Story Number: NNS150831-07Release Date: 8/31/2015 10:16:00 AM
From Naval History and Heritage Command
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The Sunken Military Craft Act itself remains unchanged. The permitting processes being established do not amend or change the SMCA, or in any way expand the stated prohibitions of the act. Activities such as fishing, snorkeling and diving which are not intended to disturb, remove, or injure any portion of a sunken military craft are still allowed without the need for a permit.
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While unauthorized disturbance of sunken military craft will continue to be prohibited, actions of the U.S. government, or those acting at its direction, including commercial salvage entities under contract with the U.S., will continue to be allowed. The commercial salvage industry may therefore continue to operate through federal contracts and in coordination with the U.S. Government irrespective of the promulgation of the proposed regulations.
Similarly, recreational divers or commercial and sport fishermen may continue to operate over and around DON sunken military craft without requiring a permit as long as they do not intentionally or negligently disturb, remove, or injure them and their contents.
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http://www.navy.mil/submit/display.asp?story_id=90858
Upcoming Permitting Program Revisions
Revisions to Rule 32 CFR 767 will take effect on 1 March 2016
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Q: Is diving permitted on sunken military craft? What about penetrating wrecksites?
The revised regulations do not prohibit or discourage responsible diving in the vicinity of sunken military craft. The U.S. Navy views responsible members of the diving and snorkeling communities as stewards and effective ambassadors for the protection and preservation of sunken military craft. Sunken military craft may often serve as war or maritime graves, contain environmental or public safety hazards, or hold inherent historical value. Responsible divers should recognize their limits and skill levels, and should approach sunken military craft with care and respect.
Unless there is intent to disturb a sunken military craft, or a diver is acting negligently, accidental disturbance resulting from diving in the vicinity of a sunken military craft is not viewed by the U.S. Navy as a violation of the Act. Examples of accidental disturbance would include inadvertently brushing the side of a vessel with a fin, or dropping a flashlight on an artifact without meaning to do so. Intentional disturbance remains a violation and will be treated accordingly.
Despite the dangers associated with penetration diving, the penetration of a wrecksite is not typically an activity that the U.S. Navy can or does prohibit. Divers should be aware, however, that penetrating a wrecksite dramatically increases the risk and likelihood of their activities causing the disturbance, removal, or injury of a sunken military craft. Accordingly, if a diver penetrates a known sunken military craft and disturbs, injures, or removes it, the U.S. Navy may consider the diver’s actions as negligent and take appropriate action. Divers are not authorized to open hatches, remove elements, or open new penetration paths as this would be considered site disturbance.
Q: What does disturbance, removal or injury of a sunken or terrestrial military craft mean?
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 the 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.
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.
Injury means to inflict physical damage on or impair the soundness of any portion of a sunken military craft or terrestrial military craft.
Q: Do I need a permit to dive on officially established artificial reefs that are based on former U.S. Navy vessels?
The DON does not intend to restrict access to former U.S. Navy vessels purposefully sunk to establish artificial reefs such as the ex-Oriskany and the ex-Arthur W. Radford. In both of these instances, title to the vessels was transferred to the respective state authorities. Elsewhere, such as in the cases of ex-Vandenberg and ex-Spiegel Grove, the United States transferred title to the local governments in the state of Florida. It is important to note that while no permit is required from the U.S. Navy to dive on these former U.S. Navy vessels, other permits may be required, such as those that might be issued by the National Oceanic and Atmospheric Administration.
Q: Do I need a permit to fish around a sunken military craft? What if I disturb one with my nets without knowing it was there?
The Sunken Military Craft Act does not affect the laying of cables or pipelines, the operation of vessels, or fishing, as long as those activities are not undertaken as a means to covertly disturb, remove, or injure a sunken military craft (e.g. using one’s fishing nets with the purposeful intent of recovering artifacts). Accordingly, a permit is not required for fishing around a sunken military craft, and accidentally disturbing a site by inadvertently running fishing nets through it is not a violation of the Act.
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Q: How am I supposed to know what shipwrecks or aircraft wrecks are considered sunken military craft under the jurisdiction of the DON?
Many sunken military craft are well known dive sites, including designated dive preserves such as USS Narcissus and U-1105. The location of other sunken military craft may not be precisely known or remains undisclosed. Sunken military craft are often recognizable by the presence of weapons, ordnance, insignia and military form of design. If a diver believes their activities may be directed at a sunken military craft, they should avoid disturbing, removing, or injuring the wrecksite. If there is an interest in seeking a permit for an unknown vessel for archaeological, historical, or educational purposes, requestors should attempt to ascertain the vessel’s identity or origin. In the event research or evidence suggests it is potentially a sunken military craft, requestors are encouraged to contact the Underwater Archaeology Branch of the Naval History & Heritage Command (NHHCUnderwaterArchaeology@navy.mil) to corroborate its status and determine whether it could fall under the jurisdiction of the Navy.
No permit is required so long as there is no disturbance, injury, or removal of the craft or its associated contents.
Q: What are the repercussions for disturbing, removing, or injuring a U.S. Navy sunken military craft without authorization?
Those who engage in activities directed at sunken military craft that disturb, remove or injure them without authorization are subject to the punitive provisions of the Sunken Military Craft Act, which include civil penalties, in rem liability of the vessel from which a violation occurred, liability for damages, and reimbursement of enforcement costs. The revised regulations outline the procedure through which the U.S. Navy would engage in the enforcement provisions of the Act.
Q: What should I do if I or someone I know is in possession of materials and artifacts recovered from a U.S. Navy sunken military craft and desire(s) to return them to the Navy?
If a member of the public is in possession of artifacts recovered from a DON sunken or terrestrial military craft without authorization, they are encouraged to contact the Underwater Archaeology Branch of the Naval History & Heritage Command (NHHCUnderwaterArchaeology@navy.mil) to receive guidance on returning the material to the U.S. Navy, the acting steward of the public property. The primary interest of the U.S. Navy is in the conservation, study, preservation, and interpretation of the recovered material. Unauthorized ongoing disturbance of a sunken military craft is not acceptable and will be treated as a violation of the Sunken Military Craft Act.
Q: Does the Sunken Military Craft Act override state jurisdictions on the management of sunken craft afforded to the states by the Abandoned Shipwreck Act of 1987?
The Sunken Military Craft Act and the Abandoned Shipwreck Act of 1987 each address a separate set of underwater cultural resources. Unless title to the sunken military craft has been expressly abandoned, title has not been transferred to the States for management under the Abandoned Shipwreck Act. As described in the Abandoned Shipwreck Act Guidelines (55 FR 50116): “Although a sunken warship or other vessel entitled to sovereign immunity often appears to have been abandoned by the flag nation, regardless of its location, it remains the property of the nation to which it belonged at the time of sinking unless that nation has taken formal action to abandon it or to transfer title to another party.” The Sunken Military Craft Act is consistent with the Abandoned Shipwreck Act and its associated guidelines and does not impart on the Federal Government additional rights at the expense of States’ rights.
http://www.history.navy.mil/research/underwater-archaeology/policy-and-resource-management/upcoming-permitting-program-revisions.html
FEDERAL REGISTER
Vol. 80 Monday,
No. 168 August 31, 2015
Part III
Department of Defense
Department of the Navy
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
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SUPPLEMENTARY INFORMATION:
Executive Summary
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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.
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Public Comment Summary
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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.
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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 § 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.
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Per the request of one public comment, the DON has proceeded to amend § 767.12 to emphasize that diving operations may expressly be considered in activities intended to document sunken military craft.
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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.
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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.
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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 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.
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§ 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.
§ 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.
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http://www.gpo.gov/fdsys/pkg/FR-2015-08-31/pdf/2015-20795.pdf
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Responses