[Federal Register Volume 80, Number 168 (Monday, August 31, 2015)]
[Rules and Regulations]
[Pages 52588-52603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20795]
[[Page 52587]]
Vol. 80
Monday,
No. 168
August 31, 2015
Part III
Department of Defense
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Department of the Navy
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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; Final Rule
Federal Register / Vol. 80 , No. 168 / Monday, August 31, 2015 /
Rules and Regulations
[[Page 52588]]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 767
[Docket ID: USN-2011-0016]
RIN 0703-AA90
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: Final rule.
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SUMMARY: In this final rule, 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 updated application procedures for
research permits on terrestrial military craft under the jurisdiction
of the DON.
DATES: This final rule is effective March 1, 2016.
FOR FURTHER INFORMATION CONTACT: Dr. Robert Neyland, Head, Underwater
Archaeology Branch, Naval History and Heritage Command, Department of
the Navy, 805 Kidder Breese Street SE., BL 57, Washington Navy Yard, DC
20374, email: [email protected].
SUPPLEMENTARY INFORMATION:
Executive Summary
This final rule serves as a revision of 32 CFR part 767 and
incorporates provisions of the existing regulations together with
regulations implementing 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. The
rule replaces the existing regulations and establishes a single
permitting process for persons wishing to engage in activities that
disturb, remove, or injure DON sunken military craft and terrestrial
military craft for archaeological, historical, or educational purposes.
In accordance with the limitations on application expressed in (10
U.S.C. 1402(c)(1)), section 1402 of the SMCA shall not apply to actions
taken by, or at the direction of, the United States.
The former rule was based on provisions of the National Historic
Preservation Act (NHPA) (54 U.S.C. 300101 et seq.), which sets forth
the responsibility for each agency to preserve and manage historic
properties under its 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 instituted a permitting program that authorized controlled access
to disturb historic properties, which remain property of the DON, for
prescribed purposes. It codified the policy of the DON to preserve
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 afforded the DON the ability to efficiently
oversee its more than 17,000 historic wrecks dispersed around the
globe.
The former regulations only applied to ships and aircraft that were
classified as DON historic structures or archaeological sites,
regardless of location, and did not carry the enforcement provisions
necessary to serve as a deterrent to their unauthorized disturbance.
The SMCA was enacted in 2004 and codified the existing principles of
preservation of right, title, and interest of the United States in and
to any United States 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. According to 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. These regulations do not apply to any sunken military craft
under the jurisdiction of the Maritime Administration or its
predecessor agencies or organizations at the time of sinking.
Predecessor agencies or organizations of the Maritime Administration,
include, but are not limited to, the United States Shipping Board, the
United States Shipping Board Merchant Fleet Corporation, the War
Shipping Board, the War Shipping Administration, the United States
Shipping Board of the U.S. Department of Commerce, and the U.S.
Maritime Commission.
This final rule is, in part, 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 under the jurisdiction of the DON for the purposes of undertaking
activities directed at these craft that are otherwise prohibited by the
SMCA. 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
pertaining to sunken military craft, sovereign immunity, and the
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.
As stewards of the DON's historic ship and aircraft wrecks, the
Naval History and Heritage Command (NHHC) continues its role as the
authority responsible for administering this revised permitting
program. As a result of the need to incorporate provisions of the
former regulations with provisions set forth in the SMCA, the rule
adopts the definition of sunken military craft as
[[Page 52589]]
present in the Act and develops a counterpart--terrestrial military
craft--to refer to historic DON wrecked craft located on land.
In addition to serving as the authority for permitting activities
directed at historic DON sunken military craft and terrestrial military
craft, the NHHC will also serve as the permitting authority for the
disturbance of non-historic DON sunken military craft. Applications
pertaining to non-historic DON sunken military craft will be considered
when there is a clear demonstrable benefit to the DON, and 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 on behalf of the DON for those foreign sunken military craft
located in U.S. waters that through and under the terms of an
understanding or agreement with the respective foreign state are
included within the NHHC's management purview. The Secretary of a
military department, or in the case of the Coast Guard, the Secretary
of the Department in which the Coast Guard is operating, may also
request that the Secretary of the Navy administer their respective
sunken military craft through the DON permitting program established by
this rule.
Non-intrusive activities including diving on or remotely
documenting sites do not require a permit or authorization from the
NHHC, though this rule does not preclude the obligation to obtain
permits or authorizations otherwise required by law. The regulations
stipulate an application process for disturbance, removal, or injury of
sunken military craft and terrestrial military craft under the
jurisdiction or management of the DON. Applicants must meet certain
requirements and qualifications which are set forth in the rule 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 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 a 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 shall be shared with the
NHHC.
Additional permits or authorizations may otherwise be required by
law and other agencies, even in the case where the NHHC issues a permit
or a special use permit pertaining to activities directed at DON sunken
or terrestrial military craft in accordance with these regulations. The
NHHC remains responsible for complying with all applicable laws while
implementing the DON permitting program such as the National
Environmental Policy Act (NEPA) and the NHPA.
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
understandings or agreements with foreign nations, and in particular
the major maritime powers, seeking assurances that U.S. sunken military
craft will be respected and protected and offering foreign nations
reciprocal treatment. In order to encourage universal respect,
protection, and 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 the sovereign immunity of or ownership 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 Secretary of State, in
consultation with the Secretary of Defense, may also negotiate and
conclude broader bilateral and multilateral agreements with foreign
states pertaining to sunken military craft.
The final major provision of the rule affects violations of the
SMCA or of the DON 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.
This 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 of national security
interests more effective, efficient, and affordable. At the same time,
the proposed rule enables persons 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 the Department of Defense
(DoD) retrospective plan under EO 13563 completed in August 2011. DoD's
full plan can be accessed at http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.
Background
The DON is revising 32 CFR part 767 pursuant to the SMCA in order
to implement a permitting system regulating activities directed at DON
sunken military craft for archaeological, historical, or educational
purposes that are otherwise prohibited by the SMCA. This final 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. The rule allows for the incorporation of
foreign sunken military craft in this permitting system upon request
and agreement with the foreign state. It also provides a Secretary of a
military department, or in the case of the Coast Guard, the Secretary
of the Department in which the Coast Guard is operating, the
opportunity to request that their respective sunken military craft are
also incorporated, upon agreement by the Secretary of the Navy, in this
permitting program. Furthermore, it identifies penalties and
enforcement procedures to be followed in the event of violations to the
rule affecting sunken military craft. This rule replaces the former 32
CFR part 767 to reflect current agency regulations. It has
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been determined upon review that this rule amendment is a significant
regulatory action as it raises novel legal or policy issues arising out
of legal mandates, the President's priorities, or the principles set
forth in Executive Order 12866 and Executive Order 13563.
Public Comment Summary
Between January 6, 2014 and March 7, 2014, the DON held a public
comment period inviting members of the public to submit comments,
suggestions, concerns or requested modifications to the proposed rule
revision to 32 CFR part 767 (79 FR 620). Upon conclusion of that public
comment phase, the DON proceeded to afford each submission due
consideration and categorize public comments into subject areas. What
follows is a response by DON to the public comments addressed
thematically by category. The DON response also identifies where public
comments led to the proposed rule being amended in the development of
the final rule.
The DON received several public comments submitted by citizens,
organizations, and state agencies that recognized the value and
regulatory clarity added by the adoption of a single consolidated
permitting program such as the one proposed by the DON in these
regulations. However, the DON also received comments critical of the
overall benefit of these regulations that questioned why the DON would
not contract with the civilian sector to recover associated contents
from sunken military craft. The DON wishes to stress that actions taken
by, or at the direction of, the United States are not bound by the
prohibitions of Sec. 1402 of the SMCA, and thereby the DON may proceed
to contract with the civilian sector for recovery operations when it
deems appropriate outside of the permitting program encompassed in
these regulations. Furthermore, several comments expressed concern that
the DON was prohibiting independent civilian groups from locating,
exploring, and studying sunken military craft under its jurisdiction.
The DON would like to emphasize that the revision to 32 CFR 767 aims to
do precisely the contrary, affording controlled access to external
parties that are presently prohibited by the SMCA from disturbing,
removing, or injuring sunken military craft or their associated
contents. Furthermore, the revised regulations do not affect activities
that do not disturb, remove, or injure sunken military craft, such as
non-intrusively locating, exploring and documenting these sites, as
these activities are not prohibited by the SMCA.
In terms of application of national and international best
practices in the management of submerged cultural resources, the public
comments received were divided between those that believed that the
consistency exhibited by the revision to 32 CFR part 767 with
established management practices was prudent and those that posited an
undue influence of the UNESCO Convention on the Protection of the
Underwater Cultural Heritage (UNESCO Convention) on the drafting of
these regulations. DON management practices, including that of in situ
preservation, predate the UNESCO Convention as exhibited by the
issuance in 2000 of the 32 CFR part 767 regulations presently being
revised. Since that time, whereas the UNESCO Convention has not been
ratified by the U.S., the principles and practices established by its
Annex have been recognized as appropriate international guidelines in
the management of underwater cultural heritage by several pertinent
federal agencies such as the National Park Service, the National
Oceanic and Atmospheric Administration, the Bureau of Ocean Energy
Management, the U.S. Coast Guard, as well as by the Advisory Council on
Historic Preservation. The DON, in agreement with the aforementioned
federal agencies, regards the Annex of the UNESCO Convention as
representing guidelines that embody sound international practices in
the realm of underwater cultural heritage stewardship. However, in
developing the revision to 32 CFR part 767, the DON was and remains
driven by national legislation such as the Sunken Military Craft Act
and the National Historic Preservation Act. The DON views continuation
of the in situ preservation management practice as the preferred
practice in its stewardship of a vast collection of sunken military
craft as it cumulatively best addresses concerns regarding maritime
grave sites, public safety, environmental hazards, state secrets,
national security, and the preservation of the U.S. Navy's non-
renewable submerged cultural resources.
A moderate number of public comments emphasized and encouraged the
consistency exhibited by these regulations with federal legislation;
other comments questioned the impact of the revised rule on the
Abandoned Shipwreck Act, the common law of finds, and the common law of
salvage. The DON considers the revision to 32 CFR part 767 to be
consistent with the SMCA and federal legislation, including the
National Historic Preservation Act, the Archaeological Resources
Protection Act, and the Abandoned Shipwreck Act. Section 1401 of the
SMCA clearly states that right, title, and interest of the United
States in and to any United States sunken military craft shall not be
extinguished except by express divestiture of title, regardless of when
the sunken military craft sank. Accordingly, United States sunken
military craft are not considered abandoned, unless title has been
specifically divested, thereby excluding them from the abandoned
shipwrecks addressed in the Abandoned Shipwreck Act and managed by
individual states. Elsewhere, section 1406 of the SMCA states that the
law of finds shall not apply to any United States sunken military
craft, wherever located, or any foreign sunken military craft located
in United States waters. Additionally, the same section states that no
salvage rights or awards shall be granted with respect to any United
States sunken military craft without the express permission of the
United States, or any foreign sunken military craft in United States
waters without the express permission of the relevant state. The
revised rule, remaining consistent with the federal mandate of the
SMCA, does not alter or amend any of these provisions.
Several public comments addressed the nature and scope of
definitions present in the proposed revision to 32 CFR part 767. In
response, the DON has simplified Sec. 767.3 to enhance the clarity of
the overall regulations by removing definitions for the terms
``Archaeological Site'' and ``Historic Structure'', as well as any
mention of those terms elsewhere. The definition of ``Sunken Military
Craft'', commonly referenced in public comments, is derived from the
SMCA proper and remains as established by Congress except for a
clarification stipulating that divestiture of title results in the loss
of status for a sunken military craft. Whereas a number of public
comments recommended further revision of the definition of ``Sunken
Military Craft'', the DON believes the established definition
appropriately identifies the set of assets Congress intended to afford
protection to and requires no alteration. In contrast with
interpretations expressed in certain public comments, merchant ships in
private ownership may not qualify as sunken military craft unless they
served as vessels operated by a government on military noncommercial
service when they sank.
The DON does not believe that it is in the interest of
international reciprocity to specifically delineate a category of
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foreign sunken military craft and exclude them from the set of assets
afforded protection by the SMCA, as suggested by certain comments. This
would run contrary to the stated intent of the Act to promote bilateral
and multilateral understandings or agreements with foreign states,
ultimately aimed at protecting the thousands of U.S. sunken military
craft resting in foreign or international waters.
Several comments concentrated on the definition of the term
``Disturbance'' noting that it did not provide sufficient clarity to
the diving community, thereby raising concerns of inadvertent
violations of the SMCA. The SMCA and these regulations clearly do not
prohibit diving on sunken military craft; rather they address
activities directed at sunken military craft that disturb, remove, or
injure such craft. In response to the expressed concerns, the DON has
defined the term ``Directed at'' and limited its application to
intentional or negligent acts. Therefore, unintentional or accidental
impacts that disturb, injure, or remove sunken military craft or
terrestrial military craft, provided they are not the result of
negligence, do not constitute prohibited activities directed at sunken
military craft.
Four public comments addressed matters pertaining to sunken
military craft that do not necessarily fall under the jurisdiction of
the DON, but are not considered foreign sunken military craft. The DON
would like to emphasize that these regulations address sunken military
craft that fall under the cognizance of the Secretary of the Navy.
Accordingly, these regulations do not apply to sunken military craft
that fall solely under the jurisdiction of other agencies such as the
U.S. Department of Transportation or that of state governments, unless
an agreement to that effect has been reached with the respective
authorities. Certain state agencies requested amendment or elaboration
of the definition of the term ``Sunken Military Craft'' which the DON
deems unnecessary given the primary intended applicability of these
regulations to DON sunken military craft. In the case of U.S. Coast
Guard sunken military craft, the SMCA states that the Secretary of the
Department in which the Coast Guard is operating is the Secretary
concerned that may issue applicable regulations to implement a
permitting program. The Secretary concerned would be the Secretary of
the Navy only in times when the U.S. Coast Guard is operating under the
DON. Accordingly, it is the position of the DON that these regulations
would apply to U.S. Coast Guard sunken military craft, irrespective of
the time of their loss, only when the U.S. Coast Guard is operating
under the DON and that during all other times, U.S. Coast Guard sunken
military craft would fall under the purview of the appropriate
Secretary concerned. The revision to 32 CFR part 767 does incorporate a
provision enabling the Secretary of the Department in which the U.S.
Coast Guard is operating to request that the Secretary of the Navy
administer a permitting program for sunken military craft under his or
her cognizance (Sec. 767.15(e)). To an extent, this provision
addresses one public comment suggesting the DON serve as the single
permitting authority for all sunken military craft under the
jurisdiction of the U.S. While the benefits of such a single permitting
process are recognized by the DON, hence the provision affording other
Secretaries concerned the opportunity to request that sunken military
craft under their cognizance be incorporated into the DON permitting
program, the Secretary of the Navy is defined in statute as the
Secretary concerned solely in the case of DON sunken military craft.
Accordingly, promulgating a single permitting program for all U.S.
Government sunken military craft exceeds the authority vested in the
Secretary of the Navy. As recommended by one public comment, the DON
has modified the provisions of the DON permitting program that apply to
those sunken military craft of other Departments that have been
incorporated into the DON permitting program to include the application
of portions of Subpart A that were previously omitted.
Several public comments addressed the treatment and status of
foreign sunken military craft in the revision to 32 CFR part 767. The
SMCA recognizes the importance of reciprocal and respectful treatment
of sunken military craft among maritime nations and provides the
Secretary of the Navy, in consultation with the Secretary of State, the
authority to carry out the permitting program implemented in these
regulations with regard to foreign sunken military craft, when
expressly requested by the applicable foreign state (section 1403 (d)).
The SMCA also encourages the Secretary of State, in conjunction with
the Secretary of Defense, to negotiate bilateral and multilateral
agreements with foreign countries with regard to sunken military craft
(section 1407). Furthermore, the prohibitions and restrictions that
apply to activities directed at U.S. sunken military craft also apply
to those directed at foreign sunken military craft located in United
States waters, in accordance with section 1406 of the SMCA. The Act,
therefore, bars disturbance, removal, or injury of foreign sunken
military craft in U.S. waters, asserts that the law of finds do not
apply to such craft, and asserts that no salvage rights or awards are
to be granted without the express permission of the relevant foreign
state.
The proposed regulations are consistent with the clear recognition
that foreign sunken military craft remain under the sovereign immunity
or ownership of foreign governments unless title thereto has been
expressly divested. Ownership of sunken military craft does not afford
foreign states ownership of the lands upon which they sank, whether
they are federal, state, or private in nature. In Sec. 767.15 of these
regulations, DON establishes a process whereby foreign states may
request that one or more of its sunken military craft be incorporated
in the permitting process set forth by these regulations. There are
three conditions that a foreign government must acknowledge in
submitting a request, without which a request will not be considered.
As a result of one public comment, the condition that a foreign
government must assert sovereign immunity over a specified sunken
military craft or group of sunken military craft has been modified to
require a foreign government to assert either sovereign immunity or
ownership over such craft.
A small number of public comments pertained to waivers and waiver
provisions incorporated within the revision to 32 CFR part 767. The DON
believes that Sec. 767.6(e) of the revised regulations provides
sufficient latitude for applicants to request relief from certain
permit application requirements, including the general liability
insurance or equivalent bond provision, as well as special use permit
holder qualification requirements. As a result of one public comment, a
modification to Sec. 767.6(e) has been made whereby, in exceptional
circumstances, written permission may be replaced by verbal permission
in cases of unexpected or emergent finds that may require immediate
unanticipated disturbance, removal, or injury of a sunken or
terrestrial military craft or its associated contents. Elsewhere, Sec.
767.6(f) provides for the execution of activities directed at sunken
military craft by individuals operating on behalf of agencies under
existing agreements with the NHHC, thereby, in effect, acting in
coordination with the NHHC through express written permission, as
stipulated in the aforementioned section. These
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provisions are intended to afford the Director, NHHC, the authority to
offer relief from certain permit application requirements to external
applicants when appropriate, as well as afford persons carrying out
official NHHC duties on behalf of the DON improved efficiency in the
execution of their tasks. These persons are held to the same standards
as external applicants set forth in Sec. Sec. 767.6(d), 767.8, and
767.11. For the purposes of consistency, Sec. 767.6(f) has been
amended to reflect tasks associated with the management of sunken
military craft or terrestrial military craft as opposed to solely
archeological resources.
A relatively large number of public comments received by the DON
pertained to procedural concerns and recommendations that spanned
across a number of areas of interest. Foremost, the DON wishes to
clarify the misperception evident in certain public comments that
amendments are being made to the SMCA itself through the implementation
of these regulations. The SMCA, which has remained in effect as it was
enacted in 2004, is not being and cannot be modified or amended in any
way by these regulations. Rather, in publishing the proposed revision
to 32 CFR part 767 for a 60-day public comment period, the DON put
forth proposed regulations implementing the SMCA, in coordination with
the Department of Defense, in accordance with procedures coordinated
with the White House Office of Management and Budget. The DON elected
to encompass terrestrial military craft in the same permitting program
as that pertaining to sunken military craft, rather than issue separate
regulations for the former, as suggested by one public comment. The DON
believes that a consistent, uniform, and simplified approach is in the
best interest of the regulated public, while at the same time enhancing
the efficiency of the DON's management functions. Creating a single
permitting program does not extend the application of the SMCA to
terrestrial military craft, as was observed by another public comment.
These regulations do not solely implement the SMCA but also encompass
the former permitting program put in place in 2000 by the former 32 CFR
part 767 rule. The process affords each permit application to be
considered on its own merits, based on standardized criteria, with the
ability for the applicant to request due consideration for waivers or
appeals. The DON, therefore, respectfully rejects the small number of
public comments which postulated that these regulations establish an
arbitrary process or deny due process.
Per the request of one public comment, the DON has proceeded to
amend Sec. 767.12 to emphasize that diving operations may expressly be
considered in activities intended to document sunken military craft.
Another public comment expressed that the capacities of ``Permit
Holder'' and ``Principal Investigator'' should be maintained separate,
with the option for both capacities to be fulfilled by a single person.
The DON agrees with this approach and reviewed the rule to ensure this
distinction could be effectively maintained throughout the permitting
process. This review led to a minor change in Sec. 767.9(c) which now
stipulates that the presence of a permit holder, or their principal
investigator, if they are not the same person, is required on site. In
response to public comment, the DON conducted a separate review of
Sec. 767.11(k) which pertained to National Register of Historic Places
nominations that led to the section's removal from these regulations.
One public comment identified the need for improved clarity in
Sec. 767.6(f) regarding the responsibilities of persons acting at the
direction of the NHHC. As a result, the DON has inserted language,
consistent with its original intent, to emphasize that appropriate
provisions regarding documentation of requirements by other means apply
to such persons. Another public comment stated that the rule should
make provision for the NHHC to review submitted reports for compliance
and issue a formal note of concurrence, thereby ensuring and, if deemed
acceptable, asserting that the applicant has fulfilled all permitting
requirements. A modification to Sec. 767.9(g) has been made to
incorporate such a provision.
A separate public comment questioned the need for a special use
permit provision and recommended its removal for the purposes of
establishing a simpler system with a single permitting process. Upon
consideration, the DON elected to retain the special use permit
provision as the requirements for the full permit process would
unnecessarily hinder less intrusive operations directed at sunken or
terrestrial military craft, whether historic or not, by imposing
stricter or less relevant standards. Violations of either permit or
special use permit conditions are treated in the same manner under
these regulations.
One public comment questioned the DON's assertion that the former
rule provided insufficient enforcement provisions necessary to serve as
a deterrent to unauthorized disturbance, removal, or injury. In fact,
the former rule's section on violations was restricted to permit
violations with the sole course of action for the DON being the
amendment, suspension, or revocation of an issued permit. No provisions
were made for the unauthorized disturbance of sites by non-permit
holding members of the public, an omission addressed by the SMCA and
subsequently these regulations. The amount of the civil penalty
potentially assessed for each violation incorporated within section
1404 of the SMCA itself was questioned by one comment as being uniquely
high among federal legislation. The civil penalty of $100,000 for each
violation is entirely consistent with related laws such as the National
Marine Sanctuaries Act and the Archaeological Resources Protection Act,
as well as in line with the purpose of the civil penalty serving as a
deterrent to illicit activities directed as sunken military craft.
Finally, the DON emphasizes that subpart C of these regulations
provides a clear due process for the issuance and response to Notices
of Violation and Assessments.
A series of public comments addressed or questioned the concept of
sunken military craft ownership, as well as the right of the DON to
regulate access to sunken military craft under its jurisdiction. Under
section 1401 of the SMCA, unless title is expressly divested, the U.S.
Government maintains right, title, and interest in and to any United
States sunken military craft, a right originally vested in the U.S.
Government by the U.S. Constitution. The Act then proceeds to establish
prohibitions identifying specific unauthorized activities directed at
sunken military craft including engaging, or attempting to engage in
any activity that disturbs, removes, or injures any sunken military
craft, barring certain exceptions. The Secretary of the Navy is
provided authority to permit persons to engage in such otherwise
prohibited activities for archaeological, historical, or educational
purposes. In order to promote public knowledge, awareness, and
understanding of the DON's collection of sunken military craft, the
Secretary of the Navy has elected to establish such a permitting
process and assigned the NHHC responsibility for its implementation.
Unless title has been expressly divested, DON sunken military craft
remain the property of the DON, are not abandoned, and are not subject
to the common law of finds irrespective of location. These regulations
are consistent with the
[[Page 52593]]
statutory mandates asserted in the SMCA and will take effect as of the
date stated above. The SMCA, however, has been in effect as of October
28, 2004 and actions to enforce violations of section 1402 of the SMCA
may be brought up to 8 years after the date on which all facts material
to the right of action were known or should have been known by the
Secretary concerned, and the defendant was subject to the jurisdiction
of the appropriate district court of the U.S. or administrative forum.
A proportionally large number of public comments addressed
assessments of the economic impact, or lack thereof, of these
regulations. A series of public comments expressed concern over
economic impacts on the salvage sector, the effect on their associated
revenue stream, and the misperceived ineligibility of shipwreck
recovery companies from pursuing permits. The DON wishes to stress that
the prohibitions associated with disturbance, removal, and injury of
sunken military craft, along with limitations on the application of the
common laws of salvage and finds with respect to sunken military craft
were established by enactment of the SMCA in 2004. These regulations
are being issued pursuant to section 1403(a) of the SMCA that enables
the Secretary of the Navy to implement a permitting program authorizing
a person to engage in an activity otherwise prohibited by the SMCA,
with respect to DON sunken military craft, expressly for
archaeological, historical, or educational purposes. Whereas the DON
continues to uphold the prohibitions, limitations, and enforcement
provisions expressed in the SMCA through these regulations, along with
affording new privileges and controlled access, it establishes no
additional limitations that would lead the revision to 32 CFR 767 to
constitute a significant regulatory action as a result of its annual
effect on the economy. Sunken military craft have not represented
potential economic assets at the disposal of salvage sector companies
since well before 2004, unless the U.S. expressly granted salvage
rights or awards. The permitting program established in these
regulations is open to all qualified applicants, but is restricted by
the SMCA to serve archaeological, historical, or educational purposes.
The recovery of lost commodities for their potential economic value
lies outside the prescribed permitting program, and would be addressed
by the U.S. either through actions taken by it, or at its direction, as
well as through expressly permitting the granting of salvage rights or
awards with respect to its sunken military craft.
Certain public comments expressed concern over the economic impact
of these regulations on dive operators and associated businesses.
Concern is mostly concentrated on the same limitations established in
2004 by the SMCA, rather than the provisions of these regulations. At
the same time, certain concerns that overlapped with concerns expressed
regarding the definition of disturbance were expressed in view of the
potential indirect economic impact of these regulations. The DON has
proceeded to define the term ``Directed at'' in order to assuage
concerns over unintentional disturbance of sunken military craft,
thereby addressing concerns over potential indirect economic impacts on
dive operators and associated businesses. These regulations do not
prohibit or discourage responsible diving on sunken military craft.
Finally, certain public comments expressed that these regulations will
have a negative impact on the commercial archaeology sector, whether
terrestrial or maritime, of the U.S. Leading professional
organizations, such as the Society for Historical Archaeology,
expressly asserted in their respective public comments the lack of such
an impact, an assessment with which the DON concurs. Establishing a
permitting program that enables access to sunken and terrestrial
military craft for archaeological, historical, and educational purposes
increases the number of cultural properties that can be assessed or
researched by the commercial archaeology sector.
A few public comments focused on the concept of inadvertent
disturbance of sunken military craft and the potential consequences
thereof. The SMCA, in section 1406, states that, except to the extent
that an activity is undertaken as a subterfuge for activities
prohibited by the Act, nothing in the Act is intended to affect any
activity that is not directed at a sunken military craft. The same
holds true for traditional high seas freedoms of navigation including
the laying of submarine cables and pipelines, the operation of vessels,
fishing, or other internationally lawful uses of the sea related to
such freedoms. Therefore, if a person does not know or have reason to
know that the craft at which an activity is directed is a sunken
military craft, the prohibitions stated in the Act do not apply. The
same holds true for those conducting vessel operations, fishing, and
laying of submarine cables and pipelines, who, having satisfied other
permitting, licensing, or regulatory requirements, disturb, remove, or
injure a sunken military craft without actual or constructive knowledge
of its status.
A modest number of public comments concentrated on the appropriate
level of resources required to implement the DON sunken military craft
management program outlined in these regulations. One comment
recommended that preferential treatment should be given to maritime
grave sites, and stated that resources dedicated to sunken military
craft that do not serve as grave sites detract from the overall
mission. Whereas DON considers the matter of maritime grave sites
preeminent among the reasons why DON sunken military craft require
controlled access, concerns over unexploded ordnance and public safety,
environmental hazards, state secrets and national security, as well as
heritage preservation, firmly justify the management of DON sunken
military craft that do not serve as maritime grave sites, and afford
such craft equal status to that of their counterparts.
Several public comments addressed matters of federal and state
agency coordination, requesting clarifying language in certain
instances. As a result, DON has modified its executive summary in order
to stress that, in addition to a DON permit, an applicant may need to
seek additional permits or authorizations prior to conducting
activities directed at sunken or terrestrial military craft, such as
state antiquities permits. However, as these regulations implement
federal statutes on behalf of the DON, including the SMCA, the DON has
not introduced the term ``Federal'' when discussing permitting within
the regulations. It is not the case that each permit issued by the DON
will require some form of state agency license, which is the impression
that may be afforded to the public through the application of the
prefix ``Federal'' when discussing DON permitting. The DON has,
however, modified Sec. 767.5(f) to address state agency concerns
surrounding the potential applicability of state permits on activities
otherwise permitted by DON, and to account for the expressed desire by
state agencies to reach agreements with DON on the sound stewardship of
DON sunken military craft located in state waters. The DON views such
agreements as the appropriate venue within which to discuss sensitive
information such as the location or character of sunken or terrestrial
military craft. The DON assures state agencies expressing concerns over
inadvertently issuing permits for activities to be undertaken on DON
sunken military craft, without recognizing their status as sunken
[[Page 52594]]
military craft, that the provisions of section 1406 of the SMCA guide
these regulations. Elsewhere, recognizing that State Historic
Preservation Offices may not be the only state agencies with potential
subject-matter interest, oversight, or permitting authority, the DON
has accepted a series of recommendations requesting the addition of the
term ``state land or resource managers'' where appropriate.
Finally, a small number of public submissions addressed technical
comments which the DON proceeded to consider. As a result, a citation
in Sec. 767.12(e)(2) has been corrected to read ``Sec. 767.9(h)'' as
opposed to ``767.9(g)'', and reference to Sec. 767.10(a), (b), and (c)
has been shortened to simply read Sec. 767.10. Other technical
comments pertaining to the numbering of paragraphs did not appear valid
or necessitating modification. The DON also reviewed a reference to
``members of the public'' in the Executive Summary and replaced the
term with ``persons'' in order to promote consistency within the
regulations.
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 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; or
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of the
recipients thereof;
The rule does:
(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 (Section 202, Pub. L. 104-4)
It has been determined 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.
There will be minimal to no impact on small businesses since the
existing permitting program is similar in scope to the requirements of
the revised regulations except that the revised regulations further
clarify for the applicant the types of information that would need to
be required and also put in place an expedited Special Permit process.
For example, under the revised regulations, the Navy has clarified what
specific information would need to be included within a permit
application, whereas under the existing rule, applicants are merely
provided guidance regarding where they might procure the relevant form.
Under the current rule, those applicants intending to minimally disturb
a site are required to complete the same process as those intending
full site recoveries. Under the revised regulations, such applicants
would be permitted under a much simplified Special Permit process,
requiring a streamlined and shorter application. This will lead to a
reduced impact on small businesses since the applicants no longer will
have to speculate on the types of information that will be needed to
receive a permit, nor will they have to provide more information than
is necessary for their particular activity. Applicants will be able to
tailor their requests and provide specific required items vice
providing more of a wider range of information.
Public Law 96-511. ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined 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). For the past 14 years, only a
handful, or less, of applications have been received and processed
annually. The Navy will continue to monitor the number of applications
received and processed and will submit an information collection
package for OMB clearance should the threshold for doing so be reached.
Federalism (Executive Order 13132)
It has been determined 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
Aircraft, Government property management, Historic preservation,
Research, Vessels.
For the reasons set forth in the preamble, 32 CFR part 767 is
revised to read as follows:
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
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 Navy.
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,
[[Page 52595]]
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.
(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 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.
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.
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 and associated artifacts distributed due to,
or as a consequence of, a wrecking event and post-depositional site
formation processes.
Directed at means an intentional or negligent act that disturbs,
removes, or injures a craft that the person knew or should have known
to be a sunken military craft.
Disturb or disturbance means to affect the physical condition of
any portion of a sunken military craft or terrestrial military craft,
alter the position or arrangement of any portion of a sunken military
craft or terrestrial military craft, or influence 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.
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.
Injure or injury means to inflict physical 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 sunken
military craft and terrestrial military craft management and policy;
the permitting of activities that disturb, remove, or injure DON sunken
military craft and terrestrial military craft; the permitting of
activities that disturb, remove, or injure sunken military craft of
other departments, agencies or sovereigns incorporated into the DON
permitting program; 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 Coast Guard sunken 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; Public Law 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 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, 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.
[[Page 52596]]
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, and may presently be on land or in water. 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 sunken military craft and terrestrial
military craft, 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 aspects: Preservation planning; wrecksite
management; archaeological research; conservation and 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) Subject to operational requirements, 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 address matters pertaining
to human remains or public safety, to mitigate adverse effects, to
conduct research, or to provide for public education. While the NHHC
prefers non-intrusive 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, Military Sealift Command, Supervisor
of Salvage and Diving, Office of the Judge Advocate General of the
Navy, the Office of the Chief of Naval Operations, or other interested
offices.
(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. 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. The NHHC will also serve as the
permitting authority for disturbance of those sunken military craft of
another military department, or the Department in which the Coast Guard
is operating, that have been incorporated into the DON permitting
program in accordance with Sec. 767.15(e).
(e) The DON recognizes that, in accordance with section 1402(a)(3)
of the Act and other statutes, certain federal agencies have statutory
authority to conduct and permit specific activities directed at DON
sunken military craft and terrestrial 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 terrestrial military craft and compliance with applicable
law.
(f) Where appropriate, the NHHC will coordinate, consult, and enter
into agreements with the appropriate State Historic Preservation Office
(SHPO), or state land or resource manager, to ensure effective
management of DON sunken military craft and terrestrial military craft
and compliance with applicable law.
(g) 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 (g) 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.
(h) 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
[[Page 52597]]
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 professional
ethical 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
of permits previously issued by the 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) Each applicant must submit a digital (electronic) and two
printed copies of their complete application 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 feasible mitigation measures that
could reduce, avoid, or reverse environmental impacts, as well as 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, required by Sec. 767.8, 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 in accordance with Sec.
767.10(a);
(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, the following must be
included:
(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.
(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 curated.
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, in
accordance with Sec. 767.9(h).
(iv) Acknowledgement that the applicant is responsible for all
conservation-related and long-term curation costs, unless otherwise
agreed upon by NHHC.
(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 is 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 believes that
the policies of the DON are better served without compliance with one
or more of the factors, criteria, or procedures in the regulations, or
determines that there is merit in an applicant's 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. In exceptional
circumstances, verbal permission may be obtained in cases of unexpected
or emergent finds that may require immediate unanticipated disturbance,
removal, or injury of a sunken or terrestrial military craft or its
associated contents. However, the 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
[[Page 52598]]
permit application procedures set forth in this section and Sec. Sec.
767.7 and 767.9 to 767.12 if those duties or activities are associated
with the management of sunken military craft or terrestrial military
craft. Where appropriate, such persons will coordinate with Federal
Land Managers, the Bureau of Ocean Energy Management, State Historic
Preservation Offices, or state land or resource managers, as
applicable, prior to engaging in the aforementioned activities. The
NHHC Director, or his/her designee, shall ensure that the provisions of
paragraph (d) of this section and Sec. Sec. 767.8 and 767.11 have been
met by other documented means and that such documents and all resulting
data will be archived within the NHHC.
(g) Federal agencies carrying out activities that disturb, remove,
or injure sunken military craft or terrestrial military craft need not
follow the permit application procedures set forth in this section and
Sec. Sec. 767.7 and 767.9 to 767.12 if those activities are associated
with the management of sunken military craft or terrestrial military
craft within their areas of responsibility. Where appropriate, Federal
agencies will coordinate with the NHHC prior to engaging in the
aforementioned activities.
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 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,
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
understanding or agreement with the foreign state in accordance with
Sec. 767.15. The same consideration may be applied to U.S. sunken
military craft that are brought under the jurisdiction of the DON for
permitting purposes 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).
(b) Prior to issuing a permit, 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) Prior to issuing a permit, the NHHC will consult with the
appropriate SHPO, state land or resource manager 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) and final report
stipulated in Sec. 767.9(f). 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
archaeology as determined by the Secretary of the Interior's Standards
and Guidelines for Archeology and Historic Preservation.
(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 paragraph (a) of this
section.
(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 appropriate SHPO, state
land or resource manager, THPO, or foreign government official, if
applicable, 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
the NHHC confirming receipt of the counter-signed permit, the permitted
activities may commence, provided that any other federal or state
regulatory and
[[Page 52599]]
permitting requirements that apply are met.
(c) Permits shall be carried on-site and made available upon
request for inspection by federal or state law enforcement officials.
Permits are non-transferable. The permit holder, or the activity's
authorized principal investigator in the case where a permit holder is
not concurrently the authorized principal investigator, is expected to
remain on-site for the duration of operations prescribed in the permit.
In the event a permit holder or the authorized principal investigator
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 the 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,
contiguous zone, or continental shelf of a foreign State, as defined by
customary international law reflected in the United Nations Convention
on the Law of the Sea. If the physical environment is to be impacted by
the permitted activity, the permit holder will be expected to meet any
associated permit or authorization stipulations required by foreign,
federal, state, or local law, as well as apply mitigation measures to
limit such impacts and where feasible return the physical environment
to the condition that existed before the activity occurred.
(e) At least 30 days prior to the expiration of the original
permit, the permit holder shall submit to the NHHC a preliminary report
that includes a working log and, where applicable, a diving log,
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. The NHHC shall review preliminary reports for
thoroughness, accuracy, and quality and shall inform the permit holder
of their formal acceptance in writing.
(f) In the case of one or more permit extensions received through
the process identified in Sec. 767.10(b), a preliminary report that
includes all the information stated in paragraph (e) 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, summarizing the results of the permitted
activity to the NHHC, and any applicable SHPO, THPO, federal or state
land or 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 biennially, 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 to the maximum extent possible,
and an account of both the progress that has been achieved and the
objectives remaining to be accomplished. The NHHC shall review interim
and final reports for thoroughness, accuracy, and quality and shall
inform the permit holder of their formal acceptance in writing.
(h) The permit holder shall agree to protect all sensitive
information regarding the location and character of a 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, munitions and other hazardous materials, or the presence of,
or potential presence of, human remains.
(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, 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 land or 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 respective foreign state prior to the issuance of a NHHC
permit.
(k) In the event that credible evidence for or actual human
remains, unexploded ordnance, hazardous materials 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 sufficient
comprehensive general liability, and such other types of insurance, in
an amount consistent with generally accepted industry standards
throughout the period covered by the permit, or post an equivalent
bond. Such insurance shall cover against any third party claims arising
out of activities conducted under the permit. The permittee must
further agree 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 and 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 or non-substantive
amendments must be submitted in writing to the point of contact
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
[[Page 52600]]
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).
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
positions 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 conserved artifacts, laboratory
conservation records, documentation of analyses undertaken, photographs
of recovered 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 project's degree of success compared to 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 described in the permit application has been or is being carried
out. Additionally, identification of any sensitive information as
detailed in Sec. 767.9(g).
Sec. 767.12 Special use permit application.
(a) Any person proposing to engage in an activity to document a
sunken military craft utilizing diving methods or remotely-operated or
autonomously-operated equipment, or collect data or samples from a
wrecksite, whether a sunken military craft or terrestrial military
craft, 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 must apply for a special
use permit.
(b) To request a special use permit application form, please refer
to Sec. 767.6(b) and (c). Special use permit applications must 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.
(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;
(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 impacts on the resources and their surrounding environment
from permitted activities, as well as any proposed mitigation measures;
(4) Where appropriate, a plan for wrecksite restoration and
remediation with recommendations on wrecksite preservation and
protection of the wrecksite location;
(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 the 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
significantly disturb, remove or injure the sunken military craft or
wrecksite;
(3) When applicable, the pilot(s) of remotely-operated equipment
holds a 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 special use 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 as detailed in
Sec. 767.9(h);
(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 this subpart shall apply
to special use permits: Sec. Sec. 767.7(e); 767.9(a), (b), (c), (e),
(f), (g), (h), (k), and (l); 767.10; 767.13; 767.14; and 767.15(c).
(g) All sections of subpart A of this part shall apply to all
special use permits, and all sections of subpart C of this part 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 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 in accordance with Sec. 767.14. 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
[[Page 52601]]
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 the NHHC reconsider the action in accordance with Sec.
767.7(e).
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 the sovereign immunity of or
ownership 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 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 may seek 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 understanding as
per paragraph (b) of this section, by submitting a permit application
or special use permit application, as appropriate, for consideration by
the NHHC in accordance with subparts B and C of this part.
(d) In the case where there is reasonable dispute over the
sovereign immunity or ownership status of a foreign sunken military
craft, the Secretary of the Navy, or his or her designee, maintains the
right to postpone action on Sec. Sec. 767.6 and 767.12, as well as
requests under paragraph (a) of this section, until the dispute over
the sovereign immunity or ownership 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 the
DON permitting program with regard to sunken military craft under the
cognizance of the Secretary concerned. Upon the agreement of the
Secretary of the Navy, or his or her designee, subparts A, 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 violations 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 the 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 the
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 the 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 the
NHHC. At the discretion of the Director of the 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 either in person or by registered or certified
mail (with return receipt requested) 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
[[Page 52602]]
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) 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.
(c) 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).
(b) The respondent or permit holder may seek amendment,
modification, or rescindment of the NOVA to conform to the facts or law
as that person sees them by notifying the Director of the NHHC in
writing at the address specified in the NOVA. If amendment or
modification is sought, the Director of the 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 the 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 the 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/ 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), 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), 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 any type of recovery, including but not limited to
arrest, attachment, seizure, 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 the 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 the 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 the NHHC or in response to a request by
the respondent or other interested person. Any such request should be
sent to the Director of the NHHC at the address specified in the NOVA.
(c) Neither the existence of the compromise authority of the
Director of the 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 the 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
[[Page 52603]]
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) 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 the NHHC. The Director of the
NHHC will not consider a respondent's inability to pay unless the
respondent, upon request, submits such financial information as the
Director of the NHHC determines is adequate to evaluate the
respondent's financial condition. Depending on the circumstances of the
case, the Director of the 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
the 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 submitted to the Director of the 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
the 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) National Historic Preservation Act (NHPA) of 1966, as amended,
54 U.S.C. 300101 et seq. (2014), and Protection of Historic Properties,
36 CFR part 800. This statute and its implementing 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 parts
1500 through 1508. This statute and its implementing 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) Archaeological Resources Protection Act of 1979, as amended, 16
U.S.C. 470aa-mm, and the Uniform Regulations, 43 CFR part 7, subpart A.
This statute and its implementing 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.
Dated: August 14, 2015.
N. A. Hagerty-Ford,
Commander, Office of the Judge Advocate General, U.S. Navy, Federal
Register Liaison Officer.
[FR Doc. 2015-20795 Filed 8-28-15; 8:45 am]
BILLING CODE 3810-FF-P