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DEMA Legislative Alert: Recent Federal Register Notice May Impact Your Business

Wednesday, April 16, 2014   (0 Comments)
Posted by: Rachelle Reimers
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REGARDING: 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

There has been discussion among members of the diving industry regarding this recent Federal Register notice (beginning on page 620; 32 CFR Part 767; RIN 0703-AA90). Noting the concerns of the industry, DEMA has reached out to the Department of the Navy (DoN) to obtain additional clarity, especially with regard to some of the terminology used in this revised and proposed regulation. Feedback from the Navy has not yet been received, but given the concerns of the industry the following information should be noted regarding the proposed regulation. Copies of the clarifications requested from the DoN are linked at the bottom of this Alert.

Preservation of Sunken Military Craft in situ:

The proposed regulation seeks to preserve in situ all military vessels which sank while in the performance of military service. This means that no sunken military craft under the jurisdiction of the DoN may be "disturbed" unless it is for the protection of the sunken vessel, or for educational or research purposes, as determined by the DoN. Such protection, education or research requires a permit from the DoN, specifically the Naval Historical & Heritage Command (NHHC).

Preservation of these sunken vessels in situ means that the vessels are to be left in place, making it possible for all divers to see them. It also means that divers may not "disturb" the wreck sites, many of which could be considered military graves, or which could hold confidential or protected equipment, or explosive devices. Under these regulations persons may not remove artifacts or disturb the sites (the same holds true for terrestrial vessels under the jurisdiction of the DoN).

Disturb or Disturbance has been defined in the proposed regulation as: "directly or indirectly affecting the physical condition of any portion of a sunken military craft..., altering the position or arrangement of any portion of a sunken military craft...or influencing the wreck site or its immediate environment in such a way that any portion of a craft's physical condition or its position or arrangement is altered."

The proposed regulation applies only to vessels which were, "owned or operated by a government on military noncommercial service when they sank" (note that combat is not a requirement).      
It is important to note that ALL military vessels submerged in US waters fall under this proposed regulation, not just "historic" vessels. This is a change from the current rules, and all military vessels and their contents within the sunken vessels' debris field fall within the proposed regulation, "regardless of location or time of loss." The proposed rule applies to both US and foreign military vessels which rest underwater "within US internal waters, US territorial sea, and the US contiguous zone."

Diving on Sunken Military Vessels
The proposed regulation specifically states that "non-intrusive activities, including diving adjacent to, or remotely documenting sites do not require a permit or authorization from the NHHC, though (non-intrusive activity)...does not preclude the obligation to obtain permits or other authorizations otherwise required by law." While this language seemingly allows diving on at least some of these sunken vessels, the language also strongly implies that divers should not consider entering known military vessels, because such entrance might cause a disturbance or pose a danger to the diver as well as the contents of the vessel. Further, divers must take care in diving on ANY unfamiliar sunken vessel as they may not be immediately aware that the wreck falls within the prohibition of disturbance rule and requirement of obtaining a permit, either because the vessel is not immediately recognizable as a military vessel or because it falls within the definition of "other vessel."

Violation of this "look but don't touch" policy could result in severe penalties for divers, dive boat operators and dive captains, including $100,000 penalties (per violation), damages to restore the vessel, and forfeiture of the dive boat and equipment.  

The language of the Sunken Military Craft Act does limit itself to sunken military vessels and aircraft that were owned or operated by a government AND were on military noncommercial service on the day of sinking. However, some of the language remains ambiguous, and DEMA has sought clarification from the NHHC/DoN on the following terms; "disturb," "non-intrusive," "adjacent to," and the definition of "other vessels" as described in the Act. These terms seem to leave this regulation open to wide variety of interpretations, as demonstrated by the assortment of website comments about the regulation.

Proposed regulation's impact on ships intentionally submerged as Artificial Reefs

Vessels whose ownership has transferred to another entity (such as a state, in the case of an ex-military vessel submerged as an artificial reef) and not on military service at the time of their sinking do not appear to be impacted by this proposed rule. In fact, the U.S. Coast Guard has taken the position that Coast Guard vessels and aircraft sunk as artificial reefs are not owned or managed by the Coast Guard and divers are free to dive those artificial reefs. DEMA seeks similar clarification on the disposition of ex-military ships used as artificial reefs from the NHHC/DoN. The Coast Guard website on this issue, "Coast Guard History - Frequently Asked Questions" is located here: www.uscg.mil/history/FAQS/USCG_Shipwreck_Policy.asp.

Summary
There is no indication that recreational divers will be prohibited from visiting sunken military vessels, taking photographs or "remotely diving" these wrecks using appropriate safe diving procedures. However, there remains some uncertainty whether divers may be allowed to actually enter these vessels to explore the internal structures. 

Ex-military vessels already submerged as artificial reefs are probably not impacted by this proposed rule, pending additional clarification from the NHHC/DoN. 

Operators are encouraged to review the proposed rule and make their comments known to the NHHC. Although the formal public comment period ended on March 7, DEMA continues to submit comments and ask questions and it is appropriate for all interested parties to submit their concerns.

The Sunken Military Craft Act
available here.

Request for Clarification available here.

Additional comments can be sent to:

Dr. Robert Neyland, Head, Underwater Archaeology Branch,
Naval History & Heritage Command,
Department of the Navy
805 Kidder Breese Street SE, BL 57
Washington Navy Yard, DC 20374
Email: NHHCUnderwaterArchaeology@navy.mil

DEMA, the Diving Equipment & Marketing Association, is an international organization dedicated to the sustained growth of the recreational scuba diving and snorkeling industry. For more information on DEMA, call 858-616-6408 or visit www.dema.org
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