[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Proposed Rules]
[Pages 45381-45384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22714]


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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.
    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

[[Page 45382]]

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

    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

    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.

    (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.

    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.

[[Page 45383]]

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
    (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.

    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:
    (a) With intent to cause public inconvenience, annoyance, or alarm, 
or recklessly creating a risk thereof, engage in fighting, threatening, 
or other violent or tumultuous behavior; or make unreasonable noise or 
offensively coarse utterances, gestures, or displays, or address 
abusive language to any person present; or create a hazardous or 
physically offensive condition by any act which is not performed under 
any authorized license or permit;
    (b) Having no legal privilege to do so, knowingly or recklessly 
obstruct any roadway, alley, runway, private driveway, or public 
passage, or interfere with or unreasonably delay any emergency vehicle 
or equipment or authorized vehicle, boat, vessel, or plane, or any 
peace officer, fireman, or other public official engaged in or 
attempting to discharge any lawful duty or office, whether alone or 
with others. ``Obstruction'' as used in this paragraph means rendering 
impassable without unreasonable inconvenience or hazard;
    (c) When in a gathering, refuse to obey a reasonable request or 
order by a peace officer, fireman, or other public official to move;
    (1) To prevent an obstruction 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.

[[Page 45384]]

    (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
    (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]
BILLING CODE 4310-55-M