Naval History and Heritage Command

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FREQUENTLY ASKED QUESTIONS

Below you will find a series of answers to questions associated with the 32 CFR 767 rule revision process, provisions of the Department of the Navy permitting program, and associated Department of the Navy policies. This webpage will continue to be updated on a regular basis to enhance public awareness of the U.S. Navy's policies towards sunken and terrestrial military craft.

THE PERMITTING PROCESS

 

DEPARTMENT OF THE NAVY POLICIES

 

THE PERMITTING PROCESS

Q:   How do I initiate a permit application?

A:    To initiate a permit application, please visit the permitting program page for additional information or contact the Underwater Archaeology Branch of the Naval History & Heritage Command (NHHCUnderwaterArchaeology@navy.mil) in order to receive further guidance.

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Q:   How was the current permitting program established? 

A:    The development of the permitting process lasted more than four years and involved consultations with nineteen U.S. Navy offices and programs, ten federal agencies, as well as members of the public who contributed through comments on the Proposed Rule published in January 2014. The Department of the Navy carefully considered all comments prior to formulating the Final Rule published in August 2015 that established the current permitting program.

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Q:   How complex is the permitting process?

A:    The permitting process is intended to be clear and defined. It is a modification of an existing U.S. Navy archaeological permitting program established in 2000 under which approximately 50 permits were issued. The current process is consistent with other well-established federal archaeological permitting programs. The approach requires a qualified principal investigator, a research proposal, a professional methodology, a conservation plan for any recovered artifacts, a plan for the long-term curation or exhibit of any recovered artifacts, and the reporting of results.

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Q:   On what criteria are permit applications judged?

A:    As mandated in the Sunken Military Craft Act, NHHC permits may only be issued for “archaeological, historical, or educational purposes” and applications are considered accordingly. The criteria include: 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; applicant qualifications and experience; and funding available to carry out proposed activities.

The revised federal regulations include additional factors for consideration when adjudicating permits.   Among them is whether a proposed activity:  meets the permit application requirements; is consistent with U.S. Navy policy or interests;  serves the best interests of the sunken military craft or terrestrial military craft in question; is consistent with the desires of a foreign sovereign in the case of a foreign sunken military craft; is consistent 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 that will permit the applicant to meet final report requirements; is consistent with standards of professional ethical conduct; and, raises concerns over commercial exploitation, national security, foreign policy, environmental or ordnance issues.  A final consideration is whether the site could be considered the final resting place of lost Sailors or whether human remains may be associated with the wrecksite. The U.S. Navy 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. 

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Q: What are “Special Use” permits and when are they appropriate?     

A:    Special Use permits allow for minimally-intrusive activities on sunken or terrestrial military craft that nevertheless would cause disturbance, injury, or removal of those craft. Special Use permits may apply to activities undertaken through the use of divers or remotely-operated or autonomously-operated vehicles. Examples of pertinent activities may include sampling or data-collection for corrosion studies, the use of an ROV in the development of a documentary, or any activities directed at non-historic sunken military craft. Special Use permit applications pose fewer operational and reporting requirements on applicants to facilitate the execution of minimally-intrusive activities; however, such activities still have to be undertaken for archaeological, historical, or educational purposes.

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Q:   Who is involved in the permit adjudication process and who can applicants appeal to if the permit request outcome is unfavorable?

A:    Permit applications are first assessed by accredited professionals of the Underwater Archaeology Branch, which pursuant to consultation with applicable stakeholders make a recommendation to the Deputy Director of the NHHC. The Deputy Director, NHHC, adjudicates permit applications taking into consideration the recommendation of the Underwater Archaeology Branch. Applicants whose applications have been declined may appeal decisions to the Director, NHHC, within 30 days of receipt of the denial.

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Q:   How long does the application process take?

A:    Every effort is made to expedite the review of permit applications within the bounds of appropriate scientific standards, resource management responsibilities, and associated statutes, regulations, and policies.  There are too many variables (e.g. the scope of the requested activity, the input of consulting parties, the condition of the intended wreck site, etc.) to establish a definitive processing time that applies to all applications. However, permit applicants should expect a multi-month permitting process that requires close communication between NHHC and the applicant. Applicants are welcome to communicate with NHHC at any time during the review process and will be informed of the primary review milestones as they are met

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Q:   If the recovery of artifacts is permitted, who owns them and what are the responsibilities of a permit holder?

A:    The associated contents of sunken and terrestrial military craft under the jurisdiction of the Department of the Navy remain under the property of the United States government and are managed by the NHHC. Artifacts recovered from sunken military craft under permit must be conserved, stabilized and curated in an environment that will ensure their long-term preservation.

A permit applicant is typically expected to plan for and cover the cost of conserving artifacts recovered under permitted activities, as well as identify a suitable conservation facility through which treatment will be provided. Prior to recovery and at the direction of the NHHC, applicants are also expected to identify and obtain the cooperation of one or more qualified museums or curatorial facilities to curate or exhibit the collection of recovered artifacts under loan from NHHC, consistent with 36 CFR 767 and the NHHC requirements. In certain instances, NHHC may accept the responsibility of conserving, curating and exhibiting material within the Navy system.

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Q:   Is there a fee associated with the permitting process?

A:   There is no fee associated with submitting a permit application for consideration by NHHC, with the subsequent issuance of a permit, or with monitoring of permit activities.

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Q:   I would like to receive a permit to conduct intrusive research on a U.S. Navy sunken military craft located within a National Park or a National Marine Sanctuary. Who do I request permission from?

A:    There are instances where a Department of the Navy sunken or terrestrial military craft may be located within areas that are under the jurisdiction of other federal agencies such as the National Oceanic and Atmospheric Administration, or the National Park Service. In such cases, multiple authorizations may be required for disturbance of a sunken military craft that, for example, may also be viewed as an archaeological resource on public lands managed by the National Park Service. The U.S. Navy has agreements with these two agencies to streamline permitting requirements. Interested members of the public may approach either the U.S. Navy or the other applicable agency to initiate a joint permitting process and receive further guidance.

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Q:   Does the permitting program create economic hardship by limiting the opportunities of the private sector to engage in recoveries of material from sunken military craft?

A:    The protections afforded to sunken military craft in the form of prohibitions on disturbance, removal, or injury, were put in place by the Sunken Military Craft Act in 2004, which remains unchanged. The revised regulations recently issued by the Department of the Navy provide the means for enabling access to sunken military craft through establishment of a permitting program that now allows for controlled disturbance of sites for archaeological, historical, or educational purposes.

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DEPARTMENT OF THE NAVY POLICIES

 Q:   What is a sunken military craft? Is the Navy responsible for all U.S. government sunken military craft?

A:    A sunken military craft is all or any portion of a) any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government on military noncommercial service when it sank; b) any sunken military aircraft or military spacecraft that was owned or operated by a government when it sank; and (c) the associated contents of the aforementioned craft.

Though a leading agency in regards to the management of sunken military craft, the U.S. Navy is not responsible for all U.S. government sunken military craft, nor is it the only Department authorized to issue regulations implementing the Sunken Military Craft Act. The U.S. Army, U.S. Air Force, and the Department under which the U.S. Coast Guard operates are all authorized by the Sunken Military Craft Act to issue regulations for permitting activities directed at sunken military craft under their purview.

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Q:   What about foreign sunken military craft in U.S. waters?

A:    Foreign sunken military craft remain the property of the respective foreign sovereign unless the craft had been captured prior to sinking, or were divested of ownership as per the respective procedures of that foreign nation. Foreign sunken military craft in U.S. waters are protected from disturbance by the Sunken Military Craft Act. The foreign sovereign may request that the U.S. Navy include their vessels within the Department of the Navy permitting program. Unless that is the case, if you would like authorization to disturb a foreign sunken military craft, please contact the appropriate authorities of the respective government.

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Q:   What about sunken military craft associated with the Confederacy?

A:    The General Services Administration has overall responsibility for property formerly owned by the Confederate States of America, including shipwrecks. The U.S. Navy has on occasion assumed responsibility or ownership of Confederate sunken military craft for management purposes. The General Services Administration is presently the agency responsible for the management of the collection of sunken military craft associated with the Confederacy.

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Q:   Why do regulations associated with a law governing the protection of sunken craft include protections for terrestrial craft?  How does NHHC define a terrestrial military craft?

A:    Terrestrial military craft include the physical remains of any portion of a historic ship, aircraft, spacecraft, or other craft, under the jurisdiction of the Department of the Navy, whether intact or otherwise, along with their associated contents, that are located on land without ever having sunk in a body of water.

In most cases, terrestrial military craft are as significant as sunken military craft with regard to historical value, or in their potential to contain human remains, public safety or environmental hazards. The current permitting program includes provisions for the management of terrestrial military craft based on statutory authorities beyond the Sunken Military Craft Act that guided the former permitting program.  Permits are still required for activities directed at terrestrial military craft, although the enforcement provisions of the regulations do not apply to terrestrial military craft as they are based on the Sunken Military Craft Act and apply specifically to sunken military craft.

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Q:   Why does NHHC prefer in situ preservation (preservation in place) as its primary management strategy for sunken and terrestrial military craft?

A:    In-situ preservation is a well-established preservation and management strategy used by federal and state agencies within the United States as well as many other countries. Sunken and terrestrial military craft are in large part fragile, non-renewable resources whose disturbance could impact multiple equities. Unnecessary, uncoordinated, poorly planned, inappropriately executed or inadequately-funded disturbance is unwise and would jeopardize the preservation of these resources, as well as potentially desecrate maritime graves, or endanger public safety and the environment. The Navy holds dearly our responsibility to honor this nation’s obligation to its fallen service members to protect the sanctity of those wrecks constituting the last resting place of American Sailors.  Given that the U.S. Navy is responsible for over 17,000 sunken and terrestrial military craft that represent public assets under Navy stewardship, it is important for the consequences of intrusive actions to be assessed and approved in advance. In situ preservation allows for each resource and proposed activity to be considered individually, allowing for the DON to determine whether and how controlled disturbance might impact a site, as well as how to subsequently best preserve the site and potentially recovered artifacts. It also allows for continuing advances in technology to be applied to the pursuit of knowledge from U.S. Navy historic resources.

Oftentimes, sites, particularly in a benign underwater environment, reach a certain equilibrium with their immediate environment that limits the extent of their degradation. The U. S. Navy recognizes, however, that site disturbance is in some cases necessary for resource protection, or justified for research and educational purposes. Accordingly, secondary management strategies involving artifact or craft recovery are considered either as part of mitigation or research efforts by NHHC or partner agencies, or as part of the permitting process established by the revised regulations.

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Q:   The regulations appear to require members of the public to go through a process while giving the designees of the Director of the NHHC the ability to execute similar activities without a permit?

A:    The Sunken Military Craft Act exempts the United States and those acting at its direction from the prohibitions on disturbing, removing, or injuring sunken military craft in the fulfillment of their stewardship obligation. As the prohibitions do not apply, at least in part in order to allow federal agencies to effectively manage these resources and respond to emergencies, the Department of the Navy does not have the authority to issue permits to federal agencies, including itself. At the same time, however, under the revised regulations, those acting at the direction of the NHHC have to meet these same requirements for planning, conducting and reporting research that disturbs, removes, or injures a sunken or terrestrial military craft as do permit applicants. This is in addition to NHHC complying with other applicable statutes such as the National Historic Preservation Act.

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Q:   Is diving permitted on sunken military craft?  What about penetrating wrecksites?

A:    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, including the removal of any artifacts, remains, or elements of the vessel, 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.

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Q:   Do I need a permit to dive on officially established artificial reefs that are based on former U.S. Navy vessels?

A:    The DON does not 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.

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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?

A:    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:   What does disturbance, removal or injury of a sunken or terrestrial military craft mean?

A:    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.

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Q:   What are the repercussions for disturbing, removing, or injuring a U.S. Navy sunken military craft without authorization?

A:    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 (up to $100,000 per violation, each day constituting a separate violation), 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.

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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?

A:    The Sunken Military Craft Act and the Abandoned Shipwreck Act of 1987 each address a separate set of underwater resources. Unless title to a 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 in asserting continuing sovereign ownership of sunken military craft. Neither the Sunken Military Craft Act, nor its implementing regulations, imparts on the Federal Government additional rights at the expense of States’ rights.

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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?

A:    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,  which acts as 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.

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Q:   What should I do if I notice that a site appears to have been disturbed or I witness someone disturbing a sunken military craft without authorization?

A:    The vast majority of the public respects the reasons why sunken military craft are protected from unauthorized disturbance and does not engage in activities that disturb, remove, or injure such craft without the required authorization. In cases where an individual notices that a wrecksite has been or is actively being disturbed, the DON requests that you contact the Naval History and Heritage Command at (202) 433 7880, or the Underwater Archaeology Branch at (NHHCunderwaterarchaeology@navy.mil).

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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? How do I know whether I am allowed to disturb underwater cultural resources or whether the Sunken Military Craft Act applies?

A:    Many sunken military craft are well known dive sites, including designated dive preserves such as USS Narcissus and U-1105. The locations of other sunken military craft may not be precisely known or remain 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 to conduct research on an unknown vessel for archaeological, historical, or educational purposes, requestors should attempt to ascertain the vessel’s identity or origin in a non-intrusive manner. 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 would 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.

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Published: Tue Mar 01 13:51:40 EST 2016