[Federal Register Volume 65, Number 95 (Tuesday, May 16, 2000)]
[Rules and Regulations]
[Pages 31079-31083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12076]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 767

RIN 0703-AA57


Application Guidelines for Archeological Research Permits on Ship 
and Aircraft Wrecks Under the Jurisdiction of the Department of the 
Navy

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

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SUMMARY: This final rule adds guidelines for obtaining Department of 
the Navy (DON) archeological research permits for those applying for 
permission to conduct research on, and/or recover, ship or aircraft 
wrecks under the jurisdiction of the DON. This permit process will 
assist the DON in managing and protecting its historic ship and 
aircraft wrecks. This rule will provide clear guidance on the permit 
application requirements to conduct research on, and/or recover, DON 
ship and aircraft wrecks.

DATES: Effective May 16, 2000.

FOR FURTHER INFORMATION CONTACT: Dr. Robert S. Neyland, Underwater 
Archeologist, or Barbara A. Voulgaris, 202-433-2210.

SUPPLEMENTARY INFORMATION: On November 19, 1999 (64 FR 63263), the 
Department of the Navy (DON) published a notice of proposed rulemaking 
on the application guidelines for archeological research permits on 
Submerged Cultural Resources under the jurisdiction of DON. The comment 
period closed on January 18, 2000. Interested persons have been 
afforded the opportunity to participate in the making of this rule. 
Seven comments were submitted in response to the notice of proposed 
rulemaking. The comments from cultural resource professionals focused 
on the meaning of several definitions. In particular, there was a 
concern that the term ``submerged cultural resources'' would include 
more than ship and aircraft wrecks and the term would exclude ship and 
aircraft wrecks on land. As a result, a change was made to replace the 
terms ``submerged cultural resources'' and ``underwater cultural 
resources'' with ``ship and aircraft wrecks''. Also adopted were 
suggestions that provide additional time in the permit review process, 
to increase the permit duration, and to clarify guidance on state 
participation when a DON resource is on a State bottomland. Comments 
from those representing salvage interests were generally against 
restrictions. These comments and suggestions were carefully considered, 
but most were not adopted since they were in opposition to our goal of 
protecting DON cultural resources.
    As background, 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 DON command responsible for 
managing the DON's ship and aircraft wrecks under the guidelines of the 
Federal Archeological Program. 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 only 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 DON Ship and Aircraft Wrecksites

    a. DON ship and aircraft wrecks are government property in the 
custody of DON. These seemingly abandoned wrecks remain government 
property until specific formal action is taken to dispose of them. DON 
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. Department of the 
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.

[[Page 31080]]

    b. Divers may dive on DON wrecks at their own risk; however, 
Federal property law dictates that no portion of a government wreck may 
be disturbed or removed. The DON strongly encourages cooperation with 
other agencies and individuals interested in preserving our maritime 
and aviation heritage. Diving on sunken DON 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 DON to evaluate and preserve important 
sites for the future. Under no circumstances will salvage of DON 
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 DON property and must be managed by the DON 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 DON 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 
DON ship or aircraft wreck that is eligible for listing on the National 
Register of Historic Places. The DON maintains a policy of not 
disposing of wrecked ships and aircraft for the following reasons:
    1. Congress has mandated through the NHPA that DON make every 
effort to preserve its historic cultural resources;
    2. The remains of crewmembers, if any, deserve respect and should 
remain undisturbed unless proper retrieval and burial become necessary;
    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.

Matters of Regulatory Procedure

    Executive Order 12866, Regulatory Planning and Review. This rule 
does not meet the definition of ``significant regulatory action'' for 
purposes of E.O. 12866.
    Executive Order 13132, Federalism. It has been determined that this 
rule does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment. The provisions contained in 
this rule will have little or no direct effect on States or local 
governments.
    Regulatory Flexibility Act. This rule will not have a significant 
economic impact on a substantial number of small entities for purposes 
of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).
    Paperwork Reduction Act. This rule does not impose collection of 
information requirements for purposes of the Paperwork Reduction Act 
(44 U.S.C. Chapter 35, 5 CFR part 1320).

List of Subjects in 32 CFR Part 767

    Aircraft, Archeology, Educational research, Government property, 
Government property management, Historic preservation, Research, 
Vessels.

    For the reasons stated in the preamble, the Department of the Navy 
adds 32 CFR part 767 to read as follows:

PART 767--APPLICATION GUIDELINES FOR ARCHEOLOGICAL RESEARCH PERMITS 
ON SHIP AND AIRCRAFT WRECKS 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
Sec.
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 conduct research on and/or recover 
Department of the Navy (DON) ship and aircraft wrecks.
    (b) The U.S. Naval Historical Center's (NHC) Office of Underwater 
Archeology is the DON command responsible for managing DON ship and 
aircraft wrecks 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, DON has 
implemented a permitting process applicable to DON property consistent 
with and applying the Archeological Resources Protection Act of 1979 as 
amended (ARPA), 16 U.S.C. 470aa-mm, permitting criteria. Department of 
the Navy policies regarding its ship and aircraft wrecks are consistent 
with ARPA permitting requirements. Department of the Navy application 
of ARPA permitting criteria promotes consistency among federal agencies 
and meets DON's responsibilities under the NHPA while allowing 
qualified non-federal and private individuals and entities access to 
DON historic ship and aircraft wrecks.
    (c) To assist NHC in managing, protecting, and preserving DON ship 
and aircraft wrecks.


Sec. 767.2  Definitions.

    Aircraft wreck means the physical remains of an aircraft, intact or 
otherwise, its cargo, and other contents. Aircraft wrecks are 
classified as either historic structures or archeological sites.
    Archeological site means the location of an event, a prehistoric or 
historic occupation or activity, or a building or structure, whether 
standing, ruined, or vanished, where the location itself maintains 
historical or archeological value regardless of the value of any 
existing structure. A ship or aircraft wreck, along with its debris 
field, is an archaeological site when it lacks the structural integrity 
of an intact aircraft or vessel and when it and its location retain 
archeological or historical value regardless of the value of any 
existing remains.
    Artifact means any object or assemblage of objects, regardless of 
age, whether in situ or not, that may carry archeological or historical 
information that yields or is likely to yield information to the 
scientific study of culture or human history.
    Cultural resource means any prehistoric or historic district, site, 
building, structure, or object, including artifacts, records, and 
material remains related to such a property or resource. Historic 
aircraft wrecks or shipwrecks are classified as either archeological 
sites or historic structures.
    Gravesite means any natural or prepared physical location, whether

[[Page 31081]]

originally below, on, or above the surface of the earth, where 
individual human remains are deposited.
    Historic structure means a structure made up of interdependent and 
interrelated parts in a definite pattern or organization. Constructed 
by humans, it is often an engineering project large in scale. An 
aircraft wreck or shipwreck is a historic structure when it is 
relatively intact and when it and its location retain historical, 
architectural, or associative value.
    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 the regulations in this part.
    Research vessel means any vessel employed for scientific purposes 
under the regulations in this part.
    Ship wreck means the physical remains of a vessel, intact or 
otherwise, its cargo, and other contents. Shipwrecks are classified as 
either historic structures or archeological sites.
    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 Naval Historical Center's policy has been to evaluate each 
DON ship and aircraft wreck on an individual basis. In some cases, the 
removal of DON ship and aircraft wrecks may be necessary or appropriate 
to protect the cultural resource and/or to fulfill other NHC goals, 
such as those encompassing research, education, public access, and 
appreciation. Recovery of DON ship and aircraft wrecks may be justified 
in specific cases where the existence of a cultural resource may be 
threatened. Therefore, recovery of some or all of a cultural 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, DON ship and aircraft wrecks will be left in place 
unless artifact removal or site disturbance is justified and necessary 
to protect DON ship and aircraft wrecks, to conduct research, or 
provide public education and information that is otherwise 
inaccessible. While NHC prefers non-destructive, in situ research on 
DON ship 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, 805 Kidder Breese St. SE, Washington Navy 
Yard, DC 20374-5060. Telefax number: 202-433-2729.
    (b) Applicants must submit three copies of their completed 
application at least 120 days in advance of the requested effective 
date to allow sufficient time for evaluation and processing. Requests 
should be sent to the Department of the Navy, U.S. Naval Historical 
Center, Office of the Underwater Archeologist, 805 Kidder Breese St. 
SE, Washington Navy Yard, 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 NHC are better served without compliance 
with the specified requirements. Permits are valid for one year 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 the 
guidelines of this subpart. 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, applications are also judged on the 
basis of: relevance or importance; archeological merits; 
appropriateness and environmental consequences of technical approach; 
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 may require 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 120-day review. Therefore, 
the entire review process may take up to 180 days.
    (c) The NHC shall send applications for research at sites located 
in units of the national park system, national wildlife refuge system, 
and national marine sanctuary system to the appropriate Federal land 
manager for review. The Federal land manager is responsible for 
ensuring that the proposed work is consistent with any management plan 
or established policy, objectives or requirements applicable to the 
management of the public lands concerned. NHC shall send applications 
for research at sites located on state bottomlands 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, 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 Kidder Breese 
St. SE, Washington Navy Yard, 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 of permits.

    (a) Upon receipt of a permit, permit holders must counter-sign the 
permit and return copies to the NHC and the applicable SHPO, Federal or 
State land manager, or foreign government official prior to conducting 
permitted activities

[[Page 31082]]

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. 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 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 and must meet the standards 
set forth in 36 CFR part 79, Curation of Federally Owned and 
Administered Archeological Collections, at the expense of the 
applicant. The repository shall be specified in the permit application.


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) must conform to the 
regulations in this part. 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 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 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. 767.5.


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) If applicable, a description of the conserved artifacts, 
laboratory conservation records, and before and after photographs of 
the artifacts at the conservation laboratory;
    (f) A written report describing the site's historical background, 
environment, archeological field work, results, and analysis;
    (g) A summary of the survey and/or excavation process; and
    (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 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 Naval History, 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. 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 published on September 29, 1983 
(48 FR 44716). These guidelines establish 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-mm, and the Uniform Regulations, 43 CFR part 7, 
subpart A. 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 regulations, Curation of Federally-
Owned and Administered Archeological Collections, 36 CFR part 79. These 
regulations establish standards for the curation and display of 
federally-owned artifact collections.
    (e) Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225 
(codified at 16 U.S.C. 431 et seq. (1999)).
    (f) Executive Order 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

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December 1995). Subject: Disclosure of Information from the Naval 
Shipwreck Database.

    Dated: April 26, 2000.
J. L. Roth,
Lieutenant Commander, Judge Advocate General's Corp, Federal Register 
Liaison Officer.
[FR Doc. 00-12076 Filed 5-15-00; 8:45 am]
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