[Federal Register Volume 79, Number 3 (Monday, January 6, 2014)]
[Proposed Rules]
[Pages 620-631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31068]


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DEPARTMENT OF DEFENSE

Department of the Navy

[No. USN-2011-0016]
RIN 0703-AA90

32 CFR Part 767


Guidelines for Permitting Archaeological Investigations and Other 
Activities Directed at Sunken Military Craft and Terrestrial Military 
Craft Under the Jurisdiction of the Department of the Navy

AGENCY: Department of the Navy, DoD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy (DoN) is revising its rules to 
assist the Secretary in managing sunken military craft under the 
jurisdiction of the DoN pursuant to the Sunken Military Craft Act 
(SMCA), and to issue revised application guidelines for research 
permits on terrestrial military craft under the jurisdiction of the 
DoN.

DATES: Interested parties should submit written comments on or before 
March 7, 2014.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
    Follow the instructions for submitting comments.
    Mail: Federal Docket Management System Office, 4800 Mark Center 
Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
    Instructions: All submissions received must include the agency name 
and docket or RIN number for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Dr. Robert Neyland, Head, Underwater 
Archaeology Branch, Naval History & Heritage Command, Department of the 
Navy, 805 Kidder Breese Street SE., BL 57, Washington Navy Yard, DC 
20374, email: NHHCUnderwaterArchaeology@navy.mil.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This proposed rule serves as a revision of the current 32 CFR part 
767 and incorporates existing regulations together with the expanded 
authority provided to the Secretary of the Navy by the SMCA (Pub. L. 
108-375, 10 U.S.C. 113 Note and 118 Stat. 2094-2098) in regards to 
permitting activities directed at sunken military craft that are 
otherwise prohibited by the SMCA (10 U.S.C. 1402(a)-1402(b)). The 
proposed rule replaces the current regulations and establishes a single 
permitting process for members of the public wishing to engage in 
activities that disturb, remove, or injure DoN sunken and terrestrial 
military craft for archaeological, historical, or educational purposes. 
As per the limitations on application expressed in (10 U.S.C. 
1402(c)(1)), section 1402 shall not apply to actions taken by, or at 
the direction of, the United States.
    The current rule is based on provisions of the National Historic 
Preservation Act (NHPA) (16 U.S.C. 470) which sets forth the 
responsibility for each agency to preserve and manage historic 
properties under their respective jurisdiction and control and 5 U.S.C. 
301, which authorizes the DoN to promulgate regulations regarding the 
custody, use, and preservation of its records, papers and property. The 
rule institutes a permitting program that authorizes controlled access 
to disturb these historic properties, which remain property of the DoN, 
for prescribed purposes. It is the policy of the DoN to preserve these 
sites in situ unless site disturbance, removal, or injury is necessary 
for their protection or justified for research and educational 
purposes. Archaeological science and sound management principles 
support this strategy that affords the DoN the ability to efficiently 
oversee its more than 17,000 historic wrecks dispersed around the 
globe.
    The existing regulations only apply to ships and aircraft that are 
classified as historic structures or archaeological sites, regardless 
of location, and do not carry the enforcement provisions necessary to 
serve as a deterrent to their unauthorized disturbance. The SMCA was 
enacted in 2004 and codified these existing principles of preservation 
of title and sovereign immunity in regards to sunken military craft. As 
defined in the SMCA, the term sunken military craft includes all sunken 
warships, all naval auxiliaries, and other vessels that were owned or 
operated by a government on military noncommercial service when they 
sank. The term also includes all sunken military aircraft or spacecraft 
owned or operated by a government when they sank. In addition, 
associated contents such as equipment, cargo, and the remains and 
personal effects of the crew and passengers are also protected if 
located within a craft's debris field. It is important to note that the 
SMCA is not limited to historic sunken military craft of the United 
States. All U.S. sunken military craft are covered, regardless of 
location or time of loss, while all foreign sunken military craft in 
U.S. waters, consisting of U.S. internal waters, the U.S. territorial 
sea, and the U.S. contiguous zone, are also afforded protection from 
disturbance by the SMCA. A permitting process may be implemented by the 
Secretary of a military department or the department in which the Coast 
Guard is operating in order to permit activities directed at sunken 
military craft that are otherwise prohibited.

[[Page 621]]

    Sunken military craft are not only of historical importance to the 
Nation, having served in all of its most critical moments, but are also 
often war graves and memorials to the men and women who served aboard 
them. Many carry unexploded ordnance that can pose public safety 
hazards or oil and other materials that, if not properly handled, may 
cause substantial harm to the environment. Furthermore, many hold state 
secrets and technologies of significance to national security. 
Therefore, it is important for these sites to be respected and remain 
undisturbed and for the U.S. to promote the international law rules 
that sunken military craft are entitled to sovereign immunity and 
preservation of title. When otherwise prohibited activities are 
permitted, they must be conducted in a professional manner and with 
archaeological, historical or educational purposes in mind. 
Accordingly, the SMCA declares that the ``law of finds'' does not apply 
to any U.S. sunken military craft or any foreign sunken military craft 
in U.S. waters. No salvage rights or awards are to be granted with 
respect to U.S. sunken military craft without the express permission of 
the U.S., or with respect to foreign sunken military craft located in 
U.S. waters without the express permission of the relevant foreign 
state.
    This proposed rule is promulgated based on the authority granted to 
the Secretary of the Navy by the SMCA to establish a permitting program 
allowing controlled public access to sunken military craft that is 
otherwise prohibited. As stewards of the DoN's historic ship and 
aircraft wrecks, the Naval History & Heritage Command (NHHC) continues 
its role as the authority responsible for administering this revised 
permitting program. As a result of the need to incorporate the existing 
regulations and provisions set forth in the SMCA, the proposed rule 
adopts the definition of sunken military craft present in the Act and 
develops a counterpart--terrestrial military craft--to refer to DoN 
wrecked craft located on land that are either historic structures or 
archaeological sites.
    NHHC will serve as the permitting authority for the disturbance of 
non-historic DoN sunken and terrestrial military craft and consider 
such applications in the cases where there is a clear demonstrable 
benefit to the DoN under the special use permit provisions. Special use 
permits will only be issued in cases when internal DoN coordination 
does not result in any objection. Finally, the NHHC will also serve as 
the permitting authority for those foreign sunken military craft 
located in U.S. waters that through and under the terms of an agreement 
with the respective foreign state are included within NHHC's management 
purview. Non-intrusive activities including diving adjacent to or 
remotely documenting sites do not require a permit or authorization 
from the NHHC though this does not preclude the obligation to obtain 
permits or other authorizations otherwise required by law. The 
regulations stipulate an application process for disturbance of 
historic sunken military craft and terrestrial military craft. 
Applicants must meet certain requirements and qualifications which are 
set forth in the proposed rules in order to demonstrate careful 
planning, professional credentials, and a long-term view of the effects 
of the proposed activities on the craft and any recovered material.
    The proposed rule also incorporates provisions for a special use 
permit to be issued in the case of certain activities directed at 
sunken military craft that would result in the wrecksite's disturbance, 
removal, or injury but otherwise be minimally intrusive. The standards 
that must be met for special use permits are more easily attainable as 
are the reporting requirements, though data collected must be shared 
with NHHC.
    As more than half of the DoN's sunken military craft rest beyond 
U.S. waters, the U.S. government has an interest in reaching agreements 
with foreign nations, and in particular the major maritime powers, 
seeking assurances that our sunken military craft will be respected and 
protected and offering foreign nations reciprocal treatment. In order 
to encourage universal respect and such mutually-beneficial treatment 
of sunken military craft, the Secretary of the Navy, in consultation 
with the Secretary of State, may consider requests by foreign states to 
incorporate their military craft located in U.S. waters within the DoN 
permitting program. The foreign state must assert its sovereign 
immunity over its craft, request assistance by the U.S. government, and 
acknowledge the provisions that will apply to their sunken military 
craft if incorporated into the DoN permitting program. Following such a 
request and appropriate consultation, an understanding to this effect 
may be reached with that foreign state.
    The final major provision of the proposed rule affects violations 
of the SMCA or of the permitting program and outlines penalties and 
enforcement procedures. Violators may be punished by a fine not to 
exceed $100,000 per violation, with each day of a violation counting as 
a separate incident, may be liable for damages, and may suffer loss of 
their vessel and other equipment associated with the violation.
    The proposed revision to the rule codifies existing legislation and 
stated public policy and does not carry a significant burden of cost to 
the public. With stricter enforcement provisions acting as a deterrent 
and a management policy based on the principle of in situ preservation, 
the proposed rule makes the protection of war-related and other 
maritime graves, the preservation of historical resources, the proper 
handling of safety and environmental hazards, and the safeguarding 
national security interests more effective, efficient, and affordable. 
At the same time, the proposed rule enables the public to have 
controlled intrusive access to sites otherwise prohibited from 
disturbance, bringing to light new knowledge about the Nation's 
maritime heritage, and honoring the service of those Sailors lost at 
sea.
    The revisions to this rule are part of DoD's retrospective plan 
under EO 13563 completed in August 2011. DoD's full plan can be 
accessed at http://exchange.regulations.gov/exchange/topic/eo-13563.

Background

    The DoN is revising 32 CFR part 767 pursuant to the SMCA in order 
to implement a permitting system regulating research activities 
directed at DoN sunken military craft that otherwise are prohibited by 
the SMCA. The proposed rule also revises existing regulations by 
incorporating those permitting provisions stemming from 5 U.S.C. 
Chapter 301, 16 U.S.C. Chapter 470, and the SMCA into a single 
comprehensive set of rules for research activities directed at sunken 
military craft and terrestrial military craft under the jurisdiction of 
the DoN, regardless of location or passage of time. Sunken military 
craft and terrestrial military craft are non-renewable cultural 
resources that often serve as war-related and other maritime graves, 
safeguard state secrets, carry environmental and safety hazards such as 
oil and ordnance, and hold significant historical and archaeological 
value. Access to these sites requires DoN oversight to ensure site 
preservation, the sanctity of war and other maritime graves, public 
safety, and sound environmental stewardship. In addition, DoN oversight 
ensures that research carrying the potential to disturb such sites is 
conducted to professional standards under existing laws and guidelines 
such as those of the Federal Archaeology Program and the NHPA. The 
proposed rule allows for the

[[Page 622]]

incorporation of foreign sunken military craft in this permitting 
system upon request and agreement with the foreign state. Furthermore, 
it identifies penalties and enforcement procedures to be followed in 
the event of violations to the proposed rule affecting sunken military 
craft. The proposed rule will replace the existing section to reflect 
current agency regulations. Interested persons are invited to comment 
in writing on this amendment. All written comments received will be 
considered in making the proposed amendments to this part. It has been 
determined that this proposed rule amendment is not a major rule within 
the criteria specified in Executive Order 12866, as amended by 
Executive Order 13258, and does not have substantial impact on the 
public.

Matters of Regulatory Procedure

    Executive Order 12866, ``Regulatory Planning and Review'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review''
    It has been determined that 32 CFR Part 767 is not a significant 
regulatory action. The rule does not:
    (1) have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of the 
recipients thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
these Executive Orders.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR Part 767 does not contain a 
Federal Mandate that may result in the expenditure by State, local, and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR Part 767 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR Part 767 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. Chapter 35).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR Part 767 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 767

    Evaluation of permit applications, Historic sunken military craft 
and terrestrial military craft site permits, Special use permits, 
Foreign sunken military craft, Civil penalties, Liability for damages, 
Enforcement actions, Prohibited acts, Permit requirements.

    For the reasons set forth in the preamble, the Department of the 
Navy proposes to revise 32 CFR part 767 to read as follows:

PART 767--GUIDELINES FOR ARCHAEOLOGICAL INVESTIGATION PERMITS AND 
OTHER RESEARCH ON SUNKEN MILITARY CRAFT AND TERRESTRIAL MILITARY 
CRAFT UNDER THE JURISDICTION OF THE DEPARTMENT OF THE NAVY

Subpart A--Regulations and Obligations
Sec.
767.1 Purpose.
767.2 [Reserved].
767.3 Definitions.
767.4 Prohibited acts.
767.5 Policy.
Subpart B--Permit Requirements
767.6 Historic sunken military craft and terrestrial military craft 
permit application.
767.7 Evaluation of permit application.
767.8 Credentials of principal investigator.
767.9 Conditions of permits.
767.10 Requests for amendments or extensions of active permits.
767.11 Content of permit holder's final report.
767.12 Special use permit application.
767.13 Monitoring of performance.
767.14 Amendment, suspension, or revocation of permits.
767.15 Application to foreign sunken military craft and U.S. sunken 
military craft not under the jurisdiction of the DoN.
Subpart C--Enforcement Provisions for Violations of the Sunken Military 
Craft Act and Associated Permit Conditions
767.16 Civil penalties for violations of Act or permit conditions.
767.17 Liability for damages.
767.18 Notice of Violation and Assessment (NOVA).
767.19 Procedures regarding service.
767.20 Requirements of respondent or permit holder upon service of a 
NOVA.
767.21 Hearings.
767.22 Final administrative decision.
767.23 Payment of final assessment.
767.24 Compromise of civil penalty, enforcement costs and/or 
liability for damages.
767.25 Factors considered in assessing penalties.
767.26 Criminal law.
767.27 References.

    Authority:  10 U.S.C. 113 note; Pub. L. 108-375, Title XIV, 
sections 1401 to 1408, Oct. 28, 2004, 118 Stat. 2094; 5 U.S.C. 301; 
16 U.S.C. 470.

Subpart A--Regulations and Obligations


Sec.  767.1  Purpose.

    The purpose of this part is:
    (a) To assist the Secretary in managing sunken military craft under 
the jurisdiction of the Department of the Navy (DoN) pursuant to the 
Sunken Military Craft Act (SMCA), 10 U.S.C. 113 note; Public Law 108-
375, Title XIV, sections 1401 to 1408, Oct. 28, 2004, 118 Stat. 2094, 
and to provide application rules for research permits on applicable 
military craft under the jurisdiction of the DoN.
    (b) To establish the procedural rules for the issuance of permits 
authorizing persons to engage in activities directed at sunken military 
craft and terrestrial military craft under the jurisdiction of the DoN 
for archaeological, historical, or educational purposes, when the 
proposed activities may disturb, remove, or injure the sunken military 
craft or terrestrial military craft.
    (c) To ensure DoN consistency with other applicable Federal laws. 
The Secretary is responsible for managing DoN historic military craft, 
including those that also qualify as sunken military craft, under the 
guidelines of the Federal Archeology Program. In order for the 
Secretary's management policy to be consistent to the extent 
practicable with the Federal Archeology Program, the NHPA (16 U.S.C. 
470), Protection of Archaeological Resources: Uniform Regulations (32 
CFR part 229), and Curation of Federally-Owned and Administered 
Archaeological Collections (36 CFR part 79), the DoN has implemented a 
permitting process applicable to DoN historic military craft consistent 
with and applying the

[[Page 623]]

Archaeological Resources Protection Act (ARPA) of 1979 as amended, 16 
U.S.C. 470aa-mm, permitting criteria. The DoN's application of ARPA's 
permitting criteria promotes consistency among federal agencies. The 
regulations provide qualified individuals and entities with access to 
DoN historic military craft for purposes consistent with ARPA and the 
SMCA.
    (c) To set forth the procedures governing administrative 
proceedings for assessment of civil penalties or liability damages in 
the case of a sunken military craft permit violation or violation of 
section 1402 of the SMCA.


Sec.  767.2  [Reserved]


Sec.  767.3  Definitions.

    Agency means the Department of the Navy.
    Archaeological site means the place or places where the remnants of 
a past culture survive in a physical context that allows for the 
interpretation of these remains. A historic sunken military craft or a 
terrestrial military craft is considered an archaeological site when it 
lacks the structural integrity of an intact craft and when its 
wrecksite retains archaeological or historical value.
    Artifact means any portion of a sunken military craft or 
terrestrial military craft that by itself or through its relationship 
to another object or assemblage of objects, regardless of age, whether 
in situ or not, may carry archaeological or historical data that yields 
or is likely to yield information that contributes to the understanding 
of culture or human history.
    Associated Contents means:
    (1) The equipment, cargo, and contents of a sunken military craft 
or terrestrial military craft that are within its debris field; and
    (2) The remains and personal effects of the crew and passengers of 
a sunken military craft or terrestrial military craft that are within 
its debris field.
    Disturb or Disturbance means directly or indirectly affecting the 
physical condition of any portion of a sunken military craft or 
terrestrial military craft, altering the position or arrangement of any 
portion of a sunken military craft or terrestrial military craft, or 
influencing the wrecksite or its immediate environment in such a way 
that any portion of a craft's physical condition is affected or its 
position or arrangement is altered.
    Debris field means an area, whether contiguous or non-contiguous, 
that consists of portions of one or more sunken military craft or 
terrestrial military craft distributed due to, or as a consequence of, 
a wrecking event and post-depositional site formation processes. An 
artifact field forms part of a debris field.
    Historic in the case of a sunken military craft or a terrestrial 
military craft means fifty (50) years have elapsed since the date of 
its loss and/or the craft is listed on, eligible for, or potentially 
eligible for listing on the National Register of Historic Places.
    Historic structure means a structure made up of interdependent and 
interrelated parts in a definite pattern or organization that has been 
deemed historic. Constructed by man, it is often an engineering project 
large in scale. If a historic structure has lost its historic 
configuration or pattern of organization through deterioration or 
demolition, it is considered an archaeological site. A historic sunken 
military craft or terrestrial military craft is a historic structure 
when it is relatively intact and when it and its location retain 
historical, architectural, or associative value.
    Injure or injury means to inflict material damage on or impair the 
soundness of any portion of a sunken military craft or terrestrial 
military craft.
    Permit holder means any person authorized and given the right by 
the Naval History and Heritage Command (NHHC) to conduct activities 
authorized under these regulations.
    Permitted activity means any activity that is authorized by the 
NHHC under the regulations in this part.
    Person means an individual, corporation, partnership, trust, 
institution, association; or any other private entity, or any officer, 
employee, agent, instrumentality, or political subdivision of the 
United States.
    Possession or in possession of means having physical custody or 
control over any portion of a sunken military craft or terrestrial 
military craft.
    Remove or removal means to move or relocate any portion of a sunken 
military craft or terrestrial military craft by lifting, pulling, 
pushing, detaching, extracting, or taking away or off.
    Respondent means a vessel or person subject to a civil penalty, 
enforcement costs and/or liability for damages based on an alleged 
violation of this part or a permit issued under this part.
    Secretary means the Secretary of the Navy or his or her designee. 
The Director of the NHHC is the Secretary's designee for DoN ship and 
aircraft wreck historical and archaeological policy; the permitting of 
activities that disturb foreign sunken military craft in U.S. waters 
and DoN sunken military craft; the initiation of enforcement actions; 
and, assessment of civil penalties or liability for damages. The 
Secretary's designee for appeals of Notices of Violations is the 
Defense Office of Hearings and Appeals (DOHA).
    Secretary concerned means:
    (1) The Secretary of a military department;
    (2) In the case of a sunken Coast Guard military craft, the 
Secretary of the Department in which the Coast Guard is operating.
    Sunken Military Craft means all or any portion of--
    (1) Any sunken warship, naval auxiliary, or other vessel that was 
owned or operated by a government on military noncommercial service 
when it sank;
    (2) Any sunken military aircraft or military spacecraft that was 
owned or operated by a government when it sank;
    (3) The associated contents of a craft referred to in paragraph (1) 
or (2) of this definition;
    (4) Any craft referred to in paragraph (1) or (2) of this 
definition which may now be on land or in water, if title thereto has 
not been abandoned or transferred by the government concerned.
    Sunken Military Craft Act refers to the provisions of 10 U.S.C. 113 
note; Pub.L. 108-375, Title XIV, sections 1401 to 1408, Oct. 28, 2004, 
118 Stat. 2094.
    Terrestrial military craft means the physical remains of all or any 
portion of a historic ship, aircraft, spacecraft, or other craft, 
intact or otherwise, manned or unmanned, along with all associated 
contents, located on land and under the jurisdiction of the DoN. 
Terrestrial military craft sites are classified as either historic 
structures or archaeological sites and are distinguished from sunken 
military craft by never having sunk in a body of water.
    United States Contiguous Zone means the contiguous zone of the 
United States declared by Presidential Proclamation 7219, dated 
September 2, 1999. Accordingly, the contiguous zone of the United 
States extends to 24 nautical miles from the baselines of the United 
States determined in accordance with international law, but in no case 
within the territorial sea of another nation.
    United States Internal Waters means all waters of the United States 
on the landward side of the baseline from which the breadth of the 
United States territorial sea is measured.
    United States sunken military craft means all or any portion of a 
sunken military craft owned or operated by the United States.
    United States Territorial Sea means the waters of the United States 
territorial sea claimed by and described in Presidential Proclamation 
5928,

[[Page 624]]

dated December 27, 1988. Accordingly, the territorial sea of the United 
States extends to 12 nautical miles from the baselines of the United 
States determined in accordance with international law.
    United States Waters means United States internal waters, the 
United States territorial sea, and the United States contiguous zone.
    Wrecksite means the location of a sunken military craft or 
terrestrial military craft. The craft may be intact, scattered or 
completely deteriorated, may presently be on land or in water, and may 
be a historic structure or an archaeological site. The wrecksite 
includes any physical remains of the craft and all associated contents.


Sec.  767.4  Prohibited acts.

    (a) Unauthorized activities directed at sunken military craft or 
terrestrial military craft. No person shall engage in or attempt to 
engage in any activity directed at a sunken military craft or 
terrestrial military craft that disturbs, removes, or injures any 
sunken military craft or terrestrial military craft, except--
    (1) As authorized by a permit issued pursuant to these regulations;
    (2) As otherwise authorized by these regulations; or
    (3) As otherwise authorized by law.
    (b) Possession of sunken military craft or terrestrial military 
craft. No person may possess, disturb, remove, or injure any sunken 
military craft or terrestrial military craft in violation, where 
applicable, of--
    (1) Section 1402 of the SMCA; or
    (2) Any regulation set forth in this part or any permit issued 
under it; or
    (3) Any prohibition, rule, regulation, ordinance, or permit that 
applies under any other applicable law.
    (c) Limitations on Application. Prohibitions in section 1402 of the 
SMCA shall not apply to--
    (1) Actions taken by, or at the direction of, the United States.
    (2) Any action by a person who is not a citizen, national, or 
resident alien of the United States, except in accordance with--
    (i) Generally recognized principles of international law;
    (ii) An agreement between the United States and the foreign country 
of which the person is a citizen;
    (iii) In the case of an individual who is a crew member or other 
individual on a foreign vessel or foreign aircraft, an agreement 
between the United States and the flag State of the foreign vessel or 
aircraft that applies to the individual.


Sec.  767.5  Policy.

    (a) As stewards of the DoN's historic sunken military craft and 
wrecksites, the NHHC is responsible for managing these irreplaceable 
resources for the continued education and appreciation of present and 
future generations. To ensure consistent and effective stewardship, the 
NHHC has developed a comprehensive program that encompasses the 
following categories: preservation planning; wrecksite management; 
curation; and public information, interpretation, and education. The 
NHHC strongly encourages cooperation with other Department of Defense 
commands, Federal and State agencies, educational institutions, and 
individuals interested in preserving DoN's maritime and aviation 
heritage.
    (b) Historic sunken military craft and terrestrial military craft 
will generally be managed in place unless wrecksite disturbance, 
recovery, or injury is justified and necessary to protect the craft or 
the environment, to conduct research, or provide for public education. 
While the NHHC prefers non-destructive, in situ research on sunken 
military craft and terrestrial military craft, it recognizes that 
wrecksite disturbance, removal, or injury may become necessary or 
appropriate. At such times, wrecksite disturbance, removal, or injury 
may be permitted by the NHHC with respect to DoN sunken military craft 
for archaeological, historical, or educational purposes, subject to 
conditions set forth in accordance with these regulations. Historic 
shipwrecks under the jurisdiction of the DoN that do not qualify as 
sunken military craft are to be provided the same consideration and 
treatment as terrestrial military craft.
    (c) In addition to managing historic sunken military craft and 
terrestrial military craft, the NHHC will serve as the permitting 
authority for the disturbance of non-historic DoN sunken military 
craft. Permit applications will only be issued in instances where there 
is a clear demonstrable benefit to the DoN, and only special use 
permits can be issued in the case of non-historic sunken military 
craft. In such instances, prior to issuing a special use permit, the 
NHHC will consult with appropriate DoN offices within affected commands 
or offices, including, but not limited to, the Naval Sea Systems 
Command, Naval Air Systems Command, Space and Naval Warfare Systems 
Command, Naval Supply Systems Command, Naval Facilities Engineering 
Command, Navy Personnel Command, Supervisor of Salvage and Diving, 
Office of the Judge Advocate General of the Navy, the Office of the 
Chief of Naval Operations, or any other interested office.
    (d) The NHHC will serve as the permitting authority for disturbance 
of those foreign state sunken military craft located in U.S. waters 
addressed in Sec.  767.15 of this part. The NHHC, in consultation with 
the Department of State as appropriate, will make a reasonable effort 
to inform the applicable agency of a foreign state of the discovery or 
significant changes to the condition of its sunken military craft upon 
becoming aware of such information.
    (e) The DoN recognizes that, in accordance with section 1402(a)(3) 
of the Act, certain federal agencies have statutory authority to permit 
specific activities directed at DoN sunken military craft. The NHHC 
will coordinate, consult, and enter into interagency agreements with 
those federal agencies to ensure effective management of DoN sunken 
military craft and compliance with applicable law.
    (f) Notwithstanding any other section of this part, no act by the 
owner of a vessel, or authorized agent of the owner of a vessel, under 
a time charter, voyage charter, or demise charter to the DoN and 
operated on military service at the time of its sinking, provided that 
the sunken military craft is not considered historic as determined by 
the NHHC, shall be prohibited by, nor require a permit under, the SMCA 
or these regulations. This paragraph (f) shall not be construed to 
otherwise affect any right or remedy of the United States existing at 
law, in equity, or otherwise, in regard to any such sunken military 
craft, in regard to cargo owned by the United States on board or 
associated with any such craft, or in regard to other property or 
contents owned by the United States on board or associated with any 
such sunken military craft.
    (g) The NHHC reserves the right to deny an applicant a permit if 
the proposed activity does not meet the permit application 
requirements; is inconsistent with DoN policy or interests; does not 
serve the best interests of the sunken military craft or terrestrial 
military craft in question; in the case of foreign sunken military 
craft, is inconsistent with the desires of a foreign sovereign; is 
inconsistent with an existing resource management plan; is directed 
towards a sunken military craft or terrestrial military craft upon 
which other activities are being considered or have been authorized; 
will be undertaken in such a manner as will not permit the applicant to 
meet final report requirements; raises ethical

[[Page 625]]

conduct concerns or concerns over commercial exploitation; raises 
concerns over national security, foreign policy, environmental or 
ordnance issues; or out of respect for any human remains that may be 
associated with a wrecksite. The NHHC also reserves the right to deny 
an applicant a permit if the applicant has not fulfilled requirements 
associated with preceding permits issued by NHHC to the applicant.

Subpart B--Permit Requirements


Sec.  767.6  Historic sunken military craft and terrestrial military 
craft permit application.

    (a) Any person seeking to engage in an activity otherwise 
prohibited by section 1402 of the SMCA with respect to a historic 
sunken military craft or any activity that might affect a terrestrial 
military craft under the jurisdiction of the DoN shall apply for a 
permit for the proposed activity and shall not begin the proposed 
activity until a permit has been issued. The Secretary or his designee 
may issue a permit to any qualified person, in accordance with these 
regulations, subject to appropriate terms and conditions.
    (b) To request a permit application form, please write to: 
Department of the Navy, U.S. Naval History and Heritage Command, 
Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington 
Navy Yard, Washington, DC 20374-5060. Application forms and guidelines 
can also be found on the NHHC's Web site at: www.history.navy.mil.
    (c) Applicants must submit two printed copies of their completed 
application, as well as a digital version, at least 120 days in advance 
of the requested effective date to allow sufficient time for evaluation 
and processing. Completed applications should be sent to the Department 
of the Navy, U.S. Naval History and Heritage Command, Underwater 
Archaeology Branch, 805 Kidder Breese St. SE., Washington Navy Yard, 
Washington, DC 20374-5060.
    (d) Each permit application shall include:
    (1) A statement of research objectives, scientific methods, and 
significance of the proposed work to the U.S. Navy or the nation's 
maritime cultural heritage. This should include discussion articulating 
clearly the archaeological, historical, or educational purposes of the 
proposed activity;
    (2) A summary of significant previous work in the area of interest;
    (3) A discussion of how the proposed activity could disturb, 
remove, or injure the sunken military craft or the terrestrial military 
craft and the related physical environment;
    (4) A discussion of the methodology planned to accomplish the 
project's objectives. This should include a map showing the study 
location(s) and a description of the wrecksite(s) of particular 
interest;
    (5) An analysis of the extent and nature of potential environmental 
impacts from permitted activities and any associated permits or 
authorizations required by foreign, federal, state, or local law;
    (6) A detailed plan for wrecksite restoration and remediation with 
recommendations on wrecksite preservation and protection of the 
wrecksite location;
    (7) In addition to identification and qualifications of the 
Principal Investigator (PI), required by Sec. 767.8 of this part, 
identification of all other members of the research team and their 
qualifications. Changes to the primary research team subsequent to the 
issuance of a permit must be authorized via a permit amendment request 
as per Sec.  767.10(a) of this part;
    (8) A proposed budget, identification of funding source, and 
sufficient data to substantiate, to the satisfaction of the NHHC, the 
applicant's financial capability to complete the proposed research and, 
if applicable, any conservation and curation costs associated with or 
resulting from that activity;
    (9) A proposed plan for the public interpretation and professional 
dissemination of the proposed activity's results;
    (10) Where the application is for the excavation and/or removal of 
artifacts from a sunken military craft or terrestrial military craft, 
or for the excavation and/or removal of a sunken military craft or 
terrestrial military craft in its entirety:
    (i) A conservation plan, estimated cost, and the name of the 
university, museum, laboratory, or other scientific or educational 
institution in which the material will be conserved, including written 
certification, signed by an authorized official of the institution, of 
willingness to assume conservation responsibilities must be included.
    (ii) A plan for applicable post-fieldwork artifact analysis, 
including an associated timetable.
    (iii) The name of the facility in which the recovered materials and 
copies of associated records derived from the work will be preserved. 
This will include written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibilities for the collection. The named repository must, at a 
minimum, meet the standards set forth in 36 CFR part 79, Curation of 
Federally-Owned and Administered Archaeological Collections as per 
Sec.  767.9(h) of this part.
    (iv) Acknowledgement that the applicant is responsible for all 
conservation-related and long-term curation costs.
    (11) A proposed project timetable to incorporate all phases of the 
project through to the final report and/or any other project-related 
activities.
    (e) If the applicant believes that compliance with one or more of 
the factors, criteria, or procedures in the regulations contained in 
this part are not practicable, the applicant should set forth why and 
explain how the purposes of the SMCA (if applicable), these 
regulations, and the policies of the DoN are better served without 
compliance with the specified requirements. If the NHHC determines 
there is merit in the request and that full compliance is not required 
to meet these priorities, the NHHC will provide a written waiver to the 
applicant stipulating which factors, criteria, or procedures may be 
foregone or amended. However, NHHC will not waive statutory procedures 
or requirements.
    (f) Persons carrying out official NHHC duties under the direction 
of the NHHC Director, or his/her designee, or conducting activities at 
the direction of or in coordination with the NHHC as recognized through 
express written permission by the NHHC Director, or his/her designee, 
need not follow the permit application procedures set forth in this 
section and Sec. Sec.  767.7 and 767.9 to 767.12 of this part if those 
duties or activities are associated with the management of 
archaeological resources. Where appropriate, such persons will 
coordinate with Federal Land Managers, the Bureau of Ocean Energy 
Management, and/or State Historic Preservation Offices prior to 
engaging in the aforementioned activities. The NHHC Director, or his/
her designee, shall ensure that the provisions of Sec. Sec.  767.6(d), 
767.8, and 767.11 of this part have been met by other documented means 
consistent with the Federal Archeology Program and, that such documents 
and all resulting data will be archived within the NHHC.


Sec.  767.7  Evaluation of permit application.

    (a) Permit applications are reviewed for completeness, compliance 
with program policies, and adherence to the regulations of this 
subpart. Incomplete applications will be returned to the applicant for 
clarification. Complete applications are reviewed by NHHC

[[Page 626]]

personnel who, when appropriate, may seek outside guidance or peer 
reviews. In addition to the criteria set forth in Sec. Sec.  767.6(d) 
and 767.8 of this part, applications are also judged on the basis of: 
project objectives being consistent with DoN policy and the near- and 
long-term interests of the DoN; relevance or importance of the proposed 
project; archaeological, historical, or educational purposes achieved; 
appropriateness and environmental consequences of technical approach; 
conservation and long-term management plan; qualifications of the 
applicants relative to the type and scope of the work proposed; and 
funding to carry out proposed activities. The NHHC will also take into 
consideration the historic, cultural, or other concerns of a foreign 
state when considering an application to disturb a foreign sunken 
military craft of that state located within U.S. waters, subsequent to 
an agreement with the foreign state as per Sec.  767.15 of this part. 
The same consideration may be applied to U.S. sunken military craft 
that are not under the jurisdiction of the DoN, following an agreement 
with the Secretary of any military department, or in the case of the 
Coast Guard, the Secretary of the Department in which the Coast Guard 
is operating, as set forth in Sec.  767.15(e) of this part.
    (b) The NHHC will consult with the appropriate federal resource 
manager when it receives applications for research at wrecksites 
located in areas that include units of the National Park System, 
National Wildlife Refuge System, National Marine Sanctuary System, 
Marine National Monuments, within lease blocks managed by the Bureau of 
Ocean Energy Management, or within areas of responsibility of other 
Federal Land Managers.
    (c) The NHHC will consult with the appropriate State Historic 
Preservation Office (SHPO) or Tribal Historic Preservation Office 
(THPO) when it receives applications for research at wrecksites located 
on state lands, including lands beneath navigable waters as defined in 
the Submerged Lands Act, 43 U.S.C. 1301-1315, or tribal lands.
    (d) The applicant is responsible for obtaining any and all 
additional permits or authorizations, such as but not limited to those 
issued by another federal or state agency, or foreign government. In 
the case of U.S. sunken military craft or terrestrial military craft 
located within foreign jurisdictions, the NHHC may review and issue a 
conditional permit authorizing activities upon receipt of the 
appropriate permits and authorizations of the applicable foreign 
government by the applicant. The applicant must file a copy of the 
foreign government authorization with the NHHC when submitting the 
preliminary report stipulated in Sec.  767.9(d) of this part and final 
report stipulated in Sec.  767.9(f) of this part. Failure to do so will 
be considered a permit violation.
    (e) Based on the findings of the NHHC evaluation, NHHC personnel 
will recommend an appropriate action to the NHHC Deputy Director. If 
approved, the NHHC Deputy Director, or his or her designee, will issue 
the permit; if denied, applicants are notified of the reason for denial 
and may request reconsideration within 30 days of receipt of the 
denial. Requests for reconsideration must be submitted in writing to: 
Director of Naval History, Naval History and Heritage Command, 805 
Kidder Breese St. SE., Washington Navy Yard, Washington DC 20374-5060.


Sec.  767.8  Credentials of principal investigator.

    The principal investigator shall be suitably qualified as evidenced 
by training, education, and/or experience, and possess demonstrable 
competence in archaeological theory and method, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed. A resume or 
curriculum vitae detailing the professional qualifications of the 
principal investigator must be submitted with the permit application. 
Additionally, the principal investigator will be required to attest 
that all persons on the project team shall be qualified and have 
demonstrated competence appropriate to their roles in the proposed 
activity. The principal investigator must, at a minimum, meet the 
following requirements:
    (a) The minimum professional qualification standards for Archeology 
as determined by the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation (http://www.cr.nps.gov/local-law/arch_stnds_0.htm).
    (b) At least one year of full-time professional supervisory 
experience in the archaeological study of historic maritime resources 
or historic aviation resources. This experience requirement may 
concurrently account for certain stipulations of Sec.  767.8(a);
    (c) The demonstrated ability to plan, equip, fund, staff, organize, 
and supervise the type and scope of activity proposed;
    (d) If applicable, the demonstrated ability to submit post-
operational archaeological or other technical reports in a timely 
manner.


Sec.  767.9  Conditions of permits.

    (a) Permits are valid for one year from the date of issue.
    (b) Upon receipt of a permit, permit holders shall counter-sign the 
permit and return copies to the NHHC and the applicable SHPO, THPO, or 
foreign government official prior to conducting permitted activities on 
the wrecksite. When the sunken military craft or terrestrial military 
craft is located within federal areas such as a unit of the National 
Park System, the National Wildlife Refuge System, the National Marine 
Sanctuary System, or Marine National Monuments, the permit holder shall 
provide copies of countersigned permits to the applicable federal 
resource manager. Upon NHHC confirming receipt of the counter-signed 
permit, the permitted activities may commence, provided that any other 
regulatory and permitting requirements that may be applicable are met.
    (c) Permits shall be carried on-site and made available upon 
request for inspection to regional preservation personnel or federal or 
state law enforcement officials. Permits are non-transferable. Permit 
holders are expected to remain on-site for the duration of operations 
prescribed in the permit. In the event a permit holder is unable to 
directly oversee operations, the permit holder must nominate a suitable 
qualified representative who may only serve in that function upon 
written approval by NHHC.
    (d) Permit holders must abide by all provisions set forth in the 
permit as well as applicable state or federal regulations. Permit 
holders must abide by applicable regulations of a foreign government 
for activities directed at a sunken military craft when the sunken 
military craft is located in the internal waters, territorial sea, or 
contiguous zone of a foreign State, as defined by customary 
international law as reflected in the United Nations Convention on the 
Law of the Sea. If the sunken military craft is located on the 
continental shelf of a foreign nation, there may also be laws or 
regulations pertaining to the foreign nation's sovereign rights and 
jurisdiction relating to its continental shelf or EEZ that may apply to 
the proposed activities. To the extent possible, if the physical 
environment is impacted by the permitted activity, it must be returned 
to the condition that existed before the activity occurred.
    (e) Upon completion of permitted activities and at least 30 days 
prior to the original permit expiring, the permit

[[Page 627]]

holder shall submit to the NHHC a preliminary report that includes a 
working and diving log, the latter where appropriate, listing days 
spent conducting field research, activities pursued, working area 
locations including precise coordinates, an inventory of artifacts 
observed or recovered, and preliminary results and conclusions.
    (f) In the case of one or more permit extensions received through 
the process identified in Sec.  767.10(b) of this part, a preliminary 
report that includes all the information stated in paragraph (d) of 
this section is to be submitted by the permit holder annually at least 
30 days prior to the renewed permit's expiration date.
    (g) The permit holder shall prepare and submit a final report as 
detailed in Sec. 767.11 of this part, summarizing the results of the 
permitted activity to the NHHC, and the applicable SHPO, THPO, federal 
or state resource manager, or foreign government official within an 
appropriate time frame as specified in the permit. Failure to submit a 
final report within the specified time-frame will be considered a 
permit violation. If the final report is not due to be submitted within 
two years of commencement of a permitted activity, interim reports must 
be filed biannually, with the first interim report submitted within two 
years of commencement of the activity. The interim report must include 
information required by Sec.  767.11 of this part to the maximum extent 
possible, a report on the progress that has been achieved to date, as 
well as the remaining objectives to be accomplished until submission of 
the final report.
    (h) The permit holder shall agree to protect all sensitive 
information regarding the location and character of the wrecksite that 
could potentially expose it to non-professional recovery techniques, 
looters, or unauthorized salvage. Sensitive information includes 
specific location data and information about the cargo of a sunken 
military craft or terrestrial military craft, the existence of 
armaments and munitions, or the presence of or potential presence of 
human remains. Sensitive cargo might also include hazardous materials 
other than munitions.
    (i) All recovered DoN sunken military craft, terrestrial military 
craft, and their associated contents, remain the property of the United 
States. These resources and copies of associated archaeological records 
and data must be preserved by a suitable university, museum, or other 
scientific or educational institution that, at a minimum, meets the 
standards set forth in 36 CFR part 79, Curation of Federally-Owned and 
Administered Archaeological Collections, at the expense of the 
applicant or facility, unless otherwise agreed upon in writing by the 
NHHC. The curatorial facility must establish a loan of resources 
agreement with the NHHC and maintain it in good standing. If a loan of 
resources agreement is not established, or at the discretion of the 
NHHC, resources are to be managed, conserved and curated directly by 
the NHHC at the expense of the applicant and at no cost to the 
government, unless otherwise agreed upon in writing by the NHHC. Copies 
of associated archaeological and conservation records and data will be 
made available to the NHHC, and to the applicable SHPO, THPO, the 
federal or state resource manager, or foreign government official upon 
request.
    (j) The disposition of foreign sunken military craft or associated 
contents shall be determined on a case-by-case basis in coordination 
with the foreign state prior to the issuance of a NHHC permit.
    (k) In the event that credible evidence for or actual human 
remains, unexploded ordnance, or environmental pollutants such as oil 
are discovered during the course of research, the permit holder shall 
cease all work and immediately notify the NHHC. Permitted work may not 
resume until authorized by the NHHC.
    (l) The permittee shall purchase and maintain comprehensive general 
liability insurance, or post an equivalent bond, against claims arising 
out of activities conducted under the permit and agrees to hold the 
United States harmless against such claims.


Sec.  767.10  Requests for amendments or extensions of active permits.

    (a) Requests for amendments to active permits (e.g., a change in 
study design or research personnel) must conform to the regulations in 
this part. All information deemed necessary by the NHHC to make an 
objective evaluation of the amendment must be included as well as 
reference to the original application. Requests for amendments must be 
sent to the Deputy Director, Naval History and Heritage Command, 805 
Kidder Breese St. SE., Washington Navy Yard, Washington DC 20374-5060. 
A pending amendment request does not guarantee approval. Proposed 
activities cannot commence until approval is granted. All requests for 
permit amendments must be submitted during the period within which an 
existing permit is active and at least 30 days prior to the desired 
effect date of the amendment. Time-sensitive amendments must be 
submitted in writing to the contact information included in the permit 
and will be considered and expedited on a case-by-case basis.
    (b) Permit holders desiring to continue research activities beyond 
the original permit expiration date must apply for an extension of a 
valid permit prior to its expiration. A pending extension request does 
not guarantee an extension of the original permit. All requests for a 
permit extension must be sent to the Deputy Director, Naval History and 
Heritage Command, 805 Kidder Breese St. SE., Washington Navy Yard, 
Washington DC 20374-5060, 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 one-year extensions 
subject to annual review.
    (c) Permit holders may appeal denied requests for amendments or 
extensions to the appeal authority listed in Sec.  767.7(e) of this 
part.


Sec.  767.11  Content of permit holder's final report.

    The permit holder's final report shall at minimum include the 
following:
    (a) A wrecksite history and a contextual history relating the 
wrecksite to the general history of the region;
    (b) A master wrecksite map;
    (c) Feature map(s) of any recovered artifacts showing their 
position within the wrecksite;
    (d) Where environmental conditions allow, photographs of 
significant wrecksite features and significant artifacts both in situ 
and after removal;
    (e) If applicable, a section that includes an inventory of 
recovered artifacts, description of the conserved artifacts, laboratory 
conservation records, documentation of analyses undertaken, photographs 
of the artifacts before and after conservation treatment, and 
recommended curation conditions;
    (f) A written report describing the wrecksite's discovery, 
environment, past and current archaeological fieldwork, results, and 
analysis;
    (g) A summary of the survey and/or excavation process including 
methods and techniques employed, an account of operational phases, 
copies of applicable logs, as well as thorough analysis of the 
recovered data.
    (h) An evaluation of the completed permitted activity that includes 
an assessment of the success of the goals specified in the permit 
application;
    (i) Recommendations for future activities, if applicable.
    (j) An account of how the public interpretation or dissemination 
plan

[[Page 628]]

described in the permit application has been or is being carried out. 
Additionally, identification of any sensitive information that should 
be protected and withheld from public disclosure as detailed in Sec.  
767.9(g) of this part; and
    (k) If a wrecksite is deemed by the NHHC to be eligible or 
potentially eligible for the National Register of Historic Places then 
a completed draft National Register of Historic Places nomination form 
must be attached as an appendix to the final report. The eligibility 
determination will be made by the NHHC upon review of the preliminary 
report that is to be submitted by the permit holder.


Sec.  767.12  Special use permit application.

    (a) Any person proposing to engage in an activity to document a 
sunken military craft utilizing remotely-operated or autonomously-
operated equipment or collect data or samples from a wrecksite that 
would result in the wrecksite's disturbance but otherwise be minimally 
intrusive may apply for a special use permit. Any person proposing to 
engage in an activity that would disturb, remove, or injure a non-
historic sunken military craft may apply for a special use permit.
    (b) To request a special use permit application form, please refer 
to Sec.  767.6(b) and (c) of this part. Special use permit applications 
must be sent to the Deputy Director, Naval History and Heritage 
Command, 805 Kidder Breese St. SE., Washington Navy Yard, Washington DC 
20374-5060.
    (c) Each special use permit application shall include:
    (1) A statement of the project's objectives and an explanation on 
how they would serve the NHHC's objectives stated in Sec.  767.5 of 
this part;
    (2) A discussion of the methodology planned to accomplish the 
project's objectives. This should include a map showing the study 
location(s) and a description of the wrecksite(s) of particular 
interest;
    (3) An analysis of the extent and nature of potential direct or 
indirect environmental impacts on the resources from permitted 
activities;
    (4) Where appropriate, a plan for wrecksite restoration and 
remediation with recommendations on wrecksite preservation and 
protection of the wrecksite location;
    (5) Any permits or authorizations required by foreign, federal, 
state, tribal, or local law.
    (d) The NHHC Deputy Director, or his or her designee, may authorize 
a special use permit under the following conditions:
    (1) The proposed activity is compatible with NHHC policies and in 
the case of non-historic sunken military craft is not opposed by 
consulted DoN parties;
    (2) The activities carried out under the permit are conducted in a 
manner that is minimally intrusive and does not purposefully or 
significantly disturb, destroy or injure the sunken military craft or 
wrecksite;
    (3) When applicable, the pilot(s) of remotely-operated equipment 
holds a commercial certificate of operation from a nationally-
recognized organization;
    (4) The principal investigator must hold a graduate degree in 
archaeology, anthropology, maritime history, oceanography, marine 
biology, marine geology, other marine science, closely related field, 
or possess equivalent training and experience. This requirement may be 
waived by the NHHC on a case by case basis depending on the activity 
stipulated in the application.
    (e) The permittee shall submit the following information subsequent 
to the conclusion of the permitted activity within an appropriate time 
frame as specified in the permit:
    (1) A summary of the activities undertaken that includes an 
assessment of the goals specified in the permit application;
    (2) Identification of any sensitive information that should be 
protected and withheld from public disclosure as detailed in Sec.  
767.9(g) of this part;
    (3) Complete and unedited copies of any and all documentation and 
data collected (photographs, video, remote sensing data, etc.) during 
the permitted activity and results of any subsequent analyses.
    (f) The following additional sections of subpart B shall apply to 
special use permits: Sec. Sec.  767.7(e); 767.9(a), (b), (c), (e), (f), 
(g), (I,) (j), and (k); 767.10(a), (b), and (c); 767.13; and 767.14 of 
this part.
    (g) All sections of subpart A shall apply to special use permits 
and all sections of subpart C shall apply to special use permits 
pertaining to sunken military craft.
    (h) Unless stipulated in the special use permit, the recovery of 
artifacts associated with any wrecksite is strictly prohibited.


Sec.  767.13  Monitoring of performance.

    Permitted activities will be monitored to ensure compliance with 
the conditions of the permit. In addition to remotely monitoring 
operations, NHHC personnel, or other designated authorities, may 
periodically assess work in progress through on-site monitoring at the 
location of the permitted activity. The discovery of any potential 
irregularities in performance under the permit by NHHC on-site 
personnel, other designated authorities, or the permit holder, must be 
promptly reported to the NHHC for appropriate action. Adverse action 
may ensue as per Sec.  767.14 of this part. Findings of unauthorized 
activities will be taken into consideration when evaluating future 
permit applications.


Sec.  767.14  Amendment, suspension, or revocation of permits.

    The NHHC Deputy Director, 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 or the permit holder's representative and will set forth 
the reason for the action taken. The permit holder may request the 
Director of NHHC reconsider the action as per Sec.  767.7(e) of this 
part.


Sec.  767.15  Application to foreign sunken military craft and U.S. 
sunken military craft not under the jurisdiction of the DoN.

    (a) Sunken military craft are generally entitled to sovereign 
immunity regardless of where they are located or when they sank. 
Foreign governments may request, via the Department of State, that the 
Secretary of the Navy administer a permitting program for a specific or 
a group of its sunken military craft in U.S. waters. The request must 
include the following:
    (1) The foreign government must assert its sovereign immunity over 
a specified sunken military craft or group of sunken military craft;
    (2) The foreign government must request assistance from the United 
States government;
    (3) The foreign government must acknowledge that Subparts B and C 
of this Part will apply to the specified sunken military craft or group 
of sunken military craft for which the request is submitted.
    (b) Upon receipt and favorable review of a request from a foreign 
government, the Secretary of the Navy, or his or her designee, in 
consultation with the Department of State, will proceed to accept the 
specified sunken military craft or group of sunken military craft into 
the present permitting program. The Secretary of the Navy, or his or 
her designee, in consultation with the Department of State, reserves 
the right to decline a request by the foreign government. Should there 
be a need to

[[Page 629]]

formalize an understanding with the foreign government in response to a 
submitted request stipulating conditions such as responsibilities, 
requirements, procedures, and length of effect, the Secretary of State, 
or his or her designee, in consultation with the Secretary of Defense, 
or his or her designee, will proceed to formalize an understanding with 
the foreign government. Any views on such a foreign government request 
or understanding expressed by applicable federal, tribal, and state 
agencies will be taken into account.
    (c) Persons seeking a permit to disturb foreign sunken military 
craft located in U.S. waters that have been accepted into the present 
permitting program or are covered under a formalized undertanding as 
per Sec. 767.15(b) of this section, may submit a permit application for 
consideration by the NHHC as per subparts B and C of this part.
    (d) In the case where there is reasonable dispute over the 
sovereign immunity status of a foreign sunken military craft, the 
Secretary of the Navy maintains the right to postpone action on 
Sec. Sec.  767.6 and 767.12 of this part, as well as requests under 
Sec.  767.15(a) of this part, until the dispute over the sovereign 
immunity status is resolved.
    (e) The Secretary of any military department or in the case of the 
Coast Guard, the Secretary of the Department in which the Coast Guard 
is operating, may request that the Secretary of the Navy administer a 
permitting program for sunken military craft under his or her 
cognizance. Upon the agreement of the Secretary of the Navy, subparts B 
and C of this part shall apply to those agreed upon craft.

Subpart C--Enforcement Provisions for Violations of the Sunken 
Military Craft Act and Associated Permit Conditions


Sec.  767.16  Civil penalties for violation of Act or permit 
conditions.

    (a) In general. Any person who violates the SMCA, or any regulation 
or permit issued thereunder, shall be liable to the United States for a 
civil penalty.
    (b) Assessment and amount. The Secretary may assess a civil penalty 
under this section of not more than $100,000 for each violation.
    (c) Continuing violations. Each day of a continuing violation of 
the SMCA or these regulations or any permit issued hereunder 
constitutes a separate violation.
    (d) In rem liability. A vessel used to violate the SMCA shall be 
liable in rem for a penalty for such violation.


Sec.  767.17  Liability for damages.

    (a) Any person who engages in an activity in violation of section 
1402 or any regulation or permit issued under the Act that disturbs, 
removes, or injures any U.S. sunken military craft shall pay the United 
States enforcement costs and damages resulting from such disturbance, 
removal, or injury.
    (b) Damages referred to in paragraph (a) of this section may 
include:
    (1) The reasonable costs incurred in storage, restoration, care, 
maintenance, conservation, and curation of any sunken military craft 
that is disturbed, removed, or injured in violation of section 1402 or 
any regulation or permit issued under the Act; and
    (2) The cost of retrieving, from the site where the sunken military 
craft was disturbed, removed, or injured, any information of an 
archaeological, historical, or cultural nature.


Sec.  767.18  Notice of Violation and Assessment (NOVA).

    (a) A NOVA will be issued by the Director of NHHC and served in 
person or by registered, certified, return receipt requested, or 
express mail, or by commercial express package service, upon the 
respondent, or in the case of a vessel respondent, the owner of the 
vessel. A copy of the NOVA will be similarly served upon the permit 
holder, if the holder is not the respondent. The NOVA will contain:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of the SMCA, 
regulation, or permit violated;
    (3) The findings and conclusions upon which the Director of NHHC 
bases the assessment;
    (4) The amount of civil penalty, enforcement costs and/or liability 
for damages assessed; and
    (5) An advisement of the respondent's rights upon receipt of the 
NOVA, including a citation to the regulations governing the 
proceedings.
    (b) The NOVA may also contain a proposal for compromise or 
settlement of the case.
    (c) Prior to assessing a civil penalty or liability for damages, 
the Director of NHHC will take into account information available to 
the Agency concerning any factor to be considered under the SMCA and 
any other information required by law or in the interests of justice. 
The respondent will have the opportunity to review information 
considered and present information, in writing, to the Director of 
NHHC. At the discretion of the Director of NHHC, a respondent will be 
allowed to present information in person.


Sec.  767.19  Procedures regarding service.

    (a) Whenever this Part requires service of a document, such service 
may effectively be made on the respondent, the respondent's agent for 
service of process or on a representative designated by that agent for 
receipt of service. Refusal by the respondent, the respondent's agent, 
or other designated representative to be served, or refusal by his or 
her designated representative of service of a document will be 
considered effective service of the document as of the date of such 
refusal. Service will be considered effective on the date the document 
is mailed to an addressee's last known address.
    (b) Any document served upon a respondent must be signed by:
    (1) The person or persons serving the same; or
    (2) Other person having authority to sign.
    (c) A document will be considered served and/or filed as of the 
date of the postmark; or (if not mailed) as of the date actually 
delivered in person; or as shown by electronic mail transmission.
    (d) Time periods begin to run on the day following service of the 
document or date of the event. Saturdays, Sundays, and Federal holidays 
will be included in computing such time, except that when such time 
expires on a Saturday, Sunday, or Federal holiday, such period will be 
extended to include the next business day. This method of computing 
time periods also applies to any act, such as paying a civil penalty or 
liability for damages, required by this part to take place within a 
specified period of time.


Sec.  767.20  Requirements of respondent or permit holder upon service 
of a NOVA.

    (a) The respondent or permit holder has 45 days from service 
receipt of the NOVA in which to reply. During this time the respondent 
or permit holder may:
    (1) Accept the penalty or compromise penalty, if any, by taking the 
actions specified in the NOVA;
    (2) Seek to have the NOVA amended, modified, or rescinded under 
paragraph (b) of this section;
    (3) Request a hearing before a DOHA Administrative Judge under 
paragraph (f) of this section;
    (4) Request an extension of time to respond under paragraph (c) of 
this section; or
    (5) Take no action, in which case the NOVA becomes final in 
accordance with Sec.  767.22(a) of this part.
    (b) The respondent or permit holder may seek amendment, 
modification, or

[[Page 630]]

rescindment of the NOVA to conform to the facts or law as that person 
sees them by notifying the Director of NHHC in writing at the address 
specified in the NOVA. If amendment or modification is sought, the 
Director of NHHC will either amend the NOVA or decline to amend it, and 
so notify the respondent, permit holder, or vessel owner, as 
appropriate.
    (c) The respondent or permit holder may, within the 45-day period 
specified in paragraph (a) of this section, request in writing an 
extension of time to respond. The Director of NHHC may grant an 
extension in writing of up to 30 days unless he or she determines that 
the requester could, exercising reasonable diligence, respond within 
the 45-day period.
    (d) The Director of NHHC may, for good cause, grant an additional 
extension beyond the 30-day period specified in paragraph (c) of this 
section.
    (e) Any denial, in whole or in part, of any request under this 
section that is based upon untimeliness will be in writing.
    (f) If the respondent or permit holder desires a hearing, the 
request must be in writing, dated and signed, and must be sent by mail 
to the Director, Defense Office of Hearings and Appeals, 875 North 
Randolph St., Suite 8000, Arlington VA, 22203. The Director, Defense 
Office of Hearings and Appeals may, at his or her discretion, treat any 
communication from a respondent or a permit holder as a proper request 
for a hearing. The requester must attach a copy of the NOVA. A single 
hearing will be held for all parties named in a NOVA and who timely 
request a hearing.


Sec.  767.21  Hearings.

    (a) Hearings before a DOHA Administrative Judge are de novo reviews 
of the circumstances alleged in the NOVA and penalties assessed. 
Hearings are governed by procedures established by the Defense Office 
of Hearings and Appeals. Hearing procedures will be provided in writing 
to the parties and may be accessed on-line at http://www.dod.mil/dodgc/doha/. Hearings shall be held at the Defense Office of Hearings and 
Appeals, Arlington VA, either in person or by Video Teleconference. 
Each party shall bear their own costs.
    (b) In any DOHA hearing held in response to a request under Sec.  
767.20(f) of this part, the Administrative Judge will render a final 
written Decision which is binding on all parties.


Sec.  767.22  Final administrative decision.

    If no request for a hearing is timely filed as provided in Sec.  
767.20(f) of this part, the NOVA becomes effective as the final 
administrative decision and order of the Agency on the 45th day after 
service of the NOVA or on the last day of any delay period granted.


Sec.  767.23  Payment of final assessment.

    (a) Respondent must make full payment of the civil penalty, 
enforcement costs and/or liability for damages assessed within 30 days 
of the date upon which the assessment becomes effective as the final 
administrative decision and order of the Agency. Payment must be made 
by mailing or delivering to the Agency at the address specified in the 
NOVA a check or money order made payable in U.S. currency in the amount 
of the assessment to the ``Treasurer of the United States,'' or as 
otherwise directed.
    (b) Upon any failure to pay the civil penalty, enforcement costs 
and/or liability for damages assessed, the Agency may request the 
Department of Justice to recover the amount assessed in any appropriate 
district court of the United States, or may act under any law or 
statute that permits recovery, arrest, attachment, or garnishment of 
property and/or funds to satisfy a debt owed to the United States.


Sec.  767.24  Compromise of civil penalty, enforcement costs and/or 
liability for damages.

    (a) The Director of NHHC, in his/her sole discretion, may 
compromise, modify, remit, or mitigate, with or without conditions, any 
civil penalty or liability for damages imposed, or which is subject to 
imposition, except as provided in this Subpart.
    (b) The compromise authority of the Director of NHHC under this 
section is in addition to any similar authority provided in any 
applicable statute or regulation, and may be exercised either upon the 
initiative of the Director of NHHC or in response to a request by the 
respondent or other interested person. Any such request should be sent 
to the Director of NHHC at the address specified in the NOVA.
    (c) Neither the existence of the compromise authority of the 
Director of NHHC under this section nor the Director's exercise thereof 
at any time changes the date upon which an assessment is final or 
payable.


Sec.  767.25  Factors considered in assessing penalties.

    (a) Factors to be taken into account in assessing a penalty may 
include the nature, circumstances, extent, and gravity of the alleged 
violation; the respondent's degree of culpability; any history of prior 
offenses; ability to pay; and such other matters as justice may 
require.
    (b) The Director of NHHC may, in consideration of a respondent's 
ability to pay, increase or decrease a penalty from an amount that 
would otherwise be warranted by other relevant factors. A penalty may 
be increased if a respondent's ability to pay is such that a higher 
penalty is necessary to deter future violations, or for commercial 
violators, to make a penalty more than the profits received from acting 
in violation of the SMCA, or any regulation or permit issued 
thereunder. A penalty may be decreased if the respondent establishes 
that he or she is unable to pay an otherwise appropriate penalty 
amount.
    (c) Except as provided in paragraph (d) of this section, if a 
respondent asserts that a penalty should be reduced because of an 
inability to pay, the respondent has the burden of proving such 
inability by providing verifiable, complete, and accurate financial 
information to the Director of NHHC. The Director of NHHC will not 
consider a respondent's inability to pay unless the respondent, upon 
request, submits such financial information as the Director of NHHC 
determines is adequate to evaluate the respondent's financial 
condition. Depending on the circumstances of the case, the Director of 
NHHC may require the respondent to complete a financial information 
request form, answer written interrogatories, or submit independent 
verification of his or her financial information. If the respondent 
does not submit the requested financial information, he or she will be 
presumed to have the ability to pay the penalty.
    (1) Financial information relevant to a respondent's ability to pay 
includes, but is not limited to, the value of respondent's cash and 
liquid assets and non-liquid assets, ability to borrow, net worth, 
liabilities, income, prior and anticipated profits, expected cash flow, 
and the respondent's ability to pay in installments over time. A 
respondent will be considered able to pay a penalty even if he or she 
must take such actions as pay in installments over time, borrow money, 
liquidate assets, or reorganize his or her business. The Director of 
NHHC's consideration of a respondent's ability to pay does not preclude 
an assessment of a penalty in an amount that would cause or contribute 
to the bankruptcy or other discontinuation of the respondent's 
business.
    (2) Financial information regarding respondent's ability to pay 
should be

[[Page 631]]

submitted to the Director of NHHC as soon after receipt of the NOVA as 
possible. In deciding whether to submit such information, the 
respondent should keep in mind that the Director of NHHC may assess de 
novo a civil penalty, enforcement costs and/or liability for damages 
either greater or smaller than that assessed in the NOVA.


Sec.  767.26  Criminal law.

    Nothing in these regulations is intended to prevent the United 
States from pursuing criminal sanctions for plundering of wrecks, 
larceny of Government property, or violation of applicable criminal 
law, whether the infringement pertains to a sunken military craft, a 
terrestrial military craft or other craft under the jurisdiction of the 
DoN.


Sec.  767.27  References.

    References for submission of permit application, including but not 
limited to, and as may be further amended:
    (a) NHPA of 1966, as amended, 16 U.S.C. 470 et seq. (1999), and 
Protection of Historic Properties, 36 CFR part 800. These regulations 
govern the section 106 review process established by the NHPA.
    (b) National Environmental Policy Act of 1969, as amended, 42 
U.S.C. 4321 et seq., and Protection of the Environment, 40 CFR 1500-
1508. These regulations require agencies to consider the effects of 
their actions on the human environment.
    (c) Secretary of the Interior's Standards and Guidelines for 
Archeology and Historic Preservation, available at http://www.cr.nps.gov/local-law/arch_stnds_0.htm. These guidelines establish 
standards for the preservation planning process with guidelines on 
implementation.
    (d) ARPA of 1979, as amended, 16 U.S.C. 470aa-mm, and the Uniform 
Regulations, 43 CFR part 7, subpart A. These regulations establish 
basic government-wide standards for the issuance of permits for 
archaeological research, including the authorized excavation and/or 
removal of archaeological resources on public lands or Indian lands.
    (e) Secretary of the Interior's regulations, Curation of Federally-
Owned and Administered Archaeological Collections, 36 CFR part 79. 
These regulations establish standards for the curation and display of 
federally-owned artifact collections.
    (f) Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225 
(codified at 16 U.S.C. 431 et seq. (1999)).
    (g) Executive Order 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp., p. 
559 (Protection and Enhancement of the Cultural Environment).
    (h) Department of Defense Instruction 4140.21M (DoDI 4140.21M, 
August 1998). Subject: Defense Disposal Manual.
    (i) Secretary of the Navy Instruction 4000.35A (SECNAVINST 
4000.35A, 9 April 2001). Subject: Department of the Navy Cultural 
Resources Program.
    (j) Naval History and Heritage Command Instruction 5510.4. 
(NAVHISTCENINST 5510.4, 14 December 1995). Subject: Disclosure of 
Information from the Naval Shipwreck Database.

N.A. Hagerty-Ford,
Commander, Office of the Judge Advocate General, U.S. Navy, Federal 
Register Liaison Officer.
[FR Doc. 2013-31068 Filed 1-3-14; 8:45 am]
BILLING CODE 3810-FF-P