[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50226-50247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19607]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R5-ES-2008-0005; 92220-1113-0000-C6]
RIN 1018-AT37


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), hereby 
remove the Virginia northern flying squirrel (Glaucomys sabrinus 
fuscus), now more commonly known as the West Virginia northern flying 
squirrel (WVNFS), from the List of Threatened and Endangered Wildlife 
due to recovery. This action is based on a review of the best available 
scientific and commercial data, which indicate that the subspecies is 
no longer endangered or threatened with extinction, or likely to become 
so within the foreseeable future. Habitat regeneration and recovery 
actions have resulted in a reduction in the threats, which has led to: 
(1) A significant increase in the number of known WVNFS captures and 
distinct capture locations; (2) verification of multiple-generation 
reproduction and persistence throughout the range; (3) proven WVNFS 
resiliency; and (4) substantial improvement and continued expansion of 
suitable habitat rangewide.

DATES: This rule becomes effective September 25, 2008.

ADDRESSES: Comments and materials we received, as well as supporting 
documentation used in preparation of this final rule, are available for 
inspection, by appointment, during normal business hours, at our West 
Virginia Field Office, 694 Beverly Pike, Elkins, West Virginia 26241. 
Call (304) 636-6586 to make arrangements.

FOR FURTHER INFORMATION CONTACT: Diane Lynch, Regional Listing 
Coordinator, Northeast Regional Office, 300 Westgate Center, Hadley, MA 
01035 (telephone: 413-253-8628); or Tom Chapman, Field Office 
Supervisor, or Laura Hill, Assistant Field Supervisor, West Virginia 
Field Office (see ADDRESSES).

SUPPLEMENTARY INFORMATION:

Background

    The northern flying squirrel, Glaucomys sabrinus, consists 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.) effective on July 31, 1985 (Service 1985 (50 
FR 26999)). However, it was subsequently determined that a more 
suitable common name for G. s. fuscus is the West Virginia northern 
flying squirrel, due to the majority of the subspecies' range occurring 
in West Virginia; thus, we refer to G. s. fuscus as West Virginia 
northern flying squirrel (WVNFS) throughout the rest of this document. 
Information about the WVNFS' life history can be found in our final 
listing rule (50 FR 26999), the Appalachian Northern Flying Squirrels 
Recovery Plan (Service 1990, pp. 1-11), and the WVNFS 5-year review 
(Service 2006a, pp. 6-10).

Previous Federal Actions

    On December 19, 2006, we published a proposed rule to delist the 
WVNFS (71 FR 75924). Additional information regarding previous Federal 
actions for the WVNFS can be obtained by consulting the subspecies' 
regulatory profile found at: http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=A09R.

Recovery

    In 1990, the original recovery plan was approved, and at the time, 
the recovery criteria as they apply to the WVNFS were deemed objective, 
measurable, and adequate (Service 1990, p. 19). The original recovery 
criteria were not specifically reviewed or updated in the 2001 recovery 
plan amendment (Service 2001, pp. 1-6). Instead, the focus of the 2001 
amendment was 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 2006a, 
pp. 3-4).
    Recovery plans are not regulatory documents and are instead 
intended to provide guidance to the Service, States, 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, overall, 
the threats have been minimized sufficiently and the species is robust 
enough to reclassify the species from endangered to threatened or to 
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. This new information may change the extent to which 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

[[Page 50227]]

not, fully follow the guidance provided in a recovery plan.
    In the case of the WVNFS, new information on the subspecies has 
been learned that was not known at the time the recovery plan and the 
amendment were finalized. This new information includes habitat 
modeling efforts completed in 2006, completion of a forest plan 
amendment in 2006 with substantial provisions for protection of WVNFS 
and its habitat, our compilation in 2005 of the 20+ years of survey 
data, and our re-analysis of WVNFS persistence and geographic 
distribution based upon them. This new information changes the extent 
to which two of the four Recovery Plan criteria need to be met for 
recognizing recovery of the subspecies. Further details related to each 
recovery criterion are available in the Service-prepared document 
Analysis of Recovery Criteria for the West Virginia Northern Flying 
Squirrel (Service 2007a, pp. 1-16). An attachment to this document, 
``Table 3, Land use designations, restrictions, and primary management 
emphases in WVNFS habitat on the MNF,'' provides supplementary 
information for downlisting criterion number 3. Based on our analysis 
of the best available data, we believe that the intents of the original 
recovery criteria have been met.
    In conjunction with the analysis of the recovery criteria, we 
analyzed the threats to the WVNFS under the framework of the five 
factors established in the Act. This analysis of the threats was based 
in part on the most recent 5-year review of the subspecies completed in 
2006 (Service 2006a, pp. 1-20). This is available at http://www.fws.gov/northeast/pdf/flysqrev.pdf. A further detailed discussion 
of the five factors is contained in the Summary of Factors Affecting 
the Species section of this rule below.

Summary of Public Comments

    In our proposed rule (71 FR 75924), we requested that all 
interested parties submit information, data, and 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. The comment period was from December 
19, 2006, through April 23, 2007 (71 FR 75924; 72 FR 7852; 72 FR 9913).
    During the 120-day comment period, we received a total of 4,808 
comments. Of these comments, we consider 18 (6 from peer reviewers and 
12 from other sources) to be substantive. The majority of comments 
received were form letters objecting to the proposed delisting rule but 
providing no new or supporting information.

A. Distribution Concerns

    Issue 1--Some commenters asked us to quantify what portion of the 
historical range is currently occupied by WVNFS.
    Response--The historical range of WVNFS essentially corresponds to 
the distribution of old growth red spruce-northern hardwood forest 
(500,000 to 600,000 acres (ac)) prior to logging and fires at the turn 
of the 20th century. Much of the historical red spruce has been 
replaced by northern hardwoods. Current estimates of the amount of 
WVNFS habitat vary widely from 242,000 ac (U.S. Department of 
Agriculture (USDA), Northern Research Station 2006, unpublished map) to 
600,000+ ac (Menzel et al. 2006b, p. 4), across which the WVNFS is 
widely dispersed.
    Historically, the red spruce-northern hardwood forest encompassed 
portions of eight counties, extending 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 and Highland Counties), 
and west to Webster County. Based upon monitoring from 1985 to the 
present, the WVNFS still occupies portions of these same eight 
counties, roughly corresponding to 85 percent of the extent (breadth 
and width) of the historical range. With exception of the extreme 
northern portions of Grant County (roughly 5 percent of the historical 
range), and the area from Briery Knob south to Cold Knob in Greenbrier 
County (collectively less than 10 percent of the historical range), the 
outer boundaries of the current distribution of the WVNFS closely match 
the extent of its historical range (Service 2007a, Figure 1). 
Additional information can be found on page 75926 of the proposed 
delisting rule (71 FR 75924).

B. Population Concerns

    Issue 1--Some commenters expressed concern about an absence of 
population information and trend data. These commenters stated the 
Service had failed to consider population growth, population size, and 
linkages to other populations. Some commenters expressed concern about 
the use of persistence as an indicator of population health or 
stability and noted that the Service had not clearly defined the term 
``persistence.'' The commenters stated that this approach is flawed 
because it is not tied to knowledge of the population, but merely to 
subspecies presence, which can be explained by immigration from other 
populations.
    Response--The Service has considered population dynamics when 
assessing the status of the WVNFS using the best available scientific 
data. The Service considers persistence to be the best indicator of 
successfully reproducing populations for this subspecies, given its 
poor detectability, its life history characteristics, and the 20+ years 
of data from presence/absence surveys.
    We define persistence as continuing captures of WVNFS over multiple 
generations at previously documented sites throughout the historical 
range. Because WVNFS first reproduces at 1-2 years, and has a 
relatively short life span, averaging approximately 3 years, 
persistence at a single monitoring site over 5 years indicates 
successful reproduction across multiple (three to five) generations 
(Service 2007c, p. 10). The Service has analyzed presence/absence data 
to determine persistence of WVNFS across its range, taking into 
consideration detectability rates, life span, reproductive capacity, 
dispersal capability, linkages to other populations, and the naturally 
patchy habitat distribution of the subspecies (Service 2007c, pp. 5-6, 
9-11). These data consistently indicate a relatively high degree of 
persistence (roughly 80 percent) across the landscape, and are not 
indicative of a declining population of WVNFS. The data available for 
the remaining landscape (roughly 20 percent) does not represent an 
absence or lack of persistence of the WVNFS, but rather is indicative 
of the WVNFS' life history traits (i.e., elusive and hard to capture). 
Therefore, the data is simply less conclusive. This remaining landscape 
(roughly 20 percent) is still habitat for the WVNFS but success rates 
for capturing the WVNFS are lower. The persistence of WVNFS is likely 
facilitated by immigration. See Issues 2, 3, and 4 and their responses 
under this section for additional information.
    Issue 2--Some commenters believe the Service must conduct a 
Population Viability Analysis (PVA) to identify a minimum viable 
population before a decision on delisting the WVNFS is made. These 
commenters noted that genetics-based computer models of minimum viable 
population sizes generally indicate that population sizes on the order 
of thousands of individuals (low thousands or higher) may be needed. In 
contrast, another commenter submitted a copy of a manuscript by Smith 
and Person (2007, pp. 626-636) that evaluated the estimated persistence

[[Page 50228]]

of a northern flying squirrel subspecies in fragmented habitats in 
southeast Alaska. This commenter concluded that dispersal likely will 
be the key to northern flying squirrel population viability, not total 
population size of individual patches.
    Response--A genetics-based computer model to identify minimum 
population sizes for WVNFS does not currently exist. In our view, there 
is insufficient information available to support an accurate or 
credible genetics-based PVA model for WVNFS, and such an analysis would 
rely upon too many variables whose values would be speculative. Given 
the nature of the WVNFS life history and habitat information currently 
available, we believe that estimates of persistence, and an analysis of 
functional habitat connectivity, are the most credible form of PVA 
analysis. We therefore have done these analyses using the best 
available scientific data (for more detail, see Service 2007c, pp. 5-6, 
9-11) resulting in evidence of persistence and a high degree of habitat 
connectivity.
    We also have considered the recent work by Smith and Person (2007, 
pp. 626-636), who developed a birth-death process model to examine 
persistence of populations of a different northern flying squirrel 
subspecies in hypothetical, old-growth reserves isolated in managed 
landscapes in Alaska. We agree with these authors that functional 
habitat connectivity is more important to WVNFS population viability 
than total population size rangewide, or population sizes of individual 
habitat patches (See Issues 3 and 4 and their responses below).
    Issue 3--Some commenters expressed concerns that habitat reserves 
may be too few, small, degraded, and isolated to support viable 
populations of WVNFS. These commenters emphasized the importance of 
functional habitat connectivity.
    Response--Within the range of the WVNFS in the central 
Appalachians, there are numerous patches of high-quality, second-growth 
red spruce forest, with individual trees that are near maximum size and 
age, within an almost continuous matrix of more highly variable, 
second-growth red spruce and northern hardwood forest conditions. The 
habitat is still relatively well connected from the standpoint of WVNFS 
movement and does not significantly limit dispersal and movements 
(Service 2007c, Figure 1). Within the range of the WVNFS, above 3,200 
feet (ft), approximately 96 percent of the land is forested (627,237 
ac) (USDA Forest Service 2007, unpubl. map). Patch sizes on the MNF 
also are fairly large and connected by numerous forested linkages, 
facilitating the likelihood of WVNFS dispersal (Service 2007c, p. 6, 
Figure 1). For example, radio-tagged male WVNFS and other subspecies of 
northern flying squirrels have demonstrated an ability to make sudden, 
long-distance movements, presumably to find females. Some individuals 
have traveled up to 2 kilometers (1.2 miles) in a night during the 
mating season, which is from late winter to early spring (Smith 2007a, 
p. 871; Menzel 2003, p. 77, 117; Terry 2004, p. 18; Weigl et al. 1999, 
pp. 59-62; Weigl et al. 2002, p. 37, 145).
    Smith and Person (2007) modeled habitat reserve size for northern 
flying squirrels in Alaska. Habitat reserves must sustain individual 
insular populations, or the matrix of managed lands between reserves 
must allow dispersal among reserves to maintain wildlife populations 
within a metapopulation structure (Smith and Person 2007, p. 633). Out 
of an abundance of caution, Smith and Person (2007, p. 628) modeled the 
first scenario to estimate the persistence of northern flying squirrel 
populations occupying isolated fragments of habitat in a matrix of 
unsuitable habitat within a large 2-million-ac landscape in Alaska (p. 
628).
    Lacking conclusive evidence of dispersal, the authors assumed their 
populations were closed (i.e., no immigration or emigration). They also 
assumed the habitat was static (i.e., patch size and patch quality are 
constant over as long as a 100-year period). Neither of these 
assumptions fits the situation in the central Appalachians where many, 
if not most, of the habitat patches containing WVNFS are connected by 
habitat, and through passive and active management, conditions are 
expected to continue improving. In addition, the authors relied heavily 
on 3 years of local demographic data and data from a longer-term study 
in Canada. These demographic data may be dissimilar to those of WVNFS 
in West Virginia and Virginia. For example, the authors used an 
estimated average litter size of 2, which is low compared to the WVNFS 
average litter size of 2.5-3.0 (Reynolds et al. 1999, p. 346; Stihler 
et al. 1998, p. 178). Estimated survival rates also may have been low 
because the value was based on recaptures of tagged individuals, and 
the lack of a recapture does not mean a squirrel has died.
    That said Smith and Person do provide a framework for judging the 
relative magnitude of patch sizes that may be needed for northern 
flying squirrel persistence in large forested landscapes. Smith and 
Person (2007, p. 631, Table 5) estimated that the minimum area of an 
isolated patch of contiguous habitat to confidently sustain populations 
for at least 100 years without immigration/emigration was 11,414 ac 
(4,621 hectares (ha)) (P=0.90). Furthermore, there was a high 
probability that G. sabrinus could persist in smaller ([gteqt]245-ac 
[99-ha]) isolated habitat patches for 25 years without migration (p. 
631). Smith and Person (2007, p. 633) concluded that large reserves may 
not need to be contiguous, because interspersed lower-quality habitats 
can support northern flying squirrels for a short time and likely 
facilitate dispersal between patches of higher-quality habitat (Smith 
and Person 2007, p. 633).
    Because of the many assumptions, described above, of this model, 
which do not transfer well to the central Appalachians, we decided to 
do a coarse comparison of minimum patch sizes. Because the landscape 
for WVNFS appears to have a higher degree of functional connectivity 
than the study area in Alaska, we looked at the total acreages of 
contiguous and connected suitable habitat within each of seven core 
areas. [Five ``core areas'' were identified at the time the 1990 
recovery plan was written (Service 1990. p. 16) as clusters of capture 
sites, and are referred to in the plan as Geographical Recovery Areas. 
Two more clusters were later identified when surveys found additional 
WVNFSs. Collectively these seven areas (hereafter called ``core 
areas'') encompass the entire extant distribution of WVNFS.] Out of an 
abundance of caution, we assumed these seven core areas were 
geographically separated (no immigration/emigration among them), 
although this likely is not the case. Using these conservative 
assumptions, the ``minimum patch size of contiguous habitat'' within 
each core area ranges from 9,353 ac (3,787 ha) for the smallest core 
area (Stuart Knob) to 120,484 ac (48,779 ha) for the largest core area 
(Cheat). Six of the seven core areas exceed the minimum patch size 
identified by Smith and Person (2007, p. 631) as necessary to 
confidently sustain populations for at least 100 years without 
immigration/emigration (11,414 ac or 4,621 ha). Thus we infer that 
there is adequate habitat for persistence of WVNFS populations within 
most, if not all, of the core areas.
    Whereas habitat conditions in Alaska (small, isolated, old-growth 
forest fragments in a matrix of unsuitable habitat) are quite 
dissimilar to those in the central Appalachians (large, well-connected 
patches of predominantly second-growth forest in a matrix of

[[Page 50229]]

suitable habitat), it appears that habitat reserves of sufficient 
quantity, quality, and connectivity exist to sustain populations of 
WVNFS with influences of immigration and emigration. This habitat 
matrix provides a high degree of functional connectivity, as evidenced 
by persistence over multiple generations at monitoring sites across a 
range of forest conditions (Service 2007c, pp. 9-11).
    Issue 4--Some commenters asked the Service to analyze the viability 
of WVNFS metapopulations (multiple, relatively isolated breeding 
units). These commenters cited Weigl (2007, p. 903), who claimed that 
``some second growth stands may well appear to support healthy 
densities of squirrels, but, in reality, are population sinks for 
migrants from neighboring old growth habitats and thus may not 
permanently maintain viable populations.'' These commenters suggested 
the WVNFS may be undergoing a population decline that is influenced by 
source-sink dynamics of meta-population theory.
    Response--In response to this comment, the Service has conducted 
additional analyses to look for evidence of population sinks and 
sources in the central Appalachians. We found no evidence that the few 
remaining old growth patches of habitat in the central Appalachians, or 
other optimal habitat, are operating as potential sources of WVNFS 
recruits that disperse into suboptimal habitat (potential sinks) where 
populations are not sustained. Rather, our analysis of 21 years of 
monitoring shows no evidence of localized extirpation since the 
subspecies was listed. The WVNFS persists in or near all of the 
historical areas where it was originally known at the time of listing. 
Persistence of WVNFS across the range over multiple generations is 
consistently high, consistently distributed across habitat types 
(varying from 70 to 86 percent persistence) and geographic zones 
(varying from 80 to 85 percent persistence), and not significantly 
different from expected values (Smith 2007a, p. 871; Service 2007c, p. 
11, Table 1). Nestlings and juveniles are routinely documented at 
monitoring sites (76 percent of sites) (Service 2007c, p. 9). Because 
WVNFS has a relatively short life span (averaging approximately 3 
years), and first reproduces at age 1 or 2, persistence at a single 
monitoring site over 5 years indicates successful reproduction across 
multiple (3+) generations. In addition, the observed roughly 1:1 sex 
ratio (492 males, 539 females) is within the range needed for normal 
reproductive performance (Service 2007c, p. 11). Males are most likely 
to disperse, presumably to seek females (Ford 2007a). There is no 
indication of a predominance of dispersing males or juvenile males, 
which could be indicative of a meta-population sink dynamic (such as an 
emigration front of individuals leaving former territory), or of a 
meta-population source-dynamic (such as a colonizing front of 
individuals moving into former territory) (Ford 2007a). Collectively, 
these data show a relatively high degree of population stability and 
consistent habitat occupancy across multiple generations.
    Issue 5--Some commenters noted that the chance of capturing a WVNFS 
in a nest box is confounded by a very low rate of occupancy, plasticity 
in nest site selection, availability of nest sites, and relative 
abundance of WVNFS. These commenters state that it is as important to 
understand why an individual is present as to understand why it is not 
present. They state that a major caveat of relying on the nest box data 
as a measure of persistence is that it does not tell us anything about 
the habitat, and that it is impossible to infer what is optimal habitat 
and if it is available and can support the WVNFS.
    Response--The Service agrees that all of the factors mentioned 
above affect the chance of capturing a WVNFS; however, we disagree 
about inferences that can be drawn from persistence data. Continued 
persistence of WVNFS over the past century and occupation throughout 
most of its historical range tell us much about habitat and indicate 
that sufficient quality and quantity of habitat exists regardless of 
what may be perceived as ``optimal'' habitat. Therefore, a strong 
inference can be made regarding habitat suitability based on the 
persistence, successful reproduction, and sex ratios that lack any 
indication of population sink dynamics (Service 2007c, pp 11, Table 1).
    Issue 6--Some commenters cited a paper by Weigl (2007, p. 900) as 
evidence that the WVNFS may have a longer life span than previously 
assumed. These commenters suggested that if this is true, then the 
Service may need to reanalyze reproductive data and conclusions about 
persistence.
    Response--Weigl (2007, p. 900) referred to a study of a different 
G. sabrinus subspecies in the Pacific Northwest as evidence that WVNFS 
may be relatively long lived. In this study, three squirrels were known 
to be at least 7 years old at recapture; however, the majority of 
squirrels captured were not known to survive beyond 2-3 years (Villa et 
al. 1999, p.39). In the central Appalachians, recapture data for four 
WVNFS suggest the average lifespan is probably about 2 to 3 years (West 
Virginia Division of Natural Resources (WVDNR) and Service 2006, 
unpubl. data). Wells-Gosling and Heaney (1984, p. 4) also noted the 
average longevity of G. sabrinus was probably less than 4 years. Our 
previous conclusions about persistence remain valid based upon an 
average lifespan of 2-3 years.

C. Using the Best Available Science

    Issue 1--Some commenters were concerned about a lack of knowledge 
of the WVNFS life cycle and the consideration of science regarding the 
subspecies' ecology.
    Response--The WVNFS life cycle and ecology is fairly well known 
from numerous studies in peer-reviewed journals, books, and technical 
publications. The Service has considered the best available scientific 
and commercial data regarding WVNFS life history and ecology. For a 
full list of the literature cited in this final rule, please contact 
the West Virginia Field Office (see ADDRESSES).
    Issue 2--Whereas four peer reviewers and some commenters were 
satisfied the best available science and data had been used in the 
development of the proposed rule, two peer reviewers and some 
commenters questioned the quality or interpretation of data used to 
support the proposed rule. These commenters offered manuscripts in 
press, or alternative literature citations or explanations of the data.
    Response--The Service has reviewed the manuscripts in press (now 
subsequently published) and literature citations provided by 
commenters. We have considered and incorporated the information 
provided in these documents where appropriate in this final rule. We 
have incorporated these documents into our administrative record and 
cited them in this rule where appropriate (including, but not limited 
to, sections of the rule dealing with WVNFS population dynamics; 
habitat use, quantity, quality, and connectivity; and climate change). 
The peer-reviewed scientific journal articles, peer-reviewed agency 
reports, and other literature cited in the final rule represent the 
best available science relevant to the decision. None of the 
alternative explanations of the data were as persuasive as the sources 
we have cited in the final rule.
    Issue 3--Some commenters disagreed with a choice of words in the 
summary sections of the proposed rule which referred to ``an increase 
in the number of individual WVNFSs.'' These commenters claimed that 
there is no evidence of an increase, noting that 1,141 captures do not 
represent unique squirrels, because unknown portions

[[Page 50230]]

were recaptures. These commenters conducted an independent analysis of 
a WVNFS electronic database and field data reporting forms. They 
reported inconsistencies in the data base, and concluded there may have 
been as few as 654 unique captures. These commenters believe that such 
a low number of captures of unique individuals diminishes the 
credibility of conclusions reached by the Service about persistence.
    Some commenters also questioned whether an increase in WVNFS 
occupancy was simply a consequence of increased surveys or efficacy of 
survey efforts since listing. One commenter questioned our ability to 
detect a change in habitat occupancy.
    Response--Whereas the proposed rule did identify the total number 
of recaptures (71 FR 75926), the Service agrees that use of the phrase 
``increase in the number if individual WVNFSs'' was not accurate, as we 
have not estimated the size of the WVNFS population. We have corrected 
this wording in the final rule. Based upon data collected through 2005, 
there has been an increase in the total number of known captures, from 
10 at the time of listing, to 1,141 captures at the time of the 
proposed rule, of which there were 78 total recaptures (6.8 percent). 
Due to multiple recaptures of some individuals, these 78 total 
recaptures represent 62 individuals.
    Contrary to the commenters' estimate of 654 unique captures, we 
calculate that there were a total of 908 unique captures (760 unique 
captures of adults and 148 unique captures of juveniles). These 
estimates take into account unique recaptures and unmarked individuals. 
About 8 percent of the adults escaped before they could be marked. 
Also, contrary to the commenters' determination that ``several'' 
nestlings were not tagged, nearly all of the 133 nestlings and about 2 
percent of the 154 juveniles captured were not marked as a 
precautionary measure. Researchers believe that marking small 
individuals with ear tags and/or pit tags is an unnecessary procedure 
that could increase mortality (Stihler 2007). The fact that these 
individuals were not marked is inconsequential when considering that 
there is less than a 5 percent probability of subsequent recapture. 
Rather, the capture of nestlings or juveniles is a good sign of 
reproduction (25 percent of all captures).
    The increase in the number of capture locations is useful in 
evaluating the distribution of WVNFS within its range, but cannot be 
used to estimate population sizes. The number of captures has increased 
with increased survey effort. While the area covered by surveys has 
increased over time, the efficacy of capturing WVNFS remains low. Based 
on original methodologies used at the time of listing, and still 
predominantly in use today, roughly 2 percent of nest box or live trap 
checks result in detection of WVNFS (Terry 2004, p. 46; Service 2006b, 
p. 13). This estimate of detectability is a simple calculation of the 
proportion of nest box or live trap checks that resulted in WVNFS 
capture. We have not used this simple estimate of detectability to 
calculate changes in habitat occupancy over time as suggested by one 
commenter. We evaluated whether the existing data set could be analyzed 
using more rigorous models for estimating detectability and changes in 
habitat occupancy (MacKenzie et al. 2002, pp. 2248-2255; MacKenzie et 
al. 2003, pp. 2200-2207; MacKenzie 2005, pp. 849-860; MacKenzie 2006, 
1568-1584); however, we felt it inappropriate given that model 
assumptions would have been violated and could not be validated. While 
there has been an increase overall in survey area, the techniques used 
were the same and the intensity of work at sites has not varied 
significantly in the past 20 years.
    As a result of these comments, the WVDNR has checked the data base 
against field forms and has made a few minor corrections. These changes 
do not substantially alter previous statistics reported by the Service 
or conclusions reached about persistence.
    Issue 4--Some commenters noted that monitoring sites were not 
randomly selected, which builds in bias. These commenters recommended 
that such data not be used for estimating population.
    Response--The Service acknowledges that monitoring sites were not 
selected randomly. The goal of the presence/absence surveys was to find 
as many WVNFS as possible and to document their range and distribution. 
Consequently, few sites were placed in low-quality habitat, and many 
sites were placed in moderate or high-quality habitat. Because of this 
bias, the Service has not used these data to estimate population sizes, 
but rather to monitor presence/absence and persistence.

D. Genetic Concerns

    Issue 1--Some public commenters were concerned about a lack of 
genetic research that might indicate risks due to isolation (e.g., 
genetic drift, inbreeding) or existence of discrete populations 
meriting ESA protection.
    Response--We considered information from several studies using a 
variety of genetic markers. Allozymic analyses by Browne et al. (1999, 
pp. 205-214) found lower measures of polymorphism and heterozygosity in 
North Carolina, West Virginia, and Virginia populations of G. sabrinus 
compared with other northern flying squirrels, noting that population 
structure in the southeastern States is similar to that of other 
species that occupy habitat islands (Browne et al. 1999, p. 212). 
Similarly, allozyme and mitochondrial DNA data examined by Arbogast et 
al. (2005, pp. 123-133) showed lower diversity of G. s. fuscus and G. 
s. coloratus compared with conspecifics (other flying squirrel 
species), but not relative to populations of the widespread southern 
flying squirrel. Sparks' data from a small number of microsatellite 
loci showed moderate to high gene flow across populations of northern 
flying squirrels in West Virginia, Virginia, and North Carolina (Sparks 
2005, pp. 16 and 23). In addition, the coefficient of inbreeding failed 
to differ between populations at Cheat Mountain, West Virginia, and at 
an unfragmented forested landscape in Washington State (Sparks 2005, p. 
18). Also, no difference in levels of a parasitic helminth (a species 
of parasitic worm commonly found in the intestines of flying squirrels, 
the presence of which is often used as possible indicator of reduced 
fitness) was detected among G. sabrinus and two sympatric tree 
squirrels (Sparks 2005, pp. 19, 62).
    Arbogast et al. (2005, p. 130) and Weigl (2007, p. 902) speculate 
about potential future decreases in genetic diversity due to 
hypothetical habitat reductions. As discussed under Issue 3, Response 
to Comments, Section B--Population Concerns, however, we believe that 
habitat is still relatively well connected from the standpoint of WVNFS 
movements. Interspersed lower-quality habitats that can support 
northern flying squirrels for a short time will also facilitate the low 
levels of dispersal necessary to maintain allelic diversity and 
heterozygosity while conserving local adaptations. Furthermore, Sparks 
(2005, p. 29) suggests that G. sabrinus may have a population structure 
adapted to some degree of inbreeding tolerance.
    In summary, after review of the genetic studies referenced above, 
we have not detected any genetic risk to the WVNFS due to isolation. 
Additionally, we are aware of no genetic, behavioral, ecological, 
morphological, physiological, physical, or other information supporting 
the existence of distinct population segments within the WVNFS.

[[Page 50231]]

E. Habitat Modeling Concerns

    Issue 1--One peer reviewer and some commenters thought the Service 
had applied the Menzel et al. (2006b, pp. 1-10) model outside of its 
intended scope and for purposes not supported by the study the model is 
based upon. Some conclude that the Service is using the model to make a 
case that the agency can accurately predict habitat and WVNFS 
viability, by assuming that the model definitively predicts presence 
and absence.
    Response--Using logistic regression, Menzel et al. (2006b, pp. 1-
10) developed a Geographic Information System (GIS)-based habitat model 
for WVNFS in West Virginia by synthesizing micro- and macro-habitat 
relationship data. The Service has applied this model appropriately to 
gauge the relative abundance and quality of habitat rangewide and to 
broadly estimate the predicted distribution of WVNFS on the landscape. 
We have not assumed that the model definitively predicts presence/
absence of WVNFS. Nor have we argued that predicted habitat ensures 
WVNFS' viability; predicted habitat is only one component. The model 
can give insights, albeit coarse, on habitat quality and its 
distribution across the landscape. As noted in the final listing rule 
(50 FR 26999) and recovery plans (Service 1990, pp. 12-16) for this 
subspecies, the abundance and quality of habitat are keys to the 
recovery of WVNFS because habitat loss and degradation were the main 
factors that led to the subspecies being listed as endangered. We have 
used the model at a landscape level to predict habitat quality and look 
for evidence of sink-source metapopulation dynamics. We have also used 
the model to highlight where managers should conduct follow-up site 
visits to determine actual squirrel habitat or where managers could 
reasonably assume no occupation without a site visit. A manager could 
use Ford et al. (2004, pp. 430-438) at the individual forest stand 
level to verify the quality of the habitat or what the probability 
level of occupation would be for that specific location.
    Issue 2--Some commenters criticized the Menzel et al. (2006b, pp. 
1-10) habitat model for being unverified and untested.
    Response--The model has been verified and tested and proved to be 
quite accurate (81 percent) when the data were subjected to ground-
truthing procedures to determine correct classification rates of 
occupiable and non-occupiable habitat (Menzel et al. 2006b, p. 3-4). 
Staff from the WVDNR and MNF have used the model successfully to 
identify WVNFS habitat, corroborated by additional captures where the 
model had shown a high probability of occurrence.
    Issue 3--Some commenters stated that the Menzel model's prediction 
of habitat from tracking data should have been verified in following 
years (different temporal frame) and on different areas of the range 
(different spatial frame).
    Response--The actual telemetry data used by the Menzel model did 
span several years and different areas. The model is based on actual 
data, which have been verified.
    Issue 4--Some commenters criticized the Menzel model for containing 
several untested assumptions: (a) There is a direct relationship 
between nest box use and preferred habitat; (b) quality of habitat is 
predicted by elevation and vegetative community; and (c) data from 
spring and summer tracking reveals information on habitat use the 
remainder of the year.
    Response--Addressing assumptions (a) and (b), Menzel et al. (2004, 
pp. 355-368; 2006b, pp. 1-10; 2006a, pp. 204-210) does not assert that 
probability of occurrence equates directly to preferred habitat; 
however, there is a clear correlation between high probability habitat 
(>75 percent probability of WVNFS occupancy) and habitat components 
such as red spruce and high elevation that were preferred by radio-
collared individuals (Menzel et al. 2006a, pp. 206-207). Addressing 
assumption (c), data from winter telemetry studies at Snowshoe Mountain 
Resort and Canaan Valley National Wildlife Refuge (Ford et al. 2007 in 
press, pp. 6, 8) are similar to results from spring, summer and fall 
reported by Menzel et al. (2006a, pp. 206-207). Winter data confirm 
that male home ranges are larger than female home ranges and both sexes 
key in on red spruce-dominated habitats for foraging (Ford et al. 2007, 
pp. 4, 6, 7).
    Issue 5--Some commenters stated that the Menzel model was based on 
limited spatial and temporal data from 4 sites and 13 animals; 
therefore, results can be generalized only with great caution.
    Response--The Menzel et al. (2006b, p. 3) model is not based on a 
limited subset of the data, but rather is based on most of the capture 
data through 1999 and most of the telemetry data from WVNFS tracked in 
a variety of stand age-classes and compositions. All squirrels tracked 
for which home range sizes were calculated, had reached home range size 
asymptotes (the point on a graph indicating the minimum number of 
samples needed to calculate maximum home range size), indicating that 
sufficient location data exists to estimate home range size. Moreover, 
WVNFSs were tracked in a variety of poor to excellent habitat 
conditions. This methodology is consistent with similar examples of 
wildlife habitat data being collected from tagged individuals and then 
used in a modeling effort to extrapolate across a larger, but similar 
landscape (for example, Gibson et al. 2004, pp. 75-89; Posillico et al. 
2004, pp. 141-150). The Service believes it has interpreted these data 
appropriately.
    Issue 6--Some commenters stated that the Menzel model is a 
simplification of existing knowledge and does not account for important 
variables in WVNFS biology, such as forest age, structure, tree 
composition, and fungi. These commenters believe the model potentially 
overestimates optimal habitat by treating young forest the same as old 
forest, and by lumping other factors together (moist conditions, high 
rainfall, northern aspects, forest structure, suitable nest sites, food 
sources, etc.) based on elevation and spruce occurrence.
    Response--The Service concurs that Menzel et al. (2006b, pp. 1-10) 
is a simple habitat model that was meant to capture broad aspects of 
WVNFS distribution. The model tends to underestimate higher-quality 
habitat and to overestimate lesser-quality habitat, especially near the 
50 percent predicted probability of occurrence threshold (Ford 2007b). 
However, we still think the model is useful and reasonably accurate for 
gauging the relative abundance and quality of habitat rangewide and for 
predicting the distribution of WVNFS on the landscape, and represents 
the best available scientific and commercial data.

F. Ecosystem and Habitat Concerns

    Issue 1--Some commenters were concerned that delisting the WVNFS 
would jeopardize an entire ecosystem, especially when considering the 
critical role that WVNFS plays in dispersal and persistence of numerous 
fungi which have symbiotic relationships with trees.
    Response--The Service agrees that the WVNFS plays an important role 
in the red spruce-northern hardwood ecosystem (Smith 2007a, p. 862-863; 
Weigl 2007, pp.10-12). Habitat models for this subspecies implicitly 
recognize the symbiosis between WVNFS and tree fungus (Odom et al. 
2001, pp. 245-252; Menzel et al. 2006b, pp. 1-10). The Service does not 
expect that delisting the WVNFS will have negative consequences for the 
ecosystem. The red spruce-northern hardwood ecosystem upon which the 
WVNFS

[[Page 50232]]

depends has substantially recovered and continues to improve (also see 
Issue 4 in this same subsection below). The delisting process signifies 
elimination of endangerment of the WVNFS and elimination of the need 
for the Act's protections. Delisting is a procedural acknowledgement of 
the recovered ecological status of this subspecies and the ecosystem 
upon which it depends.
    Issue 2--One commenter stated that protection of habitat is serving 
as a proxy for the status of the subspecies. Protection of habitat is 
critical to protection of the subspecies but does not ensure recovery.
    Response--While protection of habitat is important to the status of 
the subspecies, it is not serving as a substitute for other factors. In 
analyzing whether the WVNFS has recovered, the Service has considered 
the reduction of all threats to the subspecies, including the 
destruction, modification, or curtailment of its habitat or range; 
overutilization; disease or predation; inadequacy of existing 
regulatory mechanisms; and other factors. See the Summary of Factors 
Affecting the Species section below for additional information.
    Issue 3--Some commenters stated that there is a lack of a clear 
definition of habitat for WVNFS due to insufficient information on 
habitat needs. Factors comprising optimal habitat are complex and 
poorly understood.
    Response--The work of Menzel et al. (2004, pp. 355-368; 2006b, pp. 
1-10), Ford et al. (2004, pp. 430-438; 2007 in press, pp. 4-7), and 
Mitchell (2001, pp. 441-442) clearly define WVNFS habitat and its 
characteristics.
    Issue 4--Some commenters, including two peer reviewers, thought the 
Service had overemphasized spruce as a habitat component for WVNFS. 
These commenters note that the WVNFS inhabits deciduous forest at lower 
elevations without a spruce component, and therefore should not be 
considered an obligate to red spruce forest. These commenters state 
that additional hardwood forest needs to be protected. Some commenters 
also disputed that red spruce is preferred habitat of WVNFS, 
identifying biases in the work by Menzel. These commenters state that 
the Menzel habitat model is based on a small sample of nest boxes 
located in red spruce habitat, skewing this monitoring program toward a 
finding of red spruce as preferred squirrel habitat; however, actual 
squirrel capture data seem to refute the exclusive focus on red spruce 
(Menzel 2003, p. 93).
    Response--The Service never meant to imply that the squirrel is an 
obligate of the red spruce forest. However, the ecosystem in which 
WVNFS evolved consisted of a significant red spruce component, and it 
would be inappropriate to de-emphasize this important habitat feature. 
The WVNFS can be quite cosmopolitan, living within majority red spruce 
to nearly complete red spruce cover types, to majority hardwood to 
nearly complete hardwood cover types where the red spruce-fir component 
is minimal (Stihler et al. 1995, p. 18; Menzel 2003, p. 68; Menzel et 
al. 2006a, pp. 207-208; Ford et al. 2004, pp. 433-434; Reynolds et al. 
1999, pp. 347-348). However, the preponderance of the data suggest a 
strong link to red spruce; there is a higher probability of WVNFS 
presence in areas with the most red spruce (as a percentage of the 
cover type) (Menzel 2003, p. 68; Ford et al. 2004, pp. 433-434, 2007 in 
press, pp. 12, 15-16; Menzel et al. 2006a, pp. 207-208). It is well 
documented that the entire range of the WVNFS was a red spruce 
dominated forest until heavily logged during the late 1800s and early 
1900s (Mielke 1987, p. 219; Schuler et al. 2002, p. 89; Menzel et al. 
2006b, p. 1; Rentch et al. 2007, pp. 440-442). Home range sizes also 
are smaller in areas with more red spruce, suggesting that habitat 
quality is better in these areas because WVNFS do not have to travel as 
far to meet their ecological needs (Menzel 2003, pp. 77; Ford et al. 
2007, p. 6).
    Additionally, no data in the central Appalachians show that WVNFS 
are heavily dependent upon pure hardwoods. Even so, protection of 
northern hardwood forest of considerable size is not a concern in the 
central Appalachians, since, within the range of WVNFS above 3,200 ft 
in elevation, approximately 96 percent (627,237 ac) of the land is 
forested (USDA Forest Service 2007, unpubl. map). At a coarser scale, 
within the more than 2 million ac of northern hardwoods in the high 
Allegheny landscape of West Virginia, Forest Inventory Analysis shows 
an approximately 15 percent increase in northern hardwoods from 1989 
(2,061,000 ac, SE = 4,400 ac) to 2000 (2,393,600 ac, SE = 4,200 ac) 
(Griffith and Widmann 2003, pp. 30, 32).
    Finally, Menzel (2003, p. 93) does not support the commenters' 
claims about bias. Sample bias was recognized and dealt with 
appropriately. The Menzel et al. (2006b, pp. 1-10) study used a 
sufficiently large sample of nest box and trap sites that produced 
WVNFS previous to 1999 in a statistical analysis. These occupied sites 
were then compared to 700+ locations that failed to produce WVNFS in a 
logistic regression analysis. Despite the fact that nest box and trap 
locations were skewed towards forest stands containing red spruce, 
captures occurred more frequently (in a greater proportion than habitat 
availability would suggest) in red spruce than in pure hardwood stands.
    Issue 5--Some commenters, including two of the six peer reviewers, 
expressed concern about the threat of extensive logging on Federal, 
State, and private lands within the range of the WVNFS. Some commenters 
claim the MNF proposes to log up to 40 percent of the area comprising 
Management Prescription (MP) 4.1, which focuses on red spruce and red 
spruce-northern hardwood restoration.
    Response--A substantial amount of WVNFS habitat is protected and 
managed consistently with the habitat needs of the WVNFS. Approximately 
79 percent of WVNFS habitat (189,785 ac) is protected from the threat 
of exploitive logging for the foreseeable future (Service 2007a, pp. 5-
8). Privately owned lands potentially subject to continued timbering 
(50,997 ac or 21 percent of WVNFS habitat) occur primarily at the edge 
of the subspecies' range (Service 2007a, p. 8). These lands are not 
critical to the subspecies' conservation, given the large amount of 
WVNFS potential habitat protected and managed on public lands in the 
core of the subspecies' range. [For more details on the degree of land 
protection, see criterion  3 in Service (2007a)].
    The current MNF Forest Plan (USDA Forest Service 2006a, chapters II 
and III), protects WVNFS habitat primarily through land use 
designations, a predominantly passive management strategy, and binding 
standards that effectively remove the threat of habitat loss (via 
logging and other disturbances) on all WVNFS habitat on the forest 
(164,560 ac or 68 percent of the habitat rangewide). Standards TE 63-66 
(USDA Forest Service 2006a, p, II-26-27) adopt and implement the 
provisions of appendix A of the recovery plan for the WVNFS, which 
severely limit vegetation management in all WVNFS habitat, including 
breeding, feeding, resting, and dispersal corridors (Service 2001, 
appendix A). Only specific actions that have no adverse effect to WVNFS 
habitat, a discountable or very minor effect, or that demonstrate a 
beneficial effect (such as habitat restoration) are allowed in WVNFS 
habitat forest-wide. Based upon the Forest Service's long-term (50+ 
years) desired conditions for the ecosystem (USDA Forest Service 2006a, 
p. III-12), the Forest Service's intent shown in a Memorandum of 
Understanding signed by the MNF (Service et al. 2007, pp. 3

[[Page 50233]]

and 8), conversations with MNF staff, and the absence of any 
information to the contrary, we reasonably expect these standards to 
continue to apply regardless of the Act's listing status of the WVNFS. 
This management strategy is also likely to continue post delisting, as 
the WVNFS would be managed by the Forest Service as a ``sensitive 
species'' (USDA Forest Service 2006c, p. 18).
    The commenters' reference to potential logging of 40 percent of the 
area of Management Prescription 4.1 appears to stem from a 
misunderstanding of forest-wide standards TE63-66 and how they 
interplay with the other standards on specific prescription areas. 
Prescription area 4.1 encompasses 153,600 ac, of which 59 percent 
(roughly 91,332 ac) has been mapped as WVNFS habitat and is protected 
from commercial logging by standards TE63-66. The remaining 41 percent 
of the area (62,268 ac) has not been mapped as WVNFS habitat. Within 
this 62,268-ac area, approximately 27,300 ac (or 18 percent of the 
total acreage in prescription area 4.1) have been tentatively 
identified as suitable for timber production (USDA Forest Service 
2006b, p. 3-354). These 27,300 ac may be logged contingent on site-
specific project review and field checks to verify that these lands are 
not WVNFS habitat. Thus, at most, 18 percent of the land in MP 4.1 
could be logged over the life of the Forest Plan and all of this land 
would need to be demonstrated to not be suitable habitat for WVNFS, 
prior to logging.
    Logging of areas that are not WVNFS habitat will also need to 
comply with an array of other applicable standards in the management 
direction for prescription area 4.1 (USDA Forest Service 2006a, pp. 
III-14 to III-16), such as standards 4118 and 4119, which place limits 
on the amount and timing of disturbances within harvest units (USDA 
Forest Service 2006a, p. III-15). Standard 4118 states that no more 
than 40 percent of forested National Forest System lands within each 
4.1 prescription area unit shall be harvested over a 10-year period. 
Standard 4119 requires that unforeseen activities, such as timber 
salvage or pipeline installation, shall be counted toward the 40 
percent disturbance standard in 4118. Thus there are additional limits 
on timbering, even in areas that are not WVNFS habitat, that further 
reduce forest disturbances.
    Limited logging in WVNFS habitat for purposes of restoration is 
also allowed in prescription area 4.1, consistent with standards TE 63-
66, as long as it can be demonstrated to result in a minor/discountable 
adverse effect or a beneficial effect to WVNFS. The Forest Service has 
an objective to restore approximately 1,000 to 5,000 ac of habitat over 
the next 10 years (USDA Forest Service 2006a, p. III-14, objective 
4107). Standard 4118 also applies to these restoration activities. 
Hence it places limits on the frequency of disturbances within stands.
    The Service is confident that these restoration efforts would 
benefit WVNFS in several ways, by: (1) Increasing amounts of coarse 
woody debris necessary for many fungal species; (2) increasing the size 
and importance of red spruce (an important fungal substrate); (3) 
increasing habitat patch size and connectivity; (4) increasing snags 
available as day dens for WVNFS; and (5) decreasing hard-mast 
production, thereby lessening stand value to the southern flying 
squirrel competitor (Menzel et al. 2006a, p. 208).
    Issue 6--Some commenters expressed a view that all old growth 
forest across the range of WVNFS needs to be protected. These 
commenters cited Smith (2007a, pp. 864-865, 877) and Weigl (2007, p. 
899, 902) as evidence of concerns about ongoing harvest of old growth 
forest, its replacement with plantations or regenerating stands, and 
the increasing fragmentation of much of the remaining habitat.
    Response--There is little to no harvesting occurring in old growth 
forests on public or private lands within the range of the WVNFS. There 
is very little old-growth remaining from the exploitive logging period 
in the late 1800s/early 1900s. On the MNF, old growth currently 
comprises less than 1 percent of the entire forest (USDA Forest Service 
2006a, p. B-1). In addition, areas identified as old growth on the MNF 
are not suitable or allowed to be cut. The remaining known old-growth 
areas on the forest are protected by Botanical Area, National Natural 
Landmark, or Scenic Area designations, and are managed through specific 
Forest Plan direction and standards that prohibit timber removal and 
restrict other types of vegetation management in these areas (USDA 
Forest Service 2006a, p. B-4). Furthermore, ``[t]imber harvest goals 
and objectives are based on achieving desired conditions for vegetation 
and habitat, not on regional economics'' (USDA Forest Service 2006b, 
Final Environmental Impact Statement (FEIS), Appendix I, p. I-152), so 
there is little risk of the MNF having adverse impacts on the WVNFS. 
Concerns about a significant increase in forest fragmentation 
throughout much of the remaining WVNFS habitat are unsubstantiated. 
There are no existing or predicted activities that are anticipated to 
significantly adversely affect forests within WVNFS range on a 
landscape level.
    Issue 7--Some public commenters cited a newspaper article as 
specific evidence that the impact of second home development in West 
Virginia is a significant threat to WVNFS. They requested that the 
Service reanalyze these impacts.
    Response--The Service has reanalyzed these impacts and come to the 
same conclusion as in its earlier analysis, that second home 
development is not currently a significant threat. The greatest 
development pressures in West Virginia are occurring, and are projected 
to continue to occur, outside of the range of the WVNFS, in the far 
eastern panhandle, and in and around the cities of Morgantown and 
Charleston (Stein et al. 2005, Figure 2). Second home development 
currently is occurring at the edge of the range of the WVNFS (primarily 
at Canaan Valley and Snowshoe Mountain). By 2030, housing density 
increases are projected to occur on private forests across 0 to 5 
percent of the area corresponding to the core of the range of WVNFS 
(Stein et al. 2005, Figure 2). Such losses, if they occur, would be at 
the periphery of the range and minor in relation to the 242,000 ac of 
WVNFS habitat that exist within a larger landscape encompassing the 
range of WVNFS that is 96 percent forested (USDA Forest Service 2007, 
unpub. map).
    Issue 8--Some commenters thought that the impacts of roads had not 
been adequately considered. These commenters stated that roads create 
absolute barriers to flying squirrel movement. These commenters were 
concerned that construction of Appalachian Corridor H (a four lane 
divided highway running from Weston, WV, to the Virginia line), in 
particular, will open the region to further development and will 
isolate populations of WVNFS in Blackwater Canyon from populations and 
suitable habitat south of the highway. Commenters were concerned that 
populations of WVNFS in Blackwater Canyon north of the highway may not 
be able to survive on the remaining small island of habitat. They 
criticized the Service for not discussing these impacts in more detail 
in the proposed rule or 5-year review.
    Response--Construction of Corridor H through the extreme northern 
part of the WVNFS range is not expected to result in significant 
impacts to WVNFS or its habitat. As explained in the Land Use Planning 
section of the Factor A

[[Page 50234]]

analysis below, sufficient habitat will remain on both sides of the 
highway to support WVNFS (Service 2006b, pp. 4-5, 16-29; 2007c, pp. 3-
4, 14-26). Additionally, a cumulative effects assessment, conducted by 
the West Virginia Department of Transportation (2006, pp. 17-19) 
suggests there is an adequate amount of non-environmentally sensitive, 
low-elevation land, which is not WVNFS habitat, and is available to 
support all development reasonably expected to occur as a result of the 
highway construction.
    Issue 9--Some commenters were concerned that mining, drilling for 
gas, and construction of wind turbines in the habitat of WVNFS are 
increasing and therefore pose a threat to WVNFS.
    Response--There is no evidence that these activities have in the 
past, or will in the future, significantly threaten the WVNFS. This 
conclusion is based upon Service review of impacts to WVNFS from permit 
applications for coal mining, gas, and wind power projects.
    Surface mine projects in West Virginia average 302 ac in size, and 
underground mines average 34 ac of surface disturbance (Office of 
Surface Mining (OSM) 2005, p. 2). Most coal mining activity is 
concentrated in six counties (Boone, Kanawha, Mingo, Logan, Marshall, 
and Monongalia) outside the range of the WVNFS (OSM 2005, p. 2). Within 
the range of WVNFS, small portions of Greenbrier, Randolph, Tucker, and 
Grant Counties have coal seams (OSM 2005, cover map); however, these 
areas were mined in the past and are not currently active. Given the 
cost of reopening a mine, it is unlikely that there would be a 
resurgence of active mining in these areas, considering that these 
sites require expensive acid-mine waste remediation (Fala 2007). In the 
21 years since the WVNFS's listing, there have been only 2 or 3 
projects out of thousands reviewed each year where the Service 
identified potential adverse effects from coal mining to WVNFS habitat, 
and each of these projects was in marginal habitat on the edge of the 
subspecies' range. The Service has no information suggesting that coal 
mining activities will expand into WVNFS habitat. Given this lack of 
evidence of a threat and the above prior history and acreages involved, 
the potential for future impacts to WVNFS from this activity appears 
remote and insignificant.
    The Service has noticed a recent increase in gas drilling 
applications in West Virginia; however, the footprint of these projects 
typically is small, averaging approximately 1.5 ac per gas well. These 
projects also tend to use existing, short (<1 mile long) gravel access 
roads which do not pose a barrier to WVNFS dispersal. In the 21 years 
since the WVNFS's listing, few if any gas projects have resulted in 
adverse impacts to WVNFS habitat, and none of these projects have 
resulted in take of WVNFS. The Service expects these trends to continue 
after the WVNFS is delisted. The minor impacts of these projects do not 
pose a substantial threat to WVNFS.
    There currently is one operating wind power project in West 
Virginia, two under construction, and one approved which will not be 
constructed. There also is one project in Virginia in the permitting 
application phase. These projects have ranged in size from 24 to 372 ac 
of disturbance. Neither the presently operative project nor the two 
under construction have had impacts to WVNFS or its habitat. Although 
the Service has noticed an increase in prospecting for wind power 
projects in West Virginia, only a minority of these potential projects 
might adversely impact WVNFS or its habitat. Three of the 13 projects 
the Service has reviewed initially identified potential adverse impacts 
to WVNFS habitat (two projects in West Virginia and one project in 
Virginia). Two of these projects ultimately avoided WVNFS habitat 
because of the Act, and one of these projects was withdrawn due to 
difficulties seeking access from the Forest Service. Although 
prospecting is currently occurring, nearly half of all prospective wind 
energy applications filed for grid interconnection study within the 
mid-Atlantic region are withdrawn (Boone 2006, pp. 1-2).
    On national forest lands, project proponents currently must seek 
separate authorization for prospecting (surveys and setting up 
meteorological stations), as well as the construction and operation of 
wind towers. Even after the WVNFS is delisted, proposed wind farms in 
national forests within the range of WVNFS range would still need to be 
consistent with standards and guidelines in the forest plans. 
Therefore, we conclude that while prospecting in wind farms is 
increasing, only a minority may materialize, and fewer still might 
adversely affect the WVNFS. Based on these projections and the small 
acreage potentially involved, we conclude that wind power will not pose 
a significant threat to WVNFS or its habitat.

G. Forest Pest Concerns

    Issue 1--Some commenters were concerned about the effects of beech 
bark disease and the hemlock woolly adelgid on the habitat of the 
WVNFS. Two peer reviewers noted that while these forest pests may have 
local impacts to WVNFS, they are not significant at the landscape 
level. Two peer reviewers discussed forest pests as potential threats 
but did not comment on their significance to WVNFS.
    Response--Any impacts to WVNFS habitat from beech bark disease or 
hemlock woolly adelgid are considered minor in the context of the 
subspecies' range. A decline in American beech, as a result of beech 
bark disease, should provide additional snags and coarse woody debris 
for WVNFS. Additionally, a decline in beech nuts would also reduce the 
food supply of southern flying squirrels, a potential competitor of the 
WVNFS.
    Eastern hemlock currently comprises 1 to 9 percent of forested land 
in counties within the range of WVNFS in West Virginia (Kish 2007, 
Figure 1). A predominantly eastern hemlock overstory is known to occur 
at 7 percent of WVNFS nest site locations (such as Blackwater Falls 
State Park), and its loss could affect the quality of riparian zone 
habitat useful for WVNFS dispersal between more isolated patches of red 
spruce-northern hardwood forest. Whether or not eastern hemlock is 
replaced by red spruce or northern hardwoods, thereby ameliorating 
losses, is unknown. However, research indicates that hardwood forests 
with little or no conifer component are not barriers to WVNFS movement 
(Menzel et al. 2006a, p. 207). Please refer to the 5-year review 
(Service 2006a, pp. 17-18) and Factor A of the Summary of Factors 
Affecting the Species below for further information on both beach bark 
disease and the hemlock woolly adelgid.

H. Acid Deposition Concerns

    Issue 1--Two commenters expressed concern about the effects of 
atmospheric acid deposition (also known as ``acid rain'') on WVNFS 
habitat, whereas one peer reviewer believed that such effects were 
largely speculative.
    Response--The Service agrees with the peer reviewer that such 
effects are largely speculative. Acid deposition is not a significant 
threat to the subspecies' habitat. See Factor E under the Summary of 
Factors Affecting the Species section below for further details.
I. Climate Change Concerns
    Issue 1--All peer reviewers agreed that the impacts of climate 
change on WVNFS are unclear. Whereas four peer reviewers concluded that 
measurable effects to WVNFS were not foreseeable, two concluded that 
the risk to WVNFS could not be discounted and requested

[[Page 50235]]

further analysis. Likewise, a coalition of commenters requested a more 
thorough analysis of the effects of global warming on WVNFS. They 
provided the Service a list of references to consider and submitted 
several unpublished maps of bioclimatic models for northern flying 
squirrels provided by Lawler (2007a, unpub. maps). This coalition of 
commenters believes that global warming is probably the greatest threat 
to WVNFS existence within the next 100 years and likely will result in 
extinction of the WVNFS.
    Response--The Service has reviewed all evidence on climate change 
provided by the peer reviewers and members of the public, including 
references cited by the commenters, as well as others. While the 
Service acknowledges the general scientific consensus that global scale 
increases in temperature have occurred and are expected to continue 
into the future, we disagree with the commenters' speculation that 
these changes will drive the WVNFS to extinction. Our ability to 
foresee 100 or more years into the future is limited by the current 
lack of reasonably accurate (Botkin et al. 2007, pp. 227-234; Meyers 
2008) climate change projection models localized for the range of the 
WVNFS, and simple stochastic events over such a long timeframe.
    Issue 2--Some commenters were concerned about the effect of climate 
change on interactions of WVNFS with the southern flying squirrel. They 
point to regional climate change studies projecting an increase in 
potential mast (nut producing) trees as evidence that the southern 
flying squirrel will outcompete WVNFS. In contrast, one peer reviewer 
noted that future climate conditions are unknown. He noted that hotter, 
drier summers but wetter, snowier winters might have little effect, or 
even a positive effect, on WVNFS if vegetation conditions remain 
unchanged, but wetter, snowier winters were less favorable for southern 
flying squirrels.
    Response--Bowman et al. (2005, pp. 1486, 1490) speculated that 
southern flying squirrels in Canada had expanded their northern 
geographic range in response to climate warming between 1994 and 2002, 
followed by a population crash in 2003 that resulted from an energetic 
bottleneck created by the combination of a cold winter that was 
preceded by a failed mast crop. They hypothesize that southern flying 
squirrels have the opportunity to expand their range northward during 
these warm periods, but acknowledge that there also is the possibility 
of large range contractions during cold spells (Bowman et al. 2005, p. 
1491). They conclude that continued range expansions of southern flying 
squirrels are likely under continued global warming, although they 
expect that these expansions will be limited by the distribution of 
mast trees (Bowman et al. 2005, p. 1492).
    It is important to realize that projections about potential 
northward advance of oak forests in response to climate change relate 
to the potential distribution of suitable habitat wherein oaks could 
grow, not the actual distribution of the tree species. It is 
speculation that tree species will continue to move north because there 
are no barriers or constraints to migration (Hansen et al. 2001, p. 
771).
    Iverson et al. (2004a, p. 787-799; 2004b, pp. 209-219) investigated 
potential colonization of new suitable tree-species habitat under 
climate change for five eastern U.S species, including red oak. The 
results show the generally limited nature of likely migration over the 
first 100-year period following climatic change (Iverson et al. 2004b, 
p. 216). They estimate that the proportion of new habitat that might be 
colonized within a century is low (15 percent) for all five tree 
species, suggesting that there is a substantial lag between the 
potential movement of suitable habitat and the potential for tree 
species to migrate into the new habitat (Iverson et al. 2004a, p. 795). 
There is a relatively high probability of colonization within a zone of 
10-20 km (depending on habitat quality and species abundance) of the 
current boundary, but a small probability of colonization as the 
distance from the current boundary exceeds about 20 km (Iverson et al. 
2004b, p. 216).
    Looking at historical patterns, Schwartz et al. (2001, pp. 570, 
574) and Iverson et al. (1999, Figure 7 on p. 89) predicted that 
migration rates of 1 to 10 km/century might be the maximum future rates 
of tree colonization in fragmented habitats. Considering that the 
distribution of the WVNFS spans >170 km, it would take centuries for 
such potential shifts in oak species composition to materialize over a 
substantial portion of the range of WVNFS. Such slow colonization rates 
increase the likelihood that should red spruce decline significantly as 
a result of climate change, WVNFS would be able to survive in refugia 
of red spruce-northern hardwood habitats (as projected by Delcourt and 
Delcourt 1998, p. 927) and shift its range in response to similar slow, 
potential changes in southern flying squirrel distribution.
    Issue 3--Some commenters were concerned that the risk of wildfires 
would increase as a result of more frequent droughts, and thus would 
pose a threat to WVNFS.
    Response--Historically, natural fires in the Central Appalachians 
are believed to have been ``relatively unimportant in the past, and to 
remain unimportant today, because of the wet weather that usually 
accompanies lightning'' (Lafon et al. 2005, p. 129). Anthropogenic 
fires have played some role in the Central Appalachians for centuries 
as Native Americans used fire to drive game, improve wildlife habitat, 
maintain open meadows, and clear underbrush (Van Lear and Waldrop 1989, 
pp. 1-2; Delcourt and Delcourt 1997, p. 1013). European settlers also 
practiced widespread burning (Van Lear and Waldrop 1989, p. 3). As 
discussed by Weigl (2007, p. 898), wildfires ravaged the landscape 
during the period of industrial logging. Loggers set fires after 
clearcutting, and additional fires were ignited from sparks from the 
logging trains (Schuler et al. 2002, p. 89). The fires associated with 
the logging practices of the early 1900s are not expected to reoccur, 
because the clearcutting is no longer taking place. While other parts 
of the Central Appalachians are currently considered to be especially 
fire-prone, the Allegheny Plateau, which contains most of the WVNFS 
habitat, is considered as ``having limited fire activity'' (Lafon et 
al. 2005, p. 141). It is clear that fire has played some role in 
development of the current ecosystem for many centuries.
    Since climate appears to have a strong influence on fire regimes, 
potential climate changes will influence the number of fires, the area 
burned, and fire intensity (Lafon et al. 2005, p. 140). While there is 
the potential for occurrence of more frequent and intense fires during 
drought, there is also potential during wetter climatic periods for 
decreased fire activity. There are no scientific means, however, of 
accurately, or reasonably determining the net effect on WVNFS and its 
habitat of any potential change in the fire regime that may occur over 
the next century. While a long-term regime of intense, landscape level 
fires could significantly impact WVNFS habitat, those potential 
conditions are mere speculation given our present state of knowledge.
    Issue 4--Some commenters requested that the Service specifically 
review the potential contribution of global warming to the ``recent'' 
condition of red spruce, as described in several papers from the late 
1980s [McLaughlin et al. 1987; Johnson et al. 1988; and Hamburg and 
Cogbill 1988 (miscited as Cogbill 1988 by the commenters)]. They stated 
that the Service should fully examine all

[[Page 50236]]

studies of red spruce condition and factors contributing to that 
condition.
    Response--The Service has reviewed the three papers from the 1980s 
cited by the commenters, as well as other studies of red spruce 
condition. The three cited papers primarily focus on the northern and 
southern Appalachians, areas that are outside the range of the WVNFS. 
Although not directly applicable to WVNFS, papers covering areas 
outside the range of the WVNFS do provide a context for observed 
differences in regional trends of red spruce condition. The Service 
further examined potential impacts on the current and future condition 
of the red spruce-northern hardwood ecosystem in Factors A and E under 
the Summary of Factors Affecting the Species section of this final 
rule, as well as the responses to comments on these issues.
    Issue 5--Some commenters cited a paper by Delcourt and Delcourt 
(1998) as specific evidence that we can foresee: (1) The extirpation of 
red spruce-balsam fir and spruce-Fraser fir forests south of 44 degrees 
north latitude (the White Mountains, New Hampshire); and (2) the 
movement of the southern range of these forests to northern New England 
in the next 100 years.
    Response--We have reviewed the paper by Delcourt and Delcourt 
(1998) cited by the commenters. We believe the projections made by 
these authors are likely overestimates of risk. First, the authors did 
not model the full range of possible climate extremes and did not use a 
full array of different climate models. They modeled possible future 
shifts in the spruce-fir ecotone from two climate models, assuming 
projected summer warming of 3.0 degrees or 6.4 degrees Celsius 
(Delcourt and Delcourt 1998, p. 926). The Intergovernmental Panel on 
Climate Change (IPCC) (2007c, Table 3.1) currently recognizes a 2 to 4 
degree Celsius increase by 2099 as the best estimate of warming under 
six climate models (with a likely range of 1 to 6 degrees). Values 
substantially higher than 4 degrees cannot be excluded, but agreement 
of models with observations is not as good for those values (IPCC 
2007c, part 2.3). Thus the 3-degree warming scenario, identified by the 
Delcourts as their ``most conservative'' projection, falls within the 
middle range of the best estimate of temperature changes currently 
recognized by the IPCC. The Delcourts did not model the lower range (1-
2 degrees) of warming currently recognized by the IPCC.
    Second, the Delcourts provided little information about model 
assumptions and limitations, and did not attempt to validate their 
model, all of which greatly diminishes the usefulness of this paper. 
They did not quantify tree species extinction probabilities, or 
otherwise explain the basis for qualitative statements about their 
confidence in their predictions. Botkin et al. (2007, p. 231) notes 
that the type of niche-theory model used by the Delcourts is likely to 
overestimate the risk of tree species extinction. These types of models 
assume that observed distributions of trees are in equilibrium with 
their current environment, and that the tree species will become 
extinct outside of the regional values (Botkin et al. 2007, p. 231). 
However, local variation in climate due to topography or other factors 
could result in tree species being able to persist in suitable 
microhabitats even though the model projects no suitable habitat in 
these general regions (Hansen et al. 2001, p. 765). The Delcourts 
focused on elevation and summer temperature as the primary factors 
controlling where spruce-fir could grow, but other factors would likely 
add considerable uncertainty, such as: the seasonality of 
precipitation, duration of cloud cover in the growing season, winter 
temperatures and frost-free chronologies, and site-specific 
disturbances (White and Cogbill 1992, pp. 4-16).
    The Delcourts suggested possible northern and upslope migration of 
red spruce under both a 3- and 6-degree warming scenario, with greater 
impacts occurring under the warmer scenario. For the moderate 3-degree 
warming scenario, the authors also suggested the possibility of spruce 
survival in refugia (Delcourt and Delcourt 1998, p. 928, Figure 4), 
similar to what happened during warmer and drier extremes of the post-
glacial period 4000-5000 years before present (Delcourt and Delcourt 
1998, p. 927, Ware 1999, pp. 45-55) under similar temperature regimes.
    Although Delcourt and Delcourt (1989) modeled summer temperature 
changes through 2100, they provided no time frame for when vegetative 
responses would likely occur. They also did not provide any prediction 
of what the tree species composition would be in the forest that would 
succeed the spruce-fir forest in each of these scenarios. As discussed 
in climate change Response to Comments Issues 1-3, future vegetative 
changes in response to such temperature changes could possibly occur 
over several hundred years. However, their possible impacts on WVNFS 
distribution and persistence are not reasonably foreseeable given the 
long time frames and high degree of uncertainty. Therefore, we do not 
find that the projections of Delcourt and Delcourt (1989) present a 
climate change threat to the WVNFS' habitat that is likely to endanger 
the subspecies in the foreseeable future.

J. Spruce Restoration Concerns

    Issue 1--Whereas one peer reviewer commented that restoration 
techniques have the ability to hasten improved overstory conditions and 
compositions favorable to WVNFS, some members of the public were 
concerned that spruce restoration efforts are misdirected and would not 
be successful. These commenters state there is only one master's level 
study suggesting that such recovery may be feasible.
    Response--Forest management and silvicultural techniques, such as 
those being proposed, have long histories of implementation (Frank and 
Bjorkbom 1973, pp. 1-29; Frank and Blum 1978, pp. 1-15; Carey et al. 
1999, pp. 64-66). Several studies and modeling simulations indicate 
that restoration silviculture could be an effective tool for increasing 
the amount and quality of red spruce-northern hardwood forests in the 
central Appalachians (Rentch et al. 2007, pp. 440-452; Schuler et al. 
2002, pp. 88-98; Hornbeck and Kochenderfer 1998, pp. 197-202).
    Efforts to restore or enhance red spruce-northern hardwood forests 
should in many cases enhance WVNFS habitat in the short-term, as well 
as the long term. For example, noncommercial efforts that involve red 
spruce release by girdling or stem-injection of herbicide will create 
snags suitable for day dens. In addition, removal of hard mast species 
such as northern red oak or American beech will lessen habitat 
suitability for the southern flying squirrel and therefore minimize any 
potential competition for dens and food, as well as lessen 
interspecific contact to spread the Stronglyoides parasite. See Factor 
C under the Summary of Factors Affecting the Species section below for 
additional information.
    And lastly, red spruce-northern hardwood restoration on the MNF is 
targeted at maximizing patch size and habitat connectivity for WVNFS 
(USDA Forest Service 2006a, p. III-14). These efforts are proceeding 
cautiously in unoccupied habitat, with monitoring to gauge success. 
These efforts are not clear cuts, but rather are light thinnings of 
northern hardwoods that open the canopy to provide additional light for 
growth of spruce. Spruce is naturally adapted to regeneration in small 
openings such as these.

K. Overutilization Concerns

    Issue 1--One public commenter was concerned that once the WVNFS was 
delisted, its collection would no longer

[[Page 50237]]

be regulated and the subspecies would be threatened by overcollection. 
In contrast, two peer reviewers offered evidence that overutilization 
of WVNFS never has been a threat and would not become a threat should 
WVNFS be delisted.
    Response--Even for trained wildlife professionals, the WVNFS is an 
exceptionally difficult animal to catch. Thus the probability that a 
layman or commercial collector could capture or overcollect WVNFS is 
very remote given the subspecies' low detectability, nocturnal and 
secretive habits, and remote localities where it occurs. Once delisted, 
WVNFS collection by hunting or trapping will still be illegal under 
West Virginia and Virginia state laws (West Virginia Code 20-2-5(26); 
Code of Virginia 29.1-521.A.10, 29.1-566 and 29.1-530.A.), and its 
capture for scientific and educational purposes will still be regulated 
through collection permitting systems of the WVDNR (West Virginia Code 
20-2-50) and the Virginia Department of Game and Inland Fisheries (Code 
of Virginia 29.1-568). For more information, see Factor B in the 
Summary of Factors Affecting the Species below.

L. Adequacy of Regulatory Mechanisms

    Issue 1--Some commenters stated that much of the habitat believed 
to be important to the WVNFS is not fully protected in the long term.
    Response--There are no known rangewide threats to the subspecies' 
forested habitat, thus full protection of this habitat is not required 
to maintain the WVNFS's status as recovered. (See Factor A under the 
Summary of Factors Affecting the Species section for further details.) 
Seventy-nine percent of the modeled habitat of the WVNFS is being 
managed for the long term by provisions of forest plans, state 
management plans, wilderness and backcountry recreation designations, 
and conservation easements. For example, in the forest plan for the MNF 
(USDA Forest Service 2006a, p. III-9, D-1), Management Prescription 4.1 
focuses on protection, restoration and management of red spruce and red 
spruce-northern hardwood communities. This management prescription, as 
well as other management plans and agreements on state, Federal, and 
private lands, wilderness and backcountry recreation designations, and 
perpetual conservation easements will continue to apply following 
delisting of the WVNFS (Service 2007a, pp. 5-10). Collectively, all of 
these mechanisms provide reasonable certainty of protection and 
management of much of the habitat for WVNFS.
    Issue 2--Some commenters requested clarification on the status of 
forest plans for the Monongahela and the George Washington National 
Forests. These commenters were concerned that the Forest Service would 
not be able to implement these plans because of a lawsuit on the land 
management planning rule published in 2005.
    Response--In March 2007, a U.S. District court order enjoined the 
Forest Service from implementation and use of the land management 
planning rule published in 2005 until the Forest Service complied with 
the Court's order for two combined cases (Citizens for Better Forestry 
et al. v. USDA and Defenders of Wildlife v. Johanns, C.A. C05-1144 
(N.D. Cal.)). The Forest Service complied in 2008 by re-issuing its 
forest planning regulations. Forest plans currently in effect for the 
MNF and the George Washington National Forest (GWNF) were based on 
planning rules published prior to 2005; hence, their continued 
implementation and use in present form is not affected by the lawsuit 
or the new regulations. These existing plans provide guidance for 
management and monitoring of the WVNFS and its habitat, including 
prescriptions, goals, objectives, standards, and guidelines. Any 
subsequent revisions or amendments to these existing plans will require 
compliance with any planning regulations in effect at the time. Should 
the MNF choose to revise or amend their existing forest plan, we 
believe it is highly unlikely that the current WVNFS habitat would be 
affected (See the Factor A--Land Use Planning section under the Summary 
of Factors Affecting the Species below for further information).
    Issue 3--Some commenters noted the Service had entered into a 
Memorandum of Understanding (MOU) with the Forest Service, WVDNR, and 
others for continued management and protection of WVNFS. These 
commenters question whether the Forest Service would continue to 
protect a species without the force of law.
    Response--By signing the MOU, signatories demonstrate that they are 
committed to implementing the features within their discretion and 
authority (Service et al. 2007, pp. 1-8). The MOU affirms commitments 
made by the U.S. Forest Service MNF to implement standards and 
guidelines for the WVNFS and its habitat contained in the 2006 Land and 
Resource Management Plan. This plan would not be invalidated by 
delisting the WVNFS. Also see response to section F,. Ecosystem and 
Habitat Concerns--Issue 5 and section L,. Adequacy of Regulatory 
Mechanisms--Issue 2, above.
    Issue 4--Some commenters questioned the ability of the Forest 
Service, WVDNR, and others to fulfill their obligations in the MOU, 
given projected staff and budget cuts.
    Response--The Service is not relying upon the MOU as an enforceable 
regulatory mechanism under the Act. See Response to Issue 3 in this 
same subsection above.
    Issue 5--Some commenters were concerned that the MOU termination 
clause allows parties to opt out for any reason with 30 days' notice.
    Response--MOUs commonly have early termination clauses. While some 
changes to the composition of the signatory parties to the MOU may 
occur over time, we expect that other parties will sign on and the MOU 
will continue to be implemented for the long-term by those 
participating at the time. See Response to Issues 3 and 4 in this same 
subsection above.

M. Predator Concerns

    Issue 1--One commenter noted the Service had not discussed the 
impact on WVNFS of the reintroduction of the fisher, a potential 
predator on WVNFS.
    Response--Fishers (Martes pennanti) were reintroduced to West 
Virginia in the late 1960s or early 1970s, prior to the listing of 
WVNFS as endangered. Both animals have shown overlapping range 
expansions in the intervening decades, providing indirect evidence that 
fishers are not significant mortality agents for WVNFS. Most data from 
the eastern United States suggest that snowshoe hare, cottontails, 
voles, mice, and bird eggs comprise the majority of the fisher's diet 
(Powell et al. 2003, p. 643). Weigl (2007, p. 901) concluded that 
fishers probably can coexist with northern flying squirrels, with the 
exception of in small habitat islands, where there are fewer WVNFS and 
other prey is more limited.

N. Other Natural Factors

    Issue 1--One peer reviewer and one public commenter thought the 
Service needed to give more consideration to the impact of parasites on 
WVNFS spread by southern flying squirrels (Glaucomys volans), given 
projections about climate change, acid deposition, oak decline in 
northern hardwood communities, and expansion of other seed- and nut-
bearing hardwoods.
    Response--Recognizing that there are ``varying intensities'' of 
parasitic infection of northern flying squirrels (G. sabrinus) in the 
wild, Weigl (2007, p. 901) remains concerned about infection of G. 
sabrinus by the intestinal parasite

[[Page 50238]]

Stonglyoides robustus, based in part on his belief that there has never 
been stable sympatry of G. sabrinus and Stonglyoides robustus. While 
that may be true for the Carolina northern flying squirrel (G. s. 
coloratus) at the sites he studied in North Carolina and Tennessee, 
stable sympatric occurrences of WVNFS and the southern flying squirrel 
(G. volans) have been documented for decades at the Spruce Knob 
geographic recovery area in West Virginia (Wallace 2007, p. 2). The 
southern flying squirrel has been detected within all 7 of the 
generalized WVNFS core areas (or population centers), and at 20 percent 
of the 109 WVNFS capture sites. Despite the presence of this competing 
species, there is no evidence of illness or mortality of WVNFS, and no 
evidence of local extirpation of WVNFS from any of these sites during 
21 years of monitoring. Based on their documented co-occurrence in West 
Virginia and Virginia, and no documented lethal effects in the wild, we 
believe that speculation that impacts of climate change, acid 
deposition, or shifts in forest composition would decrease the fitness 
or survival of the WVNFS is unwarranted. The WVNFS has prevailed in 
repopulating its range in a habitat where the red spruce-northern 
hardwood compositions arguably favor the southern flying squirrel over 
the past 100 years. The Service does not believe that the WVNFS would 
have made this recovery if it suffered debilitating or lethal effects 
from sympatric relationships with parasite-bearing species (See Factor 
E--Competition with Southern Flying Squirrel under the Summary of 
Factors Affecting the Species section for further information).

O. Miscellaneous

    Issue 1--Some commenters were concerned that we have ignored the 
WVNFS recovery plan criteria in determining that the subspecies has 
recovered.
    Response--As summarized above in the Recovery section of this final 
rule, our analysis shows that the intent of each criterion for 
downlisting and delisting has been satisfied and that most of the 
criteria have been achieved or substantially achieved. Although the 
recovery plan criteria are out-of-date, we conducted an analysis of how 
well these criteria have been met and summarized that analysis in the 
beginning of this final rule. New information has changed the extent to 
which these criteria need to be met for recognizing recovery of the 
subspecies. Species are listed or delisted under the Act based on 
whether they are threatened or endangered by one or more Factors (see 
Summary of Factors Affecting the Species section below). Up-to-date, 
threats-based recovery criteria can assist the Service in analyzing 
whether a species meets the definition of threatened or endangered. 
Recovery criteria are only one tool, however, the Service uses in 
making a classification determination.
    Issue 2--Some commenters expressed concern about not providing a 
post-delisting monitoring plan for public review, concurrently with the 
proposed rule.
    Response--The proposed and final delisting decisions are based 
firmly on an analysis of identified threats and changes in the 
subspecies' status. They are not legally contingent upon future 
approval or implementation of the post-delisting monitoring plan. The 
Act contains no explicit requirements for either notifications or 
public comment opportunities relative to planning or implementation of 
post-delisting monitoring plans. Nevertheless, the Service sought input 
into these processes, as indicated by our request for public comment on 
the draft post-delisting monitoring plan (72 FR 57346), published in 
the Federal Register on October 9, 2007, prior to publication of this 
final rule, and by our finalization of the plan concurrent with this 
final decision on the delisting proposal.
    Issue 3--Some commenters expressed mistrust about the motivations 
behind delisting and accused the Service of catering to developers, the 
timber industry, and other extractive resource users. Some commenters 
also expressed value-based reasons as to why they opposed delisting, 
such as spiritual importance, animal rights, and need for humans to 
behave as caretakers and stewards of the WVNFS, not as pillagers of its 
habitat. The majority of comments received were one of three various 
form letters stating that the proposed rule was premature and based on 
inadequate scientific information, but provided no substantive 
information to support these statements.
    Response--Our decision to delist WVNFS is based solely on the best 
scientific and commercial data available and our five-factor analysis. 
This analysis indicates that the subspecies is neither threatened nor 
endangered. While we appreciate the values expressed by these 
commenters, such comments are either not relevant to the decision, or 
are outside the scope and authority of the final rule.

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. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of fish or 
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the 
``species'' is determined, we then evaluate whether that species may be 
endangered or threatened because of one or more of the five factors 
described in section 4(a)(1) of the Act. We must consider these same 
five factors in delisting a species. We may delist a species according 
to 50 CFR 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; and/or (3) the 
original scientific data used at the time the species was classified 
was in error.
    A recovered species is one that no longer meets the Act's 
definition of threatened or endangered. The analysis for a delisting 
due to recovery must be based on the five factors outlined in section 
4(a)(1) of the Act. This analysis must include an evaluation of threats 
that existed at the time of listing, those that currently exist, and 
those that could potentially affect the species once the protections of 
the Act are removed.
    The Act defines ``species'' to also include any subspecies or, for 
vertebrates, any distinct population segment. The Act defines 
``endangered species'' as any species which is in danger of extinction 
throughout all or a significant portion of its range, and ``threatened 
species'' as any species that is likely to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range.
    For the purposes of this finding, the ``foreseeable future'' is the 
period of time over which events or effects reasonably can or should be 
anticipated, or trends reasonably extrapolated, such that reliable 
predictions can be made concerning the status of the species. As 
discussed in the Summary of Factors section, we determined that any 
future threat from development will be localized and minimal, based on 
trends over the past 10 years. In addition, the Service has no 
indications that management of the forest for timber will have more 
than a minor impact on the

[[Page 50239]]

WVNFS based on the discussion in Factor A. WVNFS habitat has been 
improving steadily for the past 50-80 years throughout its range and we 
expect this improvement to continue into the future.
    Climate change projection models are not reasonably accurate for 
the localized range of WVNFS, and therefore we cannot reliably predict 
that climate change will pose a threat in the future. All indications 
suggest that the squirrel is resilient enough to adapt to and survive 
gradual changes in the habitat, if there are any due to climate change. 
Therefore, we do not foresee any threats affecting the WVNFS into the 
future that would lead the species to become an endangered species.
    Section 4(a)(1) of the Act requires that we determine whether a 
species is endangered or threatened based on one or more of the five 
following factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. Our evaluation of these 
factors is presented below. Following this threats analysis, we 
evaluate whether the WVNFS is threatened or endangered within any 
significant portion of its range.

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 
2006a, 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). The final listing rule 
qualitatively described historic habitat losses and suggested that ``in 
these last occupied zones, the squirrels [G. s. fuscus and G. s. 
coloratus] and their habitat may be coming under increasing pressure 
from human disturbances such as logging and development'' (50 FR 
26999).
    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 2006a, 
p. 25). As of 2006, there is a total of 109 WVNFS capture sites, of 
which 107 are in West Virginia and 2 are in Highland County, Virginia 
(Service 2006a, pp. 8 and Figure 2; WVDNR 2006a, pp. 1-109). These 
capture sites are dispersed across seven general areas of habitat in 
the Allegheny Highlands region (Service 2006a, pp. 9 and Figure 3). 
Distributed throughout the 109 capture sites, there have been 1,198 
captures (including 85 recaptures) as of 2006 (WVDNR 2006a, pp. 1-109). 
Collectively, the proportion of sites demonstrating persistence across 
multiple generations (83 percent), distributed among habitat quality 
types and within geographic zones; the routine documentation of 
nestlings and juveniles (76 percent of sites); and balanced to slightly 
skewed sex ratios demonstrate a relatively high degree of population 
stability and constant habitat occupancy (Service 2007c, pp. 9-11). 
Locally reproducing populations are the most likely factors for 
continuing to find WVNFS in numerous locations within their historical 
range over the last couple of decades, given their low detectability, 
relatively short life span, and relatively low reproductive capacity, 
and a naturally patchy nature of suitable forest habitat distribution 
(Service 2007c, p. 11).
    We now know that the WVNFS continues to occupy the areas identified 
in the 1985 final listing rule (50 FR 26999) 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 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 ac 
(some sources suggest 600,000+ ac) 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 Carolina 
northern flying squirrels (G. s. coloratus) (Service 1990, pp. 16-17; 
USDA Forest Service-Northern 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. 2006b, p. 6; Rollins 2005, pp. 12-13; Schuler et al. 
2002, pp. 88-89). Loggers set fires after clearcutting, and additional 
fires were ignited from sparks from the logging trains (Schuler et al., 
2002, p. 89). The fires associated with the logging practices of the 
early 1900s are not expected to reoccur, because the clearcutting is no 
longer taking place. These fires did, however, consequently, result in 
less, and poorer quality, WVNFS habitat because younger forests with 
fewer red spruce provided reduced foraging and sheltering opportunities 
(Service 2006a, 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. The WVNFS' rarity was 
understood to be a consequence of its specialized use of a 
precipitously declining habitat type (Service 2006a, p. 11).
    Currently, it is estimated that there are approximately 242,000 ac 
of WVNFS habitat (USDA Forest Service-Northern 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. 4-5). The 
models allow us to estimate the amount of potential and high-quality 
habitat in the Allegheny Highlands, prioritize areas for restoration 
and recovery (Menzel et al. 2006a, p. 7), assess anthropogenic 
(manmade) and geologic fragmentation of the red spruce forest, and 
analyze stewardship of the suitable habitat (Menzel et al. 2006b, p. 
7).

[[Page 50240]]

    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 areas 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 2006a, pp. 10-11; USDA Forest 
Service-Northern Research Station 2006, unpublished data, p. 2). Even 
though current habitat conditions are not as favorable for the WVNFS as 
historical conditions preceding the late 1800s/early 1900s, current 
conditions are much improved compared to those 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 2006a, pp. 
11-14, 19-20). With regard to forest composition, the amount and extent 
of red spruce in the Central Appalachians also appears to be gradually 
increasing (Adams et al. 1995, p. 101; Schuler et al. 2002, p. 92-93; 
Rollins 2005, pp. 39-51). Recent evidence also suggests improving 
trends in health and regeneration of red spruce-northern hardwood 
forests within the range of WVNFS (Adams et al. 1995, p. 101; Audley et 
al. 1999, pp. 179-199; Hornbeck and Kochenderfer 1998, pp. 198-200; 
Schuler et al. 2002, p. 92-94; Rollins 2005, pp. 74-78). The forested 
landscape within the range of WVNFS provides a high degree of 
functional connectivity, as evidenced by large patch sizes, numerous 
linkages, and persistence over multiple generations at monitoring sites 
across a range of forest conditions (Service 2007c, pp. 5-6, 9-11).
    We analyzed impacts that the balsam and hemlock woolly adelgids, 
insect parasites accidentally introduced from Europe (Service 1990, p. 
13), may be having on the WVNFS' habitat (Service 2006a, 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 (Peart et al. 1992, p. 149, 165). 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 2006a, 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 
2006a, p. 17). Only 7 percent of the WVNFS capture sites are dominated 
by Eastern hemlock instead of red spruce (Service 2006a, p. 17). 
However, work conducted on the WVNFS indicates that hardwood forests 
with little or no conifer component are not barriers to movement 
(Menzel et al. 2006a, p. 207). 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 could be detrimental to the 
WVNFS (Service 2006a, 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 subspecies' 
survival, and presence of red spruce in the majority of the areas 
(Service 2006a, 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 cause either localized 
lesions or decay and death of the entire tree (Service 2006a, pp. 17-
18). Although American beech trees are common to the red spruce-
northern hardwood forests of the Allegheny Highlands, in WVNFS habitat 
they usually occur in combination with red 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 2006a, 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 beeches. 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 2006a, p. 18).
    We also analyzed the potential future impacts of climate change on 
the WVNFS's habitat. While there is much speculation on potential 
future impacts of climate change on the WVNFS, it is important to 
recognize that there is no evidence that climate changes observed to 
date have had any adverse impact on WVNFS or its habitat. For example, 
within the range of the WVNFS, inexplicable crown dieback (Mielke 1987, 
pp. 221-222) and declines in red spruce radial growth were reported in 
the 1980s (Adams et al. 1985, p. 315). Since the 1980s, there has been 
no evidence of widespread crown decline of red spruce throughout the 
range of WVNFS. By the late 1990s, Audley et al. (1998, pp. 177, 180, 
190) noted that while a small percentage of individual trees sampled 
exhibited symptoms of reduced health and vigor, the majority of red 
spruce sampled in West Virginia appeared healthy. More recent 
dendrochronological surveys of red spruce stands in West Virginia 
detected this growth decline phenomenon occurring from about 1930 to 
1990 (Schuler et al. 2002, p. 93; Hornbeck and Kochenderfer 1998, pp. 
199-200). Since this time period, the decline appears to have ended in 
the central Appalachians--growth rates have leveled or shown slight 
increases (Schuler et al. 2002, p. 93, figure 3; Hornbeck and 
Kochenderfer 1998, p. 199-200) and regeneration remains unaffected 
(Schuler et al. 2002, pp. 92-93).
    Red spruce is now recolonizing areas of hardwood forest near 
existing red spruce stands, areas that historically were red spruce 
until the logging and fires at the turn of the 20th century (Schuler et 
al. p. 2002, p. 89). There is

[[Page 50241]]

evidence that the red spruce-northern hardwood ecotone is either 
stabilizing or decreasing in elevation (expanding) to approximate its 
former extent (Adams et al. 1999, p. 235, Rollins 2005, p. 76). Rollins 
(2005, p. ii, 74-75) found that the amount and quality of red spruce at 
three study sites in the central Appalachians appeared to be gradually 
improving through natural regeneration.
    Since then, Rollins has studied 9 additional sites, for a total of 
12 representative sites distributed in the northern, central, and 
southern portions of the range of WVNFS. Stand data on trees, saplings 
and seedlings, soil chemistry, red spruce foliar chemistry, and the 
percent of red spruce roots covered by symbiotic fungal mycorrhizae are 
currently being analyzed between two sampling periods (1985 vs. 2005). 
Although a final report is not yet available, preliminary results 
indicate a reversal of the crown dieback conditions observed in 1985 
(Connolly 2007).
    This pattern is contrary to general projections that climate 
changes in the next 100 years may shift the geographic ranges of flora 
and fauna upwards in elevation and northward (IPCC 2002, p. 1). 
Considering the ecotone range expansion trends documented by Rollins 
(2005) and Adams et al. (1999), we expect that the extent and quality 
of the habitat for WVNFS is likely to continue to increase.
    We looked at the possible range of effects of climate change on the 
WVNFS. Under warmer scenarios, several regional models project that 
mixed (hardwood and conifer) forests in the northeastern United States 
(including West Virginia and Virginia) may decrease in potential area, 
as they gradually shift into Canada over the next 100 years or more. By 
some projections, this possible decrease in potential habitat could be 
as small as -11 percent to -22 percent (Iverson et al. 2005, p. 34) or 
as large as -97 percent over 100 years (Hansen et al. 2001, p. 769). 
These models also project that northeast mixed hardwood and conifer 
forests may gradually be squeezed from the south by the advance of 
southeastern mixed forests to varying degrees (Inkley et al. 2004, p. 
6). However, some models project that the biome remains intact under 
cooler scenarios (Hansen et al. 2001, p. 769; Inkley et al. 2004, p. 6, 
figure 3). As explained by Botkin et al. (2007, p. 230), ``the larger 
the scale of the primary units of the model, the simpler it is to 
estimate effects over large areas and times, but also the cruder the 
approximation is and the more likely that undesirable assumptions will 
prevail.'' Given this caveat, as well as the huge variation in possible 
views of the future noted above, all with unknown likelihoods of 
occurrence, we conclude that it is not possible to translate these 
potential scenarios into potential effects on WVNFS or its habitat over 
any meaningful timeframe.
    We considered the map products provided by some of the public 
commenters (Lawler 2007a, unpub. maps). We spoke to Dr. Joshua Lawler 
(2007b), University of Washington, to gain a better understanding of 
the continentwide bioclimatic models he ran for all subspecies of 
northern flying squirrels. These models do not map vegetation directly, 
but attempt to do so indirectly by correlating the distribution of the 
various subspecies of northern flying squirrels to alternative 
scenarios of climate change. For the WVNFS, the models project that the 
future climate (2071-2100) within the range of the subspecies will be 
different from the baseline climate conditions of 1961-1990. Contrary 
to the commenters' speculation that these products project the 
extinction of WVNFS, the unpublished map products (Lawler 2007a, unpub. 
maps) provided by the commenters indicate only an unquantified 
potential range contraction of WVNFS. Botkin et al. (2007, p. 231) 
notes that bioclimatic models vary greatly in their projections of 
extinction, and that Lawler et al. (2006) have not attempted to 
validate any of the models they are using. Lawler et al. (2006, p. 
1579) recognized that it would be difficult to translate these types of 
predictions into threats of extinction because actual range shifts 
would depend on dispersal, evolutionary flexibility, and species 
interactions. Dr. Lawler (2007b) stated that the model had a good 
degree of fit at the continentwide level, but the fit would be reduced, 
and the degree of uncertainty would be expected to be higher, at the 
State level. He indicated it is not possible to determine model error 
for the relatively small scale of the WVNFS' range in West Virginia and 
Virginia.
    The WVNFS and other subspecies of G. sabrinus have demonstrated 
significant adaptability, resilience, mobility, and plasticity in 
habitat use by surviving landscape-level habitat changes during times 
of glacial retreat and advance during the Pleistocene, and by surviving 
intense landscape-level loss of forest during the late 1800s and early 
1900s (Weigl 2007, p. 898). Over the past 100+ years, the WVNFS 
survived a change from a red spruce-dominated forest to a loss of much 
of the forest habitat, to a transitional regeneration of a hardwood-
dominated forest, and a more recent increase in the red spruce 
component. As several commenters point out, hardwood trees have always 
been an important component of WVNFS habitat and there is no evidence 
that a gradual increase in hardwoods would cause dramatic population 
declines for the WVNFS. In fact, Weigl (2007, p. 899), citing two other 
studies in the northeast, noted that ``the species is known to occupy 
hardwood habitat without spruce or fir.'' The Service concludes that 
the WVNFS is expected to survive slow, gradual changes from long-term 
climate change.
    Based upon a review of the current scientific studies, peer-review 
comments, the unpublished maps provided by the commenters, and 
discussions with modelers, the Service concludes that there is no 
evidence that current changes in climate have had an adverse impact on 
WVNFS. Long-term projections about climate change and its possible 
effects on WVNFS are complex and best viewed as possible alternative 
views of the future that have unknown likelihoods of occurrence. 
Therefore, based on the above information, we have determined that we 
are unable to establish climate change as a threat to the WVNFS within 
the foreseeable future.

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) 
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, which limited vegetation 
management in all ``suitable habitat'' (as determined collaboratively 
by the Forest Service, Service, and WVDNR) to: (1) Research activities 
covered under an Act section 10 permit; (2) actions to improve or 
maintain WVNFS populations after research has demonstrated the 
beneficial effects of the proposed management; or (3) when project-
level assessment results in no adverse effects. This conservation 
strategy has been carried forward into the MNF's recent

[[Page 50242]]

Forest Plan Revision (USDA Forest Service 2006a, Management 
Prescriptions 4.1 and parts of 5.0, 5.1, 6.2, and 8.0; USDA Forest 
Service 2006c, pp. 12, 19-20, 27).
    It is important to note that section 7 of the Act provides 
regulatory flexibility to Federal agencies to complete their missions. 
This process allows Federal agencies to incidentally ``take'' 
individuals of a listed species as long as they insure their actions 
are not likely to jeopardize the entire species or adversely modify 
critical habitat. This regulatory option provided the MNF the ability 
to harvest and manage timber even in occupied WVNFS habitat. However, 
the MNF has avoided impacts to the WVNFS altogether while still 
maintaining a viable timber harvest program, which continues under the 
revised plan (USDA Forest Service 2006a).
    After the WVNFS is delisted, the MNF is likely to amend the Forest 
Plan to incorporate its latest forest planning regulations, and to 
formally recognize that the WVNFS is no longer an endangered or 
threatened species. But given the MNF's desired future condition for 
Management Prescription 4.1 (summarized below), and history of 
proactive recovery efforts directed toward WVNFS conservation, the 
Service believes that the MNF will continue management and monitoring 
the red spruce-northern hardwood ecosystem that supports the WVNFS. 
Furthermore, the MNF's current timber management and harvest goals are 
based on achieving desired forest and habitat conditions and not on a 
regional economic or a supply/demand basis (USDA Forest Service 2006b, 
FEIS, Appendix I). The desired future condition for Management 
Prescription 4.1 focuses on developing a late successional stage (>120 
years) forest over time (50+ years) with the multi-age stand structure 
that likely existed prior to exploitive logging (USDA 2006a, pp. III-
12). At the stand level, desired vegetation conditions include a mix of 
trees of different ages, complex vertical habitat structure, scattered 
small openings (<2 ac) dominated by shrubs and saplings, scattered 
over-mature trees, and an abundance of snags, den trees, and downed 
woody debris.
    Even if the MNF revises the current or subsequent Forest Plans to 
increase timber harvest, it is highly unlikely that the current WVNFS 
habitat would be impacted. About two-thirds of the MNF is fully stocked 
or overstocked timber. The MNF is growing nearly four times as much 
timber as is being harvested or dying from natural causes (USDA Forest 
Service 2006b, FEIS, Appendix I, p. I-155). Therefore, with the current 
surplus of available timber and the relatively small portion of the 
available timber currently being harvested, the MNF could substantially 
increase its annual harvest rate within the 330,000 available ac and 
still have no need to harvest in WVNFS habitat. The MNF's FEIS for the 
Forest Plan Revision describes three forest management alternatives 
that would result in a greater acreage available for timber harvest 
than the selected alternative (from 900 to 17,300 ac more) (USDA Forest 
Service 2006b, FEIS, Summary). The alternative with the greatest 
acreage available for timber harvest also includes a greater total 
acreage withheld from timber harvest to protect WVNFS habitat, Indiana 
bat (federally listed as endangered) habitat, river corridors, scenic 
areas, and streams buffers (367,396 ac or 68,703 ac more) than the 
selected alternative (298,693 ac), providing supporting evidence that 
the MNF has sufficient timber reserves if it wanted to increase timber 
harvest and still can protect WVNFS habitat.
    The MNF is harvesting its timber outside of WVNFS habitat, at a 
sustainable rate. Alternatives have been identified that would provide 
additional acreage for timber harvesting without compromising WVNFS 
habitat. Therefore, the Service believes it is reasonable to expect the 
MNF will continue not to harvest timber in WVNFS habitat; a choice that 
would continue the agency's previous contributions to improve the 
WVNFS's status. We also believe that the MNF has the current and future 
capability to manage timber harvest in a way that does not harm the 
WVNFS after delisting and will do so.
    Looking beyond the MNF, 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, approximately 68 percent of areas 
modeled as 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 National Wildlife Refuge (NWR) 
(created in 1994), Blackwater Falls and Canaan Valley State parks, 
Handley Wildlife Management Area, Kumbrabow State Forest, and the MNF 
(Service 2006a, pp. 12-14). An additional 5 percent of habitat is 
considered secure in Virginia on the GWNF.
    Activities that have contributed to habitat loss and degradation 
since the time of listing occur only locally or occur on the periphery 
of the WVNFS's range (Service 2006a, pp. 11, 14, 20). These activities 
include limited highway development, recreational development, mining 
and gas exploration, timber management, and wind farm development (see 
``Summary of Public Comments'', part F, issue 9). 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 throughout its range or in any significant 
portion of its range (Service 2006a, pp. 11, 14, 19-20).
    For example, construction of Corridor H through the extreme 
northern part of the range of WVNFS is not expected to result in 
significant impacts to WVNFS or its habitat. Roads can adversely affect 
WVNFS movement by fragmenting habitat, although not all roads create 
absolute barriers. WVNFS are capable of gliding up to 200 ft, with the 
majority of the glides ranging from 16 to 82 ft (Scheibe et al. 2007, 
p. 857; Vernes 2001, pp. 1028-1029). WVNFS are known to have crossed 
logging roads, gravel roads, and ski slopes (Ford et al. 2007, p. 8; 
Menzel et al. 2006a, p. 207; Terry 2004, pp. 18-19). Menzel et al. 
(2004, p. 358) noted that many WVNFS day dens were located along or 
near abandoned skidder trails. Weigl et al. (1999, p. 61) found that G. 
s. coloratus frequently crossed patches of non-forested habitat, and 
one crossed a paved road several times. However, telemetry studies 
conducted on G. s. coloratus near the 2-lane paved Cherohala Skyway in 
North Carolina failed to document any evidence of squirrels attempting 
to cross this highway, even though in many cases the home ranges of the 
tracked squirrels were located in close proximity to the highway right-
of-way (Weigl et al. 1999, pp. 69-73). Mean distances between forest 
edges across both sides of the right-of-way for that study ranged from 
125 to 175 ft, and hence may have exceeded the normal gliding 
capability of a majority of G. s coloratus.
    Range-wide habitat modeling has estimated that more than 235,000 ac 
of suitable WVNFS habitat exists south of the proposed Corridor H 
alignment and an additional 4,400 ac of suitable WVNFS habitat exists 
in the Blackwater Canyon area to the north of the alignment (Service 
2006b, p. 19). Construction of the proposed project could decrease 
habitat connectivity within the northern habitats, or even create a 
permanent barrier to dispersal of the WVNFS between northern and 
southern areas. However, the amount of suitable habitat north and 
northeast of

[[Page 50243]]

the Blackwater canyon (approximately 4,400 ac) is considerable and we 
conclude that it is large enough that the current WVNFS population is 
likely to persist (Service 2006b, p. 23; Smith and Person 2007, p. 
631). About 24,000 acres of suitable habitat exists in the Blackwater 
Canyon area south of the highway and this will remain connected by 
dispersal corridors to the remaining 211,000 acres of suitable habitat. 
Although the 235,000 acres (this figure is comprised of 211,000 acres 
plus the 24,000 acres in Blackwater Canyon) south of the proposed 
Corridor H alignment is not contiguous habitat, there are no sizeable 
gaps preventing squirrel dispersal, so we conclude that no portion of 
the population south of the alignment will be meaningfully affected by 
the road. This leaves only the question of the impact of the road 
footprint itself. A total of 745 ac of habitat for the WVNFS will be 
lost during construction of the proposed project (Service 2006b, p. 23; 
Service 2008, p. 20). This equates to a total loss of only 0.1 percent 
of the available highly suitable and suitable habitat for the 
subspecies, and therefore does not represent a significant threat.
    The Service analyzed possible secondary impacts to WVNFS from the 
proposed Corridor H project from Parsons, WV to Davis, WV (Service 
2006b, pp. 1-39) and Davis, WV to Bismarck, WV (Service 2008, pp. 1-
32). Construction of this four-lane divided highway is expected to 
increase human accessibility to surrounding lands and could spur 
increased development in the lands adjacent to the project. However, a 
cumulative effects assessment, conducted by the West Virginia 
Department of Transportation (WVDOT) (2006, pp. 17-19) suggests there 
is an adequate amount of non-environmentally sensitive, low-elevation 
land that is not WVNFS habitat and that is available to support all 
development reasonably expected to occur as a result of the highway 
construction. WVDOT (2006, p. 20) modeled the worst-case scenario for 
development that was reasonably certain to occur after the highway was 
built, taking into consideration development and traffic patterns, and 
trends in employment and population growth. They mapped the raw private 
land (currently undeveloped) that was available to accommodate 
projected development. This was defined as land that was located 
outside of the 100-year floodplain that did not have slopes greater 
than 25 percent, that did not have wetlands, and that did not have 
existing development or was not currently under public ownership. Thus 
is appears that the land identified as being available to accommodate 
development corresponds to those lands that have the greatest 
likelihood of being developed due to lack of constraints.
    As a general matter, because the majority of WVNFS habitat is 
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 
percent and 0.1 percent, respectively (WVDNR 2006b, 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 
to 40.4 persons per square mile (WVDNR 2006b, p. 17); and with the 
exception of Randolph County (0.3 percent increase), the 10-year 
population trend (1990-2000) in all of these counties decreased (WVDNR 
2006b, p. 18).
    Summary of Factor A: Although the quantity and quality of WVNFS 
habitat is reduced from historical levels (preceding the logging and 
burning era of the late 1800s and early 1900s), 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. 
Additionally, the habitat is more connected than previously thought, 
and habitat trends are moving in a positive direction in terms of 
forest regeneration and conservation. Also, the subspecies continues to 
persist for multiple generations at many locations across its 
historical range. Impacts from proposed transportation projects and 
potential future housing development are localized and minimal. For the 
foreseeable future, any localized loss of habitat due to timber harvest 
or development on private lands will not reduce the overall quality of 
habitat for the WVNFS, rather it will just slightly reduce the amount 
of improvement in habitat conditions. For these reasons, and the lack 
of any rangewide threats to WVNFS habitat, the present or threatened 
destruction, modification, or curtailment of its habitat or range is no 
longer currently a threat to the WVNFS or likely to become so in the 
foreseeable future.

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

    The final listing rule concluded that the WVNFS was not known to be 
threatened 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). The WVNFS has been captured only for scientific or 
educational purposes through nest box and live trap methods, and not 
for market collecting or commercial use. Capture for scientific or 
educational purposes has been very limited, is regulated by state 
permitting systems, 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. There are no law enforcement records of illegal 
harvesting or commercialization of the subspecies. Several factors 
indicate that delisting will not significantly change that. 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 per 100 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 2006a, p. 7). Additionally, 
once the WVNFS is delisted, its collection by hunting or trapping will 
still be illegal under West Virginia and Virginia state laws (West 
Virginia Code 20-2-5(26); Code of Virginia 29.1-521.A.10; 29.1-566 and 
29.1-530A.). See further discussion in Factor D under the Summary of 
Factors Affecting the Species below. WVNFS is not currently defined as 
a game or furbearing animal that can be legally hunted or trapped in 
either state, and as such, there currently are no bag limits allowed 
for WVNFS (West Virginia Code 20-1-2; Code of Virginia 29.1-100, 29.1-
530.A). Moreover, once the WVNFS is delisted, its capture for 
scientific and educational purposes will still be regulated through 
collection permitting systems of the WVDNR (West Virginia Code 20-2-50) 
and the Virginia Department of Game and Inland Fisheries (VDGIF) (Code 
of Virginia 29.1-568).
    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 foreseeable future.

[[Page 50244]]

C. Disease or Predation

    The final listing rule (50 FR 26999) 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 1,000 squirrel captures since 
1985, none have shown signs of disease (Service 2006a, 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). While natural 
predators of the WVNFS may include weasel, fox, mink, owls, hawks, 
bobcat, skunk, raccoon, snakes, and fisher, we are not aware of any 
scientific or commercial evidence since the time of listing to support 
pets preying upon WVNFS (Service 2006c, p. 15), or to suggest that 
natural predation limits populations of WVNFS. As analyzed in our 
biological opinion for the Camp Wilderness Habitat Conservation Plan 
(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 2006c, p. 15; Service 2006a, pp. 
15, 20), and is therefore unlikely to become a threat to the WVNFS in 
the foreseeable future.
    Summary of Factor C: Disease and predation are not currently 
threats to the WVNFS and are not likely to become threats 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). Currently, all threats under Factors A-C, and 
E have been eliminated or abated, and no regulatory mechanisms are 
needed to delist the WVNFS. Therefore, the inadequacy of regulatory 
mechanisms is not considered a threat to the subspecies. Nevertheless, 
even though not considered necessary for delisting, the laws discussed 
below will continue to provide some level of benefits to 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 subspecies 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. See Factor B above for 
additional information.
    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 VDGIF, prohibits take of Commonwealth-listed species and is 
currently applicable to the WVNFS. The State has the authority to 
continue protection of the WVNFS under the State law once it is removed 
from the Federal List of Threatened and Endangered Wildlife (Virginia 
Code 29.1-566) and intends to do so (Reynolds 2008). Lack of current 
threats, along with the Commonwealth's endangered species act, ensures 
the WVNFS' persistence in Virginia. See Factor B above for additional 
information.

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

Competition With Southern Flying Squirrel

    The final listing rule (50 FR 26999) 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. 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 occurrence of the two 
subspecies has been documented at 20 percent of the known occupied 
WVNFS sites with no evidence of local extirpation of WVNFS. 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 (see Factor A above for 
further information), which results in the reduced availability of 
beech nuts, an important food source for the southern flying squirrel 
(Service 2006a, p. 18).
    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). 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). 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, 2007 p. 902) 
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) and acid rain, to the existence of the high elevation forests 
on which the squirrels (G. s. fuscus and G. s. coloratus) depend 
(Service 1990, p. 19). These potential threats were included in the 
overall analysis of the status of the WVNFS in the 5-year review 
(Service 2006a, pp. 4-6) and are analyzed in more detail below.
    Acid rain (more appropriately referred to as acid deposition) has 
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 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 reducing the extent of red 
spruce-northern hardwood forests in the Central Appalachians since the 
WVNFS' listing in 1985 (Service 2006a, p. 18, Adams 1999, p. 24) (See 
above

[[Page 50245]]

Response to Comments, I--Climate Change Concerns, Issues 4 and 5).
    Given the naturally acidic nature of soils in spruce forests, it is 
unlikely that acid deposition has contributed significantly to their 
further acidification (Johnson and Fernandez 1992, p. 262; Johnson et 
al, 1992, pp. 391, 396). These forests do not reach the very low winter 
temperatures observed farther north and have not exhibited the red 
spruce winter kill due to decreased cold tolerance that has been 
observed in the northern Appalachians and Adirondacks (Peart et al. 
1992, p. 180; DeHayes 1992, p. 296; NAPAP 2005, p. 41). Sulphate 
deposition in the Central Appalachians has dropped by at least 25 
percent in the last 10 years and pH of deposition has increased, making 
this runoff less acidic (Johnson et al. 1992, pp. 388, 391; Adams and 
Kochenderfer 2007, p. 99-100, Adams et al. 2006, pp. 4-6, 216-217). 
Deposition of nitrogen has either leveled off or may be slightly 
increasing, but the overall acid load is decreasing in high elevation 
red spruce forests of the Central Appalachians (Adams and Kochenderfer 
2007, p. 100-101; Johnson et al. 1992, p. 391; Adams et al. 2006, pp. 
4-6, 266). Also, compared to many deciduous trees, red spruce also is 
more resistant to ozone, which is often found in combination with high 
levels of acid deposition (McLaughlin and Kohut 1992, pp. 360-366; 
Adams 2007). Given the factors of naturally acidic soils, increasing pH 
of deposition, lack of extreme cold temperatures, resistance to ozone 
impacts, and lack of adverse impacts from nitrogen, there is no current 
information demonstrating a negative impact on these high elevation 
forests. Furthermore, the current trends of the decreasing overall acid 
load indicate that acid deposition is not a significant threat to the 
subspecies' habitat in the foreseeable future.
    Thus, to the extent that the effect of acid deposition on G. s. 
fuscus and its habitat are reasonably predictable, we concluded that 
they are not a significant threat to the subspecies' habitat in the 
foreseeable future.
    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.

Conclusion of the 5-Factor Analysis

    As demonstrated in our 5-factor analysis, threats to the WVNFS have 
been abated or sufficiently minimized over the entire range of the 
subspecies. Relative to the information available at the time of 
listing, recovery actions, forest regeneration, and a reduction or 
abatement of threats have led to: (1) A significant increase in the 
number of known WVNFS captures and distinct capture locations; (2) 
verification of multiple-generation reproduction and persistence 
throughout the range; (3) proof of resiliency of the squirrels; and (4) 
the substantial improvement and continued expansion of suitable habitat 
rangewide.
    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 (Groves 2003, pp. 30-
32). 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 and well connected than formerly 
thought, and that the geographic extent of the WVNFS' range 
approximates historical range boundaries. The red spruce-northern 
hardwood forests have substantially recovered from the vast clear-
cutting at the turn of the 20th century, and continue to improve. 
Additionally, we have learned that the WVNFS has adapted to changes in 
the spruce ecosystem over the past hundred years, and can successfully 
exploit the existing habitat conditions throughout the landscape. 
Habitat patch sizes within the core of the range of WVNFS are 
sufficiently large and well connected by numerous linkages to 
facilitate adequate WVNFS dispersal among population centers (Service 
2007c, pp. 9-12). Although there remains geographic separation (and 
likely has been since the end of the Pleistocene) between a few of the 
habitat areas supporting population centers at the edge of the range, 
this habit matrix overall provides a relatively high degree of 
functional connectivity, as evidenced by constant occupancy of habitat 
across a range of forest conditions over multiple generations. The 
WVNFS has demonstrated more flexibility in its habitat use than 
previously thought, including a capacity to move freely and become 
widely dispersed. Thus, there is adequate representation (i.e., 
occupancy of representative habitats formerly occupied by the WVNFS 
across its range) and redundancy (i.e., distribution of populations in 
a pattern that offsets unforeseen losses across a portion of the WVNFS' 
range) (Service 2007c, pp. 6-12).
    Compared to most other North American tree squirrels, G. sabrinus 
demonstrates resilience and behavioral plasticity (Weigl 2007, p. 898). 
The species survived glacial advances in the Pleistocene, as well as 
widespread loss of forest cover from logging and burning in the late 
1800s/early 1900s (Weigl 2007, p. 898; Rentch et al. 2007, p. 441). 
Studies have confirmed the ability of G. sabrinus to adjust its biology 
to survive a wide range of environmental conditions, such as: The 
ability to occupy forests of varying spruce and hardwood compositions 
(Weigl 2007, p. 898-899); the ability to survive short cold snaps by 
dropping its body temperature without becoming torpid (Weigl 2007, p. 
898); the ability to generally subsist on fungi and lichens, buds, 
berries, and staminant cones, but to occasionally use mast (Weigl 2007, 
p. 898); the ability to delay reproduction in response to environmental 
variables (Weigl et al. 1999, p. 32, 79); the ability to nest in a wide 
variety of trees (Menzel et al. 2004, pp. 360, 363-364; Menzel et al. 
2006b, pp. 1-3, 6, 7; Menzel et al. 2006b, p. 208; Ford et al. 2004, p. 
430); and the ability to recolonize new habitat areas over time by 
adjusting its activity patterns to meet ecological requirements in and 
around patches of forest (Menzel et al. 2006b, p. 208).
    Survey and monitoring efforts at 109 sites over the past 21 years 
have shown a relatively high degree of population stability, as 
evidenced by a high degree of persistence and successful reproduction 
over multiple generations throughout the historical range (Service 
2007c, pp. 9-11). There is no evidence of extirpation of a local 
population or of a deleterious source-sink metapopulation dynamic 
(Service 2007c, p. 11). As previously described, the current and future 
trend for habitat quantity, quality, and connectivity is expected to be 
favorable because of the continuing recovery of the red spruce-northern 
hardwood ecosystem and the lack of rangewide threats to WVNFS habitat 
(see Factor A under the Summary of Factors Affecting the Species above, 
and Service (2007b, pp. 3-8)). As habitat availability increases into 
the future, the carrying capacity of protected habitat should continue 
to ensure persistence of populations of the WVNFS.
    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, 
government agencies, and conservation groups. These include: Research 
and recovery actions specified in the 1990 recovery plan and 2001 
recovery plan update for the WVNFS; conservation

[[Page 50246]]

provisions incorporated into future expansion of the Corridor H highway 
at the edge of subspecies' range (Service 2008, pp. 3-4, 22-26; 2006b, 
pp. 4-8, 28-32); minimization and mitigation measures specified in two 
HCPs at Snowshoe Mountain, specifically the protection of approximately 
200 ac of WVNFS habitat in perpetuity [BHE Environmental, Inc. (BHE) 
2003, pp. 34-42, Appendix F; BHE 2005, pp. 49-55]; red spruce plantings 
on public and private lands; and conservation provisions in the 1986 
MNF Land and Resource Management Plan (USDA Forest Service 1986, pp. X-
1-X-3), 2004 Forest Plan Amendment (USDA Forest Service 2004, p. 84, 
84a, 84c, 87, pp. 234-234b), and 2006 Forest Plan Revision (USDA Forest 
Service 2006a, Management Prescription 4.1 and portions of 5.0, 5.1, 
6.2, and 8.0). Of particular note are the habitat protection 
initiatives that have occurred on both public and private lands, the 
development of habitat models and research on red spruce-northern 
hardwood forest restoration, and the establishment of Canaan Valley 
NWR.
    In summary, all of the past, existing, or potential future threats 
to WVNFS, either alone or in combination, have either been eliminated 
or largely abated throughout all of its range. The major factor in 
listing the WVNFS was the loss of habitat due to the logging era at the 
turn of the 20th century. This threat has largely been abated as 
evidenced by the substantial recovery and continued improvement of the 
preferred habitat of the WVNFS, red spruce-northern hardwood forests. 
Therefore, we have determined that the WVNFS is not in danger of 
extinction or likely to become so throughout its range in the 
foreseeable future.

Significant Portion of the Range Analysis

    Having determined the WVNFS is not in danger of extinction or 
likely to become so in the foreseeable future throughout all of its 
range, we must next consider whether the subspecies is in danger of 
extinction or is likely to become so in the foreseeable future in any 
significant portions of its range.
    A portion of a species' range is significant if it is part of the 
current range of the species and if it is important to the conservation 
of the species because it contributes meaningfully to the 
representation, resiliency, or redundancy of the species. The 
contribution must be at a level such that its loss would result in a 
decrease in the ability to conserve the species.
    Applying the definition described above for determining whether a 
species is endangered or threatened in a significant portion of its 
range, we first addressed whether any portions of the range of WVNFS 
warranted further consideration. As discussed in Factor A--Land Use 
Planning, there is one small geographic area where localized habitat 
threats still exist due to a future road expansion. However, we 
concluded that this area did not warrant further consideration because 
this area is very small (in the context of the range of the WVNFS) and 
has no substantive effect on the viability of the subspecies, and thus 
there was no substantial information that this area is a significant 
portion of the range (see Service prepared document ``Analysis of 
significant portion of the range for the West Virginia northern flying 
squirrel'' (Service 2007b, pp. 1-6). Therefore, based on discussion of 
the threats above, we do not foresee the loss or destruction of any 
portions of the subspecies' range such that our ability to conserve the 
subspecies would be decreased. Therefore, we find that the WVNFS is not 
in danger of extinction and is not likely to become endangered in the 
foreseeable future throughout all or a significant portion of its 
range.

Effects of the Rule

    Promulgation of this final rule will affect the protections 
afforded the WVNFS under the Act. Taking, interstate commerce, import, 
and export of WVNFS are no longer prohibited under the Act. Removal of 
the WVNFS from the List of Endangered and Threatened Wildlife does not 
supersede any State regulations. Federal agencies are no longer 
required to consult with us under section 7 of the Act to ensure that 
any action authorized, funded, or carried out by them is not likely to 
jeopardize the subspecies' continued existence. However, for the 
approximately 68 percent of the WVNFS habitat on the MNF, and the small 
area (5 percent) of habitat located within the GWNF, the activities 
impacting the WNVFS and its habitat must comply with appropriate Forest 
Service management plans. There is no critical habitat designated for 
the WVNFS.

Post-Delisting Monitoring Plan

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been recovered and delisted. The purpose of this 
requirement is to develop a program that detects the failure of any 
delisted species to sustain itself without the protective measures 
provided by the Act. If, at any time during the monitoring period, data 
indicate that protective status under the Act should be reinstated, we 
can initiate listing procedures, including, if appropriate, emergency 
listing.
    To further ensure the long-term conservation of the WVNFS, a post-
delisting monitoring (PDM) plan has been developed that lays out a 10-
year framework to monitor the status of the subspecies (Service 2007c, 
pp. 1-27). The Plan focuses primarily on monitoring of (1) Habitat 
status and trends and (2) implementation of habitat management plans 
and agreements. Habitat changes will be tracked rangewide by 
interpretation of remote-sensed imagery obtained at or near the time of 
delisting (baseline), compared to the end of the PDM period. These data 
will be verified by a subsample of stand data and on the ground field 
checks. In addition, land managers will self-report annually on 
accomplishment of key components of land management plans or agreements 
for WVNFS, including the acreage of habitat modified (positively or 
negatively), as well as land management problems and solutions.
    The PDM plan also includes actions for monitoring of WVNFS 
distribution and persistence. The nest box and live trapping survey 
component will be largely a continuation of ongoing annual presence/
absence surveys by the WVDNR, MNF, and other participants, but with an 
increased emphasis on covering as much of the extant distribution 
within core habitat areas as possible. This will help determine if 
WVNFS continue to be present in these areas over multiple generations.
    The PDM plan identifies measurable management thresholds and 
responses for detecting and reacting to significant changes in WVNFS 
habitat, distribution, and persistence. If declines are detected 
equaling or exceeding these thresholds, the Service, in combination 
with other PDM participants, will investigate causes of these declines, 
including consideration of habitat changes, low natality, deaths or 
emigration, weather, trap shyness, competition for nest sites, or any 
other significant evidence. The result of the investigation will be to 
determine if the WVNFS warrants expanded monitoring, additional 
research, additional habitat protection, and/or resumption of Federal 
protection under the Act. At the end of the 10-year monitoring program, 
the Service will conduct a final review. It is the intent of the 
Service to work with all of our partners towards maintaining the 
recovered status of the WVNFS.
    The final PDM plan is available on the Service's northeast region 
Web site, http://www.fws.gov/northeast/endangered.

[[Page 50247]]

Paperwork Reduction Act

    This rule does not contain any new collections of information under 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). 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 final rule is Laura Hill, 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, and 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. Amend Sec.  17.11(h) is amended by removing the entry for 
``Squirrel, Virginia northern flying'' under ``MAMMALS'' from the List 
of Endangered and Threatened Wildlife.

    Dated: August 15, 2008.
Bryan Arroyo,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-19607 Filed 8-25-08; 8:45 am]
BILLING CODE 4310-55-P