[Federal Register: November 19, 1999 (Volume 64, Number 223)]
[Proposed Rules]
[Page 63263-63266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no99-26]
[[Page 63263]]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 767
RIN 0703-AA57
Application Guidelines for Underwater Archeological Research
Permits on Submerged Cultural Resources Under the Jurisdiction of the
Department of the Navy
AGENCY: Department of the Navy, DOD.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of the Navy (DON) proposes to issue underwater
archeological research permits to those applying for permission to
recover and/or conduct research on any submerged cultural resource,
ship or aircraft wreck, under the jurisdiction of the DON. This action
will assist the Navy in managing and protecting its historic underwater
cultural resources. This rule will provide clear guidance on the permit
application requirements to recover and/or conduct research on
submerged Navy properties.
DATES: Submit comments on or before January 18, 2000.
ADDRESSES: Address all comments concerning this rule to Department of
the Navy, U.S. Naval Historical Center, Office of the Underwater
Archeologist, Building 1, Washington Navy Yard, 805 Kidderbreese Ave.
SE, Washington DC 20374-5060. Telefax number: 202-433-2729. Please cite
``Application Guidelines for Underwater Archeological Research
Permits.''
FOR FURTHER INFORMATION CONTACT: Dr. Robert S. Neyland, Underwater
Archeologist, or Barbara A. Voulgaris, 202-433-2210.
SUPPLEMENTARY INFORMATION:
Background
a. In 1993, DON initiated an archeological management program for
its historic ship and aircraft wreck sites. This was aided in part by
the U.S. Department of Defense (DoD) Legacy Resource Management Program
that was established by Congress in 1991, 10 U.S.C. 114, to provide DoD
with an opportunity to enhance the management of DoD stewardship
resources. The U.S. Naval Historical Center's (NHC) Office of
Underwater Archeology is the Navy command responsible for managing the
Navy's submerged cultural resource properties under the guidelines of
the Federal Archeological Program.
b. Under the National Historic Preservation Act of 1966 as amended
(NHPA), 16 U.S.C. 470 (1999), DON is obligated to protect historic
properties, including ship and aircraft wrecks, for which it has
custodial responsibilities. The NHPA directs federal agencies to manage
their cultural resource properties in a way that emphasizes
preservation and minimizes the impact of undertakings that might
adversely affect such properties. Management of DON cultural resources
such as ship and aircraft wrecks is not simply a matter of
preservation. The issues of gravesites, unexploded ordnance, and
potential military usage of recovered weapons systems must also be
addressed in wrecksite management.
Custody and Management of Navy Shipwrecks and Aircraft Wrecksites
a. DON submerged shipwrecks and aircraft wrecks are government
property in the custody of the Navy. These seemingly abandoned wrecks
remain government property until specific formal action is taken to
dispose of them. Navy custody of its wrecks is based on the property
clause of the U.S. Constitution and international maritime law, and is
consistent with Articles 95 and 96 of the Law of the Sea Convention.
These laws establish that right, title, or ownership of Federal
property is not lost to the government due to the passage of time. Navy
ships and aircraft cannot be abandoned without formal action as
authorized by Congress. Aircraft and ships stricken from the active
inventory list are not considered formally disposed of or abandoned.
Through the sovereign immunity provisions of admiralty law, DON retains
custody of all its naval vessels and aircraft, whether lost in U.S.,
foreign, or international boundaries.
b. Divers may dive on Navy wrecks at their own risk; however,
Federal property law dictates that no portion of a government wreck may
be disturbed or removed. The Navy strongly encourages cooperation with
other agencies and individuals interested in preserving our maritime
and aviation heritage. Diving on sunken Navy ships and aircraft located
in units of the national park system or the national marine sanctuary
system may be prohibited unless authorized by a Federal land manager.
c. The diving public is encouraged to report the location of
underwater ship and aircraft wrecksites to the NHC. Documentation of
these wreck locations allows the Navy to evaluate and preserve
important sites for the future. Under no circumstances will salvage of
Navy aircraft or shipwrecks be undertaken without prior and specific
written approval by the NHC.
d. Wrecksites that are not entire aircraft or ships, but are parts
strewn in a debris field, are considered potential archeological sites.
Such sites still contain Navy property and must be managed by the Navy
in accordance with the NHPA, the Secretary of the Interior's Standards
and Guidelines on Archeology and Historic Preservation, 48 FR 44716
(1983), and departmental regulations. Permits for recovery of submerged
Navy ship or aircraft wrecks will be considered only for educational or
scientific reasons. It is unlikely DON will recommend the disposal and
sale of a Navy ship or aircraft wreck that is eligible for listing on
the National Register of Historic Places. The Navy maintains a policy
of not disposing wrecked ships and aircraft for the following reasons:
1. Congress has mandated through the NHPA that the DON make every
effort to preserve its historic cultural resources;
2. The remains of crewmembers, if any, deserve to be treated with
honor and dignity and to be properly retrieved for burial if possible;
3. There is a possibility that live explosives or ordnance may
still be associated with the vessel or aircraft;
4. The arbitrary disposal and sale of wrecks may foster commercial
exploitation of cultural resources and;
5. The abandonment of wrecks could deplete a finite inventory of
significant cultural resources.
e. Because of the large number of aircraft wrecks and because they
are generally easier to recover and conserve than shipwrecks, DON does
consider and encourage requests for loans of historic aircraft. Museums
or other private parties interested in the recovery of Navy aircraft
for educational or scientific purposes should contact the NHC for
guidance.
List of Subjects in 32 CFR Part 767
Aircraft, Archeology, Educational research, Government property,
Government property management, Historic preservation, Permit,
Research, Scientific research, Vessel.
For the reasons stated in the preamble, the Department of the Navy
proposes to add 32 CFR part 767 to read as follows:
[[Page 63264]]
PART 767--APPLICATION GUIDELINES FOR UNDERWATER ARCHEOLOGICAL
RESEARCH PERMITS ON SUBMERGED CULTURAL RESOURCES UNDER THE
JURISDICATION OF THE DEPARTMENT OF THE NAVY
Subpart A--Regulations and Obligations
Sec.
767.1 Purpose.
767.2 Definitions.
767.3 Policy.
Subpart B--Permit Guidelines
767.4 Application for permit.
767.5 Evaluation of permit application.
767.6 Credentials of principal investigator.
767.7 Conditions of permits.
767.8 Requests for amendments or extensions of active permits.
767.9 Content of permit holder's final report.
767.10 Monitoring of performance.
767.11 Violations of permit conditions.
767.12 References for submission of permit application to conduct
archeological research.
Authority: 5 U.S.C. 301; 16 U.S.C. 470.
Subpart A--Regulations and Obligations
Sec. 767.1 Purpose.
(a) The purpose of this part is to establish the requirement and
procedural guidelines for permits to recover and/or conduct research on
Department of the Navy (DON) submerged cultural resources.
(b) The U.S. Naval Historical Center's (NHC) Office of Underwater
Archeology is the Navy command responsible for managing Navy submerged
cultural resource properties under the guidelines of the Federal
Archeological Program. In order for the NHC's management policy to be
consistent with the Federal Archeology Program, and the goals of the
NHPA, the Navy has implemented a permitting process applicable to Navy
property consistent with and applying the Archeological Resources
Protection Act of 1979 (ARPA), 16 U.S.C. 470aa-470ll (1999), permitting
criteria. Navy policies regarding its submerged cultural resources, to
include ship and aircraft wrecks are consistent with ARPA permitting
requirements. Navy application of ARPA permitting criteria promotes
consistency among federal agencies and meets the Navy's
responsibilities under the NHPA, while allowing qualified non-federal
and private individuals and entities access to Navy historic vessel and
aircraft wrecks.
(c) To assist NHC in managing, protecting, and preserving DON
submerged cultural resources.
Sec. 767.2 Definitions.
Aircraft wrecksite means the location where an aircraft has been
crashed, ditched, damaged, or stranded. The wreck may be intact or
scattered, may be on land or in water, and may be a structure or a
site.
Archeological site means the location of a significant event,
historic occupation or activity, or a building or structure including
aircraft or shipwrecks, whether standing, ruined, or vanished, and its
debris field where the location itself retains historical or
archeological value regardless of the value of any existing structure.
Artifact means any object or assemblage of objects found in an
archeological context that yields or is likely to yield information of
significance to the scientific study of culture or human history.
Cultural resource means the remains or records of districts, sites,
structures, buildings, networks, objects, and events from the past.
They may be historic, archeological, or architectural in nature.
Cultural resources are an irreplaceable and nonrenewable aspect of our
national heritage.
Gravesite means any natural or prepared physical location, whether
originally below, on, or above the surface of the earth, where
individual human remains are deposited.
Permit holder means any person authorized and given the exclusive
right by the NHC to conduct any activity under these regulations.
Permitted activity means any activity that is authorized by the NHC
under these regulations.
Research vessel means any vessel employed for scientific purposes
under these regulations.
Shipwreck means the physical remains of a vessel, its cargo, and
other contents.
Wrecksite means the location of a ship or aircraft that has been
sunk, crashed, ditched, damaged, or stranded. The wreck may be intact
or scattered, may be on land or in water, and may be a structure or a
site. The site includes the physical remains of the wreck and all other
associated artifacts.
Sec. 767.3 Policy.
(a) The NHC's policy has been to evaluate each Navy submerged
cultural resource on an individual basis. In some cases, the removal of
Navy submerged cultural resources may be necessary or appropriate to
protect the resource and/or to fulfill other NHC goals, such as those
encompassing research, education, public access, and appreciation.
Recovery of Navy submerged cultural resources may be justified in
specific cases where the existence of a resource may be threatened.
Therefore, recovery of some or all of a resource may be permitted for
identification and/or investigation to answer specific questions; or
the recovery presents an opportunity for public research or education.
(b) Generally, submerged Navy cultural resources will be left in
place unless artifact removal or site disturbance is justified and
necessary to protect Navy cultural resources, to conduct research, or
provide public education and information that is otherwise
inaccessible. While the NHC prefers non-destructive, in situ research
on submerged Navy shipwrecks and aircraft wrecks, it recognizes that
site disturbance and/or artifact recovery is sometimes necessary. At
such times, site disturbance and/or archeological recovery may be
permitted, subject to conditions specified by NHC.
Subpart B--Permit Guidelines
Sec. 767.4 Application for permit.
(a) To request a permit application form, please write to:
Department of the Navy, U.S. Naval Historical Center, Office of the
Underwater Archeologist, Building 1, Washington Navy Yard, 805
Kidderbreese Ave. SE, Washington DC 20374-5060. Telefax number: 202-
433-2729.
(b) Applicants must submit three copies of their completed
application at least 90 days in advance of the requested effective date
to allow sufficient time for evaluation and processing. Requests should
be sent to the Underwater Archeologist of the U.S. Navy, Naval
Historical Center, Washington Navy Yard, 805 Kidderbreese Ave. SE,
Washington, DC 20374-5060.
(c) If the applicant believes that compliance with one or more of
the factors, criteria, or procedures in the guidelines contained in
this part is not practicable, the applicant should set forth why and
explain how the purposes of the NHC are better served without
compliance with the specified requirements. Permits are valid for six
months from the issue date.
Sec. 767.5 Evaluation of permit application.
(a) Permit applications for archeological research are reviewed for
completeness, compliance with program policies, and adherence to these
guidelines. Incomplete applications will be returned to the applicant
for clarification. Complete applications are reviewed by NHC personnel
and, when necessary, outside experts. In addition to the criteria set
forth in Sec. 767.6,
[[Page 63265]]
applications are also judged on the basis of: relevance or importance;
archeological merits; appropriateness and environmental consequences of
technical approach; whether the proposed effort would be more
appropriately conducted outside of the NHC; and qualifications of the
applicants.
(b) Under certain circumstances, it may be necessary to consult
with the State Historic Preservation Officer (SHPO) and the Advisory
Council on Historic Preservation (ACHP) about the need to comply with
section 106 of the NHPA. A section 106 review requires the NHC to
consult with the appropriate SHPO and the ACHP. The ACHP review can
take up to 60 days beyond the NHC's required 90-day review. Therefore,
the entire review process may take up to 150 days.
(c) Applications for research at sites located in units of the
National Park system, national wildlife refuge system, and national
marine sanctuary system, shall be sent to the appropriate Federal land
manager for review. Applications for research at sites located on state
bottomlands should be sent to the appropriate state agency for review.
The burden of obtaining any and all additional permits or
authorizations, such as from a state or foreign government or agency,
private individual or organization, or from another federal agency, is
on the applicant.
(d) Based on the findings of the NHC evaluation, the NHC Underwater
Archeologist will recommend an appropriate action to the NHC Director.
If approved, the NHC will issue the permit; if denied, applicants are
notified of the reason for denial and may appeal within 30 days of
receipt of the denial. Appeals must be submitted in writing to:
Director of Naval History, Naval Historical Center, 805 KidderBreese
Ave. SE, Washington, DC 20374-5060.
Sec. 767.6 Credentials of principal investigator.
A resume or curriculum vitae detailing the professional
qualifications and professional publications and papers of the
principal investigator (PI) must be submitted with the permit
application. The PI must have: a graduate degree in archeology,
anthropology, maritime history, or a closely related field; at least
one year of professional experience or equivalent specialized training
in archeological research, administration or management; at least four
months of supervised field and analytic experience in general North
American historic archaeology and maritime history; the demonstrated
ability to carry research to completion; and at least one year of full-
time professional experience at a supervisory level in the study of
historic marine archeological resources. This person shall be able to
demonstrate ability in comprehensive analysis and interpretation
through authorship of reports and monographs.
Sec. 767.7 Conditions on permits.
(a) Upon receipt of a permit, permit holders must counter-sign the
permit and return copies to the NHC and the applicable SHPO prior to
conducting permitted activities on the site. Copies of countersigned
permits should also be provided to the applicable federal land manager
when the sunken vessel or aircraft is located within a unit of the
national park system, the national wildlife refuge system, or the
national marine sanctuary system.
(b) Permits must be carried aboard research vessels and made
available upon request for inspection to regional preservation
personnel or law enforcement officials. Only persons named in the
permit may participate in permitted activities. Permits are non-
transferable. Permit holders must abide by all provisions set forth in
the permit as well as applicable state or Federal regulations. Permit
holders should abide by applicable regulations of a foreign government
when the sunken vessel or aircraft is located in foreign waters. To the
extent reasonably possible, the environment must be returned to the
condition that existed before the activity occurred.
(c) Upon completion of permitted activities, the permit holder is
required to submit to the NHC a working and diving log listing days
spent in field research, activities pursued, and working area
positions.
(d) The permit holder must prepare and submit a final report as
detailed in Sec. 767.9, summarizing the results of the permitted
activity.
(e) The permit holder must agree to protect all sensitive
information regarding the location and character of the wreck site that
could potentially expose it to non-professional recovery techniques,
looters, or treasure hunters. Sensitive information includes specific
location data such as latitude and longitude, and information about a
wreck's cargo, the existence of armaments, or the knowledge of
gravesites.
(f) All recovered DON cultural resources remain the property of the
United States. These resources and copies of associated archaeological
records and data will be preserved by a suitable university, museum, or
other scientific or educational institution.
Sec. 767.8 Requests for amendments or extensions of active permits.
(a) Requests for amendments to active permits (e.g., a change in
study design or other form of amendment) should conform to these
guidelines. All necessary information to make an objective evaluation
of the amendment should be included as well as reference to the
original application.
(b) Permit holders desiring to continue research activities must
reapply for an extension of their current permit before it expires. A
pending extension or amendment request does not guarantee extension or
amendment of the original permit. Therefore, you must submit an
extension request to the NHC at least 30 days prior to the original
permit's expiration date. Reference to the original application may be
given in lieu of a new application, provided the scope of work does not
change significantly. Applicants may apply for no more than two six-
month extensions.
(c) Permit holders may appeal denied requests for amendments or
extensions to the appeal authority listed in Sec. 767.5.
Sec. 767.9 Content of permit holder's final report.
The permit holder's final report shall include the following:
(a) A site history and a contextual history relating the site to
the general history of the region;
(b) A master site map;
(c) Feature map(s) of the location of any recovered artifacts in
relation to their position within the wrecksite;
(d) Photographs of significant site features and significant
artifacts both in situ and after removal;
(e) A description of the conservation of artifact lists, laboratory
conservation records, and before and after photographs of significant
artifacts at the conservation laboratory;
(f) A written report describing the historical background,
environment, archeological field work, results, and analysis;
(g) A summary of the survey and/or excavation process;
(h) An evaluation of the completed permitted activity that includes
an assessment of the permit holder's success of his/her specified
goals.
Sec. 767.10 Monitoring of performance.
Permitted activities will be monitored to ensure compliance with
the conditions of the permit. NHC on-site personnel, or other
designated authorities, may periodically assess
[[Page 63266]]
work in progress by visiting the study location and observing any
activity allowed by the permit or by reviewing any required reports.
The discovery of any potential irregularities in performance under the
permit will be promptly reported and appropriate action will be taken.
Permitted activities will be evaluated and the findings will be used to
evaluate future applications.
Sec. 767.11 Violations of permit conditions.
The Director of the NHC, the Underwater Archeologist for DON, or
his/her designee may amend, suspend, or revoke a permit in whole or in
part, temporarily or indefinitely, if in his/her view the permit holder
has acted in violation of the terms of the permit or of other
applicable regulations, or for other good cause shown. Any such action
will be communicated in writing to the permit holder and will set forth
the reason for the action taken. The permit holder may appeal the
action to the appeal authority listed in Sec. 767.5.
Sec. 767.12 References for submission of permit application to conduct
archeological research.
(a) National Historic Preservation Act of 1966, as amended (NHPA),
16 U.S.C. 470 et seq. (1999), and Protection of Historic Properties, 36
CFR part 800 (1999). These regulations govern the Section 106 Review
Process established by the NHPA.
(b) Secretary of the Interior's Standards and Guidelines for
Archeology and Historic Preservation, 48 FR 44716 (1983). This
publication establishes standards for the preservation planning process
with guidelines on implementation.
(c) Archeological Resources Protection Act of 1979, as amended
(ARPA), 16 U.S.C. 470aa et seq. (1999), and the Uniform Regulations,
ARPA, 43 CFR part 7 (1998). These regulations establish basic
government-wide standards for the issuance of permits for archeological
research, including the authorized excavation and/or removal of
archeological resources on public lands or Indian lands.
(d) Secretary of the Interior's Curation of Federally-Owned and
Administered Archeological Collections, 36 CFR part 79 (1999). This
publication establishes standards for the curation and display of
federally-owned artifact collections.
(e) Antiquities Act of 1906, Pub. L. No. 59-209, 34 Stat. 225
(codified at 16 U.S.C. 431 et seq. (1999)).
(f) Executive Order No. 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp.,
p. 559 (Protection and Enhancement of the Cultural Environment).
(g) Department of Defense Instruction 4140.21M (DoDI 4120.21M,
August 1998). Subject: Defense Disposal Manual.
(h) Secretary of the Navy Instruction 4000.35 (SECNAVINST 4000.35,
17 August 1992). Subject: Department of the Navy Cultural Resources
Program.
(i) Naval Historical Center Instruction 5510.4. (NAVHISTCENINST
5510.4, 14 December 1995). Subject: Disclosure of Information from the
Naval Shipwreck Database.
Christopher G. Carlson,
Major, USMC, Alternate Federal Register Liaison Officer.
[FR Doc. 99-30079 Filed 11-18-99; 8:45 am]
BILLING CODE 3810-FF-P
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