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Abandoned Shipwreck Act Guidelines

Part II. Guidelines

F. Providing for Public and Private Sector Recovery of Shipwrecks

Section 4(a) of the Act says that the U.S. Congress intends for the States to allow for appropriate public and private sector recovery of shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites. Public sector recovery activities would include, but not be limited to, studies and excavations of shipwrecks by the States and Federal agencies for management, scientific or mitigation purposes. Private sector recovery activities would include, but not be limited to, the collection of artifacts and other materials from shipwrecks by sport divers who desire personal souvenirs, the salvage of shipwrecks by commercial salvors and treasure hunters for profit-making purposes, and the study and excavation of shipwrecks by scientific and educational institutions for scientific purposes.

Clearly, public and private sector recovery of shipwrecks may affect historical values of shipwrecks and the environmental integrity of shipwreck sites. Recovering an historic shipwreck in an unscientific manner certainly would destroy the site and the historical information it contains. Recovering it using explosives, dredges or propeller wash deflectors also would destroy the environment surrounding the site. Recovering it scientifically and conserving and maintaining the recovered artifacts, other materials, and associated records would mitigate the loss of the site and would preserve the historical information.

Values other than historic and environmental ones also may be affected by public and private sector recovery activities. For example, stripping a shipwreck valued primarily for recreational purposes of its artifacts and other materials would reduce, if not eliminate, those values. A substantial reduction in sport diver activity at the site could, in turn, have an adverse effect on tourism and local businesses (like dive boat operators and marina operators). Destroying a shipwreck site valued for surrounding habitat areas or coralline formations would have an adverse effect on biological values associated with the shipwreck. This could, in turn, have an adverse effect on commercial and recreational fishing.

Under the Act, the States are entrusted to manage State-owned shipwrecks for the benefit of the public. Since any recovery activity (whether it is public or private) at shipwreck sites has the potential to damage and destroy the site, its various values and uses, and the surrounding environment, it is the responsibility of the States to ensure that any public and private sector recovery of State-owned shipwrecks is in the best interests of the public. The following guidelines are offered to assist the States in ensuring that public and private sector recovery activities are in the public interest. 9

Guideline 1: Establish policies, criteria and procedures for appropriate public and private sector recovery of State-owned shipwrecks.

Interested persons and groups, appropriate State and Federal agencies, and any State shipwreck advisory board should be consulted about the establishment of policies, criteria and procedures that would allow for appropriate public and private sector recovery of State-owned shipwrecks. At a minimum, the State should establish:

(a) Policies that set forth the circumstances under which the various kinds of public and private sector recovery activities at State-owned shipwrecks would and would not be in the public interest;

(b) Procedures for the public and private sector to apply for permits, licenses or contracts to recover State-owned shipwrecks;

(c) Criteria and procedures for the State to evaluate applications for and issue or deny permits, licenses and contracts to recover State-owned shipwrecks;

(1) The State's historic preservation office and underwater archeology office (or archeology office, in the absence of an underwater archeology office) should review and approve applications for permits, licenses and contracts to recover any State-owned shipwreck that is (or may be) historic; and

(2) The issuance of any permit, license or contract should be conditioned with appropriate terms and conditions to ensure that the authorized recovery activity is in the public interest;

(d) Procedures for the State to periodically monitor (both on and off-site) permitted, licensed and contracted recovery work to ensure that it is in compliance with any attached terms and conditions;

(1) State officials who monitor permitted, licensed and contracted work should be given the authority to immediately suspend any permit, license or contract that appears not to be in compliance with the terms and conditions of the permit, license or contract;

(2) Once work is suspended, work should not resume until the State has conducted a thorough review and notified the permittee, licensee or contractor of its findings; and

(3) Costs incurred by the State to monitor permitted, licensed and contracted work should be paid with State monies and not be reimbursed by the permittee, licensee or contractor; and

(e) Procedures and criteria that provide, as appropriate, for the transfer of title to artifacts and other materials recovered from State-owned shipwrecks by the private sector to private parties.

Guideline 2: Authorize only those recovery activities at State-owned shipwrecks that are in the public interest.

Decisions to allow for the recovery of State-owned shipwrecks should be reached on a case by case basis by weighing and balancing the values and uses a particular shipwreck may have, the potential benefits to be derived from the proposed recovery activity, and the potential adverse effects to be caused by the proposed recovery activity. Only those public and private sector recovery activities that are in the best interests of the public should be authorized. To help determine whether a proposed public or private sector recovery activity is in the best interests of the public, the State should consider the following:

(a) Is the subject shipwreck, in fact, State-owned? (The States cannot authorize public or private sector recovery at any shipwreck that is federally-owned, privately-owned, or entitled to sovereign immunity, even though such shipwrecks may lie in State waters.)

(b) What are the shipwreck's current and potential future values and uses? Is the proposed recovery consistent with those values and uses? Will the proposed recovery enhance any of those values and uses? Will it irrevocably damage or destroy any of those values and uses?

(c) Is the shipwreck listed in or determined eligible for inclusion in the National Register of Historic Places? Is it a National Historic Landmark?

(d) Where the shipwreck may be historic, will the proposed recovery result in a nomination to the Secretary of the Interior to list the shipwreck in the National Register of Historic Places? Will it result in a recommendation to the Secretary of the Interior to designate the shipwreck as a National Historic Landmark?

(e) Where the shipwreck is (or may be) historic:

(1) Have the State's historic preservation office and underwater archeology office (or archeology office, in the absence of an underwater archeology office) been provided with an opportunity to comment on the proposed recovery? Do they approve of the proposal? Have they attached any terms and conditions to ensure the preservation of the shipwreck's historical information?

(2) Is the proposed recovery consistent with the State's comprehensive historic preservation plan?

(3) Will the proposed recovery result in the acquisition of new historical information or verify historical documentation?

(4) Will the proposed recovery be conducted in a professional manner to preserve the shipwreck's historical information? (See Guideline No. 4 in this subpart for a discussion on conducting recovery activities in a professional manner.)

(5) Will the proposed recovery result in the private ownership or sale of any of the artifacts and other materials recovered? If so, will those items be properly conserved and studied and be made available for public exhibition and interpretation?

(f) Is the shipwreck located in a State underwater park or preserve? If so, is the proposed recovery consistent with the unit's management plans?

(g) Is the shipwreck located in or on a State's submerged lands located within a unit of the national park system, the national wildlife refuge system, the national forest system, or the national marine sanctuary system? If so, is the proposed recovery consistent with the unit's management plans, the written agreement between the State and the Federal land manager, and applicable Federal statutes, regulations, policies, and standards?

(h) Is the shipwreck located in any other area (like habitat areas or coralline formations) protected under Federal or State statute, order or regulation? If so, is the proposed recovery consistent with the area's management plans and applicable statutes, orders and regulations?

(i) Is the shipwreck currently being damaged or destroyed by natural processes (such as erosion), by an approved State or Federal undertaking (such as dredging or development) or by other human activity (such as anchor damage)? Is it threatened with imminent and unavoidable damage or destruction by such processes, undertakings or activities?

(j) Where the proposed recovery will damage or destroy the environment surrounding the shipwreck, will the area be restored to its original condition?

(k) Will the proposed recovery impede navigation in existing Federal navigation channels?

(l) Has the applicant obtained other necessary State or Federal permits (such as permits to disturb the bottomlands)?

Guideline 3: Protect particular State-owned shipwrecks from commercial salvage, treasure hunting and private collecting activities.

Commercial salvage, treasure hunting and personal collecting activities, no matter how they are conditioned and monitored by the State, are conducted for the personal gain of individuals. Shipwrecks that are particularly significant historically or are in protected areas set aside by some formal mechanism should be preserved for the public and generally not be available for commercial salvage, treasure hunting or personal collecting. It is recommended that, at a minimum, any State-owned shipwreck that meets any of the following criteria should not be available for commercial salvage, treasure hunting or personal collecting:

(a) Shipwrecks designated as National Historic Landmarks or, pending a written determination by the Secretary of the Interior, shipwrecks under consideration for designation as National Historic Landmarks;

(b) Shipwrecks located in State underwater parks or preserves;

(c) Shipwrecks located in or on a State's submerged lands located within units of the national park system, the national wildlife refuge system, the national forest system, or the national marine sanctuary system; or

(d) Shipwrecks located in other areas (like habitat areas or coralline formations) protected under Federal or State statute, order or regulation.

Guideline 4: Require any recovery at State-owned historic shipwrecks to be done in a professional manner.

The study and recovery of historic shipwrecks enables underwater archeologists and maritime historians to collect new data or confirm archival documentation regarding a specific vessel, a type or method of construction, an historical event or period, or a culture. When it is determined to be in the public interest to authorize the recovery of artifacts or materials from historic shipwrecks, the recovery operation (whether it is public or private) should be done in a manner consistent with the "Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation" (48 FR 44716; Sept. 29, 1983) and other applicable historic preservation standards and guidelines. At a minimum, any permit, license or contract authorizing the scientific excavation, commercial salvage or treasure hunting of State owned historic shipwrecks should contain the following terms and conditions:

(a) The permittee, licensee or contractor has secured any other necessary State or Federal permits;

(b) A professional underwater archeologist is in charge of planning, conducting and supervising the field operations, laboratory analysis, and report preparation;

(c) A conservation laboratory is in place prior to commencement of field operations and a professional nautical conservator is in charge of planning, conducting and supervising the conservation of any artifacts and other materials recovered from the site;

(d) Field operations, laboratory analyses, and conservation treatments use appropriate scientific methods and techniques and are as non-destructive and non-disturbing as possible to the site, the surrounding environment, and any artifacts and other materials recovered from the site;

(e) The shipwreck site is fully documented (i.e., an archeological site map is prepared, measured drawings are made of significant features, and a photographic record is made of the wrecked vessel, significant features, and artifacts);

(f) A professional final report is prepared (and approved by the State) that describes the field operations, excavation methods, laboratory analyses, conservation treatments, scientific findings, and recommendations for any future work;

(g) Copies of all field notes, site maps, measured drawings, photographs, videos, final reports, and other data and records derived from the recovery and analysis are deposited, stored and maintained in the repository named in the permit, license or contract;

(h) Copies of final reports, site maps and other appropriate records are provided to the State's historic preservation office and the underwater archeology office (or archeology office, in the absence of an underwater archeology office);

(i) When the State is maintaining ownership to any artifacts or other materials recovered from the site, those items are deposited, stored and maintained in the repository named in the permit, license or contract;

(j) When the State is transferring ownership to any artifacts or other materials recovered from the site to a commercial salvor or treasure hunter:

(1) The transfer is made only after field operations and laboratory analysis are completed, the recovered items are conserved, and the final report is approved by the State; and

(2) To the extent possible, the items transferred are preserved and maintained as an intact collection and are made available for future study, public interpretation and exhibition;

(k) When a commercial salvor or treasure hunter is undertaking the recovery, the salvor or treasure hunter posts a performance bond to cover costs associated with the recovery (this is to ensure that sufficient funds would be available to the State if the salvor or treasure hunter is unable to complete the recovery according to the terms and conditions of the permit, license or contract); and

(l) Information on the recovery activity and the archeological findings are disseminated to the scientific community and to the public.

Guideline 5: Allow public and private recovery activities at non-historic shipwrecks without archeological conditions.

When it is determined to be in the public interest to authorize the recovery of artifacts and other materials from State-owned non-historic shipwrecks, the recovery activity should not be conditioned with archeological requirements.

Guideline 6: As appropriate, transfer title to artifacts and other materials recovered from State-owned shipwrecks by the private sector to private parties.

Artifacts and other materials recovered from State-owned shipwrecks are State property and would be subject to State statutes and regulations governing the management and disposition of State property. Items recovered from shipwrecks designated as State historic sites also would be subject to State statutes and regulations governing the management of historic sites. When it is determined to be in the public interest to authorize private parties (like sport divers or commercial salvors) to recover and keep artifacts or other materials from State-owned shipwrecks, title to those items should be transferred in accordance with the applicable State property and historic site statutes and regulations. In general, the States should:

(a) Not transfer title to any items to another party until the authorized recovery activity is completed, the items are properly conserved and analyzed, and any required final report is completed and approved by the State;

(b) Determine any archeological and commercial values of recovered artifacts and other materials;

(c) Determine what would constitute fair compensation to the private party (for his or her recovery efforts) in terms of a share of items recovered, a percentage (in cash) of the fair market value of the items, or a combination thereof; and

(d) Retain title to items that are unique, exceptionally valuable historically or representative of the items recovered, or are recovered illegally after enactment of the State's shipwreck management statute.

Guideline 7: Disseminate information on public and private sector recovery activities to the public and to the scientific community.

Information on public and private sector recovery activities and any archeological findings should be disseminated to the public and the scientific community. Appropriate methods to disseminate information to the public would include, but not be limited to, publishing non-technical pamphlets, books, and articles in popular national, regional and specialty magazines; presenting lectures, video tapes and slide shows at local historical society and dive club meetings; developing underwater trails at shipwreck sites; and exhibiting artifacts and other materials in local museums. Appropriate methods to disseminate information to the scientific community would include, but not be limited to, preparing a final report (this always should be done), publishing articles in scientific journals, and presenting papers at professional meetings. Copies of final reports always should be provided to the State's historic preservation office, underwater archeology office (or archeology office, in the absence of an underwater archeology office), and appropriate Federal historic preservation offices so that the data may be incorporated into Federal and State historic preservation plans.

Guideline 8: Discourage the recovery and display of intact shipwrecks.

The costs to properly raise, conserve, maintain, and exhibit intact shipwrecks are prohibitively expensive and perpetual. Thus, recovering intact shipwrecks should be discouraged unless they are historic and in danger of imminent and unavoidable destruction, and it is determined to be in the best interests of the public. However, no such shipwreck should be recovered unless sufficient public and/or private funds are made available to document and recover it archaeologically and to properly conserve, maintain, exhibit, and interpret it for the public.

 

9 Federal agencies must follow the requirements set forth in the Archaeological Resources Protection Act (16 U.S.C. 470aa-mm), section 310 of title 40 of the U.S. Code, and other applicable statutes and regulations governing public and private recovery of federally-owned and controlled archeological resources and other property (see applicable guidelines contained in subpart B of Part II of these "Guidelines").

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