[Federal Register Volume 63, Number 60 (Monday, March 30, 1998)]
[Rules and Regulations]
[Pages 15083-15088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7201]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 950609150-8003-04]
RIN 0648-AI06


Jade Collection in the Monterey Bay National Marine Sanctuary

AGENCY: Sanctuaries and Reserves Division (SRD), Office of Ocean and 
Coastal Resource Management (OCRM), National Ocean Service (NOS), 
National Oceanic and Atmospheric Administration (NOAA), Department of 
Commerce (DOC).

ACTION: Final rule; notice of public availability of final supplemental 
environmental impact statement/management plan.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
amending the regulations and Designation Document for the Monterey Bay 
National Marine Sanctuary (MBNMS or Sanctuary) to allow limited, small-
scale collection of jade from the Jade Cove area of the Sanctuary. For 
a number of years prior to the designation of the MBNMS, tourists and 
local residents routinely visited the Jade Cove area to explore for and 
collect pieces of the naturally occurring jade. This final rule will 
allow, under certain circumstances, these types of activities to occur 
while still protecting Sanctuary resources.

DATES: Congress and the Governor of the State of California have forty-
five days of continuous session of Congress beginning on the day on 
which this document is published to review the amendment to the 
Designation Document and regulations before it takes effect. After the 
forty-five day review period, the amendment to the Designation Document 
and regulations automatically becomes final and takes effect, unless 
the Governor of the State of California certifies within the forty-five 
day period to the Secretary of Commerce that the amendment to the 
Designation Document and regulations is unacceptable. In such case, the 
amendment to the Designation Document and regulations cannot take 
effect in the area of the Sanctuary lying within the seaward boundary 
of the State of California, and the original prohibition against 
collection of jade shall remain in effect. NOAA will publish in the 
Federal Register a document announcing the effective date following the 
forty-five day review period.

ADDRESSES: Copies of the Final Supplemental Environmental Impact 
Statement/Management Plan supporting this action may be obtained from 
Scott Kathey, Monterey Bay National Marine Sanctuary, 299 Foam Street, 
Suite D, Monterey, California 93940.

FOR FURTHER INFORMATION CONTACT:
Scott Kathey at (408) 647-4251.

SUPPLEMENTARY INFORMATION: 

I. Background

    In recognition of the national significance of the unique marine 
environment centered around Monterey Bay, California, the Monterey Bay 
National Marine Sanctuary (MBNMS or Sanctuary) was designated on 
September 18, 1992. SRD issued final regulations, effective January 1, 
1993, to implement the Sanctuary designation (15 CFR Part 922 Subpart 
M). The MBNMS regulations at 15 CFR 922.132(a) prohibit a relatively 
narrow range of activities and thus make it unlawful for any person to 
conduct them or cause them to be conducted.
    The MBNMS regulations prohibit exploring for, developing or 
producing oil, gas or minerals within the Sanctuary (15 CFR 
922.132(a)(1)). Further, the regulations and Designation Document (the 
constitution for the Sanctuary) prohibit NOAA from issuing a permit or 
other approval for this activity in the Sanctuary (15 CFR 922.132(f); 
Designation Document, Article V). Therefore, the Sanctuary regulations 
and Designation Document absolutely prohibit exploring for, developing 
or

[[Page 15084]]

producing oil, gas or minerals in the MBNMS. Exploring for, developing 
or producing oil or gas in the MBNMS is also statutorily prohibited.
    The region within the Sanctuary known as the Jade Cove area 
consists of a series of small coves located south of Big Sur, near the 
town of Gorda. Jade (also called nephrite) occurs in pods and nodules 
in the serpentine bedrock formation, extending down the cliffs and into 
the seabed. The coastal area is very dynamic, subject to strong waves 
and tides, which erode the bedrock and sometimes release the jade. Jade 
is found primarily as pebbles or larger stones on the shore and seabed, 
and as revealed deposits in the seafloor.
    For a number of years prior to the designation of the MBNMS, 
tourists and local residents routinely visited the Jade Cove area to 
explore for and collect pieces of the naturally occurring jade. Even 
prior to the designation of the MBNMS, extraction of minerals from 
State submerged lands was prohibited by State law, unless authorized 
under a permit from the State (please see response to comment (9)). The 
U.S. Forest Service also prohibits the removal without a lease of any 
rocks or minerals within the Los Padres National Forest, which abuts 
the inshore boundary of the Sanctuary in the Jade Cove area.
    NOAA is amending the regulations for the MBNMS to allow limited, 
small-scale collection of jade from the Jade Cove area of the 
Sanctuary, specifically the area bounded by the 35 deg.55'20'' N 
latitude parallel (coastal reference point: beach access stairway at 
south Sand Dollar Beach) to the north, the 35 deg.53'20'' N latitude 
parallel (coastal reference point: westernmost tip of Cape San Martin) 
to the south, and from the mean high tide line seaward to the 90-foot 
isobath (depth line). Limited, small scale collection of loose pieces 
of jade (which would otherwise naturally disintegrate) from the Jade 
Cove area will have at most a de minimis effect on the jade resource, a 
non-living resource, and will not destroy, cause the loss of, or injure 
other resources or qualities of the MBNMS. It should also be noted that 
the MBNMS Sanctuary Advisory Council (Council) recommended to SRD that 
the regulations be amended to allow small scale jade collection. The 
Council has devoted considerable time during several of its monthly 
meetings to obtain information and public testimony, and convened a 
task force to review this issue. There was also public support for the 
course of action.
    The prohibition against permitting or otherwise approving the 
exploration, development or production of oil, gas or minerals in the 
Sanctuary is a term of the Designation Document for the Sanctuary. 
Pursuant to section 304(a)(4) of the National Marine Sanctuaries Act 
(NMSA) (16 U.S.C. 1434(a)(4)), the terms of designation of a national 
marine sanctuary may be modified only by the same procedures by which 
the original designation is made. Therefore, to allow limited, small-
scale jade collection in the Jade Cove area of the Sanctuary, NOAA must 
comply with the procedures by which the Sanctuary was designated. 
Designations of national marine sanctuaries are governed by sections 
303 and 304 of the NMSA (16 U.S.C. 1433, 1434). Section 304 requires 
the preparation of an environmental impact statement, State 
consultation, at least one public hearing, and gubernatorial non-
objection to the proposal as it pertains to State waters within the 
Sanctuary (this final rule pertains entirely to State waters). This 
final rule is therefore accompanied by a Final Supplemental 
Environmental Impact Statement/Management Plan (FSEIS/MP). This final 
rule represents NOAA's preferred alternative as discussed in the FSEIS/
MP. The Governor of California has forty-five days of continuous 
session of Congress beginning today to certify an objection to this 
final rule, should he make such a determination. If the Governor 
certifies an objection to this final rule, it will not take effect and 
the original prohibition will remain in effect.
    NOAA issued an Advance Notice of Proposed Rulemaking (ANPR) on 
August 9, 1995 (60 FR 40540), to inform the public of the issue under 
consideration and to invite general advice, recommendations, 
information, and other comments from interested parties concerning the 
collection of marine jade within the Sanctuary. The comment period 
closed on September 8, 1995, with 195 comments received. Most comments 
were from individuals and favored unrestricted jade collection. NOAA 
issued a proposed rule on June 13, 1997 (62 FR 32320), to inform the 
public of NOAA's proposed course of action and to invite comments from 
interested parties. The comment period closed August 12, 1997, with 246 
written comments received. A public hearing was held on July 30, 1997, 
with eight verbal comments received. All the comments were supportive 
of the proposed rule. A general summary of written and verbal comments 
and NOAA's responses follows.

II. Comments and Responses

    (1) Comment: All comments support the proposed regulation allowing 
limited, small scale jade collection to occur in the Jade Cove area of 
the Sanctuary.
    Response: No response necessary.
    (2) Comment: How were the boundaries for the area of jade 
collection chosen?
    Response: NOAA consulted with jade collectors, artisans, divers, 
natural resource managers, and other knowledgeable parties, and 
received input from the Sanctuary Advisory Council, to determine the 
most commonly used area of traditional marine jade collection and 
selected the boundaries of the Jade Cove area to accommodate such 
traditional collection while still protecting the resources and 
qualities of the NBNMS.
    (3) Comment: The place name ``north Plaskett Point'' used in the 
proposed rule to identify the northern boundary of the jade collection 
area is not locally recognized. Please replace it with ``south Sand 
Dollar Beach,'' which is a better known reference point. Specifically, 
there is a set of stairs located at south Sand Dollar Beach which 
coincides with the northern boundary of the collection area and is 
known to local residents and frequent visitors.
    Response: NOAA agrees and has made the appropriate changes.
    (4) Comment: NOAA should undertake an assessment of how much jade 
is available for harvesting.
    Response: Because most of the jade in the Jade Cove area is present 
in smaller pods and nodules, not in veins, it is difficult to assess or 
measure the exact amount of jade in the Sanctuary. Information 
presented to NOAA at a meeting of the MBNMS Advisory Council in June 
1994 by a geologist from the U.S. Geological Survey indicated that 
historic collection had not ``limited'' the jade resource and she did 
not believe that future collections at the same level would ``limit'' 
the jade resource.
    (5) Comment: Collection of jade should require reporting of the 
amount taken to determine if there are any impacts of casual collection 
on the environment.
    Response: The amount of jade removed pursuant to a permit issued by 
NOAA will be required to be reported. The amount of jade removed under 
the general exception, however, may be difficult to assess given the 
isolation and exposure of the area, the transitory nature of many 
visitors to the area, and the lack of NOAA or other personnel to 
monitor jade collection activities. NBNMS may establish a voluntary 
reporting system for jade removed under the general exception to assist 
in determining how much jade is removed

[[Page 15085]]

on an annual basis from the Jade Cove area.
    (6) Comment: NOAA should consider an alternative of seasonal 
closures on jade collection, if only for safety reasons.
    Response: NOAA believes that the inhospitable and often harsh 
conditions in winter are self-limiting to collection of marine jade in 
the Jade Cove area. People collect jade at their own risk. NOAA's 
action only removes a restriction on a previously prohibited activity.
    (7) Comment: The proposed rule is not clear on what restrictions, 
if any, exist on the commercial use of jade collected under the 
conditions of the proposed rule. Please clarify.
    Response: NOAA does not place any conditions on the use of jade 
that has been removed under the general exception. Persons who wish to 
remove jade under a Sanctuary permit will be required to explain the 
purpose for which the jade is to be removed, including commercial or 
``for profit'' uses. All permits will be considered on a case-by-case 
basis according to the general permit criteria at 15 CFR 922.48 and 
922.133; preference will be given to research and education uses. NOAA 
will not allow commercial excavation or mining of the jade resource 
within the MBNMS.
    (8) Comment: If a person finds a loose large piece of jade that 
cannot be carried out by an individual, can he break the large piece 
into several smaller pieces with the hand tools allowed under the 
exception and remove the smaller pieces?
    Response: If a stone is not removable under the conditions given in 
the general exception for limited, small-scale jade collection under 
this rule, including an individual being allowed to remove only what he 
carries himself, then a permit will be required to remove the stone. 
Hand tools are only allowed to aid in maneuvering and lifting loose 
stones, and scratching the surface of a stone as necessary to determine 
if it is jade. Hand tools are not authorized to be used to break or 
chip stones under any circumstances.
    (9) Comment: NOAA stated in the proposed rule that prior to 
Sanctuary designation, collection of marine jade from California ocean 
areas was a violation of state law. This is not true and should be 
corrected.
    Response: Under California law, the State Lands Commission (SLC) 
has exclusive jurisdiction over all ungranted tidelands and submerged 
lands owned by the State (California Public Resources Code Sec. 6301). 
The SLC is authorized to issue prospecting permits and leases for the 
extraction and removal of minerals, other than oil and gas or other 
hydrocarbon substances, from lands, including tide and submerged lands 
belonging to the state, consistent with the procedures of the 
California Code of Regulations, Title 2, Division 3, Article 4, Section 
2200-2205. As the SLC has not prescribed regulations for the 
noncommercial hobby collection of minerals from state lands, any 
collection of minerals from such lands is considered commercial 
collection.
    Should any person remove, without a permit, jade in large amounts 
or for the purpose of sale, the SLC has authority under Public Resource 
Code Sec. 6302 to seek civil damages for trespass, and for conversion 
of public property. The SLC also has authority to seek criminal 
penalties for trespass (Penal Code Sec. 602) or for theft (Penal Code 
Sec. 484, 495).
    (10) Comment: Please enter into the official record the document 
Jade Collection--A California Heritage previously submitted to NOAA.
    Response: Jade Collection--A California Heritage is part of the 
administrative record for this rule and is available for public 
inspection.
    (11) Comment: Please enter into the official record all previous 
correspondence sent to NOAA on the issue of jade collection within the 
Sanctuary.
    Response: All correspondence sent to NOAA on the issue of jade 
collection prior to the public comment period of the proposed rule was 
considered in the course of NOAA's decision-making process and is 
available for public inspection.
    (12) Comment: Can a collector collect jade outside the established 
collection zone if he/she obtains a Sanctuary permit?
    Response: No. The absolute prohibition against exploring for, 
developing or producing oil, gas or minerals will remain in effect 
outside the Jade Cove area within the Sanctuary.

III. Revised Article V of the Designation Document for the Monterey 
Bay National Marine Sanctuary

    No change to Article I-IV, and Article VI of the Designation 
Document have been made by NOAA. Article V of the Designation Document 
is amended by revising paragraph 2. Paragraph 2 of Article V is 
presented in its entirety with the revised language in italics.

Article V. Effect on Leases, Permits, Licenses, and Rights

    In no event may the Secretary or designee issue a permit 
authorizing, or otherwise approve: (1) the exploration for, development 
of or production of oil, gas or minerals within the Sanctuary except 
for limited, small-scale jade collection in the Jade Cove area of the 
Sanctuary [defined as the area bounded by the 35 deg.55'20'' N latitude 
parallel (coastal reference point: beach access stairway at South Sand 
Dollar Beach), the 35 deg.53'20'' N latitude parallel (coastal 
reference point: westernmost tip of Cape San Martin), and the mean high 
tide line seaward to the 90-foot isobath (depth line)]; (2) the 
discharge of primary-treated sewage (except for regulation, pursuant to 
Section 304(c)(1) of the Act, of the exercise of valid authorizations 
in existence on the effective date of Sanctuary designation and issued 
by other authorities of competent jurisdiction); or (3) the disposal of 
dredged material within the Sanctuary other than at sites authorized by 
the U.S. Environmental Protection Agency (in consultation with the U.S. 
Army Corps of Engineers) prior to the effective date of designation. 
Any purported authorizations issued by other authorities after the 
effective date of Sanctuary designation for any of these activities 
within the Sanctuary shall be invalid.

End of Revised Article V of the Designation Document

IV. Summary of the Regulatory Amendment

    Jade is a non-living resource of the MBNMS (see 15 CFR 922.3). 
Allowing limited, small-scale collection of small pieces already loose, 
which would otherwise naturally disintegrate, will have at most a de 
minimis effect on the jade resource. Further, it appears that 
collection of loose pieces of jade from the authorized area of the 
Sanctuary can be conducted without destroying, causing the loss of, or 
injuring other Sanctuary resources or qualities. Small scale, limited 
collection of jade is allowed under an exception to the MBNMS 
prohibitions, with certain conditions. Larger loose pieces of jade not 
allowed to be collected under the exception may be authorized to be 
collected under a Sanctuary permit. However, under no circumstances 
will NOAA allow the use of pneumatic, mechanical, electrical, hydraulic 
or explosive tools to collect jade. NOAA will also not issue a permit 
to allow excavation or mining of the jade resource, or the collection 
of larger loose pieces that support important components of the benthic 
community.
    Consequently, NOAA is amending section 922.132(a)(1), 922.132(f), 
and section 922.133(c) to provide an exception to the prohibition 
against exploring for, developing or producing

[[Page 15086]]

oil, gas or minerals in the Sanctuary, to allow limited, small-scale 
collection of jade from the Jade Cove area of the Sanctuary [defined as 
the area bounded by the 35 deg.55'20''N latitude parallel (coastal 
reference point: beach access stairway at south Sand Dollar Beach), the 
35 deg.53'20''N latitude parallel (coastal reference point: westernmost 
tip of Cape San Martin), and the mean high tide line seaward to the 90-
foot isobath (depth line)]. NOAA is also amending section 922.132(a)(4) 
to provide, for consistency, a corresponding exception to the 
prohibition against alteration of the seabed for collection of loose 
jade as described below. The exception is limited to the Jade Cove area 
as this has been the primary area historically of marine jade 
collection.
    The exception also contains certain other limitations to protect 
Sanctuary resources and qualities. The exception limits collection to 
jade pieces already loose from the seabed, meaning that natural storm 
or wave action has already completely separated the stone from the 
seabed. Under the general exception, no tools may be used to collect 
jade except (a) a hand tool, defined as a hand-held implement, utilized 
for the collection of jade pursuant to section 922.132(a)(1), that is 
no greater than 36 inches in length and has no moving parts (e.g., dive 
knife, pry bar or abalone iron), to maneuver or lift a loose jade piece 
or scratch the surface of a stone as necessary to determine if it is 
jade; (b) a lift bag or multiple lift bags with a combined lift 
capacity not to exceed 200 pounds; or (c) a vessel (except for a 
motorized personal watercraft (see Sec. 922.132(a)(7)) to provide 
access to the authorized area. Finally, each person may collect only 
what that person individually carries. The two hundred pound lift bag 
limit corresponds with the restriction limiting jade removal to what 
each person individually carries. Over one hundred pounds is considered 
to be a very heavy physical demand level (see Matheson, L. and 
Matheson, M. Examiners Manual for the Spinal Function Sort), and 
appears to correspond with the maximum amount that an average person 
could lift. The two hundred pound lift bag will allow safe transport to 
the surface of stones weighing less than 200 pounds. More important, 
the limitation is consistent with the overall effort to avoid jade 
collection that could adversely impact benthic (bottom) habitat.
    Loose stones exceeding two hundred pounds would be of such mass as 
to be more likely to support important components of the benthic 
community and should not be readily made available for removal under 
the regulatory exception. A Sanctuary permit will be required for the 
collection of such loose pieces of jade. Applications for Sanctuary 
permits will be reviewed on a case-by-case basis under the general 
permit criteria contained at 15 CFR Secs. 922.48 and 922.133, and will 
require that the applicant have all necessary approvals from other 
jurisdictions, including the California State Lands Commission. 
Preference will be given to those applicants proposing to collect such 
larger pieces for research or educational purposes. Any Sanctuary 
permits issued for jade collection will be conditioned to protect 
Sanctuary resources and in no circumstances will NOAA permit the use of 
pneumatic, mechanical, electrical, hydraulic or explosive tools to 
collect jade. This prohibition applies equally to collection activities 
conducted from authorized vessels, thus no deck cranes, davits, winches 
or other onboard equipment may be used to collect jade. NOAA will also 
not permit any excavation or mining of the jade resource, or the 
collection of larger loose pieces that support important components of 
the benthic community.
    The exception for the limited, small-scale collection of loose 
pieces of jade does not extend to oil or gas or any other mineral. 
Furthermore, there is a statutory prohibition against leasing, 
exploration, development, or production of oil or gas in the Sanctuary.
    Any collection of jade in Jade Cove, which is within California 
State waters, will require a State permit because of the State's 
prohibitions against taking minerals from State submerged lands (please 
see response to comment (9)). This is consistent with 15 CFR 922.42, 
which provides that any activity within a specific national marine 
sanctuary not expressly prohibited or otherwise regulated by that 
sanctuary's regulations may be conducted subject to, among other 
things, all prohibitions, restrictions and conditions validly imposed 
by any other authority of competent jurisdiction. Current Federal and 
State restrictions on jade collection in upland areas adjacent to the 
Sanctuary are unaffected by this rulemaking.

V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304(a)(4) of the National Marine Sanctuaries Act, 16 U.S.C. 
1434(a)(4), provides that the terms of designation may be modified only 
by the same procedures by which the original designation is made. 
Designations of National Marine Sanctuaries are governed by sections 
303 and 304 of the NMSA, 16 U.S.C. 1433, 1434. Section 304 requires the 
preparation of an environmental impact statement, State consultation, 
at least one public hearing, and gubernatorial non-objection to the 
proposal as it pertains to State waters within the Sanctuary.
    Congress and the Governor of the State of California have forty-
five days of continuous session of Congress beginning on the day on 
which this document is published to review the amendment to the 
Designation Document and regulations before it takes effect. After the 
forty-five day review period, the amendment to the Designation Document 
and regulations automatically becomes final and takes effect, unless 
the Governor of the State of California certifies within the forty-five 
day period to the Secretary of Commerce that the amendment to the 
Designation Document and regulations is unacceptable. In such case, the 
amendment to the Designation Document and regulations cannot take 
effect in the area of the Sanctuary lying within the seaward boundary 
of the State of California, and the original prohibition shall remain 
in effect. NOAA will publish in the Federal Register a notice of 
effective date following the forty-five day review period.

National Environmental Policy Act

    When changing a term of designation of a National Marine Sanctuary, 
section 304 of the NMSA, 16 U.S.C. 1434, requires the preparation of an 
environmental impact statement (EIS) as provided by the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and that the 
EIS be made available to the public. NOAA prepared and made available 
to the public a draft supplemental environmental impact statement/
management plan for the Monterey Bay National Marine Sanctuary on the 
proposal to amend the regulations and Designation Document to allow 
limited, small-scale jade collection in the Jade Cove area of the 
Sanctuary. A final supplemental environmental impact statement/
management plan has been prepared and is available to the public from 
the addresses listed at the beginning of this notice.

Executive Order 12866: Regulatory Impact

    NOAA has concluded that this regulatory action is not significant 
within the meaning of section 3(f) of

[[Page 15087]]

Executive Order 12866 because it will not result in:
    (1) An annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, or public health and safety;
    (2) A serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
    (3) A material alteration of the budgetary impact of entitlement, 
grants, user fees, or loan programs or rights and obligations of such 
recipients; or
    (4) Novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.

Executive Order 12612: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
sufficient federalism implications sufficient to warrant preparation of 
a federalism assessment under Executive Order 12612.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration as follows:

    The rule amends the Monterey Bay National Marine Sanctuary 
(MBNMS or Sanctuary) regulations to allow limited, small-scale 
collection of jade from an area within the Sanctuary known as Jade 
Cove, consistent with other applicable Federal and State law. Prior 
to the designation of the Sanctuary, extraction of minerals from 
State submerged lands was prohibited by State law, unless authorized 
by a permit issued by the State. The regulations implementing the 
designation of the Sanctuary absolutely prohibit exploration for, 
development or production of oil, gas or minerals in the Sanctuary. 
Consequently, because jade is a mineral, its collection is 
absolutely prohibited even if authorized by a State permit. Jade can 
be collected within Jade Cove, which is within California State 
waters, provided its collection is authorized by a State permit. 
Without a State permit, its collection would be prohibited by the 
State's prohibitions against taking minerals from State submerged 
lands and disturbing State subsurface lands. NOAA is aware of only 
one small business that used the jade resource prior to the 
Sanctuary's designation. That business did not conduct large-scale 
collection or rely solely on jade from Jade Cove. Most of its jade 
was collected from other sources, including from upland and out of 
State sources. Consequently, the rule is not expected to 
significantly impact a substantial number of small business 
entities.

Accordingly, a Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act

    This rule will not impose an information collection requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
of 1980, 44 U.S.C. 3500 et seq.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Education, 
Environmental protection, Historic preservation, Intergovernmental 
relations, Marine resources, Penalties, Recreation and recreation 
areas, Reporting and recordkeeping requirements, Research, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: March 16, 1998.
Captain Evelyn Fields,
Acting Deputy Assistant Administrator for Ocean Services and Coastal 
Zone Management.

    Accordingly, for the reasons set forth above, 15 CFR Part 922 is 
amended as follows:

PART 922--[AMENDED]

    1. The authority citation for Part 922 continues to read as 
follows:

    Authority: 16 U.S.C. 1431 et seq.

Subpart M--Monterey Bay National Marine Sanctuary

    2. Section 922.131 is amended by adding the following definition in 
alphabetical order to read as follows:


Sec. 922.131   Definitions.

* * * * *
    Hand tool means a hand-held implement, utilized for the collection 
of jade pursuant to Sec. 922.132(a)(1), that is no greater than 36 
inches in length and has no moving parts (e.g., dive knife, pry bar or 
abalone iron). Pneumatic, mechanical, electrical, hydraulic or 
explosive tools are, therefore, examples of what does not meet this 
definition.
* * * * *
    3. Section 922.132 is amended by revising paragraphs (a)(1), (a)(4) 
introductory text, (d) and (f). By removing ``or'' at the end of 
paragraph (a)(4)(iv), by removing the period at the end of paragraph 
(a)(4)(v), and adding ``; or'' in its place, and by adding paragraph 
(a)(4)(vi) to read as follows:


Sec. 922.132   Prohibited or otherwise regulated activities.

    (a) * * *
    (1) Exploring for, developing or producing oil, gas or minerals 
within the Sanctuary except: jade may be collected (meaning removed) 
from the area bounded by the 35 deg.55'20'' N latitude parallel 
(coastal reference point: beach access stairway at south Sand Dollar 
Beach), the 35 deg.53'20'' N latitude parallel (coastal reference 
point: westernmost tip of Cape San Martin), and from the mean high tide 
line seaward to the 90-foot isobath (depth line) (the ``authorized 
area'') provided that:
    (i) Only jade already loose from the seabed may be collected;
    (ii) No tool may be used to collect jade except:
    (A) A hand tool (as defined in Sec. 922.131) to maneuver or lift 
the jade or scratch the surface of a stone as necessary to determine if 
it is jade;
    (B) A lift bag or multiple lift bags with a combined lift capacity 
of no more than two hundred pounds; or
    (C) A vessel (except for motorized personal watercraft) (see 
paragraph (a)(7) of this section) to provide access to the authorized 
area;
    (iii) Each person may collect only what that person individually 
carries; and
    (iv) For any loose piece of jade that cannot be collected under 
paragraphs (a)(1) (ii) and (iii) of this section, any person may apply 
for a permit to collect such a loose piece by following the procedures 
in Sec. 922.133.
* * * * *
    (4) Drilling into, dredging or otherwise altering the seabed of the 
Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary except as an 
incidental result of:
* * * * *
    (vi) Collection of jade pursuant to paragraph (a)(1) of this 
section, provided that there is no constructing, placing, or abandoning 
any structure, material, or other matter on the seabed of the 
Sanctuary.
* * * * *
    (d) The prohibitions in paragraph (a)(1) of this section as it 
pertains to jade collection in the Sanctuary, paragraphs (a) (2) and 
(8) of this section, and paragraph (a)(10) of this section do not apply 
to any activity executed in accordance with the scope, purpose, terms 
and conditions of a National Marine Sanctuary permit issued pursuant to 
Secs. 922.48 and 922.133 or a Special Use permit issued pursuant to 
section 310 of the Act.
 * * * * *
    (f) Notwithstanding paragraphs (d) and (e) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
Secs. 922.48 and 922.133 or a Special Use permit under

[[Page 15088]]

section 310 of the Act authorizing, or otherwise approve: the 
exploration for, development or production of oil, gas or minerals 
within the Sanctuary, except for the collection of jade pursuant to 
paragraph (a)(1) of this section; the discharge of primary-treated 
sewage within the Sanctuary (except by certification, pursuant to 
Sec. 922.47, of valid authorizations in existence on January 1, 1993 
and issued by other authorities of competent jurisdiction); or the 
disposal of dredged material within the Sanctuary other than at sites 
authorized by EPA (in consultation with COE) prior to January 1, 1993. 
Any purported authorizations issued by other authorities within the 
Sanctuary shall be invalid.
    4. Section 922.133 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 922.133  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by 
Sec. 922.132(a)(1) as it pertains to jade collection in the Sanctuary, 
Sec. 922.132(a) (2) through (8), and Sec. 922.132(a) (10), if conducted 
in accordance with the scope, purpose, terms and conditions of a permit 
issued under this section and 922.48.
 * * * * *
    (c) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec. 922.132(a)(1) as it pertains to 
jade collection in the Sanctuary, Sec. 922.132(a) (2) through (8), and 
Sec. 922.132(a)(10) if the Director finds the activity will have only 
negligible short-term adverse effects on Sanctuary resources and 
qualities and will: further research related to Sanctuary resources and 
qualities; further the educational, natural or historical resource 
value of the Sanctuary; further salvage or recovery operations in or 
near the Sanctuary in connection with a recent air or marine casualty; 
allow the removal, without the use of pneumatic, mechanical, 
electrical, hydraulic or explosive tools, of loose jade from the Jade 
Cove area under Sec. 922.132(a)(1)(iv); assist in managing the 
Sanctuary; or further salvage or recovery operations in connection with 
an abandoned shipwreck in the Sanctuary title to which is held by the 
State of California. In deciding whether to issue a permit, the 
Director shall consider such factors as: the professional 
qualifications and financial ability of the applicant as related to the 
proposed activity; the duration of the activity and the duration of its 
effects; the appropriateness of the methods and procedures proposed by 
the applicant for the conduct of the activity; the extend to which the 
conduct of the activity may diminish or enhance Sanctuary resources and 
qualities; the cumulative effects of the activity; and the end value of 
the activity. For jade collection, preference will be given for 
applications proposing to collect loose pieces of jade for research or 
educational purposes. In addition, the Director may consider such other 
factors as he or she deems appropriate.
 * * * * *
[FR Doc. 98-7201 Filed 3-27-98; 8:45 am]
BILLING CODE 3510-08-M