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Abandoned Shipwreck Act Guidelines

Part II. Guidelines

B. Establishing Federal Shipwreck Management Programs

Federal agencies have been responsible for managing and protecting historic properties (including historic shipwrecks) located on public lands since passage of the Antiquities Act (16 U.S.C. 431-433) in 1906. This responsibility was reaffirmed in 1979 with enactment of the Archaeological Resources Protection Act (16 U.S.C. 470aa-mm) and expanded upon in 1980 when the National Historic Preservation Act (16 U.S.C. 470 et seq.) was amended.

Abandoned shipwrecks located on public lands generally have been treated as Federal property and have been managed according to applicable Federal property, land management, and historic preservation statutes. The Abandoned Shipwreck Act (43 U.S.C. 2101-2106) reaffirms this assertion of U.S. title and management responsibility for abandoned shipwrecks located on public lands. However, the Antiquities Act, the Archaeological Resources Protection Act, and other historic preservation statutes establish more stringent requirements than does the Abandoned Shipwreck Act for managing and protecting federally-owned or controlled historic shipwrecks. Because of these differences, the Committee on Merchant Marine and Fisheries said that "Federal agencies . . . should manage their historic shipwrecks consistent with the (Abandoned Shipwreck Act) guidelines to the extent consistent with other applicable federal law" (U.S. House of Representatives Report No. 100-514, Pt. 2, p. 7).

Under the National Historic Preservation Act, Federal agencies also are responsible for taking into account the effects of their programs and projects on historic properties. Some activities that are undertaken, funded, licensed, or permitted by Federal agencies have the potential to affect historic shipwrecks. Examples of such activities would include, but not be limited to, dredging in rivers and harbors, discharging material into a waterway, constructing bridges and harbor facilities, exploring for and developing mineral resources, removing shipwrecks and drift, commercially salvaging shipwrecks, making wildlife habitat improvements, and making shoreline or channel improvements. These kinds of activities are subject to the provisions of sections 106 and 110 of the National Historic Preservation Act (16 U.S.C. 470f and 470h-2).

In addition, some activities that are directly undertaken, funded, licensed or permitted by Federal agencies have the potential to affect shipwrecks located in the coastal zone. When these activities occur in the coastal zone of a State with a federally approved coastal zone management program, they may be subject to section 307 of the Coastal Zone Management Act (16 U.S.C. 1456).

To fulfill these various statutory requirements, Federal agencies have established programs to survey, identify, document, evaluate, protect, and preserve historic properties that are under their ownership or control or that may be affected by their programs and projects. The following guidelines are offered to assist Federal agencies in reviewing and making any necessary changes to these programs to ensure that shipwrecks under their ownership or control are properly managed and protected and to ensure that the effects of their projects and programs on historic shipwrecks are taken into account prior to project or program approval.

Guideline 1: Manage historic shipwrecks in accordance with section 110 of the National Historic Preservation Act.

In accordance with section 110 of the National Historic Preservation Act (16 U.S.C. 470h-2), when a Federal agency owns or controls submerged lands, the agency must:

(a) Assume responsibility for the preservation of historic shipwrecks sites located on federally-owned or controlled submerged lands;

(b) To the maximum extent feasible, use historic shipwreck sites under its ownership or control for agency purposes (such as studying and interpreting the sites for the public);

(c) In accordance with appropriate professional standards, take steps to preserve historic shipwreck sites under its ownership or control (such as stabilizing and preserving historic shipwrecks in place, or recording and recovering sites when preservation in place is not feasible);

(d) In cooperation with the State's historic preservation office, establish programs to locate, inventory, and nominate historic shipwrecks under its ownership or control for inclusion in the National Register of Historic Places. The State's underwater archeology office (or archeology office, in the absence of an underwater archeology office) also should be consulted about the survey, identification, documentation, and evaluation of historic shipwrecks;

(e) Exercise caution to ensure that historic shipwreck sites under its ownership or control are not inadvertently transferred, sold, destroyed, substantially altered, or allowed to deteriorate significantly;

(f) When a Federal or federally assisted undertaking will destroy or substantially alter an historic shipwreck site, ensure that appropriate records are made of the site and deposited in the Library of Congress or other institution designated by the Secretary of the Interior. The level of recordation should be agreed upon by the Federal agency, the State's historic preservation office, and the Advisory Council on Historic Preservation as a part of the consultation process under Section 106 of the National Historic Preservation Act (16 U.S.C. 470f); and

(g) When a Federal undertaking will directly and adversely affect an historic shipwreck designated as a National Historic Landmark, to the maximum extent feasible, take steps to minimize harm to the landmark and afford the Advisory Council on Historic Preservation an opportunity to comment on the undertaking. The Advisory Council on Historic Preservation's regulations (36 CFR Part 800) set forth procedures for Federal agencies to fulfill this requirement.

Guideline 2: Issue archeological permits for the recovery of historic shipwrecks in accordance with the Archaeological Resources Protection Act.

Requests for the archeological recovery of historic shipwrecks located on public and Indian lands must be reviewed and approved or denied by Federal land managers in accordance with the permitting requirements set forth in the Archaeological Resources Protection Act (16 U.S.C. 470aa-mm), its implementing regulations (43 CFR Part 7; 36 CFR Part 296; 18 CFR Part 1312; 32 CFR Part 229), and any other agency specific statutes and regulations. Federal land managers generally issue permits for the excavation or removal of archeological resources (including historic shipwrecks) when the following conditions are met:

(a) The permit applicant is qualified to carry out the activity, meaning that the person has:

(1) A graduate degree in anthropology or archeology, or equivalent training and experience;

(2) Demonstrated the ability to plan, equip, staff, organize, and supervise the type and scope of the proposed activity;

(3) Demonstrated the ability to carry research to completion, as evidenced by timely completion of theses, research reports, or similar documents;

(4) Completed at least 16 months of professional experience and/or specialized training in archeological field, laboratory, or library research, administration, or management, including at least 4 months experience and/or specialized training in the kind of activity being proposed; and

(5) Completed at least 12 months of experience in research concerning archeological resources of the pertinent prehistoric or historic period, meaning that applicants proposing to study historic shipwrecks should have one year of experience in historic shipwreck research;

(b) The proposed activity is for the purpose of furthering archeological knowledge in the public interest;

(c) For an activity proposed on public lands, the artifacts and material remains that are recovered from the shipwreck site will remain the property of the United States, and the artifacts, material remains and copies of associated records will be preserved in a suitable repository in accordance with regulations found at 36 CFR Part 79;

(d) For an activity proposed on Indian lands, the Indian landowner and Indian tribe having jurisdiction have consented to the proposed activity and, unless the Indian owner retains custody of the artifacts and material remains, the artifacts, material remains and copies of associated records will be preserved in a suitable repository in accordance with regulations found at 36 CFR Part 79;

(e) The proposed activity is fully consistent with any management plan applicable to the submerged lands under the agency's jurisdiction; and

(f) For an activity proposed on public lands at a site that may be of Indian tribal religious or cultural importance, the Federal land manager has notified the appropriate Indian tribe.

Guideline 3: Issue contracts for the preservation, sale, or collection of wrecked, abandoned, or derelict shipwrecks in accordance with Federal property statutes.

Requests to search for and preserve, sell, or collect any shipwreck that may have been wrecked, abandoned, or become derelict on public lands must be reviewed and approved or denied in accordance with section 310 of Title 40 of the U.S. Code and implementing procedures established by the General Services Administration. The General Services Administration generally issues contracts for the preservation, sale, or collection of property (or related proceeds) that may have been wrecked, abandoned, or become derelict on public lands when the following conditions are met:

(a) The applicant pays a non refundable service charge of $500 to cover the U.S. Government's administrative costs for processing the contract;

(b) The contract will result in no cost or expense to the U.S. Government, meaning that the contractor agrees to reimburse the U.S. Government for all expenses it may incur in connection with the search and posts a bond to cover any costs that the Federal land manager may incur related to the search;

(c) The Federal land manager gives permission;

(d) The Federal land manager determines that the property that is the object of the search is not of "archeological interest," as defined under the Archaeological Resources Protection Act (16 U.S.C. 470bb);

(e) The contract is in compliance with sections 106 and 110 of the National Historic Preservation Act (16 U.S.C. 470f and 470h-2), the Antiquities Act (16 U.S.C. 431-433), the Archaeological Resources Protection Act (16 U.S.C. 470aa-mm), the Archeological and Historic Preservation Act (16 U.S.C. 469-469c), and any other Federal statutes governing the management of the area to be searched;

(f) The Federal land manager agrees to provide security and protective custody for any property recovered;

(g) The U.S. Government retains any artifacts or other items recovered that it determines are an archeological resource;

(h) The gross value of any property recovered, exclusive of any portion that is determined to be an archeological resource, is shared on a 50-50 basis between the U.S. Government and the parties to the contract, but only after the U.S. Government determines the property's nature, value, and any rights of third parties; and

(i) Any other requirements that the General Services Administration or the Federal land manager may deem to be in the best interests of the Federal Government.

Persons interested in searching for shipwrecks that may have been wrecked, abandoned, or become derelict on public lands should contact the Property Management Division of the Federal Supply Service in the General Services Administration, Washington, DC 20406 and the applicable Federal land manager for further information.

Guideline 4: Consider the effects of proposed undertakings on historic shipwrecks in accordance with Section 106 of the National Historic Preservation Act.

In accordance with section 106 of the National Historic Preservation Act (16 U.S.C. 470f), Federal agencies must take into account the effect of any proposed Federal, federally assisted, or federally licensed undertaking on any shipwreck that is included in or eligible for inclusion in the National Register of Historic Places. In addition, agencies must afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the proposed undertaking. Agencies must take these actions prior to approving the expenditure of any Federal funds or prior to issuing any license, as the case may be. The Advisory Council on Historic Preservation's regulations (36 CFR Part 800) set forth procedures for Federal agencies to fulfill their section 106 responsibilities.

(a) When historic shipwrecks entitled to U.S. sovereignty may be affected, the applicable U.S. Government agency owner (generally the U.S. Department of the Navy for U.S. vessels and the General Services Administration for Confederate vessels) should be afforded the opportunity to be a consulting party during the section 106 consultation process.

(b) When other historic shipwrecks entitled to sovereign immunity may be affected, the Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, should be contacted to secure comments from the applicable flag nation.

(c) When other federally-owned historic shipwrecks or State-owned historic shipwrecks may be affected, the applicable Federal or State agency owner (and manager, if different from the owner) should be afforded the opportunity to be a consulting party during the section 106 consultation process.

(d) When other non-abandoned historic shipwrecks may be affected, the person or party who holds title to the shipwrecks should be afforded the opportunity to be a consulting party during the section 106 process.

(e) During the section 106 consultation process, Federal agencies should contact "interested persons" who, as defined in paragraph 800.2(h) of the Advisory Council on Historic Preservation's regulations (36 CFR Part 800), are organizations and individuals concerned with the effects of an undertaking on historic properties. NOTE A "Interested persons" may have information about the presence of historic shipwrecks within the area of potential impact of the proposed undertaking, information about other non-historical values and current uses of those shipwrecks, and information about possible effects that the proposed undertaking may have on the sites. "Interested persons" would include, but not be limited to:

(1) Federal, State, regional, and local governmental agencies, Indian tribes, and private landowners who control or have jurisdiction over the submerged lands or adjacent lands to be affected;

(2) Sport divers, dive boat operators, commercial and recreational fishermen, and commercial salvors who are interested in shipwrecks in the area of potential impact;

(3) Underwater archeologists, maritime historians, maritime curators, and nautical conservators who are interested in historic shipwrecks in the area of potential impact; and

(4) Archeological, historical, and maritime societies, museums, and other organizations that are interested in historic shipwrecks in the area of potential impact.

Guideline 5: Conduct activities affecting shipwrecks located in the coastal zone in accordance with section 307 of the Coastal Zone Management Act.

Direct Federal and federally funded, licensed and permitted activities affecting shipwrecks located in the coastal zone may be subject to Federal consistency reviews conducted in accordance with section 307 of the Coastal Zone Management Act (16 U.S.C. 1456) and its implementing regulations (15 CFR Part 930). Federal agencies whose activities may affect shipwrecks located in the coastal zone should consult and cooperate with the State's coastal zone management office about any necessary compliance with this requirement prior to approving the expenditure of any Federal funds or prior to issuing any license or permit, as the case may be. Federally funded, licensed and permitted activities subject to this requirement must be in compliance with the State's federally approved coastal zone management program, including any enforceable shipwreck management laws, regulations, policies, and procedures that have been incorporated into that program. Direct Federal activities must be conducted, to the maximum extent practicable, in a manner consistent with the State's federally approved coastal zone management program.

Guideline 6: Use applicable Federal standards and guidelines.

Applicable Federal standards and guidelines should be used by Federal agencies in the management of shipwrecks under their ownership or control. As appropriate, these would include, but not be limited to:

(a) The National Park Service's "Abandoned Shipwreck Act Guidelines" being issued herewith, particularly sections that provide advice on funding shipwreck programs and projects, surveying and identifying shipwrecks, documenting and evaluating shipwrecks, providing public access to shipwrecks, interpreting shipwreck sites, and establishing volunteer programs;

(b) The "Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation" (48 FR 44716; Sept. 29, 1983), which provide advice on planning, survey, evaluation, registration, preservation, and documentation of historic properties;

(c) The National Park Service's "Guidelines for Federal Agency Responsibilities Under Section 110 of the National Historic Preservation Act" (53 FR 4727; Feb. 17, 1988), which are designed to assist Federal agencies in complying with their responsibilities under section 110 of that Act; NOTE B

(d) The National Park Service's "Guidelines for Recording Historic Ships" (Sept. 1988), which provide advice on preparing measured drawings and photographs of historic ships as well as of substantially intact hulks for which contemporary documentary sources are available; and

(e) The Secretary of the Interior's "Standards for Historic Vessel Preservation Projects, with Guidelines for Applying the Standards" (May 1990), which provide advice on the treatment, acquisition, protection, stabilization, preservation, rehabilitation, and restoration of historic vessels.

Guideline 7: Protect shipwrecks in or on a State's submerged lands located in units of the national park system and other federally managed areas.

Units of the national park system, the national wildlife refuge system, the national forest system, and the national marine sanctuaries system generally are created either to protect significant cultural, biological, or natural resources or to provide recreational and educational opportunities for the public. While the Federal Government holds fee simple title to most of these areas, some lands are owned by the States. Notwithstanding who holds title to the lands, national parks, national wildlife refuges, national forests, and national marine sanctuaries should be managed in such a manner that the resources they contain (including publicly-owned shipwrecks) are protected and maintained for long-term public use and enjoyment. Where the U.S. Government manages submerged lands of a State located within units of the national park system, the national wildlife refuge system, the national forest system, and the national marine sanctuaries system, the respective Federal land managers and the States should enter into written agreements (or amend existing agreements) for the purpose of specifying how State-owned shipwrecks are to be managed. Agreements should stipulate that the State-owned shipwrecks shall be managed and protected in a manner consistent with how federally-owned shipwrecks are managed and protected. In addition, agreements should specify that souvenir collecting, commercial salvage, treasure hunting, and other damaging activities shall be prohibited at historic shipwrecks.

NOTE A: The Advisory Council's updated regulations, effective January 11, 2001, refer to "individuals and organizations with a demonstrated interest" as "additional consulting parties in paragraph 800.2(c)(5).

NOTE B: The National Park Service's guidelines were updated and re-issued on April 24, 1998 (63 FR 20496) as the "Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act."

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