Jade Collection in the Monterey Bay National Marine Sanctuary

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 950609150-7080-03]

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: Proposed rule; notice of public availability of draft

supplemental environmental impact statement/management plan.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is

proposing to amend 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. NOAA is issuing this proposed rule to provide notice to the

public and invite advice, recommendations, information, and other

comments from interested parties on the proposed rule and Draft

Supplemental Environmental Impact Statement/Management Plan (DSEIS/MP).

A public hearing will be held; a separate notice of the date and time

will be published.

DATES: Comments must be received by August 12, 1997.

ADDRESSES: Comments should be sent to Scott Kathey, Monterey Bay

National Marine Sanctuary, 299 Foam Street, Suite D, Monterey,

California, 93940, or Elizabeth Moore, Sanctuaries and Reserves

Division, National Oceanic and Atmospheric Administration, 1305 East

West Highway, SSMC4, 12th Floor, Silver Spring, Maryland, 20910.

Comments will be available for public inspection at the same addresses.

Copies of the DSEIS/MP are available from the same addresses.

FOR FURTHER INFORMATION CONTACT:

Scott Kathey at (408) 647-4251 or Elizabeth Moore at (301) 713-3141

ext. 170.

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 to cause them to be conducted.

The MBNMS regulations prohibit exploring for, developing or

producing oil, gas or minerals within the Sanctuary

[[Page 32247]]

(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 producing oil, gas or minerals in the

MBNMS.

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 veins 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 veins 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. 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 proposing to amend the regulations for the MBNMS to allow

limited, small-scale collection of jade from the Jade Cove area of the

Sanctuary (the area bounded by the 35 deg.53'20''N latitude parallel

(North Plaskett Point), the 35 deg.53'20''N latitude parallel (Cape San

Martin), from the mean high tide line seaward to the 90-foot isobath

(depth line)). It appears that 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) has

recommended to SRD that the regulations be amended to allow jade

collection. The Council has devoted considerable time during several of

its monthly meetings to obtain information and public testimony, and

convened a working group to review this issue. There is also public

support for the proposed 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 (the proposed rule pertains entirely to State waters). This

proposed rule is therefore accompanied by a Draft Supplemental

Environmental Impact Statement/Management Plan, which is available at

the addresses listed at the beginning of this notice. This proposed

rule represents NOAA's preferred alternative as discussed in the DSEIS/

MP.

There is a 60-day comment period on this proposed rule and DSEIS/

MP. After the close of the comment period NOAA will prepare a Final

Supplemental Environmental Impact Statement/Management Plan (FSEIS/MP)

and then issue a final rule. Further, as the amendment changes a term

of designation, the Governor of California will have forty-five days of

continuous session of Congress beginning on the day the final rule is

issued to certify that the final rule is unacceptable, should he make

such a finding. If the Governor certifies the rule as unacceptable, 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 advice, recommendations, information, and

other comments from interested parties. The comment period closed on

September 8, 1995, with 195 comments received. Most comments were from

individuals and favored unrestricted jade collection. A general summary

of comments and NOAA's response to them follow.

II. Comments and Responses

(1) Comment: Collection of jade in the Jade Cove area has been

legal and nearly unrestricted for 50 years, with only minimal

restrictions from the U.S. Forest Service in place, such as no

explosives, no winches, and no mechanical tools.

Response: Prior to the Sanctuary's designation, jade collection

from State submerged lands without a permit was prohibited by State

law. As for other existing restrictions, the Los Padres National Forest

has a posted sign at the site that reads ``Prospecting, mining, or

removal of any rock, mineral, or material prohibited above mean high

tide level.'' The Sanctuary boundary extends from the mean high tide

level seaward, and the Sanctuary regulations as currently written

absolutely prohibit exploring for, developing or producing oil, gas or

minerals within the Sanctuary, which encompasses jade collection in

Jade Cove.

(2) Comment: This is a Sanctuary and the jade should be protected.

No jade collection should be allowed.

Response: NOAA agrees that marine jade resources should be

protected. The primary mandate of the MBNMS is to protect Sanctuary

resources. However, the Sanctuary also facilitates multiple uses that

are compatible with the primary mandate of resource protection. NOAA is

proposing this action foremost because it appears that 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.

(3) Comment: Commercial mining should be prohibited.

Response: NOAA agrees. Existing regulations absolutely prohibit

exploration, development or production of oil, gas or minerals. The

amendment proposed will allow limited, small-scale jade collection, but

should in no way be considered a prelude to allowance of commercial

mining activities in the Sanctuary.

(4) Comment: Hand tools should/should not be allowed for jade

collection.

Response: NOAA believes that most tools should not be allowed as

these could be used to dig into the seabed or otherwise damage

Sanctuary resources or qualities. However, jade collection under the

exception may be conducted with the use of a hand tool (a hand-held

implement that is not greater than 36 inches in length and has no

moving

[[Page 32248]]

parts (e.g., dive knife, pry bar or abalone iron)) to maneuver and lift

a loose piece of jade, and a lift bag(s) with a total lifting capacity

not to exceed two hundred pounds. A vessel (except for a motorized

personal watercraft (see Sec. 922.132(a)(7)) may also be used to

provide access to the authorized area. Further, NOAA may also allow

additional or larger tools to collect larger pieces of loose jade under

a Sanctuary permit that would be required for such collection. However,

no pneumatic, mechanical, electrical, hydraulic or explosive tools

would be allowed to be used to collect jade under any circumstances.

(5) Comment: There should be limits/no limits on the amount of jade

an individual can take.

Response: NOAA believes that such restrictions as the natural

situation of the area (access via a steep trail, rough water

conditions, and isolated area), prohibition of tools other than hand

tools, lift bags and vessels as described in the response to comment

(4), and a limit that persons can only collect what they can

individually carry per trip will sufficiently limit the amount of jade

that will be collected, ensuring that the jade resource will not be

degraded. Further, the proposed rule would require a Sanctuary permit

for any collection of larger loose stones of jade not allowed to be

removed under the general jade collection exception.

(6) Comment: NOAA wasted time and money with the Advance Notice of

Proposed Rulemaking.

Response: NOAA disagrees that providing information to, and

obtaining input from the public is a waste of time or money. In this

instance, NOAA determined that the Advance Notice of Proposed

Rulemaking (ANPR), an optional step to the rulemaking process,

increased the opportunity for public comment and participation, and

aided NOAA in developing the regulation proposed in this rulemaking.

(7) Comment: NOAA has ignored or forgotten the public comments and

expert testimony provided before the Advance Notice of Proposed

Rulemaking.

Response: In addition to information provided by experts and the

recommendation from the Sanctuary Advisory Council, NOAA also

considered the public comments received on this issue both before and

after the Advance Notice of Proposed Rulemaking in determining whether

to propose to amend the Sanctuary regulations to allow limited, small-

scale jade collection.

(8) Comment: The Jade Working Group of the Sanctuary Advisory

Council adopted protocols for jade collection.

Response: The Jade Working Group of the Sanctuary Advisory Council

was formed to assist NOAA in resolving this issue. The Working Group

met for about eight months and developed and submitted to the Council a

draft list of jade collection protocols, but did not adopt or recommend

any particular final plan.

(9) Comment: The Sanctuary Advisory Council endorsed the jade

collection plan developed by the Jade Working Group.

Response: As stated above, neither the Jade Working Group nor the

Sanctuary Advisory Council adopted or recommended a particular final

plan. However, the Council did send a letter to NOAA recommending that

the agency amend the regulations to allow limited collection of jade,

while protecting the jade resource for the future. A plan submitted to

the Council by a local interest group was attached to the letter and

referenced as one option for managing jade collection.

(10) Comment: There is an ongoing mischaracterization of NOAA's

actions being conducted by jade collection advocates.

Response: NOAA has received copies of an August 1995 newsletter

distributed by the Free Jade Cove Committee that contains incorrect

information regarding the issue and NOAA's intent. The headline of the

newsletter implies that no restrictions currently exist on jade

collection and that NOAA's current action will impose new restrictions,

when in fact NOAA's proposed action will relax existing regulations.

The newsletter also implies that NOAA ignored the Sanctuary Advisory

Council's assistance and advice. To the contrary, the recommendation of

the SAC to allow limited jade collection was considered, and led in

part to NOAA's decision to propose to amend the Sanctuary regulations

to allow limited, small-scale jade collection. As stated above, the SAC

provided an option for NOAA to consider, but did not recommend any

specific course of action.

III. Proposed Revised Article V of the Designation Document for the

Monterey Bay National Marine Sanctuary

No changes to Articles I-IV, and Article VI of the Designation

Document are proposed by NOAA. Article V of the Designation Document is

proposed to be amended by revising paragraph 2. Paragraph 2 of Article

V is presented in its entirety with the proposed 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 (north Plaskett Point), the

35 deg.53'20''N latitude parallel (Cape San Martin), the mean high

tide line seaward and 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 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 Proposed Revised Article V of the Designation Document

IV. Summary of the Proposed 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, would 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 could be conducted without destroying, causing the loss of,

or injuring other Sanctuary resources or qualities. Small scale,

limited jade collection would be 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 would NOAA allow the use of pneumatic, mechanical,

electrical, hydrauic or explosive tools to collect jade.

Consequently, NOAA is proposing to amend section 922.132(a)(1) and

section 922.133(c) to provide an exception to the prohibition against

exploring for, developing or producing 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 (north Plaskett Point), the

35 deg.53'20''N latitude parallel (Cape San Martin), from the

[[Page 32249]]

mean high tide line seaward to the 90-foot isobath (depth line)). NOAA

is also proposing to amend 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 proposed exception is limited to the Jade Cove area as this

has been the area historically of marine jade collection.

The proposed exception also contains certain other limitations to

protect Sanctuary resources and qualities. The proposed 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

and lift loose jade pieces; (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 personal 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 would be required for the

collection of such loose pieces of jade. Applications for Sanctuary

permits would be reviewed on a case-by-case basis under the general

permit criteria contained at 15 CFR Secs. 922.48 and 922.133, and would

require that the applicant have all necessary approvals from other

jurisdictions, including the California State Lands Commission.

Preference would be given to those applicants proposed to collect such

larger pieces for research or educational purposes. Any Sanctuary

permits issued for jade collection would 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. Nor will NOAA 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 proposed 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.

Should this proposed regulation be adopted as final, 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 and disturbing State

subsurface lands. This is consistent with 15 C.F.R. Sec. 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 proposed 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.

Section 304 of the NMSA also requires the Secretary to submit to

the appropriate Congressional Committees, on the same day this notice

is published, documents, including an executive summary, consisting of

the terms of the proposed designation (or in this case, change

thereof), the proposed regulations and the draft supplemental

environmental impact statement/management plan. In accordance with

section 304, the required documents are being submitted to the

appropriate Congressional Committees.

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 a

draft environmental impact statement (DEIS), as provided by the

National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and

that the DEIS be made available to the public. NOAA has prepared 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. The DSEIS/MP is

available at the addresses listed in the ADDRESS section of this

proposed rule.

Executive Order 1286: Regulatory Impact

NOAA has concluded that this regulatory action is not significant

within the meaning of section 3(f) of 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 entitlements,

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.

[[Page 32250]]

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 proposed rule would amend 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. Should this proposed regulation be adopted as final, jade

could 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 proposed rule would 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, Marine resources, Natural resources,

Penalties, Recreation and recreation areas, Reporting and recordkeeping

requirements, Research.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary

Program)

Dated: May 30, 1997.

David L. Evans,

Acting Deputy Assistant Administrator for Ocean Services and Coastal

Zone Management.

Accordingly, for the reasons set forth above, 15 CFR part 922 is

proposed to be 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 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). 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) and

(a)(4) introductory text and adding paragraph (a)(4)(vi) 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 (north

Plaskett Point), the 35 deg.53'20''N latitude parallel (Cape San

Martin), 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 of this subpart);

(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

Sec. 922.132(a)(7) of this subpart) 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), any person may apply for a permit to

collect such a loose piece by following the procedures in Sec. 922.133

of this subpart.

* * * * *

(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 Sec. 922.132(a)(1) of this

subpart.

4. Section 922.133 is amended by revising paragraph (c) to read as

follows:

Sec. 922.133 Permit procedures and criteria.

* * * * *

(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 Secs. 922.132(a) (2) through (8), and

(a)(10) if the Director finds that 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) of this subpart; 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 extent 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. In addition, the Director may consider such other factors

as he or she deems appropriate.

* * * * *

[FR Doc. 97-14787 Filed 6-12-97; 8:45 am]

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