Application Guidelines for Underwater Archeological Research Permits on Submerged Cultural Resources Under the Jurisdiction of the Department of the Navy

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 767

RIN 0703-AA57

Application Guidelines for Underwater Archeological Research

Permits on Submerged Cultural Resources Under the Jurisdiction of the

Department of the Navy

AGENCY: Department of the Navy, DOD.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of the Navy (DON) proposes to issue underwater

archeological research permits to those applying for permission to

recover and/or conduct research on any submerged cultural resource,

ship or aircraft wreck, under the jurisdiction of the DON. This action

will assist the Navy in managing and protecting its historic underwater

cultural resources. This rule will provide clear guidance on the permit

application requirements to recover and/or conduct research on

submerged Navy properties.

DATES: Submit comments on or before January 18, 2000.

ADDRESSES: Address all comments concerning this rule to Department of

the Navy, U.S. Naval Historical Center, Office of the Underwater

Archeologist, Building 1, Washington Navy Yard, 805 Kidderbreese Ave.

SE, Washington DC 20374-5060. Telefax number: 202-433-2729. Please cite

``Application Guidelines for Underwater Archeological Research

Permits.''

FOR FURTHER INFORMATION CONTACT: Dr. Robert S. Neyland, Underwater

Archeologist, or Barbara A. Voulgaris, 202-433-2210.

SUPPLEMENTARY INFORMATION:

Background

a. In 1993, DON initiated an archeological management program for

its historic ship and aircraft wreck sites. This was aided in part by

the U.S. Department of Defense (DoD) Legacy Resource Management Program

that was established by Congress in 1991, 10 U.S.C. 114, to provide DoD

with an opportunity to enhance the management of DoD stewardship

resources. The U.S. Naval Historical Center's (NHC) Office of

Underwater Archeology is the Navy command responsible for managing the

Navy's submerged cultural resource properties under the guidelines of

the Federal Archeological Program.

b. Under the National Historic Preservation Act of 1966 as amended

(NHPA), 16 U.S.C. 470 (1999), DON is obligated to protect historic

properties, including ship and aircraft wrecks, for which it has

custodial responsibilities. The NHPA directs federal agencies to manage

their cultural resource properties in a way that emphasizes

preservation and minimizes the impact of undertakings that might

adversely affect such properties. Management of DON cultural resources

such as ship and aircraft wrecks is not simply a matter of

preservation. The issues of gravesites, unexploded ordnance, and

potential military usage of recovered weapons systems must also be

addressed in wrecksite management.

Custody and Management of Navy Shipwrecks and Aircraft Wrecksites

a. DON submerged shipwrecks and aircraft wrecks are government

property in the custody of the Navy. These seemingly abandoned wrecks

remain government property until specific formal action is taken to

dispose of them. Navy custody of its wrecks is based on the property

clause of the U.S. Constitution and international maritime law, and is

consistent with Articles 95 and 96 of the Law of the Sea Convention.

These laws establish that right, title, or ownership of Federal

property is not lost to the government due to the passage of time. Navy

ships and aircraft cannot be abandoned without formal action as

authorized by Congress. Aircraft and ships stricken from the active

inventory list are not considered formally disposed of or abandoned.

Through the sovereign immunity provisions of admiralty law, DON retains

custody of all its naval vessels and aircraft, whether lost in U.S.,

foreign, or international boundaries.

b. Divers may dive on Navy wrecks at their own risk; however,

Federal property law dictates that no portion of a government wreck may

be disturbed or removed. The Navy strongly encourages cooperation with

other agencies and individuals interested in preserving our maritime

and aviation heritage. Diving on sunken Navy ships and aircraft located

in units of the national park system or the national marine sanctuary

system may be prohibited unless authorized by a Federal land manager.

c. The diving public is encouraged to report the location of

underwater ship and aircraft wrecksites to the NHC. Documentation of

these wreck locations allows the Navy to evaluate and preserve

important sites for the future. Under no circumstances will salvage of

Navy aircraft or shipwrecks be undertaken without prior and specific

written approval by the NHC.

d. Wrecksites that are not entire aircraft or ships, but are parts

strewn in a debris field, are considered potential archeological sites.

Such sites still contain Navy property and must be managed by the Navy

in accordance with the NHPA, the Secretary of the Interior's Standards

and Guidelines on Archeology and Historic Preservation, 48 FR 44716

(1983), and departmental regulations. Permits for recovery of submerged

Navy ship or aircraft wrecks will be considered only for educational or

scientific reasons. It is unlikely DON will recommend the disposal and

sale of a Navy ship or aircraft wreck that is eligible for listing on

the National Register of Historic Places. The Navy maintains a policy

of not disposing wrecked ships and aircraft for the following reasons:

1. Congress has mandated through the NHPA that the DON make every

effort to preserve its historic cultural resources;

2. The remains of crewmembers, if any, deserve to be treated with

honor and dignity and to be properly retrieved for burial if possible;

3. There is a possibility that live explosives or ordnance may

still be associated with the vessel or aircraft;

4. The arbitrary disposal and sale of wrecks may foster commercial

exploitation of cultural resources and;

5. The abandonment of wrecks could deplete a finite inventory of

significant cultural resources.

e. Because of the large number of aircraft wrecks and because they

are generally easier to recover and conserve than shipwrecks, DON does

consider and encourage requests for loans of historic aircraft. Museums

or other private parties interested in the recovery of Navy aircraft

for educational or scientific purposes should contact the NHC for

guidance.

List of Subjects in 32 CFR Part 767

Aircraft, Archeology, Educational research, Government property,

Government property management, Historic preservation, Permit,

Research, Scientific research, Vessel.

For the reasons stated in the preamble, the Department of the Navy

proposes to add 32 CFR part 767 to read as follows:

[[Page 63264]]

PART 767--APPLICATION GUIDELINES FOR UNDERWATER ARCHEOLOGICAL

RESEARCH PERMITS ON SUBMERGED CULTURAL RESOURCES UNDER THE

JURISDICATION OF THE DEPARTMENT OF THE NAVY

Subpart A--Regulations and Obligations

Sec.

767.1 Purpose.

767.2 Definitions.

767.3 Policy.

Subpart B--Permit Guidelines

767.4 Application for permit.

767.5 Evaluation of permit application.

767.6 Credentials of principal investigator.

767.7 Conditions of permits.

767.8 Requests for amendments or extensions of active permits.

767.9 Content of permit holder's final report.

767.10 Monitoring of performance.

767.11 Violations of permit conditions.

767.12 References for submission of permit application to conduct

archeological research.

Authority: 5 U.S.C. 301; 16 U.S.C. 470.

Subpart A--Regulations and Obligations

Sec. 767.1 Purpose.

(a) The purpose of this part is to establish the requirement and

procedural guidelines for permits to recover and/or conduct research on

Department of the Navy (DON) submerged cultural resources.

(b) The U.S. Naval Historical Center's (NHC) Office of Underwater

Archeology is the Navy command responsible for managing Navy submerged

cultural resource properties under the guidelines of the Federal

Archeological Program. In order for the NHC's management policy to be

consistent with the Federal Archeology Program, and the goals of the

NHPA, the Navy has implemented a permitting process applicable to Navy

property consistent with and applying the Archeological Resources

Protection Act of 1979 (ARPA), 16 U.S.C. 470aa-470ll (1999), permitting

criteria. Navy policies regarding its submerged cultural resources, to

include ship and aircraft wrecks are consistent with ARPA permitting

requirements. Navy application of ARPA permitting criteria promotes

consistency among federal agencies and meets the Navy's

responsibilities under the NHPA, while allowing qualified non-federal

and private individuals and entities access to Navy historic vessel and

aircraft wrecks.

(c) To assist NHC in managing, protecting, and preserving DON

submerged cultural resources.

Sec. 767.2 Definitions.

Aircraft wrecksite means the location where an aircraft has been

crashed, ditched, damaged, or stranded. The wreck may be intact or

scattered, may be on land or in water, and may be a structure or a

site.

Archeological site means the location of a significant event,

historic occupation or activity, or a building or structure including

aircraft or shipwrecks, whether standing, ruined, or vanished, and its

debris field where the location itself retains historical or

archeological value regardless of the value of any existing structure.

Artifact means any object or assemblage of objects found in an

archeological context that yields or is likely to yield information of

significance to the scientific study of culture or human history.

Cultural resource means the remains or records of districts, sites,

structures, buildings, networks, objects, and events from the past.

They may be historic, archeological, or architectural in nature.

Cultural resources are an irreplaceable and nonrenewable aspect of our

national heritage.

Gravesite means any natural or prepared physical location, whether

originally below, on, or above the surface of the earth, where

individual human remains are deposited.

Permit holder means any person authorized and given the exclusive

right by the NHC to conduct any activity under these regulations.

Permitted activity means any activity that is authorized by the NHC

under these regulations.

Research vessel means any vessel employed for scientific purposes

under these regulations.

Shipwreck means the physical remains of a vessel, its cargo, and

other contents.

Wrecksite means the location of a ship or aircraft that has been

sunk, crashed, ditched, damaged, or stranded. The wreck may be intact

or scattered, may be on land or in water, and may be a structure or a

site. The site includes the physical remains of the wreck and all other

associated artifacts.

Sec. 767.3 Policy.

(a) The NHC's policy has been to evaluate each Navy submerged

cultural resource on an individual basis. In some cases, the removal of

Navy submerged cultural resources may be necessary or appropriate to

protect the resource and/or to fulfill other NHC goals, such as those

encompassing research, education, public access, and appreciation.

Recovery of Navy submerged cultural resources may be justified in

specific cases where the existence of a resource may be threatened.

Therefore, recovery of some or all of a resource may be permitted for

identification and/or investigation to answer specific questions; or

the recovery presents an opportunity for public research or education.

(b) Generally, submerged Navy cultural resources will be left in

place unless artifact removal or site disturbance is justified and

necessary to protect Navy cultural resources, to conduct research, or

provide public education and information that is otherwise

inaccessible. While the NHC prefers non-destructive, in situ research

on submerged Navy shipwrecks and aircraft wrecks, it recognizes that

site disturbance and/or artifact recovery is sometimes necessary. At

such times, site disturbance and/or archeological recovery may be

permitted, subject to conditions specified by NHC.

Subpart B--Permit Guidelines

Sec. 767.4 Application for permit.

(a) To request a permit application form, please write to:

Department of the Navy, U.S. Naval Historical Center, Office of the

Underwater Archeologist, Building 1, Washington Navy Yard, 805

Kidderbreese Ave. SE, Washington DC 20374-5060. Telefax number: 202-

433-2729.

(b) Applicants must submit three copies of their completed

application at least 90 days in advance of the requested effective date

to allow sufficient time for evaluation and processing. Requests should

be sent to the Underwater Archeologist of the U.S. Navy, Naval

Historical Center, Washington Navy Yard, 805 Kidderbreese Ave. SE,

Washington, DC 20374-5060.

(c) If the applicant believes that compliance with one or more of

the factors, criteria, or procedures in the guidelines contained in

this part is not practicable, the applicant should set forth why and

explain how the purposes of the NHC are better served without

compliance with the specified requirements. Permits are valid for six

months from the issue date.

Sec. 767.5 Evaluation of permit application.

(a) Permit applications for archeological research are reviewed for

completeness, compliance with program policies, and adherence to these

guidelines. Incomplete applications will be returned to the applicant

for clarification. Complete applications are reviewed by NHC personnel

and, when necessary, outside experts. In addition to the criteria set

forth in Sec. 767.6,

[[Page 63265]]

applications are also judged on the basis of: relevance or importance;

archeological merits; appropriateness and environmental consequences of

technical approach; whether the proposed effort would be more

appropriately conducted outside of the NHC; and qualifications of the

applicants.

(b) Under certain circumstances, it may be necessary to consult

with the State Historic Preservation Officer (SHPO) and the Advisory

Council on Historic Preservation (ACHP) about the need to comply with

section 106 of the NHPA. A section 106 review requires the NHC to

consult with the appropriate SHPO and the ACHP. The ACHP review can

take up to 60 days beyond the NHC's required 90-day review. Therefore,

the entire review process may take up to 150 days.

(c) Applications for research at sites located in units of the

National Park system, national wildlife refuge system, and national

marine sanctuary system, shall be sent to the appropriate Federal land

manager for review. Applications for research at sites located on state

bottomlands should be sent to the appropriate state agency for review.

The burden of obtaining any and all additional permits or

authorizations, such as from a state or foreign government or agency,

private individual or organization, or from another federal agency, is

on the applicant.

(d) Based on the findings of the NHC evaluation, the NHC Underwater

Archeologist will recommend an appropriate action to the NHC Director.

If approved, the NHC will issue the permit; if denied, applicants are

notified of the reason for denial and may appeal within 30 days of

receipt of the denial. Appeals must be submitted in writing to:

Director of Naval History, Naval Historical Center, 805 KidderBreese

Ave. SE, Washington, DC 20374-5060.

Sec. 767.6 Credentials of principal investigator.

A resume or curriculum vitae detailing the professional

qualifications and professional publications and papers of the

principal investigator (PI) must be submitted with the permit

application. The PI must have: a graduate degree in archeology,

anthropology, maritime history, or a closely related field; at least

one year of professional experience or equivalent specialized training

in archeological research, administration or management; at least four

months of supervised field and analytic experience in general North

American historic archaeology and maritime history; the demonstrated

ability to carry research to completion; and at least one year of full-

time professional experience at a supervisory level in the study of

historic marine archeological resources. This person shall be able to

demonstrate ability in comprehensive analysis and interpretation

through authorship of reports and monographs.

Sec. 767.7 Conditions on permits.

(a) Upon receipt of a permit, permit holders must counter-sign the

permit and return copies to the NHC and the applicable SHPO prior to

conducting permitted activities on the site. Copies of countersigned

permits should also be provided to the applicable federal land manager

when the sunken vessel or aircraft is located within a unit of the

national park system, the national wildlife refuge system, or the

national marine sanctuary system.

(b) Permits must be carried aboard research vessels and made

available upon request for inspection to regional preservation

personnel or law enforcement officials. Only persons named in the

permit may participate in permitted activities. Permits are non-

transferable. Permit holders must abide by all provisions set forth in

the permit as well as applicable state or Federal regulations. Permit

holders should abide by applicable regulations of a foreign government

when the sunken vessel or aircraft is located in foreign waters. To the

extent reasonably possible, the environment must be returned to the

condition that existed before the activity occurred.

(c) Upon completion of permitted activities, the permit holder is

required to submit to the NHC a working and diving log listing days

spent in field research, activities pursued, and working area

positions.

(d) The permit holder must prepare and submit a final report as

detailed in Sec. 767.9, summarizing the results of the permitted

activity.

(e) The permit holder must agree to protect all sensitive

information regarding the location and character of the wreck site that

could potentially expose it to non-professional recovery techniques,

looters, or treasure hunters. Sensitive information includes specific

location data such as latitude and longitude, and information about a

wreck's cargo, the existence of armaments, or the knowledge of

gravesites.

(f) All recovered DON cultural resources remain the property of the

United States. These resources and copies of associated archaeological

records and data will be preserved by a suitable university, museum, or

other scientific or educational institution.

Sec. 767.8 Requests for amendments or extensions of active permits.

(a) Requests for amendments to active permits (e.g., a change in

study design or other form of amendment) should conform to these

guidelines. All necessary information to make an objective evaluation

of the amendment should be included as well as reference to the

original application.

(b) Permit holders desiring to continue research activities must

reapply for an extension of their current permit before it expires. A

pending extension or amendment request does not guarantee extension or

amendment of the original permit. Therefore, you must submit an

extension request to the NHC at least 30 days prior to the original

permit's expiration date. Reference to the original application may be

given in lieu of a new application, provided the scope of work does not

change significantly. Applicants may apply for no more than two six-

month extensions.

(c) Permit holders may appeal denied requests for amendments or

extensions to the appeal authority listed in Sec. 767.5.

Sec. 767.9 Content of permit holder's final report.

The permit holder's final report shall include the following:

(a) A site history and a contextual history relating the site to

the general history of the region;

(b) A master site map;

(c) Feature map(s) of the location of any recovered artifacts in

relation to their position within the wrecksite;

(d) Photographs of significant site features and significant

artifacts both in situ and after removal;

(e) A description of the conservation of artifact lists, laboratory

conservation records, and before and after photographs of significant

artifacts at the conservation laboratory;

(f) A written report describing the historical background,

environment, archeological field work, results, and analysis;

(g) A summary of the survey and/or excavation process;

(h) An evaluation of the completed permitted activity that includes

an assessment of the permit holder's success of his/her specified

goals.

Sec. 767.10 Monitoring of performance.

Permitted activities will be monitored to ensure compliance with

the conditions of the permit. NHC on-site personnel, or other

designated authorities, may periodically assess

[[Page 63266]]

work in progress by visiting the study location and observing any

activity allowed by the permit or by reviewing any required reports.

The discovery of any potential irregularities in performance under the

permit will be promptly reported and appropriate action will be taken.

Permitted activities will be evaluated and the findings will be used to

evaluate future applications.

Sec. 767.11 Violations of permit conditions.

The Director of the NHC, the Underwater Archeologist for DON, or

his/her designee may amend, suspend, or revoke a permit in whole or in

part, temporarily or indefinitely, if in his/her view the permit holder

has acted in violation of the terms of the permit or of other

applicable regulations, or for other good cause shown. Any such action

will be communicated in writing to the permit holder and will set forth

the reason for the action taken. The permit holder may appeal the

action to the appeal authority listed in Sec. 767.5.

Sec. 767.12 References for submission of permit application to conduct

archeological research.

(a) National Historic Preservation Act of 1966, as amended (NHPA),

16 U.S.C. 470 et seq. (1999), and Protection of Historic Properties, 36

CFR part 800 (1999). These regulations govern the Section 106 Review

Process established by the NHPA.

(b) Secretary of the Interior's Standards and Guidelines for

Archeology and Historic Preservation, 48 FR 44716 (1983). This

publication establishes standards for the preservation planning process

with guidelines on implementation.

(c) Archeological Resources Protection Act of 1979, as amended

(ARPA), 16 U.S.C. 470aa et seq. (1999), and the Uniform Regulations,

ARPA, 43 CFR part 7 (1998). These regulations establish basic

government-wide standards for the issuance of permits for archeological

research, including the authorized excavation and/or removal of

archeological resources on public lands or Indian lands.

(d) Secretary of the Interior's Curation of Federally-Owned and

Administered Archeological Collections, 36 CFR part 79 (1999). This

publication establishes standards for the curation and display of

federally-owned artifact collections.

(e) Antiquities Act of 1906, Pub. L. No. 59-209, 34 Stat. 225

(codified at 16 U.S.C. 431 et seq. (1999)).

(f) Executive Order No. 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp.,

p. 559 (Protection and Enhancement of the Cultural Environment).

(g) Department of Defense Instruction 4140.21M (DoDI 4120.21M,

August 1998). Subject: Defense Disposal Manual.

(h) Secretary of the Navy Instruction 4000.35 (SECNAVINST 4000.35,

17 August 1992). Subject: Department of the Navy Cultural Resources

Program.

(i) Naval Historical Center Instruction 5510.4. (NAVHISTCENINST

5510.4, 14 December 1995). Subject: Disclosure of Information from the

Naval Shipwreck Database.

Christopher G. Carlson,

Major, USMC, Alternate Federal Register Liaison Officer.

[FR Doc. 99-30079 Filed 11-18-99; 8:45 am]

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