[Federal Register Volume 64, Number 223 (Friday, November 19, 1999)]
[Proposed Rules]
[Pages 63263-63266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30079]



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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:

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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,

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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

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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