Supplemental Regulations for Administration of Midway Atoll National Wildlife Refuge

DEPARTMENT OF THE INTERIOR

50 CFR Part 38

RIN 1018-AE19

Supplemental Regulations for Administration of Midway Atoll

National Wildlife Refuge

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes

supplemental regulations to provide for the administration of the

Midway Islands and Midway Atoll National Wildlife Refuge. Under the

provisions of Executive Order 13022 of October 31, 1996, the Midway

Islands were transferred from the jurisdiction and control of the

Department of the Navy to the Department of the Interior for

administration as a national wildlife refuge by the Service. 61 FR

56875 (1996). The proposed regulations would supplement existing

regulations in 50 CFR Parts 25-32 which also apply to Midway Atoll

National Refuge.

DATES: Comments may be submitted on or before October 27, 1997.

ADDRESSES: Regional Director, Region 1, U.S. Fish and Wildlife Service,

(ARW/OPR), 911 NE 11th. Ave., Portland, OR 97232-4181.

FOR FURTHER INFORMATION CONTACT: Mark Strong, U.S. Fish and Wildlife

Service (ARW/OPR), Telephone (503) 231-2075.

SUPPLEMENTARY INFORMATION: The Secretary of the Interior is authorized

under the National Wildlife Refuge System Administration Act to permit

uses of units of the National Wildlife Refuge System which he

determines are compatible with the purposes for which the unit was

established as a refuge. 16 U.S.C. 668dd(d)(1). Executive Order 13022

of October 31, 1996, vests in the Secretary of the Interior legislative

and executive authority necessary for the administration of the Midway

Islands as the Midway Atoll National Wildlife Refuge

uses of units of the National Wildlife Refuge System which he

determines are compatible with the purposes for which the unit was

established as a refuge. 16 U.S.C. 668dd(d)(1). Executive Order 13022

of October 31, 1996, vests in the Secretary of the Interior legislative

and executive authority necessary for the administration of the Midway

Islands as the Midway Atoll National Wildlife Refuge.

The purposes of part 38 are to provide supplemental regulations for

the administration of Midway Atoll National Wildlife Refuge in addition

to those contained in 50 CFR Parts 25-32; and to delegate certain

powers, duties, and responsibilities to appropriate officers of the

Service for the administration of Midway Atoll National Wildlife

Refuge.

The National Wildlife Refuge System Administration Act (NWRSAA) of

1966, as amended (16 U.S.C. 668dd), and the Refuge Recreation Act (RRA)

of 1962 (16 U.S.C. 460k) govern the administration and use of national

wildlife refuges. Specifically, Section 4(d)(1)(A) of the NWRSAA

authorizes the Secretary of the Interior, under such regulations as he

may prescribe, to permit the use of any area within the Refuge System

for any purpose, including but not limited to, fishing and public

recreation, accommodations and access, whenever he determines that such

uses are compatible with the major purpose(s) for which the area was

established. Section 48 of the Hawaii Omnibus Act, 74 Stat. 424,

provides for the civil administration of Midway Island by the agencies

and officials authorized by the President. The President has authorized

administration of the Midway Atoll National Wildlife Refuge by the

Secretary of the Interior through the

es that such

uses are compatible with the major purpose(s) for which the area was

established. Section 48 of the Hawaii Omnibus Act, 74 Stat. 424,

provides for the civil administration of Midway Island by the agencies

and officials authorized by the President. The President has authorized

administration of the Midway Atoll National Wildlife Refuge by the

Secretary of the Interior through the

U.S. Fish and Wildlife Service and delegated to the Secretary executive

and legislative authority necessary for such administration. Executive

Order 13022 (Oct. 31, 1996). The Act of June 15, 1950, 64 Stat. 217,

and 48 U.S.C. 644a provide, in part, that the District Court for the

District of Hawaii has jurisdiction over all civil and criminal cases

arising on or within the Midway Islands.

The RRA authorizes the Secretary to administer areas within the

Refuge System for public recreation as an appropriate incidental or

secondary use to the extent that it is practicable and not inconsistent

with the primary purpose(s) for which the areas were established. The

NWRSAA and the RRA also authorizes the Secretary to issue regulations

to carry out the purposes of the Acts and regulate uses.

The executive authority at the Midway Islands is vested in the

Secretary of the Interior. The Director of the Service and the Refuge

Manager, Midway Atoll National Wildlife Refuge, exercise the

Secretary's executive authority with respect to Midway Atoll National

Wildlife Refuge.

Request for Comments

The Service and Department of the Interior desire to afford the

public a meaningful opportunity to participate in this rulemaking

process. Accordingly, a 60-day comment period is provided to facilitate

public input. Interested persons may submit written comments concerning

this proposed rule to the Regional Director, Region 1, U.S. Fish and

Wildlife Service, at the address provided under ADDRESSES.

Paperwork Reduction Act

he Interior desire to afford the

public a meaningful opportunity to participate in this rulemaking

process. Accordingly, a 60-day comment period is provided to facilitate

public input. Interested persons may submit written comments concerning

this proposed rule to the Regional Director, Region 1, U.S. Fish and

Wildlife Service, at the address provided under ADDRESSES.

Paperwork Reduction Act

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements.

Economic Effects/Regulatory Flexibility Act Compliance

This rulemaking was not subject to review by the Office of

Management and Budget under Executive Order 12866. Under the provisions

of Executive Order 13022, the Midway Islands were transferred from the

jurisdiction and control of the Department of the Navy to the

Department of the Interior for administration as a national wildlife

refuge by the Service. There are no private businesses owned or

organizations found on the Island, other than Service contractors

brought in to carryout well defined contractual functions. Therefore,

review under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et

seq.) determined that this proposed rulemaking would not have a

significant effect on a substantial number of small entities, which

include businesses, organizations, and governmental jurisdictions.

Unfunded Mandates

The Service has determined and certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Civil Justice Reform

The Department has determined that these proposed regulations meet

the applicable standards provided in Sections 3(a) and 3 (b)(2) of

Executive Order 12988.

Environmental Considerations

e Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Civil Justice Reform

The Department has determined that these proposed regulations meet

the applicable standards provided in Sections 3(a) and 3 (b)(2) of

Executive Order 12988.

Environmental Considerations

In accordance with 516 DM 2, Appendix 1, the Service has determined

that this rule is categorically excluded from the National

Environmental Policy Act (NEPA) process because it is limited to

``policies, directives, regulations and guidelines of an

administrative, financial, legal, technical or procedural nature.'' 516

D.M. 2, Appendix 1, Sec. 1.10.

Primary Author

The primary author of this rule is Mark Strong, Fish and Wildlife

Service, Pacific Region (ARW/OPR).

List of Subjects 50 CFR Part 38

Authority delegations, Law enforcement, Midway Atoll, Wildlife,

Wildlife refuges.

Accordingly, the service proposes to amend subchapter C of chapter

I, title 50 of the Code of Federal Regulations, by adding a new part 38

to read as follows:

PART 38--MIDWAY ATOLL NATIONAL WILDLIFE REFUGE

Subpart A--General

Sec.

38.1 Applicability.

38.2 Scope.

Subpart B--Executive Authority; Authorized Powers; Emergency Authority

38.3 Executive authority; duration.

38.4 Authorized functions, powers, and duties.

38.5 Emergency authority.

Subpart C--Prohibitions

38.6 General.

38.7 Adopted offenses.

38.8 Consistency with Federal law.

38.9 Breach of the peace.

38.10 Trespass.

38.11 Prostitution and lewd behavior.

38.12 Alcoholic beverages.

38.13 Speed limits.

38.14 Miscellaneous prohibitions.

38.15 Attempt.

38.16 Penalties.

Subpart D--Civil Administration

38.17 General

Authority: 5 U.S.C. 301; 16 U.S.C. 460k et seq., 664, 668dd,

742(f), 3901 et seq.; 48 U.S.C. 644a; P.L. 86-624, Sec. 48 (74 Stat.

424); E.O. 13022, 61 FR 56875 (1996).

Subpart A--General

Sec. 38.1 Applicability.

on and lewd behavior.

38.12 Alcoholic beverages.

38.13 Speed limits.

38.14 Miscellaneous prohibitions.

38.15 Attempt.

38.16 Penalties.

Subpart D--Civil Administration

38.17 General

Authority: 5 U.S.C. 301; 16 U.S.C. 460k et seq., 664, 668dd,

742(f), 3901 et seq.; 48 U.S.C. 644a; P.L. 86-624, Sec. 48 (74 Stat.

424); E.O. 13022, 61 FR 56875 (1996).

Subpart A--General

Sec. 38.1 Applicability.

(a) The regulations of this part apply to the Midway Atoll National

Wildlife Refuge. For the purposes of this part, the Midway Atoll

National Wildlife Refuge includes the Midway Islands, Hawaiian Group,

between the parallels of 28 deg.5' and 28 deg.25' North latitude, and

their territorial seas located approximately between the meridians of

177 deg.10' and 177 deg.30' West longitude, as were placed under the

jurisdiction and control of the Interior Department by the provisions

of Executive Order No. 13022 of October 31, 1996.

(b) Administration of Midway Atoll National Wildlife Refuge is

governed by the regulations of this part and parts 25-32 of title 50,

Code of Federal Regulations; the general principles of common law; the

provisions of the criminal laws of the United States in their entirety

including the provisions of 18 U.S.C. 13 and those provisions that were

not specifically applied to unincorporated possessions; the laws

applicable under the special maritime jurisdiction contained in 48

U.S.C. 644a; and the provisions of the criminal laws of the State of

Hawaii to the extent the criminal laws of the State of Hawaii do not

conflict with the criminal laws of the United States.

Sec. 38.2 Scope.

The provisions of part 38 are in addition to the regulations of 50

CFR parts 25-32 which also apply to Midway Atoll National Wildlife

Refuge.

Subpart B--Executive Authority; Authorized Powers; Emergency

Authority

Sec. 38.3 Executive authority, duration.

waii to the extent the criminal laws of the State of Hawaii do not

conflict with the criminal laws of the United States.

Sec. 38.2 Scope.

The provisions of part 38 are in addition to the regulations of 50

CFR parts 25-32 which also apply to Midway Atoll National Wildlife

Refuge.

Subpart B--Executive Authority; Authorized Powers; Emergency

Authority

Sec. 38.3 Executive authority, duration.

The executive authority of the Secretary of the Interior over the

Midway Islands shall be exercised by the Service Regional Director. The

executive authority of the Service Regional Director may be redelegated

to the Refuge Manager, Midway Atoll National Wildlife Refuge.

Sec. 38.4 Authorized functions, powers, and duties.

The executive authority of the Regional Director concerning the

Midway Islands includes:

(a) Issuance of citations for violations of this part and 50 CFR

parts 25-32;

(b) Abatement of any public nuisance upon the failure of the person

concerned to comply with a removal notice;

(c) Seizure of evidence;

(d) Investigation of accidents and offenses;

(e) Custody and disposal of lost or abandoned property;

(f) Regulation of aircraft and boat traffic and safety;

(g) Imposition of quarantines;

(h) Evacuation of hazardous areas;

(i) Lawful restraint, detention, confinement, and care of persons

prior to their prompt transfer to the custody of the United States

District Court for the District of Hawaii;

(j) Lawful removal of persons from the Midway Atoll National

Wildlife Refuge for cause;

(k) Regulation of vehicle traffic and safety;

(l) Performance of other lawful acts necessary for protecting the

health and safety of persons and property on Midway Atoll National

Wildlife Refuge; and

r to their prompt transfer to the custody of the United States

District Court for the District of Hawaii;

(j) Lawful removal of persons from the Midway Atoll National

Wildlife Refuge for cause;

(k) Regulation of vehicle traffic and safety;

(l) Performance of other lawful acts necessary for protecting the

health and safety of persons and property on Midway Atoll National

Wildlife Refuge; and

(m) Issuance of lawful notices and orders necessary to the exercise

of executive authority under this section.

Sec. 38.5 Emergency authority.

During the imminence and duration of any emergency, the Regional

Director may perform any lawful acts necessary to protect life and

property on Midway Atoll National Wildlife Refuge.

Subpart C--Prohibitions

Sec. 38.6 General.

In addition to any act prohibited by this part or 50 CFR part 27,

any act committed on the Midway Atoll National Wildlife Refuge that

would be a violation of the criminal laws of the United States or of

the State of Hawaii as specified in subpart A, as they now appear or as

they may be amended or recodified; or any act committed on the Midway

Atoll National Wildlife Refuge that would be criminal if committed on

board a merchant vessel or other vessel belonging to the United States

pursuant to the provisions of 48 U.S.C. 644a, is prohibited and

punishable, in accordance with the National Wildlife Refuge System

Administration Act, 16 U.S.C. 668dd, the criminal laws of the United

States or the State of Hawaii as specified in subpart A, as they now

appear or as they may be amended or recodified; or according to the

laws applicable on board United States vessels on the high seas

pursuant to the provisions of 48 U.S.C. 644a.

Sec. 38.7 Adopted offenses.

ccordance with the National Wildlife Refuge System

Administration Act, 16 U.S.C. 668dd, the criminal laws of the United

States or the State of Hawaii as specified in subpart A, as they now

appear or as they may be amended or recodified; or according to the

laws applicable on board United States vessels on the high seas

pursuant to the provisions of 48 U.S.C. 644a.

Sec. 38.7 Adopted offenses.

Any person who commits any act or omission on Midway Atoll National

Wildlife Refuge which, although not made punishable by an enactment of

Congress, would be punishable if committed within the United States

under the United States criminal code at the time of such act or

omission, including any provisions of the United States criminal code

that are not specifically applied to unincorporated possessions of the

United States, shall be guilty of a like offense and subject to like

punishment. Any person who commits any act or omission on Midway Atoll

National Wildlife Refuge which, although not made punishable by an

enactment of Congress, would be punishable if committed within the

State of Hawaii by the laws thereof at the time of such act or

omission, shall be guilty of a like offense and subject to like

punishment to the extent the laws of the State of Hawaii do not

conflict with the criminal laws of the United States.

Sec. 38.8 Consistency with Federal law.

Any provisions of the laws of the State of Hawaii, as they now

appear or as they may be amended or recodified, which are adopted by

this part shall apply only to the extent that they are not in conflict

with any applicable Federal law or regulation.

Sec. 38.9 Breach of the peace.

No person on Midway Atoll National Wildlife Refuge shall:

ion of any public road or passage;

(2) To maintain public safety by dispersing those gathered in

dangerous proximity to a public hazard; or

(d) With intent to arouse or gratify sexual desire of any other

person, expose one's genitals under circumstances in which one's

conduct is likely to cause affront or alarm.

Sec. 38.10 Trespass.

No person on Midway Atoll National Wildlife Refuge shall:

(a) Loiter, prowl, or wander upon or near the assigned living

quarters and adjacent property of another without lawful purpose, or,

while being upon or near the assigned living quarters and adjacent

property of another, peek in any door or window of an inhabited

building or structure located thereon without lawful purpose;

(b) Enter upon any assigned residential quarters or areas

immediately adjacent thereto, without permission of the assigned

occupant;

(c) Enter or remain in, without lawful purpose, any office

building, warehouse, plant, theater, club, school, or other building

after normal operating hours for that building; or

(d) Enter or remain in any area or building designated and posted

as ``restricted'' unless authorized by proper authority to be there.

Sec. 38.11 Prostitution and lewd behavior.

No person on Midway Atoll National Wildlife Refuge shall:

(a) Engage in prostitution. ``Prostitution'' means the giving or

receiving of the body for sexual intercourse for hire or for

indiscriminate sexual intercourse with or without hire; or

(b) Commit any lewd act in a public place which is likely to be

observed by others who would be affronted or alarmed.

Sec. 38.12 Alcholic beverages.

No person on Midway Atoll National Wildlife Refuge shall:

(a) Sell any alcoholic beverages to any person who, because of age,

would be prohibited from purchasing that beverage in a civilian

establishment in Hawaii.

(b) Present or have in possession any fraudulent evidence of age

for the purpose of obtaining alcoholic beverages in violation of this

paragraph.

Sec. 38.12 Alcholic beverages.

No person on Midway Atoll National Wildlife Refuge shall:

(a) Sell any alcoholic beverages to any person who, because of age,

would be prohibited from purchasing that beverage in a civilian

establishment in Hawaii.

(b) Present or have in possession any fraudulent evidence of age

for the purpose of obtaining alcoholic beverages in violation of this

paragraph.

(c) Be substantially intoxicated on any street, road, beach,

theater, club, or other public place from the voluntary use of

intoxicating liquor, drugs or other substance. As used in this

paragraph, ``substantially intoxicated'' is defined as an actual

impairment of mental or physical capacities.

Sec. 38.13 Speed limits.

No person on Midway Atoll National Wildlife Refuge shall exceed the

speed limit for automobiles, trucks, bicycles, motorcycles, or other

vehicles. Unless otherwise posted, the speed limit throughout the

Midway Atoll National Wildlife Refuge is 15 miles per hour.

Sec. 38.14 Miscellaneous prohibitions.

No person on Midway Atoll National Wildlife Refuge shall:

(a) Smoke or ignite any fire in any designated and posted ``No

Smoking'' area, or in the immediate proximity of any aircraft, fueling

pit, or hazardous material storage area;

(b) Knowingly report or cause to be reported to any public

official, or willfully activate or cause to be activated, any alarm,

that an emergency exists, knowing that such report or alarm is false.

``Emergency,'' as used herein, includes any condition which results, or

could result, in the response of a public official in an emergency

vehicle, or any condition which jeopardizes, or could jeopardize,

public lives or safety, or results or could result in the evacuation of

an area, building, structure, vehicle, aircraft, or boat or other

vessel, or any other place by its occupants; or

se.

``Emergency,'' as used herein, includes any condition which results, or

could result, in the response of a public official in an emergency

vehicle, or any condition which jeopardizes, or could jeopardize,

public lives or safety, or results or could result in the evacuation of

an area, building, structure, vehicle, aircraft, or boat or other

vessel, or any other place by its occupants; or

(c) Intentionally report to any public official authorized to issue

a warrant of arrest or make an arrest, that a crime has been committed,

or make any oral or written statement to any of the above officials

concerning a crime or alleged crime or other matter, knowing such

report or statement to be false.

Sec. 38.15 Attempt.

No person on Midway Atoll National Wildlife Refuge shall attempt to

commit any offense prohibited by this part.

Sec. 38.16 Penalties.

Any person who violates any provision of this part shall be fined

or imprisoned in accordance with 16 U.S.C. 668dd(e) and Title 18, U.S.

Code.

Subpart D--Civil Administration

Sec. 38.17 General.

Civil administration of Midway Atoll National Wildlife Refuge shall

be governed by the provisions of this part 38, 50 CFR parts 25-32, and

the general principles of common law.

Dated: July 27, 1997.

Donald J. Barry,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 97-22714 Filed 8-26-97; 8:45 am]

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