[Federal Register Volume 71, Number 243 (Tuesday, December 19, 2006)]
[Proposed Rules]
[Pages 75924-75931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21530]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT37


Endangered and Threatened Wildlife and Plants; Proposed Rule to 
Remove the Virginia Northern Flying Squirrel (Glaucomys sabrinus 
fuscus) From the Federal List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973 
(Act), as amended, we, the U.S. Fish and Wildlife Service (Service, us, 
our, or we), propose to remove the West Virginia northern flying 
squirrel (WVNFS) (Glaucomys sabrinus fuscus) from the Federal List of 
Endangered and Threatened Wildlife, due to recovery. This action is 
based on a review of the best available scientific and commercial data, 
which indicates that the subspecies is no longer endangered or 
threatened with extinction, or likely to become so within the 
foreseeable future. Recovery actions have resulted in a reduction in 
the threats which has led to: (1) A significant increase in the number 
of known WVNFS capture sites; (2) an increase in the number of 
individual squirrels; (3) multiple generation reproduction; (4) the 
proven resiliency of the squirrels; and (5) the vast improvement and 
continued expansion of suitable habitat.

DATES: We will consider comments on this proposed delisting if they are 
received by February 20, 2007. Public hearing requests must be received 
by February 2, 2007.

ADDRESSES: If you wish to comment on this proposed delisting, you may 
submit your comments and materials concerning this proposal by any one 
of several methods:
    1. You may submit written comments and information to the Assistant 
Chief, Division of Endangered and Threatened Species, U.S. Fish and 
Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, 
Hadley, MA 01035.
    2. You may hand-deliver written comments to our Northeast Regional 
Office, at the above address.
    3. You may fax your comments to 413-253-8482.
    4. You may use the Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Diane Lynch at the above address 
(telephone: 413-253-8628) or the Field Office Supervisor, West Virginia 
Field Office, 694 Beverly Pike, Elkins, WV 26241 (telephone: 304-636-
6586, extension 15).

Public Comments Solicited

    We intend for any final action resulting from this proposal to be 
as accurate as possible. Therefore, we solicit data, comments, or 
suggestions from the public, other concerned government agencies, the 
scientific community, industry, Tribes, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning: (1) Biological, commercial, trade, or other relevant data 
concerning any threat (or lack thereof) to the WVNFS; (2) additional 
information on the range, distribution, and population size of the 
WVNFS and its habitat; (3) the location of any additional populations 
of the WVNFS; and (4) data on population trends. Please note that 
comments merely stating support or opposition to the actions under 
consideration without providing supporting information, although noted, 
will not be considered in making a determination, as section 4(b)(1)(A) 
of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to 
whether any species is a threatened or endangered species shall be made 
``solely on the basis of the best scientific and commercial data 
available.''
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their name and/or home address, etc., but if you wish us to consider 
withholding this information, you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and other information 
received, as well as supporting documentation used to write this rule, 
will be available for public inspection, by appointment, during normal 
business hours at our Northeast Regional Office (see ADDRESSES). In 
making a final decision on this proposal, we will take into 
consideration the comments and any additional information we receive. 
Such communications may lead to a final rule that differs from this 
proposal.

SUPPLEMENTARY INFORMATION:

Background

    The northern flying squirrel, Glaucomys sabrinus, is comprised of 
25 subspecies, including the Virginia northern flying squirrel, G. s. 
fuscus. Miller (1936, p. 143) first described G. s. fuscus, based on 
specimens collected in the Appalachian Mountains of eastern West 
Virginia. The Virginia northern flying squirrel was listed as 
endangered under the Endangered Species Act (Act) of 1973, as amended 
(16 U.S.C. 1531 et seq.) on July 1, 1985 (Service 1985 (50 FR 26999, p. 
27002)). However, it was subsequently determined that a more suitable 
common name for G. s. fuscus is the West Virginia northern flying 
squirrel (WVNFS), due to the majority of the range of the subspecies 
occurring in West Virginia, and will be referred to as such throughout 
the rest of this document. Information about the WVNFS' life history 
can be found in the final listing rule (50 FR 26999), the Appalachian 
Northern Flying Squirrels Recovery Plan (Service 1990, pp. 1-11), and 
the recent 5-year review (Service 2006b, pp. 6-10).

Previous Federal Actions

    Additional information regarding previous Federal action for the 
WVNFS can be obtained by consulting the subspecies' regulatory profile 
found at: http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.servlets.SpeciesProfile?spcode=A09R.

Recovery Planning

    Recovery plans are not regulatory documents and are instead 
intended to provide guidance to the Service, States,

[[Page 75925]]

and other partners on methods of minimizing threats to listed species 
and on criteria that may be used to determine when recovery is 
achieved. There are many paths to accomplishing recovery of a species 
and recovery may be achieved without all criteria being fully met. For 
example, one or more criteria may have been exceeded while other 
criteria may not have been accomplished. In that instance, the Service 
may judge that, over all, the threats have been minimized sufficiently, 
and the species is robust enough, to reclassify the species from 
endangered to threatened or perhaps delist the species. In other cases, 
recovery opportunities may have been recognized that were not known at 
the time the recovery plan was finalized. These opportunities may be 
used instead of methods identified in the recovery plan. Likewise, 
information on the species may be learned that was not known at the 
time the recovery plan was finalized. The new information may change 
the extent that criteria need to be met for recognizing recovery of the 
species. Overall, recovery of species is a dynamic process requiring 
adaptive management, and judging the degree of recovery of a species is 
also an adaptive management process that may, or may not, fully follow 
the guidance provided in a recovery plan.
    When the 1990 final recovery plan was approved, the recovery 
criteria as they apply to the WVNFS were deemed objective, measurable, 
and adequate (Service 1990, p. 19). The recovery criteria did not 
change with a 2001 recovery plan amendment (Service 2001, pp. 1-6). 
However, the 2001 amendment included an update to Appendix A, 
Guidelines for Habitat Identification and Management for the WVNFS. 
Implementation of the amended Appendix A Guidelines by the Monongahela 
National Forest (MNF) effectively abated the main threat to the 
squirrel (i.e., habitat loss from timber management) throughout the 
majority of its range, by eliminating adverse impacts on all suitable 
habitat on the MNF without having to prove WVNFS presence (Service 
2001, pp. 1-6; Service 2006b, pp. 3-4).
    With the exception of the 2001 amendment to Appendix A, the 
recovery plan is no longer actively used to guide recovery of the WVNFS 
because it is outdated (Service 2006b, pp. 4-6). The recovery criteria 
do not specifically address the five threat factors used for listing, 
reclassifying, or delisting a species (Service 2006b, pp. 5-6). 
Consequently, the recovery plan does not provide an explicit reference 
point for determining the appropriate legal status of the WVNFS based 
either on alleviating the specific factors that resulted in its initial 
listing as an endangered species or on addressing new risk factors that 
may have emerged since listing. Additionally, the current known range 
of the WVNFS (Service 2006b, pp. 7-10) is much more widespread than the 
Geographic Recovery Areas designated in the recovery plan (Service 
1990, p. 16). Thus, these focus areas for recovery, which do not have 
formal or regulatory distinction, are outdated. Therefore, our analysis 
of the threats to the WVNFS was based largely on the recently completed 
5-year review (Service 2006b, pp. 1-20). This review is available at 
http://www.fws.gov/northeast/pdf/flysqrev.pdf.
    Recovery efforts have provided increased attention and focus on the 
WVNFS and the habitat upon which it depends. Numerous conservation 
actions have been implemented since 1985 by land stewards, biologists, 
and conservation groups. These include research and recovery actions 
specified in the 1990 recovery plan and 2001 recovery plan update for 
the WVNFS; minimization and mitigation measures specified in two 
Habitat Conservation Plans (HCPs) at Snowshoe Mountain, specifically 
the protection of approximately 200 acres of WVNFS habitat in 
perpetuity (BHE 2003, pp. 34-42, Appendix F; BHE 2005, pp. 49-55); red 
spruce plantings; and conservation provisions in the 1986 MNF Land and 
Resource Management Plan (U.S. Department of Agriculture (USDA) Forest 
Service (Forest Service) 1986, pp. X-1 - X-3), 2004 Forest Plan 
Amendment (USDA Forest Service 2004, pp. 84, 84a, 84c, 87, 234-234b), 
and Forest Plan Revision (USDA Forest Service 2006 pp. 12, 19-20, 27). 
Of particular note are the habitat protection initiatives that have 
occurred on both public and private lands, the development of a habitat 
model and research on red spruce habitat restoration, the establishment 
of Canaan Valley National Wildlife Refuge (NWR), and the growing 
interest in spruce ecosystem restoration.
    For example, we continue to work with interested land management 
and conservation entities to secure long-term commitments to continue 
conservation efforts already initiated to protect, manage, and monitor 
the habitat upon which the WVNFS depends. Although not one of the bases 
for the proposed WVNFS delisting, the Service is developing a long-term 
Memorandum of Understanding (MOU) with several Federal and non-federal 
entities, including the MNF, Canaan Valley NWR, The Nature Conservancy, 
and the West Virginia Department of Natural Resources (WVDNR). This MOU 
demonstrates a long-term commitment to continue protecting, managing 
for, and monitoring the red spruce-northern hardwood ecosystem, WVNFS, 
and other species. Furthermore, non-Federal land managers in several 
key areas (Kumbrabow State Forest, MeadWestvaco Ecosytem Research 
Forest, Snowshoe Mountain, Blackwater Canyon, and Canaan Valley) have 
expressed an interest to further red spruce conservation, regardless of 
the regulatory status of the WVNFS (Service 2006b, pp. 13-14).

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. We may determine a 
species to be an endangered or threatened species because of one or 
more of the five factors described in section 4(a)(1) of the Act, and 
we must consider these same five factors in delisting a species. We may 
delist a species according to Sec.  424.11(d) if the best available 
scientific and commercial data indicate that the species is neither 
endangered nor threatened for the following reasons: (1) The species is 
extinct; (2) the species has recovered and is no longer endangered or 
threatened (as is the case with the WVNFS); and/or (3) the original 
scientific data used at the time the species was classified were in 
error. The five factors listed under section 4(a)(1) of the Act and 
their application to the WVNFS are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

WVNFS Distribution
    At the time of listing (1985), 10 WVNFS individuals were known from 
Randolph and Pocahontas Counties, WV, and Highland County, VA (Service 
2006b, p. 8). It was thought that vast stretches of unsuitable habitat 
separated the four known population centers and that the WVNFS still 
existed but that it was very rare, and perhaps no longer present in 
much of its former range (50 FR 26999, p. 26999). The final listing 
rule qualitatively described historic habitat losses and suggested 
that, ``[I]n these last occupied zones, the squirrels [G. s. fuscus and 
G. s. coloratus] and their habitat may be coming under increasing 
pressure from human

[[Page 75926]]

disturbances such as logging and development'' (50 FR 26999, p. 27000).
    The current known range of WVNFS follows the spine of the high 
Allegheny Plateau in a northeast to southwest alignment. Helmick Run 
(Grant County, WV) marks the northeast periphery and Briery Knob 
(Greenbrier County, WV) the southwest periphery, covering seven 
counties in West Virginia and Highland County, Virginia (Service 2006b, 
p. 25). There is a total of 107 WVNFS capture sites, 105 of which are 
in West Virginia and 2 in Highland County, Virginia (Service 2006b, pp. 
8, 25; WVDNR 2005, pp. 1-105). These capture sites are dispersed across 
seven general areas of relict habitat in the Allegheny Highlands region 
(Service 2006b, pp. 9, 26).
    As of 2005, there had been 1,141 captures (including 78 recaptures) 
distributed throughout the 107 capture sites (Service 2006b, p. 7; 
WVDNR 2005, pp. 1-105). Sixty percent of these sites document WVNFS 
occurrence through time (WVDNR 2005, pp. 1-16, 18-20, 22-24, 26, 28-33, 
35-36, 39-49, 52-53, 59-60, 62-64, 66-71, 73-75, 77-82, 84-87, 89, 92-
93, 95-96, 98-102, 104-105). WVNFS are nocturnal, leaving the nest to 
forage at night and returning during the day. Nest box monitoring 
results are contingent upon WVNFS occupying the box on the day of the 
survey (Service 2006, p. 7). Therefore, considering that the nest box 
monitoring program has had only a 2 percent average success rate of 
squirrel occupancy per box checked (Service 2006b, p. 7), the presence 
of long-term nest box monitoring data provides strong evidence of the 
WVNFS' continued presence throughout its range over the last couple of 
decades (WVDNR 2005, pp. 1-16, 18-20, 22-24, 26, 28-33, 35-36, 39-49, 
52-53, 59-60, 62-64, 66-71, 73-75, 77-82, 84-87, 89, 92-93, 95-96, 98-
102, 104-105).
    We now know that the WVNFS continues to occupy the areas identified 
in the 1985 final listing rule as well as numerous additional sites 
dispersed throughout its historical range, suggesting that its current 
range roughly approximates the extent of its historical range. Studies 
have confirmed the ability of the WVNFS to adjust its foraging and 
denning behavior (i.e., the ability to nest in a wide variety of trees) 
to persist in and around relict red spruce-northern hardwood forest 
patches (Menzel et al. 2004, pp. 360, 363-364; Menzel et al. 2006a, pp. 
1-3, 6, 7; Menzel et al. 2006b, p. 208; Ford et al. 2004, p. 430).
Habitat Quantity and Quality
    Prior to European settlement, there were in excess of 500,000 acres 
(some sources suggest 600,000+ acres) of old-growth red spruce-northern 
hardwood forests, the preferred habitat of the WVNFS, in the Allegheny 
Highlands. These forests (occupying ridges, slopes, and drainages) in 
West Virginia extended from the vicinity of Mount Storm (Grant County) 
in the north to Cold Knob (Greenbrier County) in the south, east to the 
Allegheny Front (Pendleton County), and west to Webster and Nicholas 
Counties. These red spruce-northern hardwood forests were more 
contiguous across the Allegheny Highlands than are the well-known 
``sky-islands'' of the Southern Appalachians, which support G. s. 
coloratus (Service 1990, pp. 16-17; USDA Forest Service Northeastern 
Research Station 2006, unpublished data, pp. 2-3).
    Logging activity and associated widespread fires at the turn of the 
20th century decimated the red spruce-northern hardwood forests, 
resulting in younger forests with less red spruce, and in many areas, a 
mixed mesophytic (moderately moist environment), oak-dominated forest 
(Menzel et al. 2006a, p. 6; Rollins 2005, pp. 12-13; Schuler et al. 
2002, pp. 88-89). Consequently, this resulted in less, and poorer 
quality, WVNFS habitat because younger forests with fewer red spruce 
provided reduced foraging and sheltering opportunities (Service 2006b, 
p. 6). Also, the presence of oak and its associated mast (i.e., 
acorns), provided a competitive advantage of food resources for the 
more aggressive southern flying squirrel (Glaucomys volans). The WVNFS' 
rarity was understood to be a consequence of its specialized use of a 
precipitously declining habitat type (Service 2006b, p. 11).
    Currently, it is estimated that there are approximately 242,000 
acres of WVNFS habitat (USDA Forest Service Northeastern Research 
Station 2006, unpublished data, p. 4). This estimate is based in part 
on the results of several habitat models, and includes all ``optimal'' 
habitat as well as ``likely'' habitat located in close proximity to red 
spruce-northern hardwood forests. ``Likely'' and ``optimal'' are terms 
and definitions imparted by the Menzel model, with ``likely'' areas 
having a greater than 50 percent chance of being occupied by the WVNFS, 
and ``optimal'' areas having a greater than 75 percent probability of 
being occupied (Menzel 2003, pp. 84-85, 87-89; Menzel et al. 2006b, pp. 
15-16). The models allow us to estimate the amount of potential and 
high quality habitat in the Allegheny Highlands (Menzel et al. 2006a, 
p. 7), prioritize areas for restoration and recovery (Menzel et al. 
2006a, p. 7), assess anthropogenic (manmade) and geologic fragmentation 
of the spruce forest, and analyze stewardship of the suitable habitat 
(Menzel et al. 2006b, p. 15).
    The forested areas used by the WVNFS across most of its range have 
continued to mature in the 20 years since listing. For example, about 
half of the rangewide area modeled as optimal habitat are red-spruce 
northern hardwood forest stands on the MNF that are over 75 years old 
(Menzel et al. 2006b, p. 4; Service 2006b, pp. 10-11; USDA Forest 
Service Northeastern Research Station 2006, unpublished data, p. 2). 
Even though current habitat conditions are not as favorable for the 
WVNFS as historic conditions, current conditions are much improved 
compared to that at the time of listing. With the exception of 
localized habitat impacts, forest succession has resulted in older 
forest stands with improved forest structure, reflecting a continuing, 
positive rangewide trend (Service 2006b, pp. 11-14, 19-20). With regard 
to forest composition, the amount and extent of red spruce also appears 
to be gradually increasing, as suggested by Rollins (2005, pp. 39-51).
    We analyzed impacts the balsam and hemlock woolly adelgids, insect 
parasites accidentally introduced from Europe (Service 1990, p. 13), 
may be having on the WVNFS' habitat (Service 2006b, p. 17). The balsam 
woolly adelgid infects balsam fir (Abies balsamea) trees, causing 
damage or mortality to the host trees (Service 1990, p. 13). However, 
we believe the effect of the balsam woolly adelgid on WVNFS habitat is 
discountable because balsam fir is limited to a minor component of the 
WVNFS habitat. Red spruce occurs in or near stands of balsam fir, 
providing the WVNFS with alternative and higher value habitat where 
damage from the balsam woolly adelgid may have occurred. In addition, 
the impact of the balsam woolly adelgid on the small component of 
balsam fir within WVNFS habitat has already occurred (Service 2006b, p 
17).
    The hemlock woolly adeglid has been in the United States since 
1924. The insect damages eastern hemlock (Tsuga canadensis) trees by 
damaging new growth, which can cause defoliation and mortality (Service 
2006b, p. 17). Only seven percent of the WVNFS capture sites are 
dominated by Eastern hemlock instead of red spruce (Service 2006b, p. 
17). Loss of Eastern hemlock, due to the hemlock woolly adelgid, may 
reduce the

[[Page 75927]]

chances of WVNFS dispersal between patches and within metapopulations, 
potentially having a very local, isolating impact in a limited number 
of situations. While hemlock woolly adelgid may remove the montane 
conifer component at less than 10 percent of the known capture sites, 
most, if not all, of these areas are in close proximity to red spruce-
northern hardwood forests, significantly reducing the occasions where 
loss of Eastern hemlock will be detrimental to the WVNFS (Service 
2006b, p. 17). Additionally, the West Virginia Department of 
Agriculture has an active detection program for hemlock woolly adelgid 
and a treatment program that will remain in place regardless of the 
listing status of the WVNFS. Therefore, even though the hemlock woolly 
adelgid may impact a minor component of the squirrel's habitat, we 
consider it to pose a negligible degree of risk to the WVNFS, because 
of the limited role of hemlock in the species' survival, and presence 
of red spruce in the majority of the areas (Service 2006b, p. 17).
    The potential impact of beech bark disease was also analyzed. Beech 
bark disease is caused by the beech scale insect (Cryptococcus 
fagisuga), followed by one of two fungi (Nectria coccinea var. faginata 
or N. galligena). The scale stresses and weakens the American beech 
tree (Fagus grandifolia) and the fungi then causes either localized 
lesions or decay and death of the entire tree (Service 2006b, pp. 17-
18). Although American beech trees are common to the spruce-northern 
hardwood forests of the Allegheny Highlands, in WVNFS habitat they 
usually occur in combination with spruce and other hardwoods, 
particularly birch and maple. Therefore, despite having a devastating 
impact on the American beech component of the red spruce-northern 
hardwood forest, beech bark disease is not thought to render WVNFS 
habitat unsuitable (Service 2006b, p. 18). There is actually a 
potential short-term benefit to the WVNFS due to the creation of new 
nest cavities in the holes of dead and decaying beech. Foraging habitat 
for the WVNFS may also improve with increases in large woody debris on 
the forest floor from the dead beech trees, which could promote the 
growth of underground fungi, one of the WVNFS' primary food sources 
(Carey et al. 1999, p. 54; Pyare and Longland 2001, p. 1008; Rosenberg 
and Anthony 1992, p. 161; Waters et al. 2000, p. 85). Additionally, the 
removal of beech nuts is thought to be more detrimental to the southern 
flying squirrel because it is a high energy food source for that 
species, and, therefore, would counter any small amount of direct 
competition between the WVNFS and the southern flying squirrel. 
Therefore, while beech bark disease affects a minor component of WVNFS 
habitat rangewide, we consider it to pose an overall low-to-moderate 
degree of risk for WVNFS, and this risk may be offset by the potential 
benefits of creation of new nest cavities, increase in a primary food 
source, and potential harm to the food supply of the southern flying 
squirrel (Service 2006b, p. 18).
Land Use Planning
    Available information indicates that the threat posed by past 
habitat loss has been largely abated across most of the WVNFS' range. 
Implementation of the 2001 recovery plan amendment (Service 2001, p. 4) 
by the MNF and the 2004 amendment to the MNF Land and Resource 
Management Plan (USDA Forest Service 2004, pp. 84a-84c, 87, 234-234b) 
significantly removed the threat of habitat loss (via logging) across 
much of the WVNFS' range. The recovery plan amendment recommended that 
suitable WVNFS habitat be considered during consultation with Federal 
agencies. The Forest Service reinforced this recommendation through an 
amendment to the MNF Land and Resource Management Plan, that limited 
vegetation management in all ``suitable habitat'' (as determined 
collaboratively by the Forest, Service, and WVDNR) to only certain 
activities: Research covered under an Endangered Species Act section 10 
permit; actions to improve or maintain WVNFS populations after research 
has demonstrated the beneficial effects of the proposed management; or 
when project-level assessment results in no adverse effects. This 
conservation strategy has been carried forward into the MNF's recent 
Forest Plan Revision (USDA Forest Service 2005, pp. II-20, II-24, III-
9-III-16; USDA Forest Service 2006, pp. 12, 19-20, 27). The former 
primary cause of habitat loss (detrimental logging practices) has been 
abated on the MNF, and proactive conservation throughout much of the 
WVNFS' range has and will continue to eliminate impacts from past 
logging practices, and focus on restoration of this ecosystem. For 
example, tens of thousands of red spruce trees have been planted over 
the last 4 years and more is being done to protect and restore this 
ecosystem (West Virginia Highlands Conservancy 2006, p.10).
    There is no evidence of any new sources of habitat loss throughout 
the current range of the WVNFS. According to analyses using the Menzel 
model, over 60% of areas modeled as likely habitat are now considered 
secured by public ownership and/or managed for the protection of the 
WVNFS (Menzel et al. 2006b, p. 4). These areas include Canaan Valley 
NWR (created in 1994), Blackwater Falls and Canaan Valley State parks, 
Handley Wildlife Management Area, Kumbrabow State Forest, and the MNF 
(Service 2006b, pp. 12-14).
    Activities that have contributed to habitat loss and degradation 
since the time of listing have been localized and/or have occurred on 
the periphery of the WVNFS' range (Service 2006b, pp. 11, 14, 20). 
These activities include limited highway development, recreational 
development, mining and gas exploration, timber management, and wind 
farm development. With regard to activities that are reasonably 
foreseeable to occur, some low level of local impacts are likely to 
continue into the future; however, there is no indication that the 
activities would ever be likely to occur over a landscape level, or at 
such a magnitude as to pose a threat to the continued existence of 
WVNFS (Service 2006b, pp. 11, 14, 19-20). For example, in addition to 
the majority of WVNFS habitat being publicly owned and managed, future 
development throughout the range of the WVNFS is expected to be 
minimal. The entire range of the WVNFS is within the Allegheny 
Mountains Valley Physiographic Region, an area of steep terrain and low 
human population density and growth. In 2005, the proportion of land 
use classified as low density and high density development within this 
physiographic region in West Virginia was 0.4% and 0.1%, respectively 
(WVDNR 2006, p. 10). During 2000, population densities in the counties 
in West Virginia in which the WVNFS occurs were among the lowest in the 
State, ranging from 9.7-40.4 persons per square mile (WVDNR 2006, p. 
17); and with the exception of Randolph County (0.3% increase), the 10-
year population trend (1990-2000) in all of these counties decreased 
(WVDNR 2006, p. 18).
    Summary of Factor A: Although the quantity and quality of WVNFS 
habitat is reduced from historical levels, we now know that the WVNFS 
is more resilient in its habitat use than formerly thought (probably 
because of its mobility and plasticity in nest tree selection), and 
that habitat trends are moving in a positive direction in terms of 
forest regeneration and conservation. Therefore, the present or 
threatened destruction, modification, or curtailment of its habitat or 
range is no

[[Page 75928]]

longer considered a threat to the WVNFS.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The final listing rule concluded that the WVNFS was not known to be 
jeopardized by human utilization but noted that flying squirrels are 
highly desirable as pets to some persons, and collecting for such 
purposes is at least a potential threat to the already rare WVNFS (50 
FR 26999, p. 27000). The WVNFS has been captured only for scientific 
purposes through nest box and live trap methods, and not for market 
collecting or commercial use. Capture for scientific purposes has been 
very limited, and has not proven to be detrimental to the continued 
existence of the WVNFS.
    In the 21 years since listing, the Service has not received any 
evidence that commercial use in the pet trade or recreational use of 
the WVNFS is a threat. The WVNFS is a thinly dispersed, nocturnal 
mammal that is very difficult to catch. For example, Menzel captured 
the WVNFS at a rate of 0.227 captures per100 trap nights (Menzel 2003, 
p. 65), and the WVDNR's nest box monitoring program has had only a 2 
percent average success rate of squirrel occupancy per box checked 
(Service 2006b, p. 7). Additionally, due to its nocturnal nature, this 
squirrel has not been widely hunted.
    Summary of Factor B: Overutilization for any purpose is not 
currently considered a threat, and is not anticipated to emerge as a 
threat in the future, given the difficulties in collecting the WVNFS 
(i.e., its nocturnal and secretive habits, and the remoteness of its 
habitat (Service 2006b, p. 14)).

C. Disease or Predation

    The final listing rule made no mention of disease as a threat to 
the WVNFS, and we are not aware of any evidence since the time of 
listing that suggests the health of WVNFS individuals is threatened by 
disease. Of the more than 1,100 individual squirrels captured since 
1985, none have shown signs of disease (Service 2006b, p. 15).
    The final listing rule predicted that increasing human recreational 
use of northern flying squirrel habitat might result in predation on 
the WVNFS by pets, especially cats (50 FR 26999, p. 27000). While 
natural predators of the WVNFS may include weasel, fox, mink, owl, 
hawks, bobcat, skunk, raccoon, snakes, and fisher, we are not aware of 
any scientific or circumstantial evidence since the time of listing to 
support pets preying upon WVNFS (Service 2006a, p. 15), or to suggest 
that natural predation limits populations of WVNFS. As analyzed in our 
biological opinion for the Camp Wilderness HCP (Service 2003, pp. 12, 
23), there are no documented deaths of northern flying squirrels, 
particularly the WVNFS, as a result of impacts of human recreational 
use or occupancy in, or near, its habitat, and pets are not predicted 
to be a substantial threat in the future (Service 2003, pp. 12, 23-25). 
Since the majority of WVNFS habitat is found on the MNF, human 
encroachment into WVNFS habitat is uncommon and localized (e.g., Canaan 
Valley and Snowshoe Mountain) (Service 2003, pp. 12, 23-25; Service 
2006a, p. 15; Service 2006b, pp. 15, 20), and is therefore precluded 
from becoming a threat in the future to the WVNFS.
    Summary of Factor C: Disease and predation are not currently 
considered a threat to the WVNFS and are not considered to become a 
threat in the foreseeable future.

D. Inadequacy of Existing Regulatory Mechanisms

    The final listing rule stated that this factor was not known to be 
applicable (50 FR 26999, p. 27000). Prior to its listing in 1985, there 
were no known existing regulatory mechanisms protecting the WVNFS.
State Laws
    The State of West Virginia does not currently have any State laws 
protecting endangered species. However, for the reasons stated in the 
discussions of Factors A, B, C and E, there are no current threats to 
the species as a whole that require additional regulation. Therefore, 
the lack of an endangered species State law in West Virginia is not 
expected to negatively impact the WVNFS.
    In the Commonwealth of Virginia, the WVNFS has been listed as 
endangered under the Commonwealth's endangered species act since its 
Federal listing in 1985. This Commonwealth law, which is administered 
by the Virginia Department of Game and Inland Fisheries, prohibits take 
of Commonwealth-listed species and is applicable to the WVNFS 
regardless of the squirrel's status under the federal Endangered 
Species Act. The WVNFS will remain listed under the Virginia law if it 
is removed from the Federal List of Threatened and Endangered Wildlife 
(VDGIF 2006, p 2). Lack of current threats, along with the 
Commonwealth's endangered species act, ensures the WVNFS' persistence 
in Virginia into the foreseeable future.
Federal Laws
    The MNF and the George Washington National Forest (GWNF) each 
developed forest management plans that contain provisions to protect, 
manage, restore, and monitor the WVNFS and its habitat (USDA Forest 
Service 2006, pp. 12, 19-20, 27; USDA Forest Service 1997, pp. 3-4, 3-
23, 3-28, 3-110). These provisions, contained in both Forests' current 
plan revisions, will be retained by the Forests, irrespective of the 
WVNFS' Federal listing status. Additionally, the National Forest 
Management Act and other Forest Service implementing guidance and 
regulations, state that national forests should be managed to preserve 
and enhance the diversity of plant and animal communities, and will 
continue to apply if the WVNFS is delisted. According to the Forest 
Service Manual, if a species is removed from the Federal List of 
Threatened and Endangered Wildlife, that species would be placed on a 
list of sensitive species for 5 years, during which time the Forest 
Service would evaluate whether any of their proposed actions would 
result in a trend toward Federal relisting (USDA Forest Service 2001, 
p. 3).
    Overall, improving habitat conditions, the WVNFS' resiliency, and 
lack of rangewide threats indicate that the long-term survival of the 
WVNFS can be sustained without the protections of the Act. In addition, 
the binding standards of the MNF's Forest Plan will remain in effect 
after delisting, providing an existing regulatory mechanism for 
addressing the historical threat of loss of forest habitat.
    Summary of Factor D: Given the MNF's Forest Plan's standards that 
apply to a majority of the range and the resiliency and lack of 
rangewide threats to the species, the inadequacy of regulatory 
mechanisms is not now, or for the foreseeable future, considered a 
threat to the WVNFS.

E. Other Natural or Manmade Factors Affecting the Continued Existence 
of the Species

Competition With Southern Flying Squirrel
    The final listing rule concluded that the WVNFS was threatened by 
competition with the southern flying squirrel for habitat and by the 
spread of a parasite from the southern flying squirrel to the WVNFS (50 
FR 26999, p. 27000). However, evidence collected since the time of 
listing indicates that the occurrence and potential severity of the 
southern flying squirrel's impacts are limited. The sympatric 
occurrence of the two subspecies has been

[[Page 75929]]

documented for decades at 23 of the 107 WVNFS capture sites, most 
notably at Stuart Knob (Randolph County, WV) since the 1950s (Service 
2006b, p. 16). These occurrences span multiple generations of WVNFS 
(WVDNR 2005, pp. 1-105), indicating that over-competition by the 
southern flying squirrel for den sites does not appear to be affecting 
population persistence of the WVNFS. In addition, any competition 
between the two subspecies may be somewhat ameliorated by the spread of 
beech bark disease, which results in the reduced availability of beech 
nuts, an important food source for the southern flying squirrel.
    The final listing rule cited evidence from a captive study in the 
1960s that a nematode parasite, possibly carried by the southern flying 
squirrel, might be lethal to the WVNFS (50 FR 26999, p. 26999). The 
rule stated that while the southern flying squirrels appeared healthy, 
all the northern flying squirrels weakened and died within 3 months, 
and this mortality was associated with heavy infestations of the 
nematode parasite. All the southern flying squirrels also carried the 
parasite, but they remained in apparent good health and continued to 
breed (50 FR 26999, p. 27001). Based on review of the original 
dissertation, the cause of the northern flying squirrel mortality was 
never completely understood (Weigl 1968, pp. 129-150). Weigl et al. 
(1999, pp. 74-75) hypothesized that survival and maturation rates of 
the parasite are limited by below-freezing temperatures that occur 
within the range of the WVNFS, but were not replicated in the 1960s 
captive study. The conditions created in the captive study apparently 
do not closely relate to naturally occurring conditions, and 
observations of WVNFS individuals captured in the last 20 years 
(including areas also occupied by the southern flying squirrel) have 
revealed no signs of sickness, debilitation, or death due to parasitic 
infestation.
Other Natural or Manmade Threats
    The 1985 final listing rule did not address additional threats 
under Factor E. However, the delisting criterion within the 1990 
recovery plan addressed potential threats, such as forest pests (see 
Factor A), acid rain, and climate change, to the existence of the high 
elevation forests on which the squirrels (G. s. fuscus and G. s. 
coloratus) depend (Service 1990, p. 19). Although the delisting 
criterion in the recovery plan is out of date and not based on the five 
threat factors (as previously described), these potential threats were 
included in the overall analysis of the status of the WVNFS in the 5-
year review (Service 2006b, pp. 4-6).
    Acid precipitation (more appropriately referred to as acid 
deposition) and climate change have been cited as potentially damaging 
forest ecosystems, especially the spruce-fir forests in portions of the 
Appalachian Mountains (NAPAP 2005, p. 41). Although empirical data are 
lacking regarding specific effects on the WVNFS, the long-term 
potential exists for anthropogenic acid deposition and climate change 
to diminish the extent and quality of the boreal-like spruce forests 
that have survived on the high ridges and plateaus, by pushing them 
farther up the slopes, and, if warming continues, reducing and 
eventually eliminating habitat at higher elevations. However, there has 
been no evidence of acid deposition or climate change reducing the 
extent of red spruce-northern hardwood forests in the Allegheny 
Highlands since the WVNFS' listing in 1985 (Rollins 2005, pp. 39-51; 
Service 2006b, p. 10), and it is not possible to predict measurable 
impacts on WVNFS habitat through the foreseeable future. Thus, the 
effects of acid deposition and climate change on G. s. fuscus and its 
habitat are not predictable, and it is beyond our capacity to eliminate 
such threats through interventions at the species level. Land managers 
can, however, develop contingency plans to deal with these concerns 
through mitigation and remediation measures. The MNF Forest Plan 
Revision calls for monitoring and management responses to any potential 
effects of acid deposition that may emerge in the future, and the GWJF 
Forest Plan makes a commitment to retain the integrity of high-
elevation forests. Other entities have also expressed an interest in 
perpetuating a healthy red spruce ecosystem in the Allegheny Highlands 
(Service 2006b, pp. 18-19).
    Summary of Factor E: Overall, our analysis of the other natural and 
manmade factors, either alone or in combination, indicates that the 
WVNFS is not in danger of extinction throughout all or a significant 
portion of its range, or likely to become endangered within the 
foreseeable future.

Summary of Findings

    We have carefully assessed the best scientific and commercial data 
available regarding the past, present, and future threats faced by the 
WVNFS, and conclude that the species has recovered, and is not 
threatened with extinction or likely to become endangered within the 
foreseeable future. Due to forest management practices and rangewide 
proactive conservation activities, a substantial amount of WVNFS 
habitat is now considered secure and improving in quality. Relative to 
the information available at the time of listing, recovery actions have 
resulted in a reduction of threats that have led to a (1) a significant 
increase in the number of known WVNFS capture sites; (2) an increase in 
the number of individual squirrels; (3) multiple generation 
reproduction; (4) the proven resiliency of the squirrels; and (5) the 
vast improvement and continued expansion of suitable habitat.
    The biological principles under which we evaluate the rangewide 
population status of the WVNFS relative to its long-term conservation 
are representation, redundancy, and resiliency. At the time of listing, 
the WVNFS was thought to be an extremely rare and declining taxon that 
had disappeared from most of its historical range. We now know that 
occupancy of available habitat has increased and is much more 
widespread than formerly thought, and that the geographic extent of the 
WVNFS' range approximates historical range boundaries. Although the red 
spruce-northern hardwood forests have not rebounded to pre-logging 
conditions, we have learned that the WVNFS can utilize sub-optimal 
habitat adjacent to these forests that constitutes the most essential 
landscape-level component of the WVNFS' habitat. From this, we can 
infer that there is more habitat connectivity than previously thought, 
although there remains geographic separation (and likely has been since 
the end of the Pleistocene era) between some of the habitat areas 
supporting population centers. Thus, there is adequate representation 
(i.e., occupancy of representative habitats formerly occupied by the 
squirrel across its range) and redundancy (i.e., distribution of 
populations in a pattern that offsets unforeseen losses across a 
portion of the WVNFS' range) of the WVNFS.
    Also, despite the difficulties inherent in conducting population 
studies for the WVNFS, it has proven to be resilient. The WVNFS has 
been shown to be more mobile and flexible in its habitat use than 
previously thought. Specifically, survey and monitoring efforts at 107 
sites over the past 21 years have shown that it is persistent at 
multiple locations for multiple generations, and there is no evidence 
of extirpation of a local population. As previously described, the 
current and future trend for habitat quantity and quality is expected 
to be favorable because of the gradual recovery of the red spruce-
northern hardwood ecosystem and the lack of rangewide threats to WVNFS 
habitat. As

[[Page 75930]]

habitat availability increases into the foreseeable future, the 
carrying capacity of secured and protected habitat should allow for 
persistence of viable populations of the WVNFS.
    In summary, the threats to the WVNFS have either been eliminated or 
largely abated. The current available information shows that the WVNFS 
is persisting throughout its historic range, with areas of known 
occupancy much more widespread than at the time of listing. Therefore, 
the WVNF does not meet the definition of endangered or threatened, and 
should be removed from the List of Endangered and Threatened Wildlife, 
due to recovery.

Effects of This Rule

    This rule, if made final, would revise 50 CFR 17.11(h) to remove 
the WVNFS from the List of Endangered and Threatened Wildlife, due to 
recovery. Because no critical habitat was ever designated for this 
species, this rule would not affect 50 CFR 17.95. The prohibitions and 
conservation measures provided by the Act, particularly section 7 and 
section 9, would no longer apply to the WVNFS.
    Removal of the WVNFS does not supersede any State regulations. 
Additionally, for the 60 percent of the WVNFS habitat on the MNF, and 
the small area of habitat located within the GWNF, the activities 
impacting the WVNFS and its habitat must comply with appropriate Forest 
Service regulations.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires the Secretary of the Interior, 
in cooperation with the States, to implement a system to monitor for 
not less than 5 years the status of all species that have recovered and 
been delisted. The purpose of this post-delisting monitoring (PDM) is 
to verify that a species delisted, due to recovery, remains secure from 
risk of extinction after it no longer has the protections of the Act. 
We are to make prompt use of the emergency listing authorities under 
section 4(b)(7) of the Act to prevent a significant risk to the well 
being of any recovered species. Section 4(g) of the Act explicitly 
requires cooperation with the States in development and implementation 
of PDM programs, but we remain responsible for compliance with section 
4(g) and, therefore, must remain actively engaged in all phases of PDM. 
We also seek active participation of other entities that are expected 
to assume responsibilities for the species' conservation, post-
delisting.
    The management practices of, and commitments by, primarily the MNF, 
on whose land the majority of habitat occurs, should afford adequate 
protection to the WVNFS into the foreseeable future upon delisting. In 
addition to the previously described conservation measures, the Forest 
Service (MNF and GWNF) would maintain protection of the WVNFS by 
considering it a sensitive species for a minimum of 5 years after 
delisting (USDA Forest Service 2006, p. 18). Sensitive species 
designation ensures that the Forest Service would continue to monitor 
the status of the WVNFS, and to conduct management activities on Forest 
Service lands in a manner that strives to ensure that such actions do 
not contribute to a trend toward federal listing. In addition, the 
Forest Service and WVDNR have conducted nest box monitoring for the 
WVNFS in excess of 20 years and will continue to do so for the 
foreseeable future, regardless of whether the WVNFS is delisted.
    Because of these past efforts, a PDM plan is being drafted in a 
cooperative effort with the Service, the MNF and the WVDNR, and other 
appropriate land managers, with technical assistance from USDA's 
Northeastern Research Station, to guide the collection and evaluation 
of pertinent information over the monitoring period. In the near 
future, we will publish in the Federal Register a notice of 
availability of the proposed PDM plan, and solicit public comment on 
that proposed plan.

Post-Delisting Monitoring Plan Overview

    Development of the PDM plan, required under section 4 of the Act, 
will be facilitated by the MNF's Forest Plan Revision monitoring (USDA 
Forest Service 2005, pp. IV-1 - IV-12) and the monitoring specified in 
the West Virginia Conservation Action Plan (WVDNR 2006, pp. 861-867, 
959-969, 1046-1049). The West Virginia Conservation Action Plan is a 
result of a charge from Congress to each State and territory to develop 
a comprehensive plan for fish and wildlife conservation. Both of these 
management plans include requisite monitoring of the WVNFS and its 
habitat (red spruce-northern hardwood forests) because of the 
importance placed on the red spruce ecosystem. Under these two plans 
and separate agreements, the Forest Service, WVDNR, and other entities, 
will continue to conduct nest box monitoring as well as monitoring of 
habitat conditions and residual threats at representative sites within 
the seven areas of relict habitat. For example, through a third party, 
Snowshoe Mountain, Inc., has expressed an interest in continuing nest 
box monitoring on their property, particularly in their approximately 
200-acre conservation area already established as part of their HCPs. 
The Service will effectively monitor the implementation of commitments 
by entities, particularly the MNF, to conserve red spruce-northern 
hardwood forests for the first 5 years following delisting. During this 
time, the Forest Plan Revision, and other commitments of the MNF and 
other entities will be reviewed annually by the Service. Additionally, 
as part of the Forest Service monitoring for sensitive species and/or 
management indicator species, and the WVDNR monitoring as part of their 
Action Plan, the Service, WVDNR, and Forest Service will monitor the 
WVNFS and its relationship to habitat affected by active and passive 
management.
    The PDM plan is being designed to monitor the threats to the 
species by detecting changes in the status of the WVNFS population and 
its habitat through continued nest box monitoring and monitoring of the 
quality and quantity of WVNFS habitat throughout its range. Thresholds 
that would trigger an extension of monitoring or a status review will 
be presented in the Service's draft post-delisting monitoring plan.

Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that 
are easy to understand. We invite your comments on how to make this 
rule easier to understand, including answers to the following: (1) Is 
the discussion in the SUPPLEMENTARY INFORMATION section of the preamble 
helpful in understanding the proposal? (2) Does the proposal contain 
technical language or jargon that interferes with its clarity? (3) Does 
the format of the proposal (grouping and order of sections, use of 
headings, etc.) aid or reduce its clarity? and (4) What else could we 
do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to the Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240.

Peer Review

    In accordance with our policy published on July 1, 1994 (50 FR 
34270), we will solicit the expert opinions of at least three 
appropriate and independent specialists for peer review of this 
proposed rule. The purpose of such review is to ensure that decisions 
are based on scientifically sound data, assumptions, and analyses.

[[Page 75931]]

We will send peer reviewers copies of this proposed rule immediately 
following publication in the Federal Register. We will invite peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed delisting. We will 
summarize the opinions of these reviewers in the final decision 
document, and we will consider their input as part of our process of 
making a final decision on the proposal.

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.) and assigned Office of Management and Budget (OMB) 
control number 1018-0094, which expires on September 30, 2007. 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

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

References Cited

    A complete list of all references cited herein is available upon 
request from the West Virginia Field Office (see FOR FURTHER 
INFORMATION CONTACT above).

Author

    The primary author of this proposed rule is Diane Lynch, Endangered 
Species Specialist, with technical assistance from Shane Jones, former 
Endangered Species Biologist and species lead for the WVNFS in our West 
Virginia Field Office (see FOR FURTHER INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


Sec.  17.11  [Amended]

    2. Amend Sec.  17.11(h) by removing the entry ``Squirrel, Virginia 
northern flying'' under ``MAMMALS'' from the List of Endangered and 
Threatened Wildlife.

    Dated: December 6, 2006.
Marshall Jones,
Acting Director, U.S. Fish and Wildlife Service.
 [FR Doc. E6-21530 Filed 12-18-06; 8:45 am]
BILLING CODE 4310-55-P