May 5, 2014 Comment 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 Proposed Rule: 37 CFR Part 767 Comments due March 7, 2014 Federal Register Volume79, Number 3, Monday, January 6, 2014 No. USN-2011-0016. RIN 0703-AA90. FR DOC # 2013-31068 The hierarchy of our regulatory system has laws with a broad intent to a specific policy for management of, in this case, sunken military craft which must pass a high level of review; regulations that implement the law in more detail which require public comment; and then guidance which may be reviewed by the public and which can be modified by the agency with greater ease and flexibility. The proposed regulations attempt to rewrite the law by expanding its intent and application. The proposed regulations lack clear definitions about what shipwrecks are covered and what activities are prohibited. The proposed regulations give force of law to inappropriate details that are likely to change and should be in guidance, such as a street address in the Navy Yard or the payment of fines of hundreds of thousands of dollars by a check or money order mailed or delivered to a street address at a time when government payments are frequently electronic transfers. Our democracy is a success because we have valued a balance of power. In this proposal the Director and the Deputy Director of the Naval History and Heritage Command seem to be in total control of the interpretation and implementation of the vaguely written rule with no independent appeal process. An economic analysis under the Small Business Regulatory Enforcement Fairness Act will show that these regulations will negatively impact about 3 million sport divers and an industry that contributes about $11 billion to the US GDP. One thousand divers can create 30 full-time equivalent jobs. A review under the Regulatory Flexibility Act will show that hundreds of small businesses that include dive boats and dive shops could be put out of business. The reviews were not done adequately. The rule should be re-proposed. The rule writers should consult with the sport diving community through the Diving Equipment and Marketing Association and the Underwater Society of America. Contact the Diving Equipment and Marketing Association, Tom Ingram, Executive Director, 858-616-6408, email@example.com, 3750 Convoy Street, Suite 310, San Diego, CA 92111-3741. Contact the Underwater Society of America, Carol Rose, President, 707-343-7132, firstname.lastname@example.org, USOA, PO Box 1288, Sonoma, CA 95476.
Here is a diver touching a World War II era shipwreck in an area new to the diver. Do the special provisions of the proposed rule apply? Was the ship a military vessel or a vessel under contract to the military at the time it sunk? Is the diver “intrusive” or “adjacent” to the wreck? How is the diver to know?
Section 767.3 Definitions: The definitions would put an end to sport diving because wrecks are so ubiquitous - some with military association and some without and so many unidentified - that they cannot all be distinguished relative to the rule. Boat captains can hardly justify the loss of their boat and astronomical fines taking divers to any areas where shipwrecks might be buried or occasionally exposed. Divers like to dive on shipwrecks so the boat captains and related commercial enterprises would be out of business. Land ownership is ignored by the rule. States, counties and cities have certain rights in lakes, rivers and the territorial sea and have in the past negotiated with foreign powers for the disposition of wreck sites and artifact. For example, the United Kingdom talked with Rhode Island and Delaware about cannons from HMS ships. Parts of the submerged land of Pennsylvania are in private ownership. Land ownership by individuals is not but must be respected for the objects and activities listed in these rules. The ribs of a wooden hull in a farmer’s field might eventually prove to be a ship under contract to the military during the 1800’s but much excavation will have been done or not as the farmer chooses before any identification is made. A farmer’s field is a difficult permit scenario under these rules. Tribal lands must be respected. The rights of relatives and the disposition of human remains, military and non-military should be made clearer. The status of abandoned military vessels as artificial reefs needs to be made clear. The status of vessels apparently abandoned by the military from 1776 to 1965, often salvaged under contract and then demolished by the Corps of Engineers as hazards to navigation needs to be made clear. Many wrecks are buried in state land and the state should be the permit authority or partner as lead. We understand that the Federal Agencies outside the Navy found the rules so odious that they negotiated an exemption for their operations. Given the direction of budget cuts, the Navy may be expected to charge fees for the permit application and for Navy oversight during operations. Local volunteer sport diver groups do much of the work of recording our nation’s naval history. These groups will not meet the extreme permit qualifications or be able to raise funds for fees. This national tradition will be lost. Many of the issues raised in the comments on the definitions can be clarified in the definition and then more fully described with illustrative examples in a guidance document on the web which will remain “evergreen” as the public and government individuals develop language together. Daily, multi-ton fishing trawlers are destroying by crushing to powder submerged resources daily. 3
Disturb or Disturbance is defined with so many qualifiers as to be a total prohibition of any activity on any wreck unless the wreck is clearly labeled. Only a very few wrecks are clearly labeled. Brushing sand from a sign identifying a shipwreck could be included in this definition. Debris field is defined in an overly expansive manner. Ships may wreck and leave debris fields that cover 10 to 20 miles. Some parts of the wreck buried and some exposed, each storm creating a new pattern of conditions. Historic means 50 years since the ship was lost. A diver has a difficult time when looking at a bit of ship partially covered with sand to know if the vessel was 49 years and 364 days old or 365 days old. Given the draconian enforcement provisions, this definition needs to be clearer. Injure or injury means to inflict material damage. A diver might cause rust to flake off when moving a flipper. A more reasonable standard might have to do with the use of tools of excavation. Possession or in possession is defined for this rule but has a meaning in the context of Admiralty law that should be consistent. For example, tele-possesion is considered possession for Admiralty purposes to determine an award. The rule is not clear about who owns the intellectual property rights to photographs, drawings and other representations. Remove or removal should be more clearly defined, for example, the use of tools of excavation. Sunken Military Craft and Terrestrial military craft are defined to allow the Navy to control on land and underwater any movable material culture associated with any government in the world. States of the United States own ships, foreign countries own ships, tribes have owned ships. The breadth of this definition seems unnecessary. Wrecksite is defined generally as the waters and lands of the United States and ships have been just about everywhere. Wrecksite is not a word, perhaps, wreck site. Section 767.4 Prohibited acts: The prohibited acts are problematic because they use the vague and overreaching definitions identified above. No person may attempt to engage in any activity is a broad test for enforcement action by one or two individuals. Section 767.5 Policy (d) This part again raises the issue of stateâ€™s rights in state waters and negotiations with foreign states. States have negotiated in the past and should be the lead in consultations. (g) The total control by the NHHC in this provision is extreme given the lack of alternative routes of appeal.
Subpart B Permit Requirements Section 767.6 Historic sunken military craft and terrestrial military craft permit application Some provision for emergency response should be articulated. (c) An address as regulation is inappropriate but better identified in guidance or in a response to a request. Printed copies are quaint but electronic communications are more common. (6), (7), (8), (9), (10) present an ideal that the navy has never met. The expectation that the ideal will ever be met is unrealistic. More realistic provisions should be listed. (e) is not a sufficient response. A tiered approach for survey, mapping and varying levels of disturbance of the site should be developed. Additional guidance could provide examples. (10) (i) The provision needs to articulate what the Navy will do when the responsible organization goes bankrupt. Currently, the Navy allows the materials to deteriorate. Section 767.7 Evaluation of permit application The provisions give the Navy over-reaching authority. Foreign powers, states, tribes and the Admiralty Court should have greater authority. Section 767.8 Credentials of principal investigator The credentials identified for the principal investigator envision a superman skill level that does not exist. Notably, the skills listed do not require diving certification or credentials for a remotely operated vehicle or submarine. The implementation of an archaeological investigation is a team effort of many disciplines. The success of the project will depend on the initial identification of skills and the skills of the members of the team. Additional skills may be required as the project moves forward and other skills may not be needed. For example, if no bones are found, an expert in that area is not needed and if bones are found an expert needs to be added. Bones may be food remains of the crew, the crew, and naturally occurring fish remains. Section 767.9 Conditions of the permit This section fails to consider the challenge of working on the water or on the land during storm conditions. Individuals should seek cover during bad weather and not remain on site as the section suggests. The section fails to consider the size or location, on or off-shore, of the support base. For example, a small Boston Whaler is not a good place to keep an original permit. The section is not clear, if the support base is on land, is the permit on-site of an underwater activity. The section fails to consider sudden illness or accident response. Working in the elements does not allow for preapproval of the NHHC for all actions. (i) The complexity of the disposition of intellectual property rights is not reflected in this part. A project might be funded by several profit and not-for-profit organizations. To meet the 5
educational goals of the rule, material will need to be available to the public through many channels. Section 767.10 Requests for amendments or extensions of active permits Hard copy to a street address again rather than electronic communication is limited. Another shooting, bomb or anthrax episode makes this language impractical. Section 767.11 Content of permit holder’s final report The first phrase should read, “The permit holder’s final report shall at a minimum include as appropriate the following:” Section 767.12 Special use permit application Sport diver and tourist activities seem to be unnecessarily captured by this section. There is no indication that the Navy staff has the ability to evaluate the expertise of individuals and activities that are not archaeological. Section 767.13 Monitoring of performance The Navy budget does not clearly show financial support for the Navy’s on-site activity. Section 767.14 Amendment, suspension, or revocation of permits This section severely limits an individual’s legal rights. Section 767.15 Application to foreign sunken military craft and U.S. sunken military craft not under the jurisdiction of the DoN The section fails to recognize the potential roles of the rights of foreign governments, the Admiralty Court, tribes and states of the United States. The cannon of the United Kingdom will be treated differently from the class of German U-boats; these governments are the lead, not the Navy. Section 767.16 Civil penalties for violation of Act or permit conditions These draconian provisions fail to recognize the reality of the dive industry and sport diving community that may accidently fall afoul of this complex and overreaching rule. The Navy has a responsibility to partner with the active diving, tourism, and fishing communities to develop a clear and reasonable rule to meet the needs of the public, encourage economic growth and manage the shipwreck resources. Section 767.17 Liability for damages This section appears to have a money grabbing potential with no legal recourse and begs abuse. 6
Section 767.18 Notice of Violation and Assessment (NOVA) Hard copy again is limited. The Director should not be the only recourse. Sections 767.19 through Section 767.26 These sections are geared to a worst case scenario for the activities of an ocean going vessel. The large vessel exception is not the standard to influence the existing on- going recreational activities. The commercial fishing industry is very vulnerable under these provisions for the recovery of nets, crab and lobster pots, as well as the activities of large trawlers. Other off-shore energy and mining projects are also impacted. Clarification is needed. Sincerely,
Carol Rose President Underwater Society of America
Published on Apr 3, 2015