Jade Collection in the Monterey Bay National Marine Sanctuary

Federal RegisterMar 30, 1998

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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

[[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

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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-