[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]



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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

[[Page 52590]]

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

[[Page 52592]]

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