[Federal Register Volume 63, Number 46 (Tuesday, March 10, 1998)]
[Rules and Regulations]
[Pages 11624-11628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5898]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 38
RIN 1018-AE19
Supplemental Regulations for Administration of Midway Atoll
National Wildlife Refuge
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This final rule provides 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
[[Page 11625]]
to the Department of the Interior for administration as a national
wildlife refuge by the Service. These regulations supplement existing
National Wildlife Refuge System regulations which also apply to Midway
Atoll National Wildlife Refuge.
DATES: This rule is effective March 10, 1998.
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 (Secretary) is
authorized under the National Wildlife Refuge System Administration Act
of 1966, as amended (16 U.S.C. 668dd et seq.) to permit uses of units
of the National Wildlife Refuge System (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 (61 FR 56875, November 4, 1996), vests in the Secretary
legislative and executive authority necessary for the administration of
the Midway Islands as the Midway Atoll National Wildlife Refuge
(Refuge).
The purposes of part 38 are to provide supplemental regulations for
the administration of the 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 the Refuge.
The Refuge Recreation Act (RRA) of 1962 (16 U.S.C. 460k); and the
National Wildlife Refuge System Administration Act (NWRSAA) of 1966, as
amended (16 U.S.C. 668dd), govern the administration and use of
national wildlife refuges. The Refuge Recreation Act authorizes the
Secretary to administer areas within the 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 purpose(s) for
which the areas were established.
The Hawaii Omnibus Act (48 U.S.C. 644a), 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 (October 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 National Wildlife Refuge System Improvement Act of 1997 (Pub.
L. 105-57) amends and builds upon the NWRSAA in a manner that provides
an ``Organic Act'' for the Refuge System similar to those which exist
for other public lands. It serves to ensure that the Refuge System is
effectively managed as a national system of lands, waters and interests
for the protection and conservation of our nation's wildlife resources.
The RRA, NWRSAA and National Wildlife Refuge System Improvement Act of
1997 (NWRSIA) authorize the Secretary to issue regulations to carry out
the purposes of the Acts and regulate uses. The NWRSIA states first and
foremost that the mission of the National Wildlife Refuge System be
focused singularly on wildlife conservation--``Wildlife First.''
Wildlife-dependent recreational uses may be authorized on a refuge
when they are compatible and not inconsistent with public safety.
Except for timely and effective cooperation and collaboration with
Federal agencies and State fish and wildlife agencies during the course
of acquiring and managing refuges, no other determinations or findings
are required to be made by the refuge official under this Act or the
Refuge Recreation Act for wildlife-dependent recreation to occur.
Specifically, section 4(d)(1)(A) of the NWRSAA authorizes the
Secretary, under such regulations as he may prescribe, to permit the
use of any area within the System for any purpose, including but not
limited to, hunting, fishing and public recreation, accommodations and
access, when he determines that uses are compatible with the major
purpose(s) for which the area was established. The RRA, NWRSAA and
NWRSIA also authorizes the Secretary to issue regulations to carry out
the purposes of the Act and regulate uses.
The executive authority at the Midway Islands is vested in the
Secretary. The Director of the Service and the Refuge Manager, Midway
Atoll National Wildlife Refuge, exercise the Secretary's executive
authority with respect to the Refuge.
In the August 27, 1997, issue of the Federal Register (62 FR 45381-
45384) the Service published a proposed rulemaking and invited public
comment on these regulations. The Service received no public comments.
The Service has determined that any further delay in implementing these
supplemental regulations for administration of Midway Atoll National
Wildlife Refuge would not be in the public interest in that it would
hinder law enforcement and the effective planning and administration of
the refuge. Therefore, the Service finds good cause to make this rule
effective upon publication (5 U.S.C. 553(d)(3)).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq., 5 CFR Part
1320, Pub. L. 04-13)
These regulations have been examined under the Paperwork Reduction
Act of 1995 and have been found to contain no information collection
requirements.
Executive Order 12866
This rulemaking is not a significant rule subject to Office of
Management and Budget review under Executive Order 12866.
Regulatory Flexibility Act Determination (5 U.S.C. et seq.)
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 cooperators/contractors brought in to carry out agreed upon
functions.
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities such as businesses, organizations and governmental
jurisdictions in the area under the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.).
Federalism Assessment (E.O. 12612)
This rule will not have substantial direct effects on the States,
in their relationship between the Federal 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, the Service has determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment.
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq., Pub.
L. 104-4, E.O. 12875)
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
[[Page 11626]]
of $100 million or more in any given year on local or State governments
or private entities.
Takings (Personal Property Rights) Implication Assessment (E.O.
12630)
The Service has determined that the rule has no potential takings
of private property implications as defined by Executive Order 12630.
Civil Justice Reform (E.O. 12988)
The Department has determined that these final regulations meet the
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive
Order 12988.
National Environmental Policy Act (42 U.S.C. 432 et seq., 40 CFR Part
150, 516 DM)
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
DM 2, Appendix 1, Sec. 1.10. Also, the Service has determined that this
rule will not alter the existing use of Midway Atoll National Wildlife
Refuge. The Service exclusion found at 516 DM 6, App. 1.4B(5) is also
employed here as this rule is considered ``[m]inor changes in the
amounts or types of public use on FWS or State-managed lands, in
accordance with regulations, management plans, and procedures.''
Section 7 Consultation (16 U.S.C. 1531 et seq., 50 CFR Part 402)
The Service consulted with the National Marine Fisheries Service on
May 13, 1996 on general operations of the refuge, and have now reviewed
these Supplemental Regulations for the Administration of Midway Atoll
National Wildlife Refuge with regards to Section 7 of the Endangered
Species Act of 1973 (16 U.S.C. 1531-1543). The Service finds that this
action is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification of habitat of such species. In particular, this
action is not likely to adversely affect the Hawaiian monk seals, green
sea turtles, or Hawaiian monk seal critical habitat.
Intergovernmental Review of Federal Programs (E.O. 12372, 43 CFR Part
9, and the Intergovernmental Corporation Act of 1968)
The Service reviewed this rule under E.O. 12372 and accommodated
the recommendations of state and local governments concerning Federal
programs affecting their jurisdictions.
Primary Author
The primary author of this rule is Mark Strong, Fish and Wildlife
Service, Pacific Region (ARW/OPR).
List of Subjects in 50 CFR Part 38
Authority delegations (Government agencies), Law enforcement,
Midway Atoll, Penalties, Wildlife, Wildlife refuges.
Accordingly, the Service amends 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
Sec. 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; sec. 48, Pub. L. 86-624, 74
Stat 424; E.O. 13022, 61 FR 56875, 3 CFR, 1996 Comp., p. 224.
Subpart A--General
Sec. 38.1 Applicability.
(a) The regulations of this part apply to the Midway Atoll National
Wildlife Refuge. For the purpose 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 (3 CFR, 1996 Comp., p.
224).
(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 this part 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 will 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;
[[Page 11627]]
(j) Lawful removal of person 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 of this part, 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 of
this part, 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, will 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, will 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 will 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 will:
(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:
(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 will:
(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 will:
(a) Engage in prostitution. ``Prostitution'' means the giving or
receiving of the body for sexual intercourse for 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 Alcoholic beverages.
No person on Midway Atoll National Wildlife Refuge will:
(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
section.
(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 will 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 will:
(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;
[[Page 11628]]
(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 in subpart B of this part, 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 will attempt to
commit any offense prohibited by this part.
Sec. 38.16 Penalties.
Any person who violates any provision of this part will 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, 50 CFR parts 25-32, and the
general principles of common law.
Dated: February 9, 1998.
Donald J. Barry,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-5898 Filed 3-9-98; 8:45 am]
BILLING CODE 4310-55-M
