, 2368906; 
593764, 2368963; 593832, 2369044; 593901, 2369145; 594002, 2369262; 
594079, 2369331; 594104, 2369396; 594120, 2369485; 594124, 2369521; 
594148, 2369525; 594213, 2369525; 594310, 2369497; 594395, 2369473; 
594399, 2369392; 594396, 2369356; 594417, 2369313; 594461, 2369290; 
594551, 2369278; 594579, 2369250; 594559, 2369197; 594472, 2369183; 
594391, 2369179; 594354, 2369153; 594302, 2369072; 594257, 2369015; 
594213, 2368914; 594136, 2368809; 594083, 2368672; 594035, 2368550; 
593966, 2368417; 593966, 2368324; 593909, 2368259; 593792, 2368105; 
593675, 2368000.
    (ii) Note: Map of Drosophila hemipeza--Unit 3--Palikea follows:

[[Page 73836]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.007


[[Page 73837]]


    (9) Drosophila hemipeza--Unit 4--Puu Kaua, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 594166, 2370854; 
594166, 2370853; 594164, 2370854; 594122, 2370843; 594090, 2370815; 
594040, 2370789; 593996, 2370789; 593930, 2370827; 593852, 2370875; 
593778, 2370907; 593716, 2370947; 593642, 2370999; 593602, 2371041; 
593574, 2371067; 593558, 2371095; 593539, 2371118; 593531, 2371121; 
593534, 2371173; 593519, 2371375; 593533, 2371375; 593552, 2371390; 
593628, 2371404; 593716, 2371426; 593794, 2371431; 593876, 2371437; 
593974, 2371435; 594036, 2371431; 594138, 2371415; 594190, 2371399; 
594232, 2371385; 594246, 2371359; 594239, 2371354; 594170, 2370879; 
594172, 2370877; 594170, 2370855.
    (ii) Note: Map of Drosophila hemipeza--Unit 4--Puu Kaua follows:

[[Page 73838]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.008


[[Page 73839]]


Hawaiian picture-wing fly (Drosophila heteroneura)
    (1) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila heteroneura are:
    (i) Mesic to wet, montane, ohia and koa forest between the 
elevations of 2,908-5,755 ft (908-1,754 m); and
    (ii) The larval host plants Cheirodendron trigynum ssp. trigynum, 
Clermontia clermontioides, C. clermontioides ssp. rockiana, C. 
hawaiiensis, C. kohalae, C. lindseyana, C. montis-loa, C. parviflora, 
C. peleana, C. pyrularia, and Delissea parviflora, which exhibit one or 
more life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila 
heteroneura follows:

[[Page 73840]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.009


[[Page 73841]]


    (6) Drosophila heteroneura--Unit 1--Kau Forest, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 859357, 2130685; 
859117, 2130401; 858810, 2130412; 858577, 2130667; 858596, 2130918; 
858800, 2131167; 858976, 2131240; 859117, 2131196; 859416, 2130970.
    (ii) Note: Map of Drosophila heteroneura--Unit 1--Kau Forest 
follows:
[GRAPHIC] [TIFF OMITTED] TR04DE08.010


[[Page 73842]]


    (7) Drosophila heteroneura--Unit 2--Kona Refuge, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 836880, 2145492; 
836927, 2144316; 836473, 2144373; 835378, 2144516; 831663, 2144980; 
31685, 2145029; 831718, 2145184; 831669, 2145289; 831669, 2145387; 
831694, 2145557; 31685, 2145727; 831685, 2145882; 831677, 2146020; 
831710, 2146149; 831767, 2146247; 31685, 2146482; 831572, 2146766; 
831572, 2146953; 831515, 2147156; 831442, 2147391; 31438, 2147486; 
837419, 2147183.
    (ii) Note: Map of Drosophila heteroneura--Unit 2--Kona Refuge 
follows:

[[Page 73843]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.011


[[Page 73844]]


    (8) Drosophila heteroneura--Unit 3--Lower Kahuku, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 849578, 2119874; 
849925, 2117860; 849842, 2117726; 849716, 2117636; 849492, 2117618; 
49240, 2117726; 849114, 2118058; 848962, 2118723; 848953, 2119065; 
848845, 2119720; 48728, 2120187; 848701, 2120646; 848638, 2120870; 
848620, 2121095; 848692, 2121194; 48782, 2121292; 849007, 2121310; 
849177, 2121319; 849350, 2121233; 849475, 2120505; 49474, 2120484; 
849447, 2120250; 849528, 2120044.
    (ii) Note: Map of Drosophila heteroneura--Unit 3--Lower Kahuku 
follows:

[[Page 73845]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.012


[[Page 73846]]


    (9) Drosophila heteroneura--Unit 4--Pit Crater, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 821660, 2184453; 
821670, 2184348; 821617, 2184279; 821490, 2184191; 821428, 2184164; 
821304, 2184150; 821131, 2184187; 821052, 2184187; 821012, 2184150; 
820889, 2184086; 820850, 2184076; 820824, 2184102; 820778, 2184164; 
820705, 2184193; 820626, 2184233; 820610, 2184289; 820657, 2184318; 
820673, 2184316; 820707, 2184310; 820723, 2184306; 820747, 2184293; 
820790, 2184269; 820818, 2184247; 820832, 2184215; 820861, 2184180; 
820905, 2184168; 820929, 2184191; 820939, 2184221; 820974, 2184255; 
821024, 2184261; 821109, 2184261; 821206, 2184261; 821264, 2184269; 
821282, 2184285; 821292, 2184322; 821254, 2184360; 821232, 2184396; 
821276, 2184404; 821341, 2184400; 821369, 2184431; 821363, 2184463; 
821333, 2184499; 821345, 2184528; 821426, 2184550; 821531, 2184554; 
821619, 2184513.
    (ii) Note: Map of Drosophila heteroneura--Unit 4--Pit Crater 
follows:

[[Page 73847]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.013


[[Page 73848]]


    (10) Drosophila heteroneura--Unit 5--Waihaka Gulch, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 868924, 2138585; 
868686, 2138463; 868564, 2138464; 868434, 2138482; 868325, 2138598; 
868350, 2138841; 868378, 2138886; 868503, 2139088; 868720, 2139220; 
868946, 2139193; 869076, 2139167; 869160, 2139055; 869238, 2139018; 
869248, 2138892.
    (ii) Note: Map of Drosophila heteroneura--Unit 5--Waihaka Gulch 
follows:

[[Page 73849]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.014


[[Page 73850]]


Hawaiian picture-wing fly (Drosophila montgomeryi)
    (1) Critical habitat units are depicted for County of Honolulu, 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila montgomeryi are:
    (i) Mesic, lowland, diverse ohia and koa forest between the 
elevations of 1,720-2,985 ft (524-910 m); and
    (ii) The larval host plant Urera kaalae, which exhibits one or more 
life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila 
montgomeryi follows:

[[Page 73851]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.015


[[Page 73852]]


    (6) Drosophila montgomeryi--Unit 1--Kaluaa Gulch, City and County 
of Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593240, 2374436; 
593231, 2374371; 593281, 2374410; 593315, 2374385; 593612, 2374173; 
593656, 2374138; 593621, 2374096; 593641, 2374077; 593676, 2374072; 
593703, 2374057; 593734, 2374039; 593758, 2374058; 593793, 2374029; 
593779, 2373964; 593731, 2373894; 593660, 2373784; 593609, 2373702; 
593592, 2373648; 593592, 2373594; 593598, 2373553; 593657, 2373561; 
593770, 2373549; 593792, 2373496; 593797, 2373417; 593842, 2373411; 
593842, 2373326; 593905, 2373404; 594053, 2373383; 594103, 2373292; 
594134, 2373228; 594156, 2373250; 594194, 2373256; 594178, 2373323; 
594196, 2373386; 594229, 2373390; 594312, 2373340; 594341, 2373350; 
594339, 2373421; 594383, 2373487; 594381, 2373513; 594460, 2373552; 
594496, 2373553; 594497, 2373518; 594526, 2373509; 594572, 2373460; 
594632, 2373519; 594649, 2373523; 594699, 2373475; 594728, 2373476; 
594762, 2373532; 594791, 2373529; 594828, 2373501; 594852, 2373465; 
594903, 2373501; 594933, 2373500; 594952, 2373489; 594974, 2373334; 
594800, 2373150; 594718, 2373120; 594718, 2373102; 594744, 2373091; 
594710, 2372721; 594720, 2372686; 594716, 2372633; 594678, 2372623; 
594566, 2372651; 594536, 2372666; 594506, 2372663; 594467, 2372672; 
594395, 2372663; 594406, 2372650; 594546, 2372567; 594558, 2372553; 
594551, 2372535; 594389, 2372452; 594395, 2372434; 594415, 2372428; 
594511, 2372449; 594603, 2372437; 594614, 2372421; 594607, 2372385; 
594593, 2372353; 594591, 2372317; 594618, 2372322; 594661, 2372357; 
594700, 2372384; 594696, 2372334; 594697, 2372333; 594697, 2372283; 
594652, 2372257; 594541, 2372266; 594454, 2372294; 594400, 2372294; 
594293, 2372267; 594231, 2372261; 594168, 2372241; 594126, 2372258; 
594075, 2372267; 594030, 2372303; 593999, 2372354; 593948, 2372388; 
593889, 2372397; 593812, 2372413; 593781, 2372425; 593756, 2372442; 
593742, 2372467; 593742, 2372490; 593736, 2372521; 593736, 2372560; 
593757, 2372587; 593790, 2372662; 593663, 2372772; 593543, 2372859; 
593558, 2372894; 593555, 2372910; 593526, 2372928; 593476, 2372912; 
593422, 2372953; 593420, 2372976; 593403, 2372997; 593400, 2373025; 
593373, 2373016; 593352, 2373044; 593328, 2373025; 593215, 2373118; 
593230, 2373171; 593214, 2373176; 593163, 2373154; 593095, 2373213; 
593091, 2373238; 593064, 2373243; 593019, 2373295; 592937, 2373388; 
592889, 2373462; 592897, 2373535; 592908, 2373597; 592923, 2373668; 
592914, 2373772; 592889, 2373866; 592868, 2373941; 592867, 2373950; 
592894, 2374029; 592908, 2374120; 592894, 2374162; 592860, 2374213; 
592854, 2374216; 593151, 2374494.
    (ii) Note: Map of Drosophila montgomery--Unit 1--Kaluaa Gulch 
follows:

[[Page 73853]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.016


[[Page 73854]]


    (7) Drosophila montgomeryi--Unit 2--Palikea, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593529, 2367854; 
593448, 2367801; 593302, 2367874; 593242, 2367927; 593193, 2367967; 
593165, 2368065; 593217, 2368150; 593314, 2368283; 593399, 2368425; 
593448, 2368578; 593505, 2368716; 593622, 2368833; 593703, 2368906; 
593764, 2368963; 593832, 2369044; 593901, 2369145; 594002, 2369262; 
594079, 2369331; 594104, 2369396; 594120, 2369485; 594124, 2369521; 
594148, 2369525; 594213, 2369525; 594310, 2369497; 594395, 2369473; 
594399, 2369392; 594396, 2369356; 594417, 2369313; 594461, 2369290; 
594551, 2369278; 594579, 2369250; 594559, 2369197; 594472, 2369183; 
594391, 2369179; 594354, 2369153; 594302, 2369072; 594257, 2369015; 
594213, 2368914; 594136, 2368809; 594083, 2368672; 594035, 2368550; 
593966, 2368417; 593966, 2368324; 593909, 2368259; 593792, 2368105; 
593675, 2368000.
    (ii) Note: Map of Drosophila montgomeryi--Unit 2--Palikea follows:

[[Page 73855]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.017


[[Page 73856]]


    (8) Drosophila montgomeryi--Unit 3--Puu Kaua, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 594166, 2370854; 
594166, 2370853; 594164, 2370854; 594122, 2370843; 594090, 2370815; 
594040, 2370789; 593996, 2370789; 593930, 2370827; 593852, 2370875; 
593778, 2370907; 593716, 2370947; 593642, 2370999; 593602, 2371041; 
593574, 2371067; 593558, 2371095; 593539, 2371118; 593531, 2371121; 
593534, 2371173; 593519, 2371375; 593533, 2371375; 593552, 2371390; 
593628, 2371404; 593716, 2371426; 593794, 2371431; 593876, 2371437; 
593974, 2371435; 594036, 2371431; 594138, 2371415; 594190, 2371399; 
594232, 2371385; 594246, 2371359; 594239, 2371354; 594170, 2370879; 
594172, 2370877; 594170, 2370855.
    (ii) Note: Map of Drosophila montgomeryi--Unit 3--Puu Kaua follows:

[[Page 73857]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.018


[[Page 73858]]


Hawaiian picture-wing fly (Drosophila mulli)
    (1) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila mulli are:
    (i) Wet, montane, ohia forest between the elevations of 1,955-3,250 
ft (596-1,093 m); and
    (ii) The larval host plant Pritchardia beccariana, which exhibits 
one or more life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila mulli 
follows:

[[Page 73859]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.019


[[Page 73860]]


    (6) Drosophila mulli--Unit 1--Olaa Forest, Hawaii County, island of 
Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 898754, 2154890; 
898225, 2154740; 898030, 2154878; 897846, 2155268; 897927, 2155578; 
898328, 2155910; 898508, 2155922; 899064, 2155498; 899064, 2155268.
    (ii) Note: Map of Drosophila mulli--Unit 1--Olaa Forest follows:
    [GRAPHIC] [TIFF OMITTED] TR04DE08.020
    

[[Page 73861]]


    (7) Drosophila mulli--Unit 2--Stainback Forest, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 903259, 2169945; 
903159, 2169907; 903080, 2169965; 902974, 2170089; 902953, 2170247; 
903012, 2170346; 903101, 2170415; 903166, 2170439; 903245, 2170490; 
903324, 2170521; 903420, 2170603; 903509, 2170651; 903636, 2170699; 
903732, 2170771; 903849, 2170799; 903914, 2170789; 903955, 2170730; 
903869, 2170662; 903866, 2170658; 903718, 2170579; 903653, 2170521; 
903622, 2170487; 903441, 2170394; 903386, 2170322; 903399, 2170250; 
903451, 2170133; 903403, 2170058.
    (ii) Note: Map of Drosophila mulli--Unit 2--Stainback Forest 
follows:

[[Page 73862]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.021


[[Page 73863]]


    (8) Drosophila mulli--Unit 3--Waiakea Forest, Hawaii County, island 
of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 897021, 2168026; 
896225, 2167587; 895745, 2167704; 895687, 2167996; 895745, 2168207; 
896014, 2168335; 896480, 2168668; 896841, 2169108; 897302, 2169068; 
897522, 2168908; 897482, 2168607.
    (ii) Note: Map of Drosophila mulli--Unit 3--Waiakea Forest follows:

[[Page 73864]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.022

BILLING CODE 4310-55-C

[[Page 73865]]

Hawaiian picture-wing fly (Drosophila musaphilia)
    (1) Critical habitat is depicted for County of Kauai, island of 
Kauai, Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat for 
Drosophila musaphilia are:
    (i) Mesic, montane, ohia and koa forest between the elevations of 
3,310-3,740 ft (1,009-1,128 m); and
    (ii) The larval host plant Acacia koa, which exhibits one or more 
life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map unit. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Drosophila musaphilia--Unit 1--Kokee, Kauai County, island of 
Kauai, Hawaii.
    (i) Land bounded by the following coordinates: 432035, 2448683; 
432126, 2448510; 432111, 2448312; 432111, 2448119; 432106, 2447977; 
432010, 2447906; 432025, 2447779; 431992, 2447749; 431962, 2447768; 
431938, 2447766; 431926, 2447752; 431895, 2447719; 431861, 2447686; 
431825, 2447651; 431786, 2447616; 431745, 2447581; 431701, 2447544; 
431658, 2447505; 431616, 2447462; 431575, 2447417; 431535, 2447368; 
431496, 2447318; 431457, 2447271; 431418, 2447231; 431379, 2447198; 
431339, 2447172; 431299, 2447153; 431267, 2447131; 431247, 2447103; 
431239, 2447068; 431244, 2447027; 431260, 2446979; 431278, 2446930; 
431292, 2446881; 431300, 2446834; 431303, 2446788; 431302, 2446743; 
431300, 2446700; 431301, 2446659; 431306, 2446621; 431252, 2446466; 
431186, 2446345; 431181, 2446332; 430955, 2445963; 430860, 2445709; 
430831, 2445664; 430760, 2445497; 430648, 2445441; 430416, 2445421; 
430405, 2445422; 430396, 2445420; 430159, 2445358; 430153, 2445371; 
430148, 2445402; 430150, 2445437; 430157, 2445475; 430170, 2445517; 
430188, 2445562; 430212, 2445610; 430240, 2445660; 430270, 2445707; 
430302, 2445754; 430335, 2445799; 430371, 2445842; 430407, 2445883; 
430441, 2445921; 430474, 2445956; 430506, 2445988; 430535, 2446017; 
430559, 2446044; 430567, 2446070; 430558, 2446095; 430533, 2446120; 
430492, 2446144; 430441, 2446167; 430398, 2446193; 430363, 2446221; 
430337, 2446252; 430320, 2446284; 430311, 2446319; 430309, 2446353; 
430315, 2446388; 430327, 2446423; 430347, 2446457; 430373, 2446492; 
430401, 2446525; 430430, 2446558; 430459, 2446589; 430489, 2446619; 
430518, 2446649; 430531, 2446681; 430524, 2446716; 430497, 2446755; 
430451, 2446797; 430387, 2446842; 430330, 2446887; 430288, 2446930; 
430262, 2446971; 430250, 2447010; 430253, 2447047; 430263, 2447083; 
430274, 2447118; 430288, 2447153; 430304, 2447187; 430323, 2447220; 
430339, 2447254; 430350, 2447291; 430356, 2447331; 430358, 2447373; 
430354, 2447418; 430351, 2447461; 430354, 2447496; 430361, 2447524; 
430374, 2447545; 430392, 2447558; 430416, 2447567; 430445, 2447573; 
430479, 2447576; 430518, 2447577; 430563, 2447574; 430609, 2447572; 
430649, 2447573; 430684, 2447578; 430714, 2447587; 430737, 2447599; 
430755, 2447616; 430767, 2447639; 430772, 2447667; 430772, 2447701; 
430766, 2447740; 430756, 2447783; 430755, 2447821; 430762, 2447853; 
430778, 2447879; 430802, 2447900; 430834, 2447916; 430864, 2447928; 
430893, 2447937; 430920, 2447943; 430945, 2447947; 430968, 2447947; 
430989, 2447952; 431007, 2447961; 431022, 2447974; 431035, 2447992; 
431045, 2448014; 431049, 2448036; 431046, 2448057; 431036, 2448077; 
431019, 2448096; 430996, 2448113; 430971, 2448128; 430946, 2448140; 
430921, 2448149; 430896, 2448155; 430871, 2448158; 430849, 2448165; 
430830, 2448179; 430815, 2448200; 430804, 2448228; 430796, 2448263; 
430799, 2448299; 430816, 2448330; 430848, 2448356; 430894, 2448377; 
430956, 2448393; 431018, 2448407; 431064, 2448423; 431094, 2448440; 
431109, 2448459; 431107, 2448479; 431094, 2448502; 431076, 2448530; 
431054, 2448563; 431027, 2448601; 430996, 2448643; 430967, 2448687; 
430957, 2448722; 430966, 2448749; 430994, 2448766; 431042, 2448775; 
431103, 2448778; 431162, 2448779; 431218, 2448779; 431269, 2448779; 
431317, 2448777; 431361, 2448775; 431403, 2448767; 431443, 2448754; 
431480, 2448736; 431515, 2448712; 431548, 2448685; 431579, 2448661; 
431607, 2448643; 431633, 2448630; 431657, 2448622; 431678, 2448620; 
431692, 2448631; 431697, 2448656; 431694, 2448695; 431683, 2448749; 
431665, 2448816; 431657, 2448878; 431666, 2448928; 431692, 2448967; 
431735, 2448994; 431795, 2449009; 431857, 2449019; 431913, 2449024; 
431963, 2449027; 432008, 2449026; 432046, 2449022; 432076, 2449012; 
432094, 2448996; 432100, 2448974; 432095, 2448945; 432078, 2448910; 
432060, 2448872; 432053, 2448837; 432063, 2448834; 432035, 2448784.
    (ii) Note: Map of Drosophila musaphilia--Unit 1--Kokee follows:
BILLING CODE 4310-55-P

[[Page 73866]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.023

BILLING CODE 4310-55-C

[[Page 73867]]

Hawaiian picture-wing fly (Drosophila neoclavisetae)
    (1) Critical habitat is depicted for County of Maui, island of 
Maui, Hawaii, on the map below.
    (2) The primary constituent elements of critical habitat for 
Drosophila neoclavisetae are:
    (i) Wet, montane, ohia forest between the elevations of 3,405-4,590 
ft (1,036-1,399 m); and
    (ii) The larval host plants Cyanea kunthiana and C. macrostegia 
ssp. macrostegia, which exhibit one or more life stages (from seedlings 
to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map unit. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Drosophila neoclavisetae--Unit 1--Puu Kukui, Maui County, 
island of Maui, Hawaii.
    (i) Land bounded by the following coordinates: 749957, 2315007; 
750017, 2314927; 750054, 2314874; 750054, 2314874; 750070, 2314854; 
750070, 2314854; 750070, 2314853; 750070, 2314853; 750095, 2314828; 
750095, 2314828; 750095, 2314828; 750118, 2314807; 750118, 2314807; 
750118, 2314806; 750119, 2314806; 750119, 2314806; 750137, 2314795; 
750137, 2314795; 750137, 2314795; 750137, 2314795; 750138, 2314795; 
750138, 2314795; 750172, 2314783; 750197, 2314770; 750214, 2314760; 
750222, 2314756; 750222, 2314756; 750222, 2314756; 750231, 2314751; 
750244, 2314735; 750244, 2314735; 750244, 2314735; 750245, 2314735; 
750263, 2314718; 750263, 2314718; 750263, 2314718; 750283, 2314702; 
750381, 2314361; 750381, 2314360; 750421, 2314232; 750421, 2314232; 
750421, 2314232; 750421, 2314231; 750421, 2314231; 750421, 2314231; 
750422, 2314231; 750422, 2314230; 750422, 2314230; 750402, 2314210; 
750397, 2314126; 750357, 2314098; 750329, 2314098; 750312, 2314143; 
750290, 2314227; 750239, 2314244; 750194, 2314227; 750133, 2314238; 
750076, 2314255; 750009, 2314238; 749958, 2314259; 749885, 2314289; 
749773, 2314435; 749721, 2314492; 749520, 2314710; 749515, 2314969; 
749509, 2315036; 749509, 2315093; 749565, 2315087; 749649, 2315036; 
749739, 2314991; 749756, 2315031; 749655, 2315132; 749599, 2315244; 
749554, 2315340; 749458, 2315407; 749368, 2315480; 749254, 2315543; 
749183, 2315602; 749145, 2315636; 749117, 2315676; 749125, 2315679; 
749125, 2315679; 749125, 2315679; 749125, 2315679; 749125, 2315678; 
749125, 2315678; 749126, 2315678; 749126, 2315678; 749126, 2315677; 
749138, 2315668; 749138, 2315668; 749172, 2315644; 749172, 2315644; 
749172, 2315644; 749172, 2315644; 749172, 2315644; 749186, 2315637; 
749203, 2315624; 749221, 2315611; 749221, 2315611; 749221, 2315611; 
749222, 2315611; 749222, 2315611; 749222, 2315611; 749243, 2315602; 
749331, 2315566; 749351, 2315553; 749351, 2315553; 749383, 2315533; 
749383, 2315533; 749383, 2315533; 749403, 2315522; 749419, 2315511; 
749468, 2315475; 749476, 2315462; 749483, 2315449; 749483, 2315449; 
749484, 2315449; 749484, 2315449; 749498, 2315429; 749498, 2315429; 
749498, 2315428; 749522, 2315400; 749522, 2315400; 749522, 2315400; 
749522, 2315400; 749523, 2315399; 749523, 2315399; 749523, 2315399; 
749548, 2315382; 749548, 2315382; 749548, 2315382; 749570, 2315370; 
749570, 2315370; 749570, 2315370; 749616, 2315349; 749626, 2315340; 
749626, 2315340; 749627, 2315340; 749650, 2315324; 749664, 2315305; 
749675, 2315287; 749679, 2315278; 749679, 2315278; 749679, 2315278; 
749679, 2315278; 749680, 2315278; 749698, 2315255; 749698, 2315254; 
749698, 2315254; 749718, 2315234; 749718, 2315234; 749718, 2315234; 
749718, 2315233; 749718, 2315233; 749734, 2315222; 749779, 2315184; 
749779, 2315184; 749780, 2315183; 749780, 2315183; 749780, 2315183; 
749802, 2315170; 749831, 2315145; 749872, 2315096; 749872, 2315096; 
749872, 2315096; 749872, 2315096; 749873, 2315095; 749873, 2315095; 
749886, 2315085; 749931, 2315044; 749957, 2315008.
    (ii) Note: Map of Drosophila neoclavisetae--Unit 1--Puu Kukui 
follows:
BILLING CODE 4310-55-P

[[Page 73868]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.024


[[Page 73869]]


Hawaiian picture-wing fly (Drosophila obatai)
    (1) Critical habitat is depicted for County of Honolulu, island of 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila obatai are:
    (i) Dry to mesic, lowland, ohia and koa forest between the 
elevations of 1,475-2,535 ft (450-773 m); and
    (ii) The larval host plant Pleomele forbesii, which exhibits one or 
more life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of the critical habitat units for Drosophila 
obatai follows:

[[Page 73870]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.025


[[Page 73871]]


    (6) Drosophila obatai--Unit 1--Puu Pane, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 591489, 2379704; 
591662, 2379690; 591807, 2379704; 591822, 2379699; 591901, 2379571; 
591871, 2379579; 591830, 2379596; 591830, 2379596; 591830, 2379596; 
591830, 2379596; 591830, 2379596; 591830, 2379596; 591830, 2379596; 
591791, 2379600; 591791, 2379600; 591791, 2379601; 591791, 2379600; 
591791, 2379600; 591791, 2379600; 591766, 2379597; 591766, 2379597; 
591766, 2379597; 591766, 2379597; 591766, 2379597; 591766, 2379597; 
591766, 2379597; 591741, 2379583; 591741, 2379583; 591710, 2379565; 
591672, 2379554; 591672, 2379554; 591635, 2379542; 591614, 2379537; 
591614, 2379537; 591614, 2379537; 591582, 2379526; 591582, 2379526; 
591582, 2379526; 591582, 2379526; 591582, 2379526; 591545, 2379500; 
591523, 2379495; 591496, 2379495; 591461, 2379505; 591461, 2379505; 
591461, 2379505; 591461, 2379505; 591461, 2379505; 591461, 2379505; 
591461, 2379505; 591461, 2379505; 591461, 2379505; 591444, 2379502; 
591444, 2379502; 591444, 2379502; 591444, 2379502; 591444, 2379502; 
591432, 2379498; 591421, 2379497; 591421, 2379497; 591421, 2379497; 
591421, 2379497; 591421, 2379497; 591420, 2379497; 591420, 2379497; 
591420, 2379497; 591420, 2379497; 591420, 2379497; 591405, 2379487; 
591405, 2379487; 591405, 2379487; 591405, 2379486; 591405, 2379486; 
591405, 2379486; 591403, 2379483; 591354, 2379454; 591283, 2379460; 
591240, 2379449; 591113, 2379474; 591116, 2379531; 591169, 2379618; 
591284, 2379716; 591345, 2379723.
    (ii) Note: Map of Drosophila obatai--Unit 1--Puu Pane follows:

[[Page 73872]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.026


[[Page 73873]]


    (7) Drosophila obatai--Unit 2--Wailupe, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 629222, 2358352; 
629208, 2358307; 629199, 2358225; 629147, 2358205; 629100, 2358307; 
629048, 2358343; 629028, 2358316; 629023, 2358250; 629005, 2358174; 
628908, 2358169; 628890, 2358110; 628922, 2358034; 628883, 2358011; 
628795, 2358007; 628791, 2357939; 628753, 2357885; 628759, 2357799; 
628705, 2357743; 628676, 2357619; 628606, 2357592; 628536, 2357607; 
628552, 2357673; 628610, 2357731; 628574, 2357806; 628559, 2357874; 
628619, 2357932; 628637, 2357973; 628635, 2358074; 628660, 2358185; 
628735, 2358298; 628775, 2358411; 628936, 2358634; 629070, 2358711; 
629243, 2358647; 629307, 2358506.
    (ii) Note: Map of Drosophila obatai--Unit 2--Wailupe follows:

[[Page 73874]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.027


[[Page 73875]]


Hawaiian picture-wing fly (Drosophila ochrobasis)
    (1) Critical habitat units are depicted for County of Hawaii, 
island of Hawaii, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila ochrobasis are:
    (i) 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
    (ii) The larval host plants Clermontia calophylla, C. 
clermontioides, C. clermontioides ssp. rockiana, C. drepanomorpha, C. 
hawaiiensis, C. kohalae, C. lindseyana, C. montis-loa, C. parviflora, 
C. peleana, C. pyrularia, C. waimeae, Marattia douglasii, Myrsine 
lanaiensis, M. lessertiana, and M. sandwicensis, which exhibit one or 
more life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila 
ochrobasis follows:

[[Page 73876]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.028

    (6) Drosophila ochrobasis--Unit 1--Kipuka 9, Hawaii County, island 
of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 884112, 2179392; 
884090, 2179333; 884069, 2179303; 884023, 2179281; 883971, 2179292; 
883936, 2179295; 883896, 2179273; 883855, 2179287; 883825, 2179319; 
883828, 2179335; 883861, 2179349; 883869, 2179346; 883885, 2179346; 
883888, 2179373; 883893, 2179409; 883896, 2179441; 883934, 2179473; 
883985, 2179484; 884036, 2179444; 884112, 2179409.
    (ii) Note: Map of Drosophila ochrobasis--Unit 1--Kipuka 9 follows:

[[Page 73877]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.029

    (7) Drosophila ochrobasis--Unit 2--Kipuka 14, Hawaii County, island 
of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 884379, 2179103; 
884375, 2179051; 884351, 2178992; 884320, 2178889; 884264, 2178832; 
884236, 2178818; 884211, 2178834; 884141, 2178891; 884099, 2178924; 
884064, 2178929; 884026, 2178959; 884026, 2178976; 884052, 2178983; 
884071, 2179008; 884101, 2179013; 884137, 2179021; 884160, 2179035; 
884148, 2179051; 884151, 2179065; 884210, 2179063; 884208, 2179084; 
884242, 2179101; 884280, 2179131; 884323, 2179146; 884365, 2179146.
    (ii) Note: Map of Drosophila ochrobasis--Unit 2--Kipuka 14 follows:

[[Page 73878]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.030

    (8) Drosophila ochrobasis--Unit 3--Kohala Mountains East, Hawaii 
County, island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 848091, 2222077; 
847912, 2222077; 847578, 2222142; 847461, 2222323; 847396, 2222654; 
847508, 2222900; 847620, 2223146; 847773, 2223179; 848104, 2223079; 
848172, 2222934; 848235, 2222798; 848327, 2222764; 848361, 2222693; 
848350, 2222595; 848317, 2222476; 848177, 2222184.
    (ii) Note: Map of Drosophila ochrobasis--Unit 3--Kohala Mountains 
East follows:

[[Page 73879]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.031

    (9) Drosophila ochrobasis--Unit 4--Kohala Mountains West, Hawaii 
County, island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 841990, 2224000; 
842156, 2223966; 842268, 2223966; 842486, 2223897; 842666, 2223757; 
842803, 2223586; 842840, 2223426; 842812, 2223314; 842758, 2223157; 
842584, 2223047; 842430, 2223096; 842355, 2223157; 842260, 2223278; 
842154, 2223345; 842020, 2223634; 841988, 2223746; 841967, 2223882.
    (ii) Note: Map of Drosophila ochrobasis--Unit 4--Kohala Mountains 
West follows:

[[Page 73880]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.032

    (10) Drosophila ochrobasis--Unit 5--Upper Kahuku, Hawaii County, 
island of Hawaii, Hawaii.
    (i) Land bounded by the following coordinates: 850211, 2124185; 
849989, 2124179; 849874, 2124347; 849874, 2124516; 849975, 2124603; 
850177, 2124724; 850332, 2124866; 850474, 2124900; 850589, 2124832; 
850669, 2124785; 850690, 2124684; 850669, 2124549; 850508, 2124448; 
850339, 2124320.
    (ii) Note: Map of Drosophila ochrobasis--Unit 5--Upper Kahuku 
follows:

[[Page 73881]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.033


[[Page 73882]]


Hawaiian picture-wing fly (Drosophila substenoptera)
    (1) Critical habitat is depicted for County of Honolulu, island of 
Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila substenoptera are:
    (i) Mesic to wet, lowland to montane, ohia and koa forest between 
the elevations of 1,920-4,030 ft (585-1,228 m); and
    (ii) The larval host plants Cheirodendron platyphyllum ssp. 
platyphyllum, C. trigynum ssp. trigynum, Tetraplasandra kavaiensis, and 
T. oahuensis, which exhibit one or more life stages (from seedlings to 
senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila 
substenoptera follows:

[[Page 73883]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.034


[[Page 73884]]


    (6) Drosophila substenoptera--Unit 1--Mt. Kaala, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 588692, 2378661; 
588740, 2378622; 588806, 2378595; 588799, 2378573; 588790, 2378564; 
588785, 2378562; 588776, 2378565; 588776, 2378565; 588776, 2378565; 
588776, 2378565; 588776, 2378565; 588776, 2378565; 588776, 2378566; 
588766, 2378566; 588766, 2378566; 588766, 2378566; 588766, 2378566; 
588766, 2378566; 588766, 2378566; 588766, 2378566; 588766, 2378566; 
588766, 2378566; 588766, 2378566; 588766, 2378566; 588766, 2378566; 
588766, 2378566; 588765, 2378566; 588765, 2378566; 588765, 2378566; 
588753, 2378551; 588731, 2378529; 588722, 2378520; 588722, 2378520; 
588722, 2378520; 588714, 2378509; 588660, 2378470; 588660, 2378470; 
588660, 2378470; 588660, 2378470; 588617, 2378429; 588584, 2378412; 
588563, 2378405; 588530, 2378398; 588530, 2378398; 588484, 2378387; 
588466, 2378384; 588466, 2378384; 588466, 2378384; 588466, 2378384; 
588466, 2378384; 588466, 2378384; 588466, 2378384; 588466, 2378384; 
588459, 2378380; 588459, 2378380; 588459, 2378380; 588459, 2378380; 
588459, 2378379; 588459, 2378379; 588459, 2378379; 588459, 2378379; 
588395, 2378293; 588361, 2378254; 588361, 2378254; 588361, 2378254; 
588361, 2378254; 588361, 2378254; 588349, 2378234; 588349, 2378234; 
588349, 2378234; 588349, 2378234; 588349, 2378234; 588349, 2378234; 
588344, 2378210; 588344, 2378210; 588344, 2378210; 588344, 2378210; 
588344, 2378210; 588344, 2378210; 588344, 2378186; 588344, 2378186; 
588344, 2378186; 588344, 2378186; 588349, 2378161; 588349, 2378161; 
588349, 2378161; 588349, 2378161; 588373, 2378097; 588385, 2378041; 
588384, 2378026; 588380, 2378003; 588364, 2377972; 588364, 2377972; 
588364, 2377972; 588351, 2377941; 588351, 2377941; 588351, 2377941; 
588351, 2377941; 588351, 2377941; 588351, 2377941; 588351, 2377941; 
588351, 2377941; 588351, 2377941; 588351, 2377941; 588354, 2377924; 
588354, 2377924; 588354, 2377923; 588354, 2377923; 588354, 2377923; 
588362, 2377904; 588362, 2377904; 588362, 2377904; 588362, 2377904; 
588362, 2377904; 588369, 2377893; 588369, 2377893; 588369, 2377893; 
588369, 2377893; 588369, 2377893; 588369, 2377893; 588376, 2377888; 
588308, 2377906; 588255, 2377885; 588156, 2377924; 588103, 2377905; 
588064, 2377903; 587879, 2378062; 587792, 2378228; 587806, 2378342; 
587939, 2378515; 588067, 2378659; 588232, 2378655; 588363, 2378748; 
588503, 2378737; 588614, 2378668.
    (ii) Note: Map of Drosophila substenoptera--Unit 1--Mt. Kaala 
follows:

[[Page 73885]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.035


[[Page 73886]]


    (7) Drosophila substenoptera--Unit 2--Palikea, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593529, 2367854; 
593448, 2367801; 593302, 2367874; 593242, 2367927; 593193, 2367967; 
593165, 2368065; 593217, 2368150; 593314, 2368283; 593399, 2368425; 
593448, 2368578; 593505, 2368716; 593622, 2368833; 593703, 2368906; 
593764, 2368963; 593832, 2369044; 593901, 2369145; 594002, 2369262; 
594079, 2369331; 594104, 2369396; 594120, 2369485; 594124, 2369521; 
594148, 2369525; 594213, 2369525; 594310, 2369497; 594395, 2369473; 
594399, 2369392; 594396, 2369356; 594417, 2369313; 594461, 2369290; 
594551, 2369278; 594579, 2369250; 594559, 2369197; 594472, 2369183; 
594391, 2369179; 594354, 2369153; 594302, 2369072; 594257, 2369015; 
594213, 2368914; 594136, 2368809; 594083, 2368672; 594035, 2368550; 
593966, 2368417; 593966, 2368324; 593909, 2368259; 593792, 2368105; 
593675, 2368000.
    (ii) Note: Map of Drosophila substenoptera--Unit 2--Palikea 
follows:

[[Page 73887]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.036


[[Page 73888]]


Hawaiian picture-wing fly (Drosophila tarphytrichia)
    (1) Critical habitat units are depicted for County of Honolulu, 
island of Oahu, Hawaii, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Drosophila tarphytrichia are:
    (i) Dry to mesic, lowland, ohia and koa forest between the 
elevations of 1,720-2,985 ft (524-910 m); and
    (ii) The larval host plant Charpentiera obovata, which exhibits one 
or more life stages (from seedlings to senescent individuals).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which they 
are located existing within the legal boundaries on the effective date 
of this rule.
    (4) Critical habitat map units. Coordinates are in Universal 
Transverse Mercator (UTM) Zone 4 with units in meters using North 
American Datum of 1983 (NAD83).
    (5) Note: Index map of critical habitat units for Drosophila 
tarphytrichia follows:

[[Page 73889]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.037


[[Page 73890]]


    (6) Drosophila tarphytrichia--Unit 1--Kaluaa Gulch, City and County 
of Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593240, 2374436; 
593231, 2374371; 593281, 2374410; 593315, 2374385; 593612, 2374173; 
593656, 2374138; 593621, 2374096; 593641, 2374077; 593676, 2374072; 
593703, 2374057; 593734, 2374039; 593758, 2374058; 593793, 2374029; 
593779, 2373964; 593731, 2373894; 593660, 2373784; 593609, 2373702; 
593592, 2373648; 593592, 2373594; 593598, 2373553; 593657, 2373561; 
593770, 2373549; 593792, 2373496; 593797, 2373417; 593842, 2373411; 
593842, 2373326; 593905, 2373404; 594053, 2373383; 594103, 2373292; 
594134, 2373228; 594156, 2373250; 594194, 2373256; 594178, 2373323; 
594196, 2373386; 594229, 2373390; 594312, 2373340; 594341, 2373350; 
594339, 2373421; 594383, 2373487; 594381, 2373513; 594460, 2373552; 
594496, 2373553; 594497, 2373518; 594526, 2373509; 594572, 2373460; 
594632, 2373519; 594649, 2373523; 594699, 2373475; 594728, 2373476; 
594762, 2373532; 594791, 2373529; 594828, 2373501; 594852, 2373465; 
594903, 2373501; 594933, 2373500; 594952, 2373489; 594974, 2373334; 
594800, 2373150; 594718, 2373120; 594718, 2373102; 594744, 2373091; 
594710, 2372721; 594720, 2372686; 594716, 2372633; 594678, 2372623; 
594566, 2372651; 594536, 2372666; 594506, 2372663; 594467, 2372672; 
594395, 2372663; 594406, 2372650; 594546, 2372567; 594558, 2372553; 
594551, 2372535; 594389, 2372452; 594395, 2372434; 594415, 2372428; 
594511, 2372449; 594603, 2372437; 594614, 2372421; 594607, 2372385; 
594593, 2372353; 594591, 2372317; 594618, 2372322; 594661, 2372357; 
594700, 2372384; 594696, 2372334; 594697, 2372333; 594697, 2372283; 
594652, 2372257; 594541, 2372266; 594454, 2372294; 594400, 2372294; 
594293, 2372267; 594231, 2372261; 594168, 2372241; 594126, 2372258; 
594075, 2372267; 594030, 2372303; 593999, 2372354; 593948, 2372388; 
593889, 2372397; 593812, 2372413; 593781, 2372425; 593756, 2372442; 
593742, 2372467; 593742, 2372490; 593736, 2372521; 593736, 2372560; 
593757, 2372587; 593790, 2372662; 593663, 2372772; 593543, 2372859; 
593558, 2372894; 593555, 2372910; 593526, 2372928; 593476, 2372912; 
593422, 2372953; 593420, 2372976; 593403, 2372997; 593400, 2373025; 
593373, 2373016; 593352, 2373044; 593328, 2373025; 593215, 2373118; 
593230, 2373171; 593214, 2373176; 593163, 2373154; 593095, 2373213; 
593091, 2373238; 593064, 2373243; 593019, 2373295; 592937, 2373388; 
592889, 2373462; 592897, 2373535; 592908, 2373597; 592923, 2373668; 
592914, 2373772; 592889, 2373866; 592868, 2373941; 592867, 2373950; 
592894, 2374029; 592908, 2374120; 592894, 2374162; 592860, 2374213; 
592854, 2374216; 593151, 2374494.
    (ii) Note: Map of Drosophila tarphytrichia--Unit 1--Kaluaa Gulch 
follows:

[[Page 73891]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.038


[[Page 73892]]


    (7) Drosophila tarphytrichia--Unit 2--Palikea, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 593529, 2367854; 
593448, 2367801; 593302, 2367874; 593242, 2367927; 593193, 2367967; 
593165, 2368065; 593217, 2368150; 593314, 2368283; 593399, 2368425; 
593448, 2368578; 593505, 2368716; 593622, 2368833; 593703, 2368906; 
593764, 2368963; 593832, 2369044; 593901, 2369145; 594002, 2369262; 
594079, 2369331; 594104, 2369396; 594120, 2369485; 594124, 2369521; 
594148, 2369525; 594213, 2369525; 594310, 2369497; 594395, 2369473; 
594399, 2369392; 594396, 2369356; 594417, 2369313; 594461, 2369290; 
594551, 2369278; 594579, 2369250; 594559, 2369197; 594472, 2369183; 
594391, 2369179; 594354, 2369153; 594302, 2369072; 594257, 2369015; 
594213, 2368914; 594136, 2368809; 594083, 2368672; 594035, 2368550; 
593966, 2368417; 593966, 2368324; 593909, 2368259; 593792, 2368105; 
593675, 2368000.
    (ii) Note: Map of Drosophila tarphytrichia--Unit 2--Palikea 
follows:

[[Page 73893]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.039


[[Page 73894]]


    (8) Drosophila tarphytrichia--Unit 3--Puu Kaua, City and County of 
Honolulu, island of Oahu, Hawaii.
    (i) Land bounded by the following coordinates: 594166, 2370854; 
594166, 2370853; 594164, 2370854; 594122, 2370843; 594090, 2370815; 
594040, 2370789; 593996, 2370789; 593930, 2370827; 593852, 2370875; 
593778, 2370907; 593716, 2370947; 593642, 2370999; 593602, 2371041; 
593574, 2371067; 593558, 2371095; 593539, 2371118; 593531, 2371121; 
593534, 2371173; 593519, 2371375; 593533, 2371375; 593552, 2371390; 
593628, 2371404; 593716, 2371426; 593794, 2371431; 593876, 2371437; 
593974, 2371435; 594036, 2371431; 594138, 2371415; 594190, 2371399; 
594232, 2371385; 594246, 2371359; 594239, 2371354; 594170, 2370879; 
594172, 2370877; 594170, 2370855.
    (ii) Note: Map of Drosophila tarphytrichia--Unit 3--Puu Kaua 
follows:

[[Page 73895]]

[GRAPHIC] [TIFF OMITTED] TR04DE08.040

* * * * *

    Dated: November 14, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-27664 Filed 12-3-08; 8:45 am]
BILLING CODE 4310-55-C