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Abandoned Shipwreck Act Guidelines

Part II. Guidelines

A. Establishing State Shipwreck Management Programs

Almost every State, including landlocked ones with navigable rivers and lakes, contains shipwrecks in or on its submerged lands. Under the Act, the respective States now clearly hold title to and are responsible for managing a large number of previously abandoned shipwrecks located in State waters. The Act encourages the States to carry out their responsibilities under the Act in a manner that protects natural resources and habitat areas, guarantees recreational exploration of shipwreck sites, and allows for appropriate public and private sector recovery of shipwrecks consistent with the protection of the site's historical values and environmental integrity.

Many States have not yet established programs to carry out the responsibilities they acquired under the Act. The following guidelines are offered to assist those States in developing legislation and promulgating regulations that authorize the establishment of programs to manage State-owned shipwrecks. Many other States have established shipwreck management programs, some of which have been in operation since the 1970s. The following guidelines are offered to assist those States in reviewing and making any necessary amendments to their respective program's authorizing legislation or implementing regulations to assure that the responsibilities they acquired under the Act are fully accommodated.

Guideline 1: Involve interest groups in shipwreck program development and management activities.

States should cooperate with, meet with, consult, seek comments from, request assistance from, and otherwise involve in an ongoing basis interested persons and groups in the establishment, review, revision, and implementation of legislation, regulations, policies, and procedures on the management of State-owned shipwrecks. Interested persons and groups would include, but not be limited to, sport divers, dive clubs, diving instructors, dive boat operators, dive shops, commercial and recreational fishermen, marina operators, underwater archeologists, maritime historians, nautical conservators, maritime museums, historic preservationists, commercial salvors, and marine biologists. In addition, State and Federal agencies that have related or overlapping program responsibilities or interests should be involved. Such agencies would include, but not be limited to, those responsible for parks, preserves, sanctuaries, wetlands, refuges, marine life, coastal zone management, navigation, harbors, ports, recreation, tourism, museums, submerged lands, natural resources, cultural resources, historic preservation, fishing, and law enforcement.

Guideline 2: Establish a shipwreck advisory board.

A state shipwreck advisory board should be established to promote and foster a direct and ongoing cooperative partnership among the various interest groups to manage State-owned shipwrecks. As appropriate to the needs of each State, the shipwreck advisory board should consist of private citizens who represent the major fields of interest and government officials who represent applicable State and Federal agencies. The major fields of interest would include, but not be limited to, sport diving and instruction; dive boat and marina operations; commercial and recreational fishing; commercial salvage of shipwrecks; underwater archeology, maritime history, historic preservation, curation, and nautical conservation; and marine biology. Duties of the State shipwreck advisory board should include, but not be limited to, the following:

(a) Making recommendations on enactment or amendment of State law that authorizes the establishment of programs to manage State-owned shipwrecks;

(b) Making recommendations on promulgation or amendment of State shipwreck management program regulations, policies, and procedures;

(c) Providing advice on the protection of natural resources and habitat areas near State-owned shipwrecks;

(d) Providing advice on what constitutes reasonable public access to State-owned shipwrecks and how the State should guarantee recreational exploration of its shipwrecks;

(e) Providing advice on what constitutes appropriate public and private sector recovery of State-owned shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites;

(f) Reviewing and making recommendations on applications for proposed public and private sector recovery projects;

(g) Making recommendations on the creation of underwater parks or preserves that provide additional protection for State-owned shipwrecks; and

(h) Periodically reviewing, evaluating, and making recommendations for improvement of State shipwreck management program operations.

Guideline 3: Assign responsibility for State owned shipwrecks to appropriate agencies.

It would be desirable to assign responsibility for State-owned shipwrecks to a single agency. However, it often is not practical to do so since States have well established organizational structures where different State agencies have responsibilities for submerged lands and resources, the coastal zone, historic sites, parks, museums, and historic preservation matters. In addition, a single agency is unlikely to have available to it the full range of expertise that would be necessary to manage State-owned shipwrecks as multiple-use resources. Thus, it is recommended that:

(a) An agency experienced in the management of submerged lands and resources of the coastal zone should be responsible for the general management of and oversight over State-owned shipwrecks;

(b) An agency experienced in recreational resource management and historic site management (such as the State's park authority) should be responsible for the day to day management and protection of shipwrecks located in State underwater parks or preserves; and

(c) An agency experienced in historic preservation matters (such as the State's historic preservation office or underwater archeology office) should have jurisdiction over State-owned historic shipwrecks. That agency should have review and approval authority over all applications to disturb or remove artifacts or materials from historic shipwreck sites. In addition, that agency should be responsible for the development and implementation of a long-term plan to survey, identify, document, evaluate, study, interpret, protect, and preserve State-owned historic shipwrecks located in State waters.

Guideline 4: Establish regulations, policies, or procedures for the long-term management of State-owned shipwrecks.

Consistent with the Act and the "Abandoned Shipwreck Act Guidelines," regulations, policies, or procedures should be established that:

(a) Provide for the survey, identification, documentation, and evaluation of State-owned shipwrecks;

(b) Provide for the study, interpretation, protection, and preservation of State-owned historic shipwrecks;

(c) Provide additional protection to State-owned shipwrecks through the creation of underwater parks or preserves;

(d) Protect natural resources and habitat areas near State-owned shipwrecks;

(e) Guarantee sport divers recreational exploration of State-owned shipwrecks and provide reasonable public access to State-owned shipwrecks; and

(f) Allow for appropriate public and private sector recovery of State-owned shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites.

Guideline 5: Provide adequate staff, facilities, and equipment.

The agencies responsible for the management of State-owned shipwrecks should have (or have access to) adequate professional staff, office and laboratory facilities, vessels, and diving and underwater survey equipment to carry out assigned responsibilities. The number and occupations of staff and kinds of facilities, vessels, and equipment deemed to be adequate will vary according to the needs and goals of each State. To help determine appropriate staffing and funding levels, States may want to ask themselves the following questions:

(a) How many historic and non-historic shipwrecks are known to be present in State waters? How many are estimated to exist?

(b) How does the State conduct surveys or excavations to identify, evaluate, document, or recover shipwreck sites? Does the State use its own staff underwater archeologists, maritime historians, and marine surveyors, and use its own vessels, equipment, and facilities? Does the State award contracts or issue permits to private parties? Does the State coordinate, oversee, and work with volunteers? Does the State rely on sport divers, commercial salvors, commercial fishermen, marine surveyors, researchers, and other parties to report finds that then are examined by the State's professional staff? Does the State plan to change the way it conducts surveys or excavations?

(c) How does the State store, maintain, conserve, study, exhibit, and interpret artifacts and materials recovered from shipwreck sites? Does the State use its own staff curators, nautical conservators, researchers, and exhibit specialists, and use its own equipment, conservation laboratory, and repository? Does the State award contracts or issue permits to private parties? Does the State loan or give items to sport diver collectors, commercial salvors, researchers, universities, local museums, or other parties? Does the State plan to change the way it carries out these activities?

(d) What kinds of interpretive, publication, and general public awareness programs does the State currently have? What kinds are planned?

(e) What is the amount of sport diving activity at shipwreck sites in State waters? Does the State currently facilitate recreational sport diving activities? Does the State intend to promote such activities?

(f) How many underwater parks or preserves currently exist? Are they operated by the State or by Federal agencies under agreements with the State? How many underwater parks or preserves are planned? Will the State manage them? What recreational and interpretive facilities currently are available? Does the State intend to develop any such facilities?

(g) What is the amount of scholarly research activity at shipwreck sites in State waters? Does the State currently regulate such activity? If not, does the State intend to regulate scholarly research activities?

(h) What is the amount of commercial salvage activity at shipwreck sites in State waters? Does the State currently regulate such activity? If not, does the State intend to regulate commercial salvage activities?

Guideline 6: Cooperate and consult with State and Federal agencies.

For a State shipwreck management program to be effective, the agencies assigned management responsibility for State-owned shipwrecks should cooperate and consult, on a routine basis, with other State and Federal agencies that have related or overlapping responsibilities. State and Federal agencies that should be consulted, and the primary purposes for the contact, would include, but not be limited to, the:

(a) State's historic preservation office and underwater archeology office (or archeology office, in the absence of an underwater archeology office) about the:

(1) Identification, documentation, evaluation, protection, and preservation of State-owned historic shipwrecks;

(2) Nomination of historically significant shipwrecks to the National Register; and

(3) Award of Historic Preservation Fund grants for the study, interpretation, protection, and preservation of historic shipwrecks and properties;

(b) State's museum about the storage, maintenance, conservation, exhibition, interpretation, and study of artifacts and other materials recovered from State-owned shipwrecks;

(c) State's park authority about the:

(1) Creation and operation of State underwater parks or preserves;

(2) Facilitation of sport diver access to State-owned shipwreck sites; and

(3) Development of interpretive, recreational, and public awareness programs about the State's maritime heritage and shipwreck sites;

(d) State's submerged lands, natural resources, wetlands, and marine fisheries agencies about the protection of natural resources and habitat areas near shipwreck sites, particularly coralline formations protected by the State on its submerged lands;

(e) State's coastal zone management office about the:

(1) Incorporation of enforceable shipwreck management regulations, policies and procedures into the State's federally approved coastal zone management program;

(2) Inventory and designation of geographic areas of particular concern that contain historic shipwrecks, such areas being designated in accordance with the State's federally approved coastal zone management program and section 306 of the Coastal Zone Management Act (16 U.S.C. 1455);

(3) Coordination of any necessary Federal consistency determinations required in accordance with the State's federally approved coastal zone management program and section 307 of the Coastal Zone Management Act (16 U.S.C. 1456); and

(4) Award of Coastal Zone Management grants under sections 306, 306A, and 309 of the Coastal Zone Management Act (16 U.S.C. 1455, 1455a, and 1456b) for State shipwreck management program development, implementation, and related activities;

(f) State's law enforcement agency and attorney general's office about the protection of State-owned shipwrecks and the prosecution of persons who willfully damage or vandalize State-owned shipwrecks or otherwise willfully violate the State's shipwreck management program;

(g) U.S. Army Corps of Engineers and the U.S. Coast Guard about:

(1) Legal notice of abandonment of wrecked vessels that may have been provided pursuant to the Rivers and Harbors Act (33 U.S.C. 409);

(2) Evidence of prior dredging, filling, and channel modification that may have damaged or destroyed shipwrecks;

(3) Measures to ensure that survey, inventory, documentation, recovery, and protection activities at State-owned shipwrecks do not pose a hazard to navigation; and

(4) Prompt removal, by the responsible party or Federal agency, of modern sunken vessels that pose a hazard to navigation;

(h) Advisory Council on Historic Preservation and appropriate Federal agencies about coordination of any necessary compliance with sections 106 or 110(f) of the National Historic Preservation Act (16 U.S.C. 470f and 470h-2) related to a Federal, federally assisted, or federally licensed undertaking in State waters that may have an effect on historic shipwrecks or on shipwrecks that are National Historic Landmarks;

(i) National Oceanic and Atmospheric Administration, U.S. Department of Commerce, about the designation of national marine sanctuaries in State waters and about the management of historic and non-historic shipwrecks, other historic properties, natural resources, and habitat areas in or on a State's submerged lands located within national marine sanctuaries;

(j) National Park Service, U.S. Department of the Interior, about the creation of national park units in State waters and about the management of historic and non-historic shipwrecks, other historic properties, natural resources, and habitat areas in or on a State's submerged lands located within units of the national park system;

(k) Office of the Judge Advocate General, U.S. Department of the Navy, and the General Services Administration about the ownership and protection of sunken U.S. and Confederate warships and other vessels entitled to U.S. sovereignty located in or on a State's submerged lands; and

(l) Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, about the ownership and protection of sunken foreign flag warships and other foreign flag vessels entitled to sovereign immunity located in or on a State's submerged lands.

Guideline 7: Establish a consultation procedure to comment on State and Federal activities that may adversely affect State-owned shipwrecks.

State and Federal agencies whose activities may disturb, alter, damage, or destroy State-owned shipwrecks should be required, prior to approving the activity, to take into account the effect of the proposed activity on any State-owned shipwreck and to afford the State agencies assigned management responsibility for State-owned shipwrecks a reasonable opportunity to comment on the proposed activity.

(a) When the State's shipwreck management program has been incorporated into the State's historic preservation program, the consultations conducted under sections 106 and 110(f) of the National Historic Preservation Act (16 U.S.C. 470f and 470h-2) should be used to comment on proposed Federal activities that may affect State-owned historic shipwrecks.

(b) When the State's shipwreck management program has been incorporated into the State's federally approved coastal zone management program, the Federal consistency reviews conducted under section 307 of the Coastal Zone Management Act (16 U.S.C. 1456) should be used to comment on proposed Federal activities that may affect State-owned shipwrecks located within the coastal zone.

(c) When State-owned shipwrecks that may be affected are historic, the comments of the State's historic preservation office and the underwater archeology office (or archeology office, in the absence of an underwater archeology office) should be obtained.

Guideline 8: Use the National Register of Historic Places criteria.

Section 6(a)(3) of the Act requires that any abandoned shipwreck located on--rather than embedded in--a State's submerged lands must be listed in or determined eligible for listing in the National Register of Historic Places in order for the United States to assert title to it. The Act does not require that any abandoned shipwreck embedded either in the seabed or in coralline formations protected by a State be so listed or determined eligible in order for the United States to assert title to it. Nevertheless, it is recommended that, in the management of State-owned shipwrecks, the historical significance of all shipwrecks be determined using the National Register's eligibility criteria, which appear in regulations at 36 CFR Part 60.

Guideline 9: Use applicable standards and guidelines.

Applicable standards and guidelines should be used in the operation of the State's shipwreck management program. As appropriate, these would include, but not be limited to:

(a) The National Park Service's "Abandoned Shipwreck Act Guidelines" being issued herewith, which provide advice on funding shipwreck programs and projects, surveying and identifying shipwrecks, documenting and evaluating shipwrecks, providing for public and private sector recovery of shipwrecks, providing public access to shipwrecks, interpreting shipwreck sites, establishing volunteer programs, and creating and operating underwater parks or preserves;

(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 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

(d) 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.

Copies of the above cited documents may be obtained by writing to the National Park Service, U.S. Department of the Interior, 1849 C Street, NW, Washington, DC 20240.

Guideline 10: Prosecute persons who willfully violate the State's shipwreck management program.

Persons who willfully damage or vandalize State-owned shipwrecks or otherwise willfully violate the State's shipwreck management program should be prosecuted in accordance with State laws and regulations governing State-owned property and, where the shipwreck in question is historic, historic property laws and regulations.

(a) Affected interest groups should be provided with information on the State's shipwreck management program; the importance of protecting State-owned shipwrecks; any restrictions, fines, and penalties for willfully violating the program; and an office to contact for further information. At a minimum, information should be distributed to local dive clubs and dive boat operators, posted at marinas and docking facilities, and posted on or near shipwreck sites.

(b) Criminal fines and civil penalties for persons convicted of willfully violating provisions of the State's management shipwreck program should be commensurate with the nature of the violation, increase with subsequent convictions, and include community service in the management of shipwrecks. Third and subsequent convictions should include confiscation and forfeiture of all equipment and vessels used in the commission of the violation.

(c) Artifacts and other materials recovered illegally from State-owned shipwrecks after enactment of the State's shipwreck statute should be confiscated. When possible, artifacts and materials of historical significance should be conserved and maintained.

(d) Any fines or penalties collected should be used to repair or stabilize damaged shipwreck sites, restore the environment surrounding the sites, conserve and maintain confiscated historically significant artifacts and other materials, further the efforts of shipwreck research and protection, and enhance the public's appreciation of the State's maritime heritage.

Guideline 11: Provide legal recourse for persons affected by the State's shipwreck management program.

Any affected person or party who believes a State's shipwreck management program is not consistent with the intent of the Act and the "Abandoned Shipwreck Act Guidelines" should be provided with legal recourse under State law. In particular, any affected person should be provided with an opportunity to appeal decisions by the State to:

(a) Withhold public notice of the locations of shipwrecks to which, under the Act, the State holds title;

(b) Deny a person's request for non-destructive recreational exploration of or public access to State-owned shipwrecks;

(c) Deny a person's request for the recovery of State-owned shipwrecks when the person believes the proposed recovery is consistent with the historical values and environmental integrity of the shipwreck and the site; and

(d) Assess a civil penalty against a person who is convicted of willfully violating the State's shipwreck management program.

Any affected person may appeal a State's evaluation of the historical significance of a shipwreck by requesting from the Secretary of the Interior a written determination of the shipwreck's eligibility for listing in the National Register of Historic Places.

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