[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52866-52868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25146]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 32

RIN 1018-AD03


Addition of Cape May National Wildlife Refuge to the List of Open 
Areas for Hunting in New Jersey

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) adds Cape May 
National Wildlife Refuge to the list of areas open for big game hunting 
in New Jersey along with pertinent refuge-specific regulations for such 
activities. The Service has determined that such use will be compatible 
with the purposes for which the refuge was established. The Service has 
further determined that this action is in accordance with the 
provisions of all applicable laws, is consistent with principles of 
sound wildlife management, and is otherwise in the public interest by 
providing additional recreational opportunities of a renewable natural 
resource.

EFFECTIVE DATE: This rule is effective October 11, 1995.

FOR FURTHER INFORMATION CONTACT: Stephen R. Vehrs, Division of Refuges, 
U.S. Fish and Wildlife Service, Washington, DC 20240; Telephone (703) 
358-2029, X-5242.

SUPPLEMENTARY INFORMATION: National wildlife refuges are generally 
closed to hunting and sport fishing until opened by rulemaking. The 
Secretary of the Interior (Secretary) may open refuge areas to hunting 
and/or fishing upon a determination that such uses are compatible with 
the purpose(s) for which the refuge was established. The action must 
also be in accordance with provisions of all laws applicable to the 
areas, must be consistent with the principles of sound wildlife 
management, and must otherwise be in the public interest. This 
rulemaking opens Cape May National Wildlife Refuge to big game (white-
tailed deer) hunting.
    In the June 9, 1995, issue of the Federal Register, 60 FR 30686, 
the Service published a proposed rulemaking and invited public comment. 
All substantive comments were reviewed and considered following a 60-
day public comment period.
    Five organizations provided comments opposing the rule based on the 
rationale that recreational deer hunting was not justified nor 
compatible with the primary purpose for which the refuge was 
established. These comments also indicated an opinion that the Service 
failed to show adequate evidence that the proposed reduction of deer 
numbers through hunting is based on solid scientific evidence, and that 
alternative herd reduction methods were considered. Comments further 
indicated that an explanation was not presented that hunting could de-
stabilize this deer herd and cause a compensatory rebound of offspring 
within the hunted population, and that the majority of the public is 
opposed to hunting on national wildlife refuges.
    The Refuge Manager conducted a compatibility determination, on 
behalf of the Service, of the feasibility of deer hunting being applied 
as a management tool to control the refuge white-tailed deer population 
as well as to provide a quality wildlife dependent recreational 
opportunity for deer hunters. The Manager's documented findings within 
the compatibility determination as well as within the environmental 
assessment were as follows: 1. the proposed white-

[[Page 52867]]
tailed deer hunt was indeed compatible with the major purposes for 
which the refuge was established; 2. the proposed hunt was within the 
policy guidelines of the Service to be applied as both a herd 
management tool, and as a method to provide recreational opportunities 
for deer hunters; and that, 3. abundant scientific evidence exists 
which concludes that the recreational hunting of deer as a harvest 
technique is indeed a biologically sound practice, which could be 
expected to produce and sustain a healthy refuge white-tailed deer 
herd.
    Substantive comments were also received referencing the 
environmental assessment completed for this hunt proposal, and that 
alternative number two, which parallels the program outlined in this 
final rule, provides for wildlife-dependent recreation while 
effectively protecting and controlling deer populations within the 
refuge. Other comments supported hunting as a management tool to 
control deer depredations on private land surrounding the refuge.
    The Service selects the alternative herd management method as 
proposed in the Refuge Environmental Assessment and as adopted and 
presented in the final rule. Recreational deer hunting is a 
biologically sound management technique that provides the best herd 
management and depredation control.
    This rule will be final upon publication. Consideration was given 
to delaying this final rule for a 30-day period, however, it was 
determined by the Service that any further delay in the implementation 
of this refuge-specific regulation will hinder the effective planning 
and administration of the hunt. Public comment was received on this 
proposal during the Environmental Assessment planning phase as well as 
the 60 day comment period for this rule. A delay of an additional 30-
days would specifically jeopardize holding the hunt this year, or 
shorten its duration and thereby lessen the herd management 
effectiveness of this regulation. Therefore, the Service finds good 
cause to make this rule effective upon publication (5 U.S.C. 553 
(d)(3)).

Statutory Authority

    The National Wildlife Refuge System Administration Act of 1966, as 
amended (NWRSAA) (16 U.S.C. 668dd), and the Refuge Recreation Act of 
1962 (RRA) (16 U.S.C. 460k) govern the administration and public use of 
national wildlife refuges. Specifically, Section 4(d)(1)(A) of the 
NWRSAA authorizes the Secretary to permit the use of any areas within 
the National Wildlife Refuge System (Refuge System) for any purpose, 
including but not limited to hunting, fishing, public recreation and 
accommodations, and access, when the Secretary determines that such 
uses are compatible with the purposes for which each refuge was 
established. The Service administers the Refuge System on behalf of the 
Secretary. The RRA gives the Secretary additional authority to 
administer refuge areas within the Refuge System for public recreation 
as an appropriate incidental or secondary use only to the extent that 
it is practicable and not inconsistent with the primary purposes for 
which the refuges were established.

Opening Package

    In preparation for this opening, the refuge unit has included in 
its ``openings package'' for Regional review and approval from the 
Washington Office the following documents: A hunting/fishing plan; an 
environmental assessment; a Finding of No Significant Impact (FONSI); a 
Section 7 evaluation or statement, pursuant to the Endangered Species 
Act, that these openings are not likely to adversely affect a listed 
species or critical habitat; a letter of concurrence from the affected 
States; and refuge-specific regulations to administer the hunts. From a 
review of the totality of these documents, the Secretary has determined 
that the opening of the Cape May National Wildlife Refuge to big game 
hunting is compatible with the principles of sound wildlife management 
and will otherwise be in the public interest.
    In accordance with the NWRSAA and the RRA, the Secretary has also 
determined that this opening for big game hunting is compatible and 
consistent with the primary purposes for which the refuge was 
established. The Secretary has also determined that funds are available 
to administer the programs. A brief description of the hunting program 
is as follows:

Cape May National Wildlife Refuge

    The Cape May National Wildlife Refuge was established 
administratively on January 20, 1989, under the authority of the Fish 
and Wildlife Act of 1956 (16 U.S.C. 742a-742j; 70 Stat. 1119), as 
amended. The broad purposes of the refuge are for the development, 
advancement, management, conservation, and protection of fish and 
wildlife resources and for the benefit of the United States Fish and 
Wildlife Service, in performing its activities and services. There are 
approximately 16,700 acres within the approved refuge acquisition 
boundary. The Fish and Wildlife Service (Service) has already purchased 
approximately 6,700 acres of the acquisition area. The refuge is 
located in the Townships of Middle, Dennis and Upper in Cape May 
County, New Jersey. The refuge is divided into the Great Cedar Swamp 
Division and the Delaware Bay Division. Both are approximately equal in 
size. The topography of the refuge is typical of the coastal areas of 
New Jersey, where uplands taper gradually to a wide band of saltmarsh. 
There are 22 major vegetation types found on the refuge. These 
communities include mixed hardwood swamps, oak/pine forests, Atlantic 
white cedar swamps, and estuarine communities dominated by Spartina 
patens, and saltmarsh cordgrass.
    The unique configuration and location of Cape May attracts flocks 
of raptors, songbirds and woodcock. The refuge supports a variety of 
animal life, including approximately 317 species of birds, 42 species 
of mammals, 55 species of reptiles and amphibians, and numerous species 
of fish, shellfish, and other invertebrates. Furbearers of economic 
importance inhabiting the area include otter, muskrat, and raccoon. 
Small mammals such as shorttail shrews and white-footed mice are common 
in upland fields and shrub habitat. Gray and red foxes are also common.
    State deer biologists estimate a deer density of approximately 18 
deer per square mile in Cape May County's Deer Management Zone (DMZ) 
34, of which the refuge is a part. The deer population has increased 
since 1981 with a corresponding increase in farmer complaints. The 
number of complaints has risen from 4 in 1990 to 12 in 1993. Crop 
depredation permitted kills have increased from 9 in 1990 to 36 in 
1993. In order to address the below average herd health indices, and to 
reduce deer complaints in DMZ 34, the short-term goal of the New Jersey 
Division of Fish, Game and Wildlife is to reduce the herd by 
approximately 20 percent. There are no data on the number of hunters 
who have used the area within the refuge acquisition area in the past. 
However, the refuge estimates the annual visitation for deer hunting is 
less than 500 visits. Based on refuge law enforcement officers' 
observation during the past two firearms deer hunting seasons, hunting 
pressure on private land surrounding the refuge is low.
    The sport hunting program will be monitored by refuge personnel, 
and conducted according to New Jersey Department of Environmental 
Protection, Division of Fish, Game and Wildlife deer hunt regulations.

[[Page 52868]]

    Opening the refuge to big game hunting has been found to be 
compatible in a separate compatibility determination. The hunting 
program will be reviewed annually to ensure that a harvestable surplus 
of animals exist, and that sensitive habitats are protected from 
disturbance. A Section 7 evaluation pursuant to the Endangered Species 
Act was conducted. It was determined that the proposed action is not 
likely to adversely affect any Federally listed or proposed for listing 
threatened or endangered species or their critical habitats. Pursuant 
to the National Environmental Policy Act (NEPA), an environmental 
assessment was made and a Finding of No Significant Impact (FONSI) was 
made regarding the hunt. During the preparation of the environmental 
assessment, biologists and management personnel within the New Jersey 
Division of Fish, Game and Wildlife were consulted. Comments were 
solicited from the public during the draft environmental assessment 
phase. Articles on this assessment were carried in the local newspapers 
and sent to Federal, State and local legislators and conservation 
groups.
    The Service has determined that there would be sufficient funds to 
administer the proposed hunt. Sufficient funds would be available 
within the refuge unit budget to operate such a hunt as proposed.

Paperwork Reduction Act

    The information collection requirements for Part 32 are found in 50 
CFR part 25 and have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1018-
0014. The information is being collected to assist the Service in 
administering these programs in accordance with statutory authorities 
which require that recreational uses be compatible with the primary 
purposes for which the areas were established. The information 
requested in the application form is required to obtain a benefit.
    The public reporting burden for the application form is estimated 
to average six (6) minutes per response, including time for reviewing 
instructions, gathering and maintaining data, and completing the form. 
Direct comments on the burden estimate or any other aspect of this form 
to the Service Information Collection Officer, U.S. Fish and Wildlife 
Service, 1849 C Street, NW., MS 224 ARLSQ, Washington, DC 20240; and 
the Office of Management and Budget, Paperwork Reduction Project (1018-
0014), Washington, DC 20503.

Economic Effect

    This rulemaking was not subject to Office of Management and Budget 
review under Executive Order 12866. In addition, a review under the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed 
that the rulemaking would not appreciably increase hunter visitation to 
the surrounding area of the refuge before, during or after the hunt, 
since most hunters were already from the local area. Therefore, the 
rulemaking would not have a significant effect on the substantial 
number of small entities, such as businesses, organizations and 
governmental jurisdictions in the area.

Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
Assessment.

Environmental Considerations

    Pursuant to the requirements of section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), an 
environmental assessment has been prepared for this opening. Based upon 
the Environmental Assessment, the Service issued a Finding of No 
Significant Impact with respect to the opening. A Section 7 evaluation 
was prepared pursuant to the Endangered Species Act with a finding that 
no adverse impact would occur to any identified threatened or 
endangered species.

Primary Author

    Stephen R. Vehrs, Division of Refuges, U.S. Fish and Wildlife 
Service, Washington, DC, is the primary author of this final rulemaking 
document.

List of Subjects in 50 CFR Part 32

    Hunting, Fishing, Reporting and recordkeeping requirements, 
Wildlife, and Wildlife Refuges.

    Accordingly, Part 32 of chapter I of Title 50 of the Code of 
Federal Regulations is amended as set forth below:

PART 32--[AMENDED]

    1. The authority citation for Part 32 continues to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i.


Sec. 32.7  [Amended]

    2. Section 32.7 List of refuge units open to hunting and/or fishing 
is amended by adding the alphabetical listing of ``Cape May National 
Wildlife Refuge'' under the state of New Jersey.
    3. Section 32.49 New Jersey is amended by adding the alphabetical 
listing of Cape May National Wildlife Refuge to read as follows:
* * * * *


Sec. 32.49  New Jersey.

* * * * *

Cape May National Wildlife Refuge

    A. Hunting of Migratory Game Birds. [Reserved.]
    B. Upland Game Hunting. [Reserved.]
    C. Big Game Hunting. Hunting of white-tailed deer is permitted 
on designated areas of the refuge subject to the following 
condition: During the firearms big game season, hunters must wear, 
in a conspicuous manner on head, chest and back, a minimum of 400 
square inches of solid-colored hunter orange clothing or material.
    D. Sport Fishing. [Reserved.]
* * * * *
    Dated: September 25, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-25146 Filed 10-10-95; 8:45 am]
BILLING CODE 4310-55-M