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of the June 25, 2008, final rule goes into the foreseeable future. Habitat FR 75924). Additional information effect on August 25, 2008, as scheduled. regeneration and recovery actions have regarding previous Federal actions for We will place the petitions we have resulted in a reduction in the threats, the WVNFS can be obtained by received into the docket, and we will which has led to: (1) A significant consulting the subspecies’ regulatory consider the arguments made in these increase in the number of known profile found at: http://ecos.fws.gov/ petitions about the content of section WVNFS captures and distinct capture speciesProfile/ 40.67(b) along with other comments that locations; (2) verification of multiple- SpeciesReport.do?spcode=A09R. we receive. On the basis of the generation reproduction and persistence Recovery comments we receive and any other throughout the range; (3) proven information available to the Department, WVNFS resiliency; and (4) substantial In 1990, the original recovery plan the Department will reconsider section improvement and continued expansion was approved, and at the time, the 40.67(b) and may retain, eliminate, or of suitable habitat rangewide. recovery criteria as they apply to the modify it. DATES: This rule becomes effective WVNFS were deemed objective, Because this action and the decision September 25, 2008. measurable, and adequate (Service 1990, p. 19). The original recovery criteria not to take similar action with respect ADDRESSES: Comments and materials we were not specifically reviewed or to section 40.67(i) also completely received, as well as supporting updated in the 2001 recovery plan respond to the parallel petitions to the documentation used in preparation of amendment (Service 2001, pp. 1–6). Federal Railroad Administration (FRA) this final rule, are available for Instead, the focus of the 2001 by some of the same parties, which raise inspection, by appointment, during amendment was an update to Appendix the same issues about the same normal business hours, at our West A, Guidelines for Habitat Identification provisions of part 40, FRA is not taking Virginia Field Office, 694 Beverly Pike, and Management for the WVNFS. any separate action on the petitions Elkins, West Virginia 26241. Call (304) concerning the implementation of the Implementation of the amended 636–6586 to make arrangements. Appendix A guidelines by the amendments to 40.67 in the railroad FOR FURTHER INFORMATION CONTACT: industry. Monongahela National Forest (MNF) Diane Lynch, Regional Listing effectively abated the main threat to the Issued this 21st day of August, 2008, at Coordinator, Northeast Regional Office, squirrel (i.e., habitat loss from timber Washington, DC. 300 Westgate Center, Hadley, MA 01035 management) throughout the majority of Jim Swart, (telephone: 413–253–8628); or Tom its range, by eliminating adverse Director, Office of Drug and Alcohol Policy Chapman, Field Office Supervisor, or impacts on all suitable habitat on the and Compliance. Laura Hill, Assistant Field Supervisor, MNF without having to prove WVNFS [FR Doc. E8–19816 Filed 8–22–08; 11:15 am] West Virginia Field Office (see presence (Service 2001, pp. 1–6; Service BILLING CODE 4910–9X–P ADDRESSES). 2006a, pp. 3–4). SUPPLEMENTARY INFORMATION: Recovery plans are not regulatory documents and are instead intended to DEPARTMENT OF THE INTERIOR Background provide guidance to the Service, States, The northern flying squirrel, and other partners on methods of Fish and Wildlife Service Glaucomys sabrinus, consists of 25 minimizing threats to listed species and subspecies, including the Virginia on criteria that may be used to 50 CFR Part 17 northern flying squirrel, G. s. fuscus. determine when recovery is achieved. [FWS–R5–ES–2008–0005; 92220–1113– Miller (1936, p. 143) first described G. There are many paths to accomplishing 0000–C6] s. fuscus, based on specimens collected recovery of a species, and recovery may in the Appalachian Mountains of be achieved without all criteria being RIN 1018–AT37 eastern West Virginia. The Virginia fully met. For example, one or more criteria may have been exceeded while Endangered and Threatened Wildlife northern flying squirrel was listed as other criteria may not have been and Plants; Final Rule Removing the endangered under the Endangered accomplished. In that instance, the Virginia Northern Flying Squirrel Species Act (Act) of 1973, as amended Service may judge that, overall, the (Glaucomys sabrinus fuscus) From the (16 U.S.C. 1531 et seq.) effective on July threats have been minimized Federal List of Endangered and 31, 1985 (Service 1985 (50 FR 26999)). sufficiently and the species is robust Threatened Wildlife However, it was subsequently determined that a more suitable enough to reclassify the species from AGENCY: Fish and Wildlife Service, common name for G. s. fuscus is the endangered to threatened or to delist the Interior. West Virginia northern flying squirrel, species. In other cases, recovery ACTION: Final rule. due to the majority of the subspecies’ opportunities may have been recognized range occurring in West Virginia; thus, that were not known at the time the SUMMARY: We, the U.S. Fish and we refer to G. s. fuscus as West Virginia recovery plan was finalized. These Wildlife Service (Service), hereby northern flying squirrel (WVNFS) opportunities may be used instead of remove the Virginia northern flying throughout the rest of this document. methods identified in the recovery plan. squirrel (Glaucomys sabrinus fuscus), Information about the WVNFS’ life Likewise, information on the species now more commonly known as the history can be found in our final listing may be learned that was not known at West Virginia northern flying squirrel rule (50 FR 26999), the Appalachian the time the recovery plan was (WVNFS), from the List of Threatened Northern Flying Squirrels Recovery Plan finalized. This new information may and Endangered Wildlife due to (Service 1990, pp. 1–11), and the change the extent to which criteria need recovery. This action is based on a WVNFS 5-year review (Service 2006a, to be met for recognizing recovery of the review of the best available scientific pp. 6–10). species. Overall, recovery of species is and commercial data, which indicate a dynamic process requiring adaptive that the subspecies is no longer Previous Federal Actions management, and judging the degree of endangered or threatened with On December 19, 2006, we published recovery of a species is also an adaptive extinction, or likely to become so within a proposed rule to delist the WVNFS (71 management process that may, or may

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not, fully follow the guidance provided sources) to be substantive. The majority because it is not tied to knowledge of in a recovery plan. of comments received were form letters the population, but merely to subspecies In the case of the WVNFS, new objecting to the proposed delisting rule presence, which can be explained by information on the subspecies has been but providing no new or supporting immigration from other populations. learned that was not known at the time information. Response—The Service has the recovery plan and the amendment considered population dynamics when were finalized. This new information A. Distribution Concerns assessing the status of the WVNFS using includes habitat modeling efforts Issue 1—Some commenters asked us the best available scientific data. The completed in 2006, completion of a to quantify what portion of the Service considers persistence to be the forest plan amendment in 2006 with historical range is currently occupied by best indicator of successfully substantial provisions for protection of WVNFS. reproducing populations for this WVNFS and its habitat, our compilation Response—The historical range of subspecies, given its poor detectability, in 2005 of the 20+ years of survey data, WVNFS essentially corresponds to the its life history characteristics, and the and our re-analysis of WVNFS distribution of old growth red spruce- 20+ years of data from presence/absence persistence and geographic distribution northern hardwood forest (500,000 to surveys. based upon them. This new information 600,000 acres (ac)) prior to logging and We define persistence as continuing changes the extent to which two of the fires at the turn of the 20th century. captures of WVNFS over multiple four Recovery Plan criteria need to be Much of the historical red spruce has generations at previously documented met for recognizing recovery of the been replaced by northern hardwoods. sites throughout the historical range. subspecies. Further details related to Current estimates of the amount of Because WVNFS first reproduces at 1– each recovery criterion are available in WVNFS habitat vary widely from 2 years, and has a relatively short life the Service-prepared document Analysis 242,000 ac (U.S. Department of span, averaging approximately 3 years, of Recovery Criteria for the West Agriculture (USDA), Northern Research persistence at a single monitoring site Virginia Northern Flying Squirrel Station 2006, unpublished map) to over 5 years indicates successful (Service 2007a, pp. 1–16). An 600,000+ ac (Menzel et al. 2006b, p. 4), reproduction across multiple (three to attachment to this document, ‘‘Table 3, across which the WVNFS is widely five) generations (Service 2007c, p. 10). Land use designations, restrictions, and dispersed. The Service has analyzed presence/ primary management emphases in Historically, the red spruce-northern absence data to determine persistence of WVNFS habitat on the MNF,’’ provides hardwood forest encompassed portions WVNFS across its range, taking into supplementary information for of eight counties, extending from the consideration detectability rates, life downlisting criterion number 3. Based vicinity of Mount Storm (Grant County) span, reproductive capacity, dispersal on our analysis of the best available in the north, to Cold Knob (Greenbrier capability, linkages to other data, we believe that the intents of the County) in the south, east to the populations, and the naturally patchy original recovery criteria have been met. Allegheny Front (Pendleton and habitat distribution of the subspecies In conjunction with the analysis of Highland Counties), and west to (Service 2007c, pp. 5–6, 9–11). These the recovery criteria, we analyzed the Webster County. Based upon monitoring data consistently indicate a relatively threats to the WVNFS under the from 1985 to the present, the WVNFS high degree of persistence (roughly 80 framework of the five factors established still occupies portions of these same percent) across the landscape, and are in the Act. This analysis of the threats eight counties, roughly corresponding to not indicative of a declining population was based in part on the most recent 5- 85 percent of the extent (breadth and of WVNFS. The data available for the year review of the subspecies completed width) of the historical range. With remaining landscape (roughly 20 in 2006 (Service 2006a, pp. 1–20). This exception of the extreme northern percent) does not represent an absence is available at http://www.fws.gov/ portions of Grant County (roughly 5 or lack of persistence of the WVNFS, but northeast/pdf/flysqrev.pdf. A further percent of the historical range), and the rather is indicative of the WVNFS’ life detailed discussion of the five factors is area from Briery Knob south to Cold history traits (i.e., elusive and hard to contained in the Summary of Factors Knob in Greenbrier County (collectively capture). Therefore, the data is simply Affecting the Species section of this rule less than 10 percent of the historical less conclusive. This remaining below. range), the outer boundaries of the landscape (roughly 20 percent) is still current distribution of the WVNFS habitat for the WVNFS but success rates Summary of Public Comments closely match the extent of its historical for capturing the WVNFS are lower. The In our proposed rule (71 FR 75924), range (Service 2007a, Figure 1). persistence of WVNFS is likely we requested that all interested parties Additional information can be found on facilitated by immigration. See Issues 2, submit information, data, and comments page 75926 of the proposed delisting 3, and 4 and their responses under this concerning: (1) Biological, commercial, rule (71 FR 75924). section for additional information. trade, or other relevant data concerning Issue 2—Some commenters believe any threat (or lack thereof) to the B. Population Concerns the Service must conduct a Population WVNFS; (2) additional information on Issue 1—Some commenters expressed Viability Analysis (PVA) to identify a the range, distribution, and population concern about an absence of population minimum viable population before a size of the WVNFS and its habitat; (3) information and trend data. These decision on delisting the WVNFS is the location of any additional commenters stated the Service had made. These commenters noted that populations of the WVNFS; and (4) data failed to consider population growth, genetics-based computer models of on population trends. The comment population size, and linkages to other minimum viable population sizes period was from December 19, 2006, populations. Some commenters generally indicate that population sizes through April 23, 2007 (71 FR 75924; 72 expressed concern about the use of on the order of thousands of individuals FR 7852; 72 FR 9913). persistence as an indicator of (low thousands or higher) may be During the 120-day comment period, population health or stability and noted needed. In contrast, another commenter we received a total of 4,808 comments. that the Service had not clearly defined submitted a copy of a manuscript by Of these comments, we consider 18 (6 the term ‘‘persistence.’’ The commenters Smith and Person (2007, pp. 626–636) from peer reviewers and 12 from other stated that this approach is flawed that evaluated the estimated persistence

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

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suitable habitat), it appears that habitat females (Ford 2007a). There is no Virginia Division of Natural Resources reserves of sufficient quantity, quality, indication of a predominance of (WVDNR) and Service 2006, unpubl. and connectivity exist to sustain dispersing males or juvenile males, data). Wells-Gosling and Heaney (1984, populations of WVNFS with influences which could be indicative of a meta- p. 4) also noted the average longevity of of immigration and emigration. This population sink dynamic (such as an G. sabrinus was probably less than 4 habitat matrix provides a high degree of emigration front of individuals leaving years. Our previous conclusions about functional connectivity, as evidenced by former territory), or of a meta- persistence remain valid based upon an persistence over multiple generations at population source-dynamic (such as a average lifespan of 2–3 years. monitoring sites across a range of forest colonizing front of individuals moving C. Using the Best Available Science conditions (Service 2007c, pp. 9–11). into former territory) (Ford 2007a). Issue 4—Some commenters asked the Collectively, these data show a Issue 1—Some commenters were Service to analyze the viability of relatively high degree of population concerned about a lack of knowledge of WVNFS metapopulations (multiple, stability and consistent habitat the WVNFS life cycle and the relatively isolated breeding units). occupancy across multiple generations. consideration of science regarding the These commenters cited Weigl (2007, p. Issue 5—Some commenters noted that subspecies’ ecology. 903), who claimed that ‘‘some second the chance of capturing a WVNFS in a Response—The WVNFS life cycle and growth stands may well appear to nest box is confounded by a very low ecology is fairly well known from support healthy densities of squirrels, rate of occupancy, plasticity in nest site numerous studies in peer-reviewed but, in reality, are population sinks for selection, availability of nest sites, and journals, books, and technical migrants from neighboring old growth relative abundance of WVNFS. These publications. The Service has habitats and thus may not permanently commenters state that it is as important considered the best available scientific maintain viable populations.’’ These to understand why an individual is and commercial data regarding WVNFS commenters suggested the WVNFS may present as to understand why it is not life history and ecology. For a full list be undergoing a population decline that present. They state that a major caveat of the literature cited in this final rule, is influenced by source-sink dynamics of relying on the nest box data as a please contact the West Virginia Field of meta-population theory. measure of persistence is that it does not Office (see ADDRESSES). Response—In response to this tell us anything about the habitat, and Issue 2—Whereas four peer reviewers comment, the Service has conducted that it is impossible to infer what is and some commenters were satisfied the additional analyses to look for evidence optimal habitat and if it is available and best available science and data had been of population sinks and sources in the can support the WVNFS. used in the development of the central Appalachians. We found no Response—The Service agrees that all proposed rule, two peer reviewers and evidence that the few remaining old of the factors mentioned above affect the some commenters questioned the growth patches of habitat in the central chance of capturing a WVNFS; however, quality or interpretation of data used to Appalachians, or other optimal habitat, we disagree about inferences that can be support the proposed rule. These are operating as potential sources of drawn from persistence data. Continued commenters offered manuscripts in WVNFS recruits that disperse into persistence of WVNFS over the past press, or alternative literature citations suboptimal habitat (potential sinks) century and occupation throughout or explanations of the data. where populations are not sustained. most of its historical range tell us much Response—The Service has reviewed Rather, our analysis of 21 years of about habitat and indicate that sufficient the manuscripts in press (now monitoring shows no evidence of quality and quantity of habitat exists subsequently published) and literature localized extirpation since the regardless of what may be perceived as citations provided by commenters. We subspecies was listed. The WVNFS ‘‘optimal’’ habitat. Therefore, a strong have considered and incorporated the persists in or near all of the historical inference can be made regarding habitat information provided in these areas where it was originally known at suitability based on the persistence, documents where appropriate in this the time of listing. Persistence of successful reproduction, and sex ratios final rule. We have incorporated these WVNFS across the range over multiple that lack any indication of population documents into our administrative generations is consistently high, sink dynamics (Service 2007c, pp 11, record and cited them in this rule where consistently distributed across habitat Table 1). appropriate (including, but not limited types (varying from 70 to 86 percent Issue 6—Some commenters cited a to, sections of the rule dealing with persistence) and geographic zones paper by Weigl (2007, p. 900) as WVNFS population dynamics; habitat (varying from 80 to 85 percent evidence that the WVNFS may have a use, quantity, quality, and connectivity; persistence), and not significantly longer life span than previously and climate change). The peer-reviewed different from expected values (Smith assumed. These commenters suggested scientific journal articles, peer-reviewed 2007a, p. 871; Service 2007c, p. 11, that if this is true, then the Service may agency reports, and other literature cited Table 1). Nestlings and juveniles are need to reanalyze reproductive data and in the final rule represent the best routinely documented at monitoring conclusions about persistence. available science relevant to the sites (76 percent of sites) (Service 2007c, Response—Weigl (2007, p. 900) decision. None of the alternative p. 9). Because WVNFS has a relatively referred to a study of a different G. explanations of the data were as short life span (averaging approximately sabrinus subspecies in the Pacific persuasive as the sources we have cited 3 years), and first reproduces at age 1 or Northwest as evidence that WVNFS may in the final rule. 2, persistence at a single monitoring site be relatively long lived. In this study, Issue 3—Some commenters disagreed over 5 years indicates successful three squirrels were known to be at least with a choice of words in the summary reproduction across multiple (3+) 7 years old at recapture; however, the sections of the proposed rule which generations. In addition, the observed majority of squirrels captured were not referred to ‘‘an increase in the number roughly 1:1 sex ratio (492 males, 539 known to survive beyond 2–3 years of individual WVNFSs.’’ These females) is within the range needed for (Villa et al. 1999, p.39). In the central commenters claimed that there is no normal reproductive performance Appalachians, recapture data for four evidence of an increase, noting that (Service 2007c, p. 11). Males are most WVNFS suggest the average lifespan is 1,141 captures do not represent unique likely to disperse, presumably to seek probably about 2 to 3 years (West squirrels, because unknown portions

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were recaptures. These commenters captures has increased with increased variety of genetic markers. Allozymic conducted an independent analysis of a survey effort. While the area covered by analyses by Browne et al. (1999, pp. WVNFS electronic database and field surveys has increased over time, the 205–214) found lower measures of data reporting forms. They reported efficacy of capturing WVNFS remains polymorphism and heterozygosity in inconsistencies in the data base, and low. Based on original methodologies North Carolina, West Virginia, and concluded there may have been as few used at the time of listing, and still Virginia populations of G. sabrinus as 654 unique captures. These predominantly in use today, roughly 2 compared with other northern flying commenters believe that such a low percent of nest box or live trap checks squirrels, noting that population number of captures of unique result in detection of WVNFS (Terry structure in the southeastern States is individuals diminishes the credibility of 2004, p. 46; Service 2006b, p. 13). This similar to that of other species that conclusions reached by the Service estimate of detectability is a simple occupy habitat islands (Browne et al. about persistence. calculation of the proportion of nest box 1999, p. 212). Similarly, allozyme and Some commenters also questioned or live trap checks that resulted in mitochondrial DNA data examined by whether an increase in WVNFS WVNFS capture. We have not used this Arbogast et al. (2005, pp. 123–133) occupancy was simply a consequence of simple estimate of detectability to showed lower diversity of G. s. fuscus increased surveys or efficacy of survey calculate changes in habitat occupancy and G. s. coloratus compared with efforts since listing. One commenter over time as suggested by one conspecifics (other flying squirrel questioned our ability to detect a change commenter. We evaluated whether the species), but not relative to populations in habitat occupancy. existing data set could be analyzed of the widespread southern flying Response—Whereas the proposed rule using more rigorous models for squirrel. Sparks’ data from a small did identify the total number of estimating detectability and changes in number of microsatellite loci showed recaptures (71 FR 75926), the Service habitat occupancy (MacKenzie et al. moderate to high gene flow across agrees that use of the phrase ‘‘increase 2002, pp. 2248–2255; MacKenzie et al. populations of northern flying squirrels in the number if individual WVNFSs’’ 2003, pp. 2200–2207; MacKenzie 2005, in West Virginia, Virginia, and North was not accurate, as we have not pp. 849–860; MacKenzie 2006, 1568– Carolina (Sparks 2005, pp. 16 and 23). estimated the size of the WVNFS 1584); however, we felt it inappropriate In addition, the coefficient of inbreeding population. We have corrected this given that model assumptions would failed to differ between populations at wording in the final rule. Based upon have been violated and could not be Cheat Mountain, West Virginia, and at data collected through 2005, there has validated. While there has been an an unfragmented forested landscape in been an increase in the total number of increase overall in survey area, the Washington State (Sparks 2005, p. 18). known captures, from 10 at the time of techniques used were the same and the Also, no difference in levels of a listing, to 1,141 captures at the time of intensity of work at sites has not varied parasitic helminth (a species of parasitic the proposed rule, of which there were significantly in the past 20 years. worm commonly found in the intestines 78 total recaptures (6.8 percent). Due to As a result of these comments, the of flying squirrels, the presence of multiple recaptures of some individuals, WVDNR has checked the data base which is often used as possible these 78 total recaptures represent 62 against field forms and has made a few indicator of reduced fitness) was individuals. minor corrections. These changes do not detected among G. sabrinus and two Contrary to the commenters’ estimate substantially alter previous statistics sympatric tree squirrels (Sparks 2005, of 654 unique captures, we calculate reported by the Service or conclusions pp. 19, 62). that there were a total of 908 unique reached about persistence. Arbogast et al. (2005, p. 130) and captures (760 unique captures of adults Issue 4—Some commenters noted that Weigl (2007, p. 902) speculate about and 148 unique captures of juveniles). monitoring sites were not randomly potential future decreases in genetic These estimates take into account selected, which builds in bias. These diversity due to hypothetical habitat unique recaptures and unmarked commenters recommended that such reductions. As discussed under Issue 3, individuals. About 8 percent of the data not be used for estimating Response to Comments, Section B— adults escaped before they could be population. Population Concerns, however, we marked. Also, contrary to the Response—The Service acknowledges believe that habitat is still relatively commenters’ determination that that monitoring sites were not selected well connected from the standpoint of ‘‘several’’ nestlings were not tagged, randomly. The goal of the presence/ WVNFS movements. Interspersed nearly all of the 133 nestlings and about absence surveys was to find as many lower-quality habitats that can support 2 percent of the 154 juveniles captured WVNFS as possible and to document northern flying squirrels for a short time were not marked as a precautionary their range and distribution. will also facilitate the low levels of measure. Researchers believe that Consequently, few sites were placed in dispersal necessary to maintain allelic marking small individuals with ear tags low-quality habitat, and many sites were diversity and heterozygosity while and/or pit tags is an unnecessary placed in moderate or high-quality conserving local adaptations. procedure that could increase mortality habitat. Because of this bias, the Service Furthermore, Sparks (2005, p. 29) (Stihler 2007). The fact that these has not used these data to estimate suggests that G. sabrinus may have a individuals were not marked is population sizes, but rather to monitor population structure adapted to some inconsequential when considering that presence/absence and persistence. degree of inbreeding tolerance. there is less than a 5 percent probability In summary, after review of the of subsequent recapture. Rather, the D. Genetic Concerns genetic studies referenced above, we capture of nestlings or juveniles is a Issue 1—Some public commenters have not detected any genetic risk to the good sign of reproduction (25 percent of were concerned about a lack of genetic WVNFS due to isolation. Additionally, all captures). research that might indicate risks due to we are aware of no genetic, behavioral, The increase in the number of capture isolation (e.g., genetic drift, inbreeding) ecological, morphological, locations is useful in evaluating the or existence of discrete populations physiological, physical, or other distribution of WVNFS within its range, meriting ESA protection. information supporting the existence of but cannot be used to estimate Response—We considered distinct population segments within the population sizes. The number of information from several studies using a WVNFS.

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E. Habitat Modeling Concerns and MNF have used the model that sufficient location data exists to Issue 1—One peer reviewer and some successfully to identify WVNFS habitat, estimate home range size. Moreover, commenters thought the Service had corroborated by additional captures WVNFSs were tracked in a variety of applied the Menzel et al. (2006b, pp. 1– where the model had shown a high poor to excellent habitat conditions. 10) model outside of its intended scope probability of occurrence. This methodology is consistent with Issue 3—Some commenters stated that and for purposes not supported by the similar examples of wildlife habitat data the Menzel model’s prediction of habitat study the model is based upon. Some being collected from tagged individuals from tracking data should have been conclude that the Service is using the and then used in a modeling effort to verified in following years (different model to make a case that the agency extrapolate across a larger, but similar temporal frame) and on different areas can accurately predict habitat and landscape (for example, Gibson et al. of the range (different spatial frame). 2004, pp. 75–89; Posillico et al. 2004, WVNFS viability, by assuming that the Response—The actual telemetry data pp. 141–150). The Service believes it model definitively predicts presence used by the Menzel model did span has interpreted these data appropriately. and absence. several years and different areas. The Issue 6—Some commenters stated that Response—Using logistic regression, model is based on actual data, which the Menzel model is a simplification of Menzel et al. (2006b, pp. 1–10) have been verified. existing knowledge and does not developed a Geographic Information Issue 4—Some commenters criticized account for important variables in System (GIS)-based habitat model for the Menzel model for containing several WVNFS biology, such as forest age, WVNFS in West Virginia by untested assumptions: (a) There is a structure, tree composition, and fungi. synthesizing micro- and macro-habitat direct relationship between nest box use These commenters believe the model relationship data. The Service has and preferred habitat; (b) quality of potentially overestimates optimal applied this model appropriately to habitat is predicted by elevation and habitat by treating young forest the same gauge the relative abundance and vegetative community; and (c) data from as old forest, and by lumping other quality of habitat rangewide and to spring and summer tracking reveals factors together (moist conditions, high broadly estimate the predicted information on habitat use the rainfall, northern aspects, forest distribution of WVNFS on the remainder of the year. structure, suitable nest sites, food landscape. We have not assumed that Response—Addressing assumptions sources, etc.) based on elevation and the model definitively predicts (a) and (b), Menzel et al. (2004, pp. 355– spruce occurrence. presence/absence of WVNFS. Nor have 368; 2006b, pp. 1–10; 2006a, pp. 204– Response—The Service concurs that we argued that predicted habitat ensures 210) does not assert that probability of Menzel et al. (2006b, pp. 1–10) is a WVNFS’ viability; predicted habitat is occurrence equates directly to preferred simple habitat model that was meant to only one component. The model can habitat; however, there is a clear capture broad aspects of WVNFS give insights, albeit coarse, on habitat correlation between high probability distribution. The model tends to quality and its distribution across the habitat (>75 percent probability of underestimate higher-quality habitat landscape. As noted in the final listing WVNFS occupancy) and habitat and to overestimate lesser-quality rule (50 FR 26999) and recovery plans components such as red spruce and habitat, especially near the 50 percent (Service 1990, pp. 12–16) for this high elevation that were preferred by predicted probability of occurrence subspecies, the abundance and quality radio-collared individuals (Menzel et al. threshold (Ford 2007b). However, we of habitat are keys to the recovery of 2006a, pp. 206–207). Addressing still think the model is useful and WVNFS because habitat loss and assumption (c), data from winter reasonably accurate for gauging the degradation were the main factors that telemetry studies at Snowshoe relative abundance and quality of led to the subspecies being listed as Mountain Resort and Canaan Valley habitat rangewide and for predicting the endangered. We have used the model at National Wildlife Refuge (Ford et al. distribution of WVNFS on the a landscape level to predict habitat 2007 in press, pp. 6, 8) are similar to landscape, and represents the best quality and look for evidence of sink- results from spring, summer and fall available scientific and commercial source metapopulation dynamics. We reported by Menzel et al. (2006a, pp. data. have also used the model to highlight 206–207). Winter data confirm that male where managers should conduct follow- home ranges are larger than female F. Ecosystem and Habitat Concerns up site visits to determine actual home ranges and both sexes key in on Issue 1—Some commenters were squirrel habitat or where managers red spruce-dominated habitats for concerned that delisting the WVNFS could reasonably assume no occupation foraging (Ford et al. 2007, pp. 4, 6, 7). would jeopardize an entire ecosystem, without a site visit. A manager could Issue 5—Some commenters stated that especially when considering the critical use Ford et al. (2004, pp. 430–438) at the Menzel model was based on limited role that WVNFS plays in dispersal and the individual forest stand level to spatial and temporal data from 4 sites persistence of numerous fungi which verify the quality of the habitat or what and 13 animals; therefore, results can be have symbiotic relationships with trees. the probability level of occupation generalized only with great caution. Response—The Service agrees that the would be for that specific location. Response—The Menzel et al. (2006b, WVNFS plays an important role in the Issue 2—Some commenters criticized p. 3) model is not based on a limited red spruce-northern hardwood the Menzel et al. (2006b, pp. 1–10) subset of the data, but rather is based on ecosystem (Smith 2007a, p. 862–863; habitat model for being unverified and most of the capture data through 1999 Weigl 2007, pp.10–12). Habitat models untested. and most of the telemetry data from for this subspecies implicitly recognize Response—The model has been WVNFS tracked in a variety of stand the symbiosis between WVNFS and tree verified and tested and proved to be age-classes and compositions. All fungus (Odom et al. 2001, pp. 245–252; quite accurate (81 percent) when the squirrels tracked for which home range Menzel et al. 2006b, pp. 1–10). The data were subjected to ground-truthing sizes were calculated, had reached Service does not expect that delisting procedures to determine correct home range size asymptotes (the point the WVNFS will have negative classification rates of occupiable and on a graph indicating the minimum consequences for the ecosystem. The non-occupiable habitat (Menzel et al. number of samples needed to calculate red spruce-northern hardwood 2006b, p. 3–4). Staff from the WVDNR maximum home range size), indicating ecosystem upon which the WVNFS

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

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

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analysis below, sufficient habitat will existing, short (<1 mile long) gravel Two peer reviewers noted that while remain on both sides of the highway to access roads which do not pose a barrier these forest pests may have local support WVNFS (Service 2006b, pp. 4– to WVNFS dispersal. In the 21 years impacts to WVNFS, they are not 5, 16–29; 2007c, pp. 3–4, 14–26). since the WVNFS’s listing, few if any significant at the landscape level. Two Additionally, a cumulative effects gas projects have resulted in adverse peer reviewers discussed forest pests as assessment, conducted by the West impacts to WVNFS habitat, and none of potential threats but did not comment Virginia Department of Transportation these projects have resulted in take of on their significance to WVNFS. (2006, pp. 17–19) suggests there is an WVNFS. The Service expects these Response—Any impacts to WVNFS adequate amount of non- trends to continue after the WVNFS is habitat from beech bark disease or environmentally sensitive, low- delisted. The minor impacts of these hemlock woolly adelgid are considered elevation land, which is not WVNFS projects do not pose a substantial threat minor in the context of the subspecies’ habitat, and is available to support all to WVNFS. range. A decline in American beech, as development reasonably expected to There currently is one operating wind a result of beech bark disease, should occur as a result of the highway power project in West Virginia, two provide additional snags and coarse construction. under construction, and one approved woody debris for WVNFS. Additionally, Issue 9—Some commenters were which will not be constructed. There a decline in beech nuts would also concerned that mining, drilling for gas, also is one project in Virginia in the reduce the food supply of southern and construction of wind turbines in the permitting application phase. These flying squirrels, a potential competitor habitat of WVNFS are increasing and projects have ranged in size from 24 to of the WVNFS. therefore pose a threat to WVNFS. 372 ac of disturbance. Neither the Eastern hemlock currently comprises Response—There is no evidence that presently operative project nor the two 1 to 9 percent of forested land in these activities have in the past, or will under construction have had impacts to counties within the range of WVNFS in in the future, significantly threaten the WVNFS or its habitat. Although the West Virginia (Kish 2007, Figure 1). A WVNFS. This conclusion is based upon Service has noticed an increase in predominantly eastern hemlock Service review of impacts to WVNFS prospecting for wind power projects in overstory is known to occur at 7 percent from permit applications for coal West Virginia, only a minority of these of WVNFS nest site locations (such as mining, gas, and wind power projects. potential projects might adversely Blackwater Falls State Park), and its loss Surface mine projects in West impact WVNFS or its habitat. Three of could affect the quality of riparian zone Virginia average 302 ac in size, and the 13 projects the Service has reviewed habitat useful for WVNFS dispersal underground mines average 34 ac of initially identified potential adverse between more isolated patches of red surface disturbance (Office of Surface impacts to WVNFS habitat (two projects spruce–northern hardwood forest. Mining (OSM) 2005, p. 2). Most coal in West Virginia and one project in Whether or not eastern hemlock is mining activity is concentrated in six Virginia). Two of these projects replaced by red spruce or northern counties (Boone, Kanawha, Mingo, ultimately avoided WVNFS habitat hardwoods, thereby ameliorating losses, Logan, Marshall, and Monongalia) because of the Act, and one of these is unknown. However, research outside the range of the WVNFS (OSM projects was withdrawn due to indicates that hardwood forests with 2005, p. 2). Within the range of WVNFS, difficulties seeking access from the little or no conifer component are not small portions of Greenbrier, Randolph, Forest Service. Although prospecting is barriers to WVNFS movement (Menzel Tucker, and Grant Counties have coal currently occurring, nearly half of all et al. 2006a, p. 207). Please refer to the seams (OSM 2005, cover map); however, prospective wind energy applications 5-year review (Service 2006a, pp. 17–18) these areas were mined in the past and filed for grid interconnection study and Factor A of the Summary of Factors are not currently active. Given the cost within the mid-Atlantic region are Affecting the Species below for further of reopening a mine, it is unlikely that withdrawn (Boone 2006, pp. 1–2). information on both beach bark disease there would be a resurgence of active On national forest lands, project and the hemlock woolly adelgid. mining in these areas, considering that proponents currently must seek separate these sites require expensive acid-mine authorization for prospecting (surveys H. Acid Deposition Concerns waste remediation (Fala 2007). In the 21 and setting up meteorological stations), Issue 1—Two commenters expressed years since the WVNFS’s listing, there as well as the construction and concern about the effects of atmospheric have been only 2 or 3 projects out of operation of wind towers. Even after the acid deposition (also known as ‘‘acid thousands reviewed each year where the WVNFS is delisted, proposed wind rain’’) on WVNFS habitat, whereas one Service identified potential adverse farms in national forests within the peer reviewer believed that such effects effects from coal mining to WVNFS range of WVNFS range would still need were largely speculative. habitat, and each of these projects was to be consistent with standards and Response—The Service agrees with in marginal habitat on the edge of the guidelines in the forest plans. Therefore, the peer reviewer that such effects are subspecies’ range. The Service has no we conclude that while prospecting in largely speculative. Acid deposition is information suggesting that coal mining wind farms is increasing, only a not a significant threat to the activities will expand into WVNFS minority may materialize, and fewer subspecies’ habitat. See Factor E under habitat. Given this lack of evidence of a still might adversely affect the WVNFS. the Summary of Factors Affecting the threat and the above prior history and Based on these projections and the Species section below for further acreages involved, the potential for small acreage potentially involved, we details. future impacts to WVNFS from this conclude that wind power will not pose I. Climate Change Concerns activity appears remote and a significant threat to WVNFS or its insignificant. habitat. Issue 1—All peer reviewers agreed The Service has noticed a recent that the impacts of climate change on increase in gas drilling applications in G. Forest Pest Concerns WVNFS are unclear. Whereas four peer West Virginia; however, the footprint of Issue 1—Some commenters were reviewers concluded that measurable these projects typically is small, concerned about the effects of beech effects to WVNFS were not foreseeable, averaging approximately 1.5 ac per gas bark disease and the hemlock woolly two concluded that the risk to WVNFS well. These projects also tend to use adelgid on the habitat of the WVNFS. could not be discounted and requested

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

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studies of red spruce condition and greatly diminishes the usefulness of this change threat to the WVNFS’ habitat factors contributing to that condition. paper. They did not quantify tree that is likely to endanger the subspecies Response—The Service has reviewed species extinction probabilities, or in the foreseeable future. the three papers from the 1980s cited by otherwise explain the basis for J. Spruce Restoration Concerns the commenters, as well as other studies qualitative statements about their of red spruce condition. The three cited confidence in their predictions. Botkin Issue 1—Whereas one peer reviewer papers primarily focus on the northern et al. (2007, p. 231) notes that the type commented that restoration techniques and southern Appalachians, areas that of niche-theory model used by the have the ability to hasten improved are outside the range of the WVNFS. Delcourts is likely to overestimate the overstory conditions and compositions Although not directly applicable to risk of tree species extinction. These favorable to WVNFS, some members of WVNFS, papers covering areas outside types of models assume that observed the public were concerned that spruce the range of the WVNFS do provide a distributions of trees are in equilibrium restoration efforts are misdirected and context for observed differences in with their current environment, and that would not be successful. These regional trends of red spruce condition. the tree species will become extinct commenters state there is only one The Service further examined potential outside of the regional values (Botkin et master’s level study suggesting that such impacts on the current and future al. 2007, p. 231). However, local recovery may be feasible. condition of the red spruce-northern variation in climate due to topography Response—Forest management and hardwood ecosystem in Factors A and E or other factors could result in tree silvicultural techniques, such as those under the Summary of Factors Affecting species being able to persist in suitable being proposed, have long histories of the Species section of this final rule, as microhabitats even though the model implementation (Frank and Bjorkbom well as the responses to comments on projects no suitable habitat in these 1973, pp. 1–29; Frank and Blum 1978, these issues. general regions (Hansen et al. 2001, p. pp. 1–15; Carey et al. 1999, pp. 64–66). Issue 5—Some commenters cited a 765). The Delcourts focused on Several studies and modeling paper by Delcourt and Delcourt (1998) elevation and summer temperature as simulations indicate that restoration as specific evidence that we can foresee: the primary factors controlling where silviculture could be an effective tool for (1) The extirpation of red spruce-balsam spruce-fir could grow, but other factors increasing the amount and quality of red fir and spruce-Fraser fir forests south of would likely add considerable spruce-northern hardwood forests in the 44 degrees north latitude (the White uncertainty, such as: the seasonality of central Appalachians (Rentch et al. Mountains, New Hampshire); and (2) precipitation, duration of cloud cover in 2007, pp. 440–452; Schuler et al. 2002, the movement of the southern range of the growing season, winter temperatures pp. 88–98; Hornbeck and Kochenderfer these forests to northern New England and frost-free chronologies, and site- 1998, pp. 197–202). in the next 100 years. specific disturbances (White and Cogbill Efforts to restore or enhance red Response—We have reviewed the 1992, pp. 4–16). spruce-northern hardwood forests paper by Delcourt and Delcourt (1998) The Delcourts suggested possible should in many cases enhance WVNFS cited by the commenters. We believe the northern and upslope migration of red habitat in the short-term, as well as the projections made by these authors are spruce under both a 3- and 6-degree long term. For example, noncommercial likely overestimates of risk. First, the warming scenario, with greater impacts efforts that involve red spruce release by authors did not model the full range of occurring under the warmer scenario. girdling or stem-injection of herbicide possible climate extremes and did not For the moderate 3-degree warming will create snags suitable for day dens. use a full array of different climate scenario, the authors also suggested the In addition, removal of hard mast models. They modeled possible future possibility of spruce survival in refugia species such as northern red oak or shifts in the spruce-fir ecotone from two (Delcourt and Delcourt 1998, p. 928, American beech will lessen habitat climate models, assuming projected Figure 4), similar to what happened suitability for the southern flying summer warming of 3.0 degrees or 6.4 during warmer and drier extremes of the squirrel and therefore minimize any degrees Celsius (Delcourt and Delcourt post-glacial period 4000–5000 years potential competition for dens and food, 1998, p. 926). The Intergovernmental before present (Delcourt and Delcourt as well as lessen interspecific contact to Panel on Climate Change (IPCC) (2007c, 1998, p. 927, Ware 1999, pp. 45–55) spread the Stronglyoides parasite. See Table 3.1) currently recognizes a 2 to 4 under similar temperature regimes. Factor C under the Summary of Factors degree Celsius increase by 2099 as the Although Delcourt and Delcourt Affecting the Species section below for best estimate of warming under six (1989) modeled summer temperature additional information. climate models (with a likely range of 1 changes through 2100, they provided no And lastly, red spruce-northern to 6 degrees). Values substantially time frame for when vegetative hardwood restoration on the MNF is higher than 4 degrees cannot be responses would likely occur. They also targeted at maximizing patch size and excluded, but agreement of models with did not provide any prediction of what habitat connectivity for WVNFS (USDA observations is not as good for those the tree species composition would be Forest Service 2006a, p. III–14). These values (IPCC 2007c, part 2.3). Thus the in the forest that would succeed the efforts are proceeding cautiously in 3-degree warming scenario, identified spruce-fir forest in each of these unoccupied habitat, with monitoring to by the Delcourts as their ‘‘most scenarios. As discussed in climate gauge success. These efforts are not conservative’’ projection, falls within change Response to Comments Issues 1– clear cuts, but rather are light thinnings the middle range of the best estimate of 3, future vegetative changes in response of northern hardwoods that open the temperature changes currently to such temperature changes could canopy to provide additional light for recognized by the IPCC. The Delcourts possibly occur over several hundred growth of spruce. Spruce is naturally did not model the lower range (1–2 years. However, their possible impacts adapted to regeneration in small degrees) of warming currently on WVNFS distribution and persistence openings such as these. recognized by the IPCC. are not reasonably foreseeable given the Second, the Delcourts provided little long time frames and high degree of K. Overutilization Concerns information about model assumptions uncertainty. Therefore, we do not find Issue 1—One public commenter was and limitations, and did not attempt to that the projections of Delcourt and concerned that once the WVNFS was validate their model, all of which Delcourt (1989) present a climate delisted, its collection would no longer

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be regulated and the subspecies would Issue 2—Some commenters requested 5 and section L,. Adequacy of be threatened by overcollection. In clarification on the status of forest plans Regulatory Mechanisms—Issue 2, above. contrast, two peer reviewers offered for the Monongahela and the George Issue 4—Some commenters evidence that overutilization of WVNFS Washington National Forests. These questioned the ability of the Forest never has been a threat and would not commenters were concerned that the Service, WVDNR, and others to fulfill become a threat should WVNFS be Forest Service would not be able to their obligations in the MOU, given delisted. implement these plans because of a projected staff and budget cuts. Response—Even for trained wildlife lawsuit on the land management Response—The Service is not relying professionals, the WVNFS is an planning rule published in 2005. upon the MOU as an enforceable exceptionally difficult animal to catch. Response—In March 2007, a U.S. regulatory mechanism under the Act. Thus the probability that a layman or District court order enjoined the Forest See Response to Issue 3 in this same commercial collector could capture or Service from implementation and use of subsection above. overcollect WVNFS is very remote given the land management planning rule Issue 5—Some commenters were the subspecies’ low detectability, published in 2005 until the Forest concerned that the MOU termination nocturnal and secretive habits, and Service complied with the Court’s order clause allows parties to opt out for any remote localities where it occurs. Once for two combined cases (Citizens for reason with 30 days’ notice. delisted, WVNFS collection by hunting Better Forestry et al. v. USDA and Response—MOUs commonly have or trapping will still be illegal under Defenders of Wildlife v. Johanns, C.A. early termination clauses. While some West Virginia and Virginia state laws C05–1144 (N.D. Cal.)). The Forest changes to the composition of the (West Virginia Code 20–2–5(26); Code of Service complied in 2008 by re-issuing signatory parties to the MOU may occur Virginia 29.1–521.A.10, 29.1–566 and its forest planning regulations. Forest over time, we expect that other parties 29.1–530.A.), and its capture for plans currently in effect for the MNF will sign on and the MOU will continue scientific and educational purposes will and the George Washington National to be implemented for the long-term by still be regulated through collection Forest (GWNF) were based on planning those participating at the time. See permitting systems of the WVDNR (West rules published prior to 2005; hence, Response to Issues 3 and 4 in this same Virginia Code 20–2–50) and the Virginia their continued implementation and use subsection above. Department of Game and Inland in present form is not affected by the M. Predator Concerns Fisheries (Code of Virginia 29.1–568). lawsuit or the new regulations. These For more information, see Factor B in existing plans provide guidance for Issue 1—One commenter noted the the Summary of Factors Affecting the management and monitoring of the Service had not discussed the impact on Species below. WVNFS and its habitat, including WVNFS of the reintroduction of the prescriptions, goals, objectives, fisher, a potential predator on WVNFS. L. Adequacy of Regulatory Mechanisms standards, and guidelines. Any Response—Fishers (Martes pennanti) Issue 1—Some commenters stated that subsequent revisions or amendments to were reintroduced to West Virginia in much of the habitat believed to be these existing plans will require the late 1960s or early 1970s, prior to important to the WVNFS is not fully compliance with any planning the listing of WVNFS as endangered. protected in the long term. regulations in effect at the time. Should Both animals have shown overlapping Response—There are no known the MNF choose to revise or amend range expansions in the intervening rangewide threats to the subspecies’ their existing forest plan, we believe it decades, providing indirect evidence forested habitat, thus full protection of is highly unlikely that the current that fishers are not significant mortality this habitat is not required to maintain WVNFS habitat would be affected (See agents for WVNFS. Most data from the the WVNFS’s status as recovered. (See the Factor A—Land Use Planning eastern United States suggest that Factor A under the Summary of Factors section under the Summary of Factors snowshoe hare, cottontails, voles, mice, Affecting the Species section for further Affecting the Species below for further and bird eggs comprise the majority of details.) Seventy-nine percent of the information). the fisher’s diet (Powell et al. 2003, p. modeled habitat of the WVNFS is being Issue 3—Some commenters noted the 643). Weigl (2007, p. 901) concluded managed for the long term by provisions Service had entered into a that fishers probably can coexist with of forest plans, state management plans, Memorandum of Understanding (MOU) northern flying squirrels, with the wilderness and backcountry recreation with the Forest Service, WVDNR, and exception of in small habitat islands, designations, and conservation others for continued management and where there are fewer WVNFS and other easements. For example, in the forest protection of WVNFS. These prey is more limited. plan for the MNF (USDA Forest Service commenters question whether the 2006a, p. III–9, D–1), Management Forest Service would continue to N. Other Natural Factors Prescription 4.1 focuses on protection, protect a species without the force of Issue 1—One peer reviewer and one restoration and management of red law. public commenter thought the Service spruce and red spruce-northern Response—By signing the MOU, needed to give more consideration to hardwood communities. This signatories demonstrate that they are the impact of parasites on WVNFS management prescription, as well as committed to implementing the features spread by southern flying squirrels other management plans and within their discretion and authority (Glaucomys volans), given projections agreements on state, Federal, and (Service et al. 2007, pp. 1–8). The MOU about climate change, acid deposition, private lands, wilderness and affirms commitments made by the U.S. oak decline in northern hardwood backcountry recreation designations, Forest Service MNF to implement communities, and expansion of other and perpetual conservation easements standards and guidelines for the seed- and nut-bearing hardwoods. will continue to apply following WVNFS and its habitat contained in the Response—Recognizing that there are delisting of the WVNFS (Service 2007a, 2006 Land and Resource Management ‘‘varying intensities’’ of parasitic pp. 5–10). Collectively, all of these Plan. This plan would not be infection of northern flying squirrels (G. mechanisms provide reasonable invalidated by delisting the WVNFS. sabrinus) in the wild, Weigl (2007, p. certainty of protection and management Also see response to section F,. 901) remains concerned about infection of much of the habitat for WVNFS. Ecosystem and Habitat Concerns—Issue of G. sabrinus by the intestinal parasite

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Stonglyoides robustus, based in part on threatened or endangered by one or Summary of Factors Affecting the his belief that there has never been more Factors (see Summary of Factors Species stable sympatry of G. sabrinus and Affecting the Species section below). Section 4 of the Act and its Stonglyoides robustus. While that may Up-to-date, threats-based recovery implementing regulations (50 CFR part be true for the Carolina northern flying criteria can assist the Service in 424) set forth the procedures for listing squirrel (G. s. coloratus) at the sites he analyzing whether a species meets the species, reclassifying species, or studied in North Carolina and definition of threatened or endangered. removing species from listed status. Tennessee, stable sympatric occurrences Recovery criteria are only one tool, ‘‘Species’’ is defined by the Act as of WVNFS and the southern flying however, the Service uses in making a including any species or subspecies of squirrel (G. volans) have been classification determination. fish or wildlife or plants, and any documented for decades at the Spruce distinct vertebrate population segment Knob geographic recovery area in West Issue 2—Some commenters expressed of fish or wildlife that interbreeds when Virginia (Wallace 2007, p. 2). The concern about not providing a post- mature (16 U.S.C. 1532(16)). Once the southern flying squirrel has been delisting monitoring plan for public ‘‘species’’ is determined, we then detected within all 7 of the generalized review, concurrently with the proposed evaluate whether that species may be WVNFS core areas (or population rule. endangered or threatened because of centers), and at 20 percent of the 109 Response—The proposed and final one or more of the five factors described WVNFS capture sites. Despite the delisting decisions are based firmly on in section 4(a)(1) of the Act. We must presence of this competing species, an analysis of identified threats and consider these same five factors in there is no evidence of illness or changes in the subspecies’ status. They delisting a species. We may delist a mortality of WVNFS, and no evidence of are not legally contingent upon future local extirpation of WVNFS from any of species according to 50 CFR 424.11(d) if approval or implementation of the post- these sites during 21 years of the best available scientific and monitoring. Based on their documented delisting monitoring plan. The Act commercial data indicate that the co-occurrence in West Virginia and contains no explicit requirements for species is neither endangered nor Virginia, and no documented lethal either notifications or public comment threatened for the following reasons: (1) effects in the wild, we believe that opportunities relative to planning or The species is extinct; (2) the species speculation that impacts of climate implementation of post-delisting has recovered and is no longer change, acid deposition, or shifts in monitoring plans. Nevertheless, the endangered or threatened; and/or (3) the forest composition would decrease the Service sought input into these original scientific data used at the time fitness or survival of the WVNFS is processes, as indicated by our request the species was classified was in error. unwarranted. The WVNFS has prevailed for public comment on the draft post- A recovered species is one that no in repopulating its range in a habitat delisting monitoring plan (72 FR 57346), longer meets the Act’s definition of where the red spruce-northern published in the Federal Register on threatened or endangered. The analysis hardwood compositions arguably favor October 9, 2007, prior to publication of for a delisting due to recovery must be the southern flying squirrel over the this final rule, and by our finalization of based on the five factors outlined in past 100 years. The Service does not the plan concurrent with this final section 4(a)(1) of the Act. This analysis must include an evaluation of threats believe that the WVNFS would have decision on the delisting proposal. that existed at the time of listing, those made this recovery if it suffered Issue 3—Some commenters expressed debilitating or lethal effects from that currently exist, and those that could mistrust about the motivations behind sympatric relationships with parasite- potentially affect the species once the delisting and accused the Service of bearing species (See Factor E— protections of the Act are removed. Competition with Southern Flying catering to developers, the timber The Act defines ‘‘species’’ to also Squirrel under the Summary of Factors industry, and other extractive resource include any subspecies or, for Affecting the Species section for further users. Some commenters also expressed vertebrates, any distinct population information). value-based reasons as to why they segment. The Act defines ‘‘endangered opposed delisting, such as spiritual species’’ as any species which is in O. Miscellaneous importance, animal rights, and need for danger of extinction throughout all or a Issue 1—Some commenters were humans to behave as caretakers and significant portion of its range, and concerned that we have ignored the stewards of the WVNFS, not as pillagers ‘‘threatened species’’ as any species that WVNFS recovery plan criteria in of its habitat. The majority of comments is likely to become an endangered determining that the subspecies has received were one of three various form species within the foreseeable future recovered. letters stating that the proposed rule was throughout all or a significant portion of Response—As summarized above in premature and based on inadequate its range. the Recovery section of this final rule, scientific information, but provided no For the purposes of this finding, the our analysis shows that the intent of substantive information to support these ‘‘foreseeable future’’ is the period of each criterion for downlisting and statements. time over which events or effects delisting has been satisfied and that reasonably can or should be anticipated, most of the criteria have been achieved Response—Our decision to delist or trends reasonably extrapolated, such or substantially achieved. Although the WVNFS is based solely on the best that reliable predictions can be made recovery plan criteria are out-of-date, we scientific and commercial data available concerning the status of the species. As conducted an analysis of how well these and our five-factor analysis. This discussed in the Summary of Factors criteria have been met and summarized analysis indicates that the subspecies is section, we determined that any future that analysis in the beginning of this neither threatened nor endangered. threat from development will be final rule. New information has changed While we appreciate the values localized and minimal, based on trends the extent to which these criteria need expressed by these commenters, such over the past 10 years. In addition, the to be met for recognizing recovery of the comments are either not relevant to the Service has no indications that subspecies. Species are listed or delisted decision, or are outside the scope and management of the forest for timber will under the Act based on whether they are authority of the final rule. have more than a minor impact on the

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WVNFS based on the discussion in counties in West Virginia and Highland red spruce–northern hardwood forests Factor A. WVNFS habitat has been County, Virginia (Service 2006a, p. 25). were more contiguous across the improving steadily for the past 50–80 As of 2006, there is a total of 109 Allegheny Highlands than are the well- years throughout its range and we WVNFS capture sites, of which 107 are known ‘‘sky-islands’’ of the Southern expect this improvement to continue in West Virginia and 2 are in Highland Appalachians, which support Carolina into the future. County, Virginia (Service 2006a, pp. 8 northern flying squirrels (G. s. Climate change projection models are and Figure 2; WVDNR 2006a, pp. coloratus) (Service 1990, pp. 16–17; not reasonably accurate for the localized 1–109). These capture sites are USDA Forest Service–Northern range of WVNFS, and therefore we dispersed across seven general areas of Research Station 2006, unpublished cannot reliably predict that climate habitat in the Allegheny Highlands data, pp. 2–3). change will pose a threat in the future. region (Service 2006a, pp. 9 and Figure Logging activity and associated All indications suggest that the squirrel 3). Distributed throughout the 109 widespread fires at the turn of the 20th is resilient enough to adapt to and capture sites, there have been 1,198 century decimated the red spruce– survive gradual changes in the habitat, captures (including 85 recaptures) as of northern hardwood forests, resulting in if there are any due to climate change. 2006 (WVDNR 2006a, pp. 1–109). younger forests with less red spruce Therefore, we do not foresee any threats Collectively, the proportion of sites and, in many areas, a mixed mesophytic affecting the WVNFS into the future that demonstrating persistence across (moderately moist environment), oak- would lead the species to become an multiple generations (83 percent), dominated forest (Menzel et al. 2006b, endangered species. distributed among habitat quality types p. 6; Rollins 2005, pp. 12–13; Schuler et Section 4(a)(1) of the Act requires that and within geographic zones; the al. 2002, pp. 88–89). Loggers set fires we determine whether a species is routine documentation of nestlings and after clearcutting, and additional fires endangered or threatened based on one juveniles (76 percent of sites); and were ignited from sparks from the or more of the five following factors: (A) balanced to slightly skewed sex ratios logging trains (Schuler et al., 2002, p. The present or threatened destruction, demonstrate a relatively high degree of 89). The fires associated with the modification, or curtailment of its population stability and constant habitat logging practices of the early 1900s are habitat or range; (B) overutilization for occupancy (Service 2007c, pp. 9–11). not expected to reoccur, because the commercial, recreational, scientific, or Locally reproducing populations are the clearcutting is no longer taking place. educational purposes; (C) disease or most likely factors for continuing to find These fires did, however, consequently, predation; (D) the inadequacy of WVNFS in numerous locations within result in less, and poorer quality, existing regulatory mechanisms; and (E) their historical range over the last WVNFS habitat because younger forests other natural or manmade factors couple of decades, given their low with fewer red spruce provided reduced affecting its continued existence. Our detectability, relatively short life span, foraging and sheltering opportunities evaluation of these factors is presented and relatively low reproductive (Service 2006a, p. 6). Also, the presence below. Following this threats analysis, capacity, and a naturally patchy nature of oak and its associated mast (i.e., we evaluate whether the WVNFS is of suitable forest habitat distribution acorns), provided a competitive threatened or endangered within any (Service 2007c, p. 11). advantage of food resources for the more significant portion of its range. We now know that the WVNFS aggressive southern flying squirrel. The continues to occupy the areas identified WVNFS’ rarity was understood to be a A. The Present or Threatened in the 1985 final listing rule (50 FR consequence of its specialized use of a Destruction, Modification, or 26999) as well as numerous additional precipitously declining habitat type Curtailment of Its Habitat or Range sites dispersed throughout its historical (Service 2006a, p. 11). Currently, it is estimated that there WVNFS Distribution range, suggesting that its current range roughly approximates the extent of its are approximately 242,000 ac of WVNFS At the time of listing (1985), 10 historical range. Studies have confirmed habitat (USDA Forest Service–Northern WVNFS individuals were known from the ability of the WVNFS to adjust its Research Station 2006, unpublished Randolph and Pocahontas Counties, foraging and denning behavior (i.e., the data, p. 4). This estimate is based in part WV, and Highland County, VA (Service ability to nest in a wide variety of trees) on the results of several habitat models, 2006a, p. 8). It was thought that vast to persist in and around red spruce- and includes all ‘‘optimal’’ habitat as stretches of unsuitable habitat separated northern hardwood forest patches well as ‘‘likely’’ habitat located in close the four known population centers and (Menzel et al. 2004, pp. 360, 363–364; proximity to red spruce–northern that the WVNFS still existed but that it Menzel et al. 2006a, pp. 1–3, 6, 7; hardwood forests. ‘‘Likely’’ and was very rare, and perhaps no longer Menzel et al. 2006b, p. 208; Ford et al. ‘‘optimal’’ are terms and definitions present in much of its former range (50 2004, p. 430). imparted by the Menzel model, with FR 26999). The final listing rule ‘‘likely’’ areas having a greater than 50 qualitatively described historic habitat Habitat Quantity and Quality percent chance of being occupied by the losses and suggested that ‘‘in these last Prior to European settlement, there WVNFS, and ‘‘optimal’’ areas having a occupied zones, the squirrels [G. s. were in excess of 500,000 ac (some greater than 75 percent probability of fuscus and G. s. coloratus] and their sources suggest 600,000+ ac) of old- being occupied (Menzel 2003, pp. 84– habitat may be coming under increasing growth red spruce–northern hardwood 85, 87–89; Menzel et al. 2006b, pp. 4– pressure from human disturbances such forests, the preferred habitat of the 5). The models allow us to estimate the as logging and development’’ (50 FR WVNFS, in the Allegheny Highlands. amount of potential and high-quality 26999). These forests (occupying ridges, slopes, habitat in the Allegheny Highlands, The current known range of WVNFS and drainages) in West Virginia prioritize areas for restoration and follows the spine of the high Allegheny extended from the vicinity of Mount recovery (Menzel et al. 2006a, p. 7), Plateau in a northeast to southwest Storm (Grant County) in the north to assess anthropogenic (manmade) and alignment. Helmick Run (Grant County, Cold Knob (Greenbrier County) in the geologic fragmentation of the red spruce WV) marks the northeast periphery and south, east to the Allegheny Front forest, and analyze stewardship of the Briery Knob (Greenbrier County, WV) (Pendleton County), and west to suitable habitat (Menzel et al. 2006b, p. the southwest periphery, covering seven Webster and Nicholas Counties. These 7).

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The forested areas used by the habitat has already occurred (Service the dead beech trees, which could WVNFS across most of its range have 2006a, p. 17). promote the growth of underground continued to mature in the 20 years The hemlock woolly adeglid has been fungi, one of the WVNFS’ primary food since listing. For example, about half of in the United States since 1924. The sources (Carey et al. 1999, p. 54; Pyare the rangewide areas modeled as optimal insect damages eastern hemlock (Tsuga and Longland 2001, p. 1008; Rosenberg habitat are red spruce-northern canadensis) trees by damaging new and Anthony 1992, p.161; Waters et al. hardwood forest stands on the MNF that growth, which can cause defoliation and 2000, p. 85). Additionally, the removal are over 75 years old (Menzel et al. mortality (Service 2006a, p. 17). Only 7 of beech nuts is thought to be more 2006b, p. 4; Service 2006a, pp. 10–11; percent of the WVNFS capture sites are detrimental to the southern flying USDA Forest Service-Northern Research dominated by Eastern hemlock instead squirrel because it is a high-energy food Station 2006, unpublished data, p. 2). of red spruce (Service 2006a, p. 17). source for that species, and, therefore, Even though current habitat conditions However, work conducted on the would counter any small amount of are not as favorable for the WVNFS as WVNFS indicates that hardwood forests direct competition between the WVNFS with little or no conifer component are historical conditions preceding the late and the southern flying squirrel. not barriers to movement (Menzel et al. 1800s/early 1900s, current conditions Therefore, while beech bark disease 2006a, p. 207). While hemlock woolly affects a minor component of WVNFS are much improved compared to those adelgid may remove the montane habitat rangewide, we consider it to at the time of listing. With the exception conifer component at less than 10 pose an overall low-to-moderate degree of localized habitat impacts, forest percent of the known capture sites, of risk for WVNFS, and this risk may be succession has resulted in older forest most, if not all, of these areas are in offset by the potential benefits of stands with improved forest structure, close proximity to red spruce-northern creation of new nest cavities, increase in reflecting a continuing positive hardwood forests, significantly reducing a primary food source, and potential rangewide trend (Service 2006a, pp. 11– the occasions where loss of Eastern harm to the food supply of the southern 14, 19–20). With regard to forest hemlock could be detrimental to the flying squirrel (Service 2006a, p. 18). composition, the amount and extent of WVNFS (Service 2006a, p. 17). We also analyzed the potential future red spruce in the Central Appalachians Additionally, the West Virginia impacts of climate change on the also appears to be gradually increasing Department of Agriculture has an active WVNFS’s habitat. While there is much (Adams et al. 1995, p. 101; Schuler et detection program for hemlock woolly speculation on potential future impacts al. 2002, p. 92–93; Rollins 2005, pp. 39– adelgid and a treatment program that of climate change on the WVNFS, it is 51). Recent evidence also suggests will remain in place regardless of the important to recognize that there is no improving trends in health and listing status of the WVNFS. Therefore, evidence that climate changes observed regeneration of red spruce-northern even though the hemlock woolly to date have had any adverse impact on hardwood forests within the range of adelgid may impact a minor component WVNFS or its habitat. For example, WVNFS (Adams et al. 1995, p. 101; of the squirrel’s habitat, we consider it within the range of the WVNFS, Audley et al. 1999, pp. 179–199; to pose a negligible degree of risk to the inexplicable crown dieback (Mielke Hornbeck and Kochenderfer 1998, pp. WVNFS, because of the limited role of 1987, pp. 221–222) and declines in red 198–200; Schuler et al. 2002, p. 92–94; hemlock in the subspecies’ survival, and spruce radial growth were reported in Rollins 2005, pp. 74–78). The forested presence of red spruce in the majority the 1980s (Adams et al. 1985, p. 315). landscape within the range of WVNFS of the areas (Service 2006a, p. 17). Since the 1980s, there has been no provides a high degree of functional The potential impact of beech bark evidence of widespread crown decline connectivity, as evidenced by large disease was also analyzed. Beech bark of red spruce throughout the range of patch sizes, numerous linkages, and disease is caused by the beech scale WVNFS. By the late 1990s, Audley et al. persistence over multiple generations at insect (Cryptococcus fagisuga), followed (1998, pp. 177, 180, 190) noted that monitoring sites across a range of forest by one of two fungi (Nectria coccinea while a small percentage of individual conditions (Service 2007c, pp. 5–6, 9– var. faginata or N. galligena). The scale trees sampled exhibited symptoms of 11). stresses and weakens the American reduced health and vigor, the majority beech tree (Fagus grandifolia) and the of red spruce sampled in West Virginia We analyzed impacts that the balsam fungi then cause either localized lesions appeared healthy. More recent and hemlock woolly adelgids, insect or decay and death of the entire tree dendrochronological surveys of red parasites accidentally introduced from (Service 2006a, pp. 17–18). Although spruce stands in West Virginia detected Europe (Service 1990, p. 13), may be American beech trees are common to this growth decline phenomenon having on the WVNFS’ habitat (Service the red spruce-northern hardwood occurring from about 1930 to 1990 2006a, p. 17). The balsam woolly forests of the Allegheny Highlands, in (Schuler et al. 2002, p. 93; Hornbeck adelgid infects balsam fir (Abies WVNFS habitat they usually occur in and Kochenderfer 1998, pp. 199–200). balsamea) trees, causing damage or combination with red spruce and other Since this time period, the decline mortality to the host trees (Service 1990, hardwoods, particularly birch and appears to have ended in the central p. 13). However, we believe the effect of maple. Therefore, despite having a Appalachians—growth rates have the balsam woolly adelgid on WVNFS devastating impact on the American leveled or shown slight increases habitat is discountable because balsam beech component of the red spruce- (Schuler et al. 2002, p. 93, figure 3; fir is limited to a minor component of northern hardwood forest, beech bark Hornbeck and Kochenderfer 1998, p. the WVNFS habitat (Peart et al. 1992, p. disease is not thought to render WVNFS 199–200) and regeneration remains 149, 165). Red spruce occurs in or near habitat unsuitable (Service 2006a, p. unaffected (Schuler et al. 2002, pp. 92– stands of balsam fir, providing the 18). There is actually a potential short- 93). WVNFS with alternative and higher term benefit to the WVNFS due to the Red spruce is now recolonizing areas value habitat where damage from the creation of new nest cavities in the of hardwood forest near existing red balsam woolly adelgid may have holes of dead and decaying beeches. spruce stands, areas that historically occurred. In addition, the impact of the Foraging habitat for the WVNFS may were red spruce until the logging and balsam woolly adelgid on the small also improve with increases in large fires at the turn of the 20th century component of balsam fir within WVNFS woody debris on the forest floor from (Schuler et al. p. 2002, p. 89). There is

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evidence that the red spruce-northern prevail.’’ Given this caveat, as well as regeneration of a hardwood-dominated hardwood ecotone is either stabilizing the huge variation in possible views of forest, and a more recent increase in the or decreasing in elevation (expanding) the future noted above, all with red spruce component. As several to approximate its former extent (Adams unknown likelihoods of occurrence, we commenters point out, hardwood trees et al. 1999, p. 235, Rollins 2005, p. 76). conclude that it is not possible to have always been an important Rollins (2005, p. ii, 74–75) found that translate these potential scenarios into component of WVNFS habitat and there the amount and quality of red spruce at potential effects on WVNFS or its is no evidence that a gradual increase in three study sites in the central habitat over any meaningful timeframe. hardwoods would cause dramatic Appalachians appeared to be gradually We considered the map products population declines for the WVNFS. In improving through natural regeneration. provided by some of the public fact, Weigl (2007, p. 899), citing two Since then, Rollins has studied 9 commenters (Lawler 2007a, unpub. other studies in the northeast, noted that additional sites, for a total of 12 maps). We spoke to Dr. Joshua Lawler ‘‘the species is known to occupy representative sites distributed in the (2007b), University of Washington, to hardwood habitat without spruce or northern, central, and southern portions gain a better understanding of the fir.’’ The Service concludes that the of the range of WVNFS. Stand data on continentwide bioclimatic models he WVNFS is expected to survive slow, trees, saplings and seedlings, soil ran for all subspecies of northern flying gradual changes from long-term climate chemistry, red spruce foliar chemistry, squirrels. These models do not map change. and the percent of red spruce roots vegetation directly, but attempt to do so Based upon a review of the current covered by symbiotic fungal indirectly by correlating the distribution scientific studies, peer-review mycorrhizae are currently being of the various subspecies of northern comments, the unpublished maps analyzed between two sampling periods flying squirrels to alternative scenarios provided by the commenters, and (1985 vs. 2005). Although a final report of climate change. For the WVNFS, the discussions with modelers, the Service is not yet available, preliminary results models project that the future climate concludes that there is no evidence that indicate a reversal of the crown dieback (2071–2100) within the range of the current changes in climate have had an conditions observed in 1985 (Connolly subspecies will be different from the adverse impact on WVNFS. Long-term 2007). baseline climate conditions of 1961– projections about climate change and its This pattern is contrary to general 1990. Contrary to the commenters’ possible effects on WVNFS are complex projections that climate changes in the speculation that these products project and best viewed as possible alternative next 100 years may shift the geographic the extinction of WVNFS, the views of the future that have unknown ranges of flora and fauna upwards in unpublished map products (Lawler likelihoods of occurrence. Therefore, elevation and northward (IPCC 2002, p. 2007a, unpub. maps) provided by the based on the above information, we 1). Considering the ecotone range commenters indicate only an have determined that we are unable to expansion trends documented by unquantified potential range contraction establish climate change as a threat to Rollins (2005) and Adams et al. (1999), of WVNFS. Botkin et al. (2007, p. 231) the WVNFS within the foreseeable we expect that the extent and quality of notes that bioclimatic models vary future. the habitat for WVNFS is likely to greatly in their projections of extinction, Land Use Planning continue to increase. and that Lawler et al. (2006) have not We looked at the possible range of attempted to validate any of the models Available information indicates that effects of climate change on the they are using. Lawler et al. (2006, p. the threat posed by past habitat loss has WVNFS. Under warmer scenarios, 1579) recognized that it would be been largely abated across most of the several regional models project that difficult to translate these types of WVNFS’ range. Implementation of the mixed (hardwood and conifer) forests in predictions into threats of extinction 2001 recovery plan amendment (Service the northeastern United States because actual range shifts would 2001, p. 4) and the 2004 amendment to (including West Virginia and Virginia) depend on dispersal, evolutionary the MNF Land and Resource may decrease in potential area, as they flexibility, and species interactions. Dr. Management Plan (USDA Forest Service gradually shift into Canada over the Lawler (2007b) stated that the model 2004, pp. 84a–84c, 87, 234–234b) next 100 years or more. By some had a good degree of fit at the significantly removed the threat of projections, this possible decrease in continentwide level, but the fit would habitat loss (via logging) across much of potential habitat could be as small as be reduced, and the degree of the WVNFS’ range. The recovery plan ¥11 percent to ¥22 percent (Iverson et uncertainty would be expected to be amendment recommended that suitable al. 2005, p. 34) or as large as ¥97 higher, at the State level. He indicated WVNFS habitat be considered during percent over 100 years (Hansen et al. it is not possible to determine model consultation with Federal agencies. The 2001, p. 769). These models also project error for the relatively small scale of the Forest Service reinforced this that northeast mixed hardwood and WVNFS’ range in West Virginia and recommendation through an conifer forests may gradually be Virginia. amendment to the MNF Land and squeezed from the south by the advance The WVNFS and other subspecies of Resource Management Plan, which of southeastern mixed forests to varying G. sabrinus have demonstrated limited vegetation management in all degrees (Inkley et al. 2004, p. 6). significant adaptability, resilience, ‘‘suitable habitat’’ (as determined However, some models project that the mobility, and plasticity in habitat use by collaboratively by the Forest Service, biome remains intact under cooler surviving landscape-level habitat Service, and WVDNR) to: (1) Research scenarios (Hansen et al. 2001, p. 769; changes during times of glacial retreat activities covered under an Act section Inkley et al. 2004, p. 6, figure 3). As and advance during the Pleistocene, and 10 permit; (2) actions to improve or explained by Botkin et al. (2007, p. 230), by surviving intense landscape-level maintain WVNFS populations after ‘‘the larger the scale of the primary units loss of forest during the late 1800s and research has demonstrated the of the model, the simpler it is to early 1900s (Weigl 2007, p. 898). Over beneficial effects of the proposed estimate effects over large areas and the past 100+ years, the WVNFS management; or (3) when project-level times, but also the cruder the survived a change from a red spruce- assessment results in no adverse effects. approximation is and the more likely dominated forest to a loss of much of This conservation strategy has been that undesirable assumptions will the forest habitat, to a transitional carried forward into the MNF’s recent

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

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the Blackwater canyon (approximately currently under public ownership. Thus B. Overutilization for Commercial, 4,400 ac) is considerable and we is appears that the land identified as Recreational, Scientific, or Educational conclude that it is large enough that the being available to accommodate Purposes current WVNFS population is likely to development corresponds to those lands The final listing rule concluded that persist (Service 2006b, p. 23; Smith and that have the greatest likelihood of being the WVNFS was not known to be Person 2007, p. 631). About 24,000 acres developed due to lack of constraints. of suitable habitat exists in the threatened by human utilization but As a general matter, because the Blackwater Canyon area south of the noted that flying squirrels are highly majority of WVNFS habitat is publicly highway and this will remain connected desirable as pets to some persons, and owned and managed, future by dispersal corridors to the remaining collecting for such purposes is at least 211,000 acres of suitable habitat. development throughout the range of a potential threat to the already rare Although the 235,000 acres (this figure the WVNFS is expected to be minimal. WVNFS (50 FR 26999). The WVNFS has is comprised of 211,000 acres plus the The entire range of the WVNFS is been captured only for scientific or 24,000 acres in Blackwater Canyon) within the Allegheny Mountains Valley educational purposes through nest box south of the proposed Corridor H Physiographic Region, an area of steep and live trap methods, and not for alignment is not contiguous habitat, terrain and low human population market collecting or commercial use. there are no sizeable gaps preventing density and growth. In 2005, the Capture for scientific or educational squirrel dispersal, so we conclude that proportion of land use classified as low purposes has been very limited, is no portion of the population south of density and high density development regulated by state permitting systems, the alignment will be meaningfully within this physiographic region in and has not proven to be detrimental to affected by the road. This leaves only West Virginia was 0.4 percent and 0.1 the continued existence of the WVNFS. the question of the impact of the road percent, respectively (WVDNR 2006b, p. In the 21 years since listing, the footprint itself. A total of 745 ac of 10). During 2000, population densities Service has not received any evidence habitat for the WVNFS will be lost in the counties in West Virginia in that commercial use in the pet trade or during construction of the proposed which the WVNFS occurs were among recreational use of the WVNFS is a project (Service 2006b, p. 23; Service the lowest in the State, ranging from 9.7 threat. There are no law enforcement 2008, p. 20). This equates to a total loss to 40.4 persons per square mile records of illegal harvesting or of only 0.1 percent of the available (WVDNR 2006b, p. 17); and with the commercialization of the subspecies. highly suitable and suitable habitat for exception of Randolph County (0.3 Several factors indicate that delisting the subspecies, and therefore does not percent increase), the 10-year will not significantly change that. The represent a significant threat. population trend (1990–2000) in all of WVNFS is a thinly dispersed, nocturnal The Service analyzed possible these counties decreased (WVDNR mammal that is very difficult to catch. secondary impacts to WVNFS from the 2006b, p. 18). For example, Menzel captured the proposed Corridor H project from WVNFS at a rate of 0.227 captures per Summary of Factor A: Although the 100 trap nights (Menzel 2003, p. 65), Parsons, WV to Davis, WV (Service quantity and quality of WVNFS habitat 2006b, pp. 1–39) and Davis, WV to and the WVDNR’s nest box monitoring is reduced from historical levels program has had only a 2 percent Bismarck, WV (Service 2008, pp. 1–32). (preceding the logging and burning era Construction of this four-lane divided average success rate of squirrel of the late 1800s and early 1900s), we occupancy per box checked (Service highway is expected to increase human now know that the WVNFS is more accessibility to surrounding lands and 2006a, p. 7). Additionally, once the resilient in its habitat use than formerly could spur increased development in WVNFS is delisted, its collection by thought, probably because of its the lands adjacent to the project. hunting or trapping will still be illegal mobility and plasticity in nest tree However, a cumulative effects under West Virginia and Virginia state selection. Additionally, the habitat is assessment, conducted by the West laws (West Virginia Code 20–2-5(26); more connected than previously Virginia Department of Transportation Code of Virginia 29.1–521.A.10; 29.1– (WVDOT) (2006, pp. 17–19) suggests thought, and habitat trends are moving 566 and 29.1–530A.). See further there is an adequate amount of non- in a positive direction in terms of forest discussion in Factor D under the environmentally sensitive, low- regeneration and conservation. Also, the Summary of Factors Affecting the elevation land that is not WVNFS subspecies continues to persist for Species below. WVNFS is not currently habitat and that is available to support multiple generations at many locations defined as a game or furbearing animal all development reasonably expected to across its historical range. Impacts from that can be legally hunted or trapped in occur as a result of the highway proposed transportation projects and either state, and as such, there currently construction. WVDOT (2006, p. 20) potential future housing development are no bag limits allowed for WVNFS modeled the worst-case scenario for are localized and minimal. For the (West Virginia Code 20–1-2; Code of development that was reasonably foreseeable future, any localized loss of Virginia 29.1–100, 29.1–530.A). certain to occur after the highway was habitat due to timber harvest or Moreover, once the WVNFS is delisted, built, taking into consideration development on private lands will not its capture for scientific and educational development and traffic patterns, and reduce the overall quality of habitat for purposes will still be regulated through trends in employment and population the WVNFS, rather it will just slightly collection permitting systems of the growth. They mapped the raw private reduce the amount of improvement in WVDNR (West Virginia Code 20–2-50) land (currently undeveloped) that was habitat conditions. For these reasons, and the Virginia Department of Game available to accommodate projected and the lack of any rangewide threats to and Inland Fisheries (VDGIF) (Code of development. This was defined as land WVNFS habitat, the present or Virginia 29.1–568). that was located outside of the 100-year threatened destruction, modification, or Summary of Factor B: Overutilization floodplain that did not have slopes curtailment of its habitat or range is no for any purpose is not currently greater than 25 percent, that did not longer currently a threat to the WVNFS considered a threat and is not have wetlands, and that did not have or likely to become so in the foreseeable anticipated to emerge as a threat in the existing development or was not future. foreseeable future.

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C. Disease or Predation endangered species. However, for the rule stated that while the southern The final listing rule (50 FR 26999) reasons stated in the discussions of flying squirrels appeared healthy, all the made no mention of disease as a threat Factors A, B, C and E, there are no northern flying squirrels weakened and to the WVNFS, and we are not aware of current threats to the subspecies as a died within 3 months, and this any evidence since the time of listing whole that require additional regulation. mortality was associated with heavy that suggests the health of WVNFS Therefore, the lack of an endangered infestations of the nematode parasite. individuals is threatened by disease. Of species State law in West Virginia is not All the southern flying squirrels also the more than 1,000 squirrel captures expected to negatively impact the carried the parasite, but they remained since 1985, none have shown signs of WVNFS. See Factor B above for in apparent good health and continued disease (Service 2006a, p.15). additional information. to breed (50 FR 26999). Based on review The final listing rule predicted that In the Commonwealth of Virginia, the of the original dissertation, the cause of increasing human recreational use of WVNFS has been listed as endangered the northern flying squirrel mortality northern flying squirrel habitat might under the Commonwealth’s endangered was never completely understood result in predation on the WVNFS by species act since its Federal listing in (Weigl 1968, pp. 129–150). Weigl et al. pets, especially cats (50 FR 26999). 1985. This Commonwealth law, which (1999, pp. 74–75, 2007 p. 902) While natural predators of the WVNFS is administered by the VDGIF, prohibits hypothesized that survival and may include weasel, fox, mink, owls, take of Commonwealth-listed species maturation rates of the parasite are hawks, bobcat, skunk, raccoon, snakes, and is currently applicable to the limited by below-freezing temperatures and fisher, we are not aware of any WVNFS. The State has the authority to that occur within the range of the scientific or commercial evidence since continue protection of the WVNFS WVNFS, but were not replicated in the the time of listing to support pets under the State law once it is removed 1960s captive study. The conditions preying upon WVNFS (Service 2006c, p. from the Federal List of Threatened and created in the captive study apparently 15), or to suggest that natural predation Endangered Wildlife (Virginia Code do not closely relate to naturally limits populations of WVNFS. As 29.1–566) and intends to do so occurring conditions, and observations analyzed in our biological opinion for (Reynolds 2008). Lack of current threats, of WVNFS individuals captured in the the Camp Wilderness Habitat along with the Commonwealth’s last 20 years (including areas also Conservation Plan (HCP) (Service 2003, endangered species act, ensures the occupied by the southern flying pp.12, 23), there are no documented WVNFS’ persistence in Virginia. See squirrel) have revealed no signs of deaths of northern flying squirrels, Factor B above for additional sickness, debilitation, or death due to particularly the WVNFS, as a result of information. parasitic infestation. impacts of human recreational use or E. Other Natural or Manmade Factors Other Natural or Manmade Threats occupancy in, or near, its habitat, and Affecting the Continued Existence of the pets are not predicted to be a substantial The 1985 final listing rule did not Species threat in the future (Service 2003, pp. address additional threats under Factor 12, 23–25). Since the majority of Competition With Southern Flying E. However, the delisting criterion within the 1990 recovery plan WVNFS habitat is found on the MNF, Squirrel human encroachment into WVNFS addressed potential threats, such as The final listing rule (50 FR 26999) forest pests (see Factor A) and acid rain, habitat is uncommon and localized (e.g., concluded that the WVNFS was Canaan Valley and Snowshoe to the existence of the high elevation threatened by competition with the forests on which the squirrels (G. s. Mountain) (Service 2003, pp. 12, 23–25; southern flying squirrel for habitat and Service 2006c, p. 15; Service 2006a, pp. fuscus and G. s. coloratus) depend by the spread of a parasite from the (Service 1990, p. 19). These potential 15, 20), and is therefore unlikely to southern flying squirrel to the WVNFS. become a threat to the WVNFS in the threats were included in the overall However, evidence collected since the analysis of the status of the WVNFS in foreseeable future. time of listing indicates that the Summary of Factor C: Disease and the 5-year review (Service 2006a, pp. 4– occurrence and potential severity of the predation are not currently threats to the 6) and are analyzed in more detail southern flying squirrel’s impacts are WVNFS and are not likely to become below. limited. The occurrence of the two threats in the foreseeable future. Acid rain (more appropriately referred subspecies has been documented at 20 to as acid deposition) has been cited as D. Inadequacy of Existing Regulatory percent of the known occupied WVNFS potentially damaging forest ecosystems, Mechanisms sites with no evidence of local especially the spruce-fir forests in The final listing rule stated that this extirpation of WVNFS. Over- portions of the Appalachian Mountains factor was not known to be applicable competition by the southern flying (NAPAP 2005, p. 41). Although (50 FR 26999). Currently, all threats squirrel for den sites does not appear to empirical data are lacking regarding under Factors A-C, and E have been be affecting population persistence of specific effects on the WVNFS, the long- eliminated or abated, and no regulatory the WVNFS. In addition, any term potential exists for anthropogenic mechanisms are needed to delist the competition between the two subspecies acid deposition to diminish the extent WVNFS. Therefore, the inadequacy of may be somewhat ameliorated by the and quality of the boreal-like spruce regulatory mechanisms is not spread of beech bark disease (see Factor forests that have survived on the high considered a threat to the subspecies. A above for further information), which ridges and plateaus, by pushing them Nevertheless, even though not results in the reduced availability of farther up the slopes, and, if warming considered necessary for delisting, the beech nuts, an important food source for continues, reducing and eventually laws discussed below will continue to the southern flying squirrel (Service eliminating habitat at higher elevations. provide some level of benefits to the 2006a, p. 18). However, there has been no evidence of WVNFS. The final listing rule cited evidence acid deposition reducing the extent of from a captive study in the 1960s that red spruce-northern hardwood forests in State Laws a nematode parasite, possibly carried by the Central Appalachians since the The State of West Virginia does not the southern flying squirrel, might be WVNFS’ listing in 1985 (Service 2006a, currently have any State laws protecting lethal to the WVNFS (50 FR 26999). The p. 18, Adams 1999, p. 24) (See above

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Response to Comments, I—Climate Relative to the information available at demonstrates resilience and behavioral Change Concerns, Issues 4 and 5). the time of listing, recovery actions, plasticity (Weigl 2007, p. 898). The Given the naturally acidic nature of forest regeneration, and a reduction or species survived glacial advances in the soils in spruce forests, it is unlikely that abatement of threats have led to: (1) A Pleistocene, as well as widespread loss acid deposition has contributed significant increase in the number of of forest cover from logging and burning significantly to their further known WVNFS captures and distinct in the late 1800s/early 1900s (Weigl acidification (Johnson and Fernandez capture locations; (2) verification of 2007, p. 898; Rentch et al. 2007, p. 441). 1992, p. 262; Johnson et al, 1992, pp. multiple-generation reproduction and Studies have confirmed the ability of G. 391, 396). These forests do not reach the persistence throughout the range; (3) sabrinus to adjust its biology to survive very low winter temperatures observed proof of resiliency of the squirrels; and a wide range of environmental farther north and have not exhibited the (4) the substantial improvement and conditions, such as: The ability to red spruce winter kill due to decreased continued expansion of suitable habitat occupy forests of varying spruce and cold tolerance that has been observed in rangewide. hardwood compositions (Weigl 2007, p. the northern Appalachians and The biological principles under which 898–899); the ability to survive short Adirondacks (Peart et al. 1992, p. 180; we evaluate the rangewide population cold snaps by dropping its body DeHayes 1992, p. 296; NAPAP 2005, p. status of the WVNFS relative to its long- temperature without becoming torpid 41). Sulphate deposition in the Central term conservation are representation, (Weigl 2007, p. 898); the ability to Appalachians has dropped by at least 25 redundancy, and resiliency (Groves generally subsist on fungi and lichens, percent in the last 10 years and pH of 2003, pp. 30–32). At the time of listing, buds, berries, and staminant cones, but deposition has increased, making this the WVNFS was thought to be an to occasionally use mast (Weigl 2007, p. runoff less acidic (Johnson et al. 1992, extremely rare and declining taxon that 898); the ability to delay reproduction in pp. 388, 391; Adams and Kochenderfer had disappeared from most of its response to environmental variables 2007, p. 99–100, Adams et al. 2006, pp. historical range. We now know that (Weigl et al. 1999, p. 32, 79); the ability 4–6, 216–217). Deposition of nitrogen occupancy of available habitat has to nest in a wide variety of trees (Menzel has either leveled off or may be slightly increased and is much more widespread et al. 2004, pp. 360, 363–364; Menzel et increasing, but the overall acid load is and well connected than formerly al. 2006b, pp. 1–3, 6, 7; Menzel et al. decreasing in high elevation red spruce thought, and that the geographic extent 2006b, p. 208; Ford et al. 2004, p. 430); forests of the Central Appalachians of the WVNFS’ range approximates and the ability to recolonize new habitat (Adams and Kochenderfer 2007, p. 100– historical range boundaries. The red areas over time by adjusting its activity 101; Johnson et al. 1992, p. 391; Adams spruce-northern hardwood forests have patterns to meet ecological requirements et al. 2006, pp. 4–6, 266). Also, substantially recovered from the vast in and around patches of forest (Menzel compared to many deciduous trees, red clear-cutting at the turn of the 20th et al. 2006b, p. 208). spruce also is more resistant to ozone, century, and continue to improve. Survey and monitoring efforts at 109 which is often found in combination Additionally, we have learned that the sites over the past 21 years have shown with high levels of acid deposition WVNFS has adapted to changes in the a relatively high degree of population (McLaughlin and Kohut 1992, pp. 360– spruce ecosystem over the past hundred stability, as evidenced by a high degree 366; Adams 2007). Given the factors of years, and can successfully exploit the of persistence and successful naturally acidic soils, increasing pH of existing habitat conditions throughout reproduction over multiple generations deposition, lack of extreme cold the landscape. Habitat patch sizes throughout the historical range (Service temperatures, resistance to ozone within the core of the range of WVNFS 2007c, pp. 9–11). There is no evidence impacts, and lack of adverse impacts are sufficiently large and well connected of extirpation of a local population or of from nitrogen, there is no current by numerous linkages to facilitate a deleterious source-sink information demonstrating a negative adequate WVNFS dispersal among metapopulation dynamic (Service impact on these high elevation forests. population centers (Service 2007c, pp. 2007c, p. 11). As previously described, Furthermore, the current trends of the 9–12). Although there remains the current and future trend for habitat decreasing overall acid load indicate geographic separation (and likely has quantity, quality, and connectivity is that acid deposition is not a significant been since the end of the Pleistocene) expected to be favorable because of the threat to the subspecies’ habitat in the between a few of the habitat areas continuing recovery of the red spruce- foreseeable future. supporting population centers at the northern hardwood ecosystem and the Thus, to the extent that the effect of edge of the range, this habit matrix lack of rangewide threats to WVNFS acid deposition on G. s. fuscus and its overall provides a relatively high degree habitat (see Factor A under the habitat are reasonably predictable, we of functional connectivity, as evidenced Summary of Factors Affecting the concluded that they are not a significant by constant occupancy of habitat across Species above, and Service (2007b, pp. threat to the subspecies’ habitat in the a range of forest conditions over 3–8)). As habitat availability increases foreseeable future. multiple generations. The WVNFS has into the future, the carrying capacity of Summary of Factor E: Overall, our demonstrated more flexibility in its protected habitat should continue to analysis of the other natural and habitat use than previously thought, ensure persistence of populations of the manmade factors, either alone or in including a capacity to move freely and WVNFS. combination, indicates that the WVNFS become widely dispersed. Thus, there is Recovery efforts have provided is not in danger of extinction throughout adequate representation (i.e., occupancy increased attention and focus on the all or a significant portion of its range, of representative habitats formerly WVNFS and the habitat upon which it or likely to become endangered within occupied by the WVNFS across its depends. Numerous conservation the foreseeable future. range) and redundancy (i.e., distribution actions have been implemented since of populations in a pattern that offsets 1985 by land stewards, biologists, Conclusion of the 5-Factor Analysis unforeseen losses across a portion of the government agencies, and conservation As demonstrated in our 5-factor WVNFS’ range) (Service 2007c, pp. 6– groups. These include: Research and analysis, threats to the WVNFS have 12). recovery actions specified in the 1990 been abated or sufficiently minimized Compared to most other North recovery plan and 2001 recovery plan over the entire range of the subspecies. American tree squirrels, G. sabrinus update for the WVNFS; conservation

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provisions incorporated into future is endangered or threatened in a indicate that protective status under the expansion of the Corridor H highway at significant portion of its range, we first Act should be reinstated, we can initiate the edge of subspecies’ range (Service addressed whether any portions of the listing procedures, including, if 2008, pp. 3–4, 22–26; 2006b, pp. 4–8, range of WVNFS warranted further appropriate, emergency listing. 28–32); minimization and mitigation consideration. As discussed in Factor To further ensure the long-term measures specified in two HCPs at A—Land Use Planning, there is one conservation of the WVNFS, a post- Snowshoe Mountain, specifically the small geographic area where localized delisting monitoring (PDM) plan has protection of approximately 200 ac of habitat threats still exist due to a future been developed that lays out a 10-year WVNFS habitat in perpetuity [BHE road expansion. However, we framework to monitor the status of the Environmental, Inc. (BHE) 2003, pp. 34– concluded that this area did not warrant subspecies (Service 2007c, pp. 1–27). 42, Appendix F; BHE 2005, pp. 49–55]; further consideration because this area The Plan focuses primarily on red spruce plantings on public and is very small (in the context of the range monitoring of (1) Habitat status and private lands; and conservation of the WVNFS) and has no substantive trends and (2) implementation of habitat provisions in the 1986 MNF Land and effect on the viability of the subspecies, management plans and agreements. Resource Management Plan (USDA and thus there was no substantial Habitat changes will be tracked Forest Service 1986, pp. X–1–X–3), 2004 information that this area is a significant rangewide by interpretation of remote- Forest Plan Amendment (USDA Forest portion of the range (see Service sensed imagery obtained at or near the Service 2004, p. 84, 84a, 84c, 87, pp. prepared document ‘‘Analysis of time of delisting (baseline), compared to 234–234b), and 2006 Forest Plan significant portion of the range for the the end of the PDM period. These data Revision (USDA Forest Service 2006a, West Virginia northern flying squirrel’’ will be verified by a subsample of stand Management Prescription 4.1 and (Service 2007b, pp. 1–6). Therefore, data and on the ground field checks. In portions of 5.0, 5.1, 6.2, and 8.0). Of based on discussion of the threats addition, land managers will self-report particular note are the habitat protection above, we do not foresee the loss or annually on accomplishment of key initiatives that have occurred on both destruction of any portions of the components of land management plans public and private lands, the subspecies’ range such that our ability or agreements for WVNFS, including the development of habitat models and to conserve the subspecies would be acreage of habitat modified (positively research on red spruce-northern decreased. Therefore, we find that the or negatively), as well as land hardwood forest restoration, and the WVNFS is not in danger of extinction management problems and solutions. establishment of Canaan Valley NWR. and is not likely to become endangered The PDM plan also includes actions In summary, all of the past, existing, in the foreseeable future throughout all for monitoring of WVNFS distribution or potential future threats to WVNFS, or a significant portion of its range. and persistence. The nest box and live either alone or in combination, have trapping survey component will be either been eliminated or largely abated Effects of the Rule largely a continuation of ongoing annual throughout all of its range. The major Promulgation of this final rule will presence/absence surveys by the factor in listing the WVNFS was the loss affect the protections afforded the WVDNR, MNF, and other participants, of habitat due to the logging era at the WVNFS under the Act. Taking, but with an increased emphasis on turn of the 20th century. This threat has interstate commerce, import, and export covering as much of the extant largely been abated as evidenced by the of WVNFS are no longer prohibited distribution within core habitat areas as substantial recovery and continued under the Act. Removal of the WVNFS possible. This will help determine if improvement of the preferred habitat of from the List of Endangered and WVNFS continue to be present in these the WVNFS, red spruce-northern Threatened Wildlife does not supersede areas over multiple generations. hardwood forests. Therefore, we have any State regulations. Federal agencies The PDM plan identifies measurable determined that the WVNFS is not in are no longer required to consult with management thresholds and responses danger of extinction or likely to become us under section 7 of the Act to ensure for detecting and reacting to significant so throughout its range in the that any action authorized, funded, or changes in WVNFS habitat, distribution, foreseeable future. carried out by them is not likely to and persistence. If declines are detected jeopardize the subspecies’ continued equaling or exceeding these thresholds, Significant Portion of the Range existence. However, for the the Service, in combination with other Analysis approximately 68 percent of the WVNFS PDM participants, will investigate Having determined the WVNFS is not habitat on the MNF, and the small area causes of these declines, including in danger of extinction or likely to (5 percent) of habitat located within the consideration of habitat changes, low become so in the foreseeable future GWNF, the activities impacting the natality, deaths or emigration, weather, throughout all of its range, we must next WNVFS and its habitat must comply trap shyness, competition for nest sites, consider whether the subspecies is in with appropriate Forest Service or any other significant evidence. The danger of extinction or is likely to management plans. There is no critical result of the investigation will be to become so in the foreseeable future in habitat designated for the WVNFS. determine if the WVNFS warrants any significant portions of its range. expanded monitoring, additional A portion of a species’ range is Post-Delisting Monitoring Plan research, additional habitat protection, significant if it is part of the current Section 4(g)(1) of the Act requires us, and/or resumption of Federal protection range of the species and if it is in cooperation with the States, to under the Act. At the end of the 10-year important to the conservation of the implement a monitoring program for not monitoring program, the Service will species because it contributes less than 5 years for all species that have conduct a final review. It is the intent meaningfully to the representation, been recovered and delisted. The of the Service to work with all of our resiliency, or redundancy of the species. purpose of this requirement is to partners towards maintaining the The contribution must be at a level such develop a program that detects the recovered status of the WVNFS. that its loss would result in a decrease failure of any delisted species to sustain The final PDM plan is available on the in the ability to conserve the species. itself without the protective measures Service’s northeast region Web site, Applying the definition described provided by the Act. If, at any time http://www.fws.gov/northeast/ above for determining whether a species during the monitoring period, data endangered.

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Paperwork Reduction Act References Cited Code of Federal Regulations as set forth This rule does not contain any new A complete list of all references cited below: collections of information under the herein is available upon request from PART 17—[AMENDED] Paperwork Reduction Act (44 U.S.C. the West Virginia Field Office (see FOR 3501 et seq. ). An agency may not FURTHER INFORMATION CONTACT above). I 1. The authority citation for part 17 conduct or sponsor and a person is not Author continues to read as follows: required to respond to a collection of information unless it displays a The primary author of this final rule Authority: 16 U.S.C. 1361–1407; 16 U.S.C. currently valid OMB control number. is Laura Hill, Endangered Species 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Biologist and species lead for the 625, 100 Stat. 3500; unless otherwise noted. National Environmental Policy Act WVNFS in our West Virginia Field We have determined that Office (see FOR FURTHER INFORMATION I 2. Amend § 17.11(h) is amended by Environmental Assessments and CONTACT section). removing the entry for ‘‘Squirrel, Environmental Impact Statements, as Virginia northern flying’’ under defined under the authority of the List of Subjects in 50 CFR Part 17 ‘‘MAMMALS’’ from the List of National Environmental Policy Act of Endangered and threatened species, Endangered and Threatened Wildlife. 1969, need not be prepared in Exports, Imports, Reporting and Dated: August 15, 2008. connection with regulations adopted recordkeeping requirements, and pursuant to section 4(a) of the Transportation. Bryan Arroyo, Endangered Species Act. We published Acting Director, U.S. Fish and Wildlife Regulation Promulgation a notice outlining our reasons for this Service. determination in the Federal Register I Accordingly, we amend part 17, [FR Doc. E8–19607 Filed 8–25–08; 8:45 am] on October 25, 1983 (48 FR 49244). subchapter B of Chapter I, title 50 of the BILLING CODE 4310–55–P

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