[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