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

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.

-----------------------------------------------------------------------

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