[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
