[Federal Register Volume 60, Number 153 (Wednesday, August 9, 1995)]
[Proposed Rules]
[Pages 40540-40542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19633]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 944

[Docket No. 950609150-5150-01]
RIN 0648-AI06


Jade Collection in the Monterey Bay National Marine Sanctuary

agency: Sanctuaries and Reserve 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: Advance notice of proposed rulemaking; request for comments.

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summary: The National Oceanic and Atmospheric Administration (NOAA) is 
considering amending the regulations for the Monterey Bay National 
Marine Sanctuary (MBNMS or Sanctuary) to allow small-scale, non-
intrusive collection of jade from the Sanctuary. This advance notice of 
proposed rulemaking (ANPR) discusses the reasons NOAA is considering 
authorizing jade collection in the MBNMS, and, if it is determined to 
proceed with rulemaking to allow jade collection, the possible 
restrictions NOAA might place on such collection to ensure that 
Sanctuary resources or qualities would not be adversely impacted. NOAA 
is issuing this ANPR specifically to invite advice, recommendations, 
information and other comments from interested parties on whether to 
allow jade collection in 

[[Page 40541]]
the MBNMS and, if so, what restrictions might be necessary.

dates: Comments must be received by September 8, 1995.

addresses: Comments should be sent to Scott Kathey, Monterey Bay 
National Marine Sanctuary office, 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.

for further information contact: Scott Kathey at (408) 647-4251 or 
Elizabeth Moore at (301) 713-3141.

supplementary information: 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, 1993, to implement the Sanctuary 
designation (15 CFR Part 944). The MBNMS regulations at 15 CFR 944.5(a) 
prohibit a relatively narrow range of activities and thus makes it 
unlawful for any person to conduct them or cause them to be conducted.
    The leasing, exploration, development or production of oil or gas 
in the Sanctuary is statutorily prohibited (Section 2203 of Pub. L. 
102-587). As such, the final MBNMS implementing regulations absolutely 
prohibited exploration, production or development of oil, gas or 
minerals in the MBNMS (57 FR 43310, 43315-43317; 15 CFR 944.5(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 944.5(h); Designation 
Document, Article V).
    There is a region within the Sanctuary known as the Jade Cove area. 
Jade Cove 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 area is very dynamic, subject to strong waves and 
tides, which erode the veins and sometimes free 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 permitted by 
the State. The National 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 considering amending the regulations for the MBNMS to allow 
small-scale, non-intrusive collection of jade from the Sanctuary. NOAA 
is considering this action for a variety of reasons, foremost of which 
is that preliminary indications suggest that small scale, non-intrusive 
collection of loose pieces of jade may not destroy, cause the loss of, 
or injure resources or qualities of the MBNMS. Further, the MBNMS 
Sanctuary Advisory Council (Council) has recommended to SRD that the 
regulations be amended to allow jade collection. The Council has 
devoted several of its meetings to obtain information and public 
testimony, and convened a work group to review this issue. There has 
also been consistent public support for the proposed course of action.
    It may be possible to allow people to ``beach comb'' or dive for 
loose pieces of jade, much like what already occurs in this Sanctuary 
for items such as driftwood, without any resulting harm to Sanctuary 
resources or qualities. Jade is a non-living resource of the MBNMS. See 
15 CFR 944.3. However, allowing small-scale, non-intrusive collection 
of small pieces already loose (``in float'') and that would otherwise 
naturally disintegrate or be washed out to sea would not seem to pose a 
risk of harm to this resource. Further, it appears that collection of 
loose pieces of jade from the Sanctuary could be conducted without 
creating a risk of harm to other Sanctuary resources or qualities or 
the MBNMS ecosystem. NOAA will likely limit collection to hand picking 
pebbles or small stones already ``in float'' and devoid of any marine 
life, including algae and benthic organisms. If collection were 
allowed, no tools would be permitted that could injure Sanctuary 
resources or qualities, such as wedges, crowbars, picks, chisels and 
other tools used for digging, excavating, boring, breaking, prying, 
drilling, piercing, scraping, wedging, or other intrusive activities. 
No vehicles, winches, carts or other removal equipment would be 
permitted to be used in the Sanctuary to collect jade. However, NOAA 
may consider allowing the use of lift bags to float loose submerged 
jade to the shore. Any regulatory exception for the small-scale, non-
intrusive collection of loose pieces of jade would not extend to oil or 
gas. As indicated earlier, there is a statutory prohibition against 
leasing, exploration, development, or production of oil or gas in the 
Sanctuary.
    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. Therefore, to allow 
small-scale, non-intrusive jade collection in the Sanctuary NOAA must 
comply with the procedures for altering a term of designation for a 
National Marine Sanctuary. As provided by section 304(a)(4) of the 
National Marine Sanctuaries Act (NMSA), 16 U.S.C. Sec. 1434(a)(4), 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. 
Secs. 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.
    Although NOAA is considering providing a limited exception for 
small-scale, non-intrusive jade collection from the regulatory 
prohibition against exploring for, producing or developing oil, gas or 
minerals, any jade collection that alters the seabed of the Sanctuary 
(e.g., digging into the seabed) would remain subject to the prohibition 
against alteration of the seabed (15 CFR 944.5(a)(5)). NOAA would not 
allow jade collection that alters the seabed of the Sanctuary. Further, 
any collection in California State waters would require a State permit 
because of the State's prohibitions against taking minerals from State 
submerged lands and disturbing State subsurface lands.
    NOAA is seeking advice, recommendations, information and other 
comments, with reasons, on whether NOAA should amend the MBNMS 
regulations to allow small-scale, non-intrusive jade collection in the 
MBNMS. If NOAA allows jade collection, comments are requested on: (1) 
whether collection should be limited to loose pebbles or small stones; 
(2) whether the use of tools should be permitted to collect jade from 
the Sanctuary; (3) whether there should be limits on the amount of jade 
allowed to be taken from the Sanctuary and, if so, what limits; (4) 
what conditions or restrictions should be placed on jade collection; 
and (5) any other information 

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or other comments that may be pertinent to this issue.

Executive Order 12866

    For purposes of Executive Order 12866, this advance notice of 
proposed rulemaking is determined to be not significant.

List of Subjects in 15 CFR Part 944

    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: June 9, 1995.
David Evans,
Acting Deputy Assistant Administrator for Ocean Services and Coastal 
Zone Management.
[FR Doc. 95-19633 Filed 8-8-95; 8:45 am]
BILLING CODE 3510-08-M