DEMA has received a response from the Naval History & Heritage Command to its request for clarification of terminology in regard to the proposed rule 32 CFR 767 published in the January, 2014 Federal Register.
The proposed rule was the subject of a DEMA Legislative Alert published on April 16, 2014.
The response was signed by Dr. Jay Thomas, NHHC Assistant Director for Collection Management, to whom the Underwater Archaeology Branch of the Naval History & Heritage Command reports.
DEMA sought clarification of the definition of a sunken military craft, as stated in the proposed rule, whether the term applies to artificial reefs, and whether dives that penetrate into the structure of sunken military craft would constitute “disturbance” under the proposed regulations.
In his response, Dr. Thomas thanked DEMA for the opportunity to offer the clarification of these terms. He indicated that, “the definition of ‘sunken military craft’ in the proposed rule remains unchanged from that present in the Sunken Military Craft Act (SMCA) of 2004. That definition includes all sunken warships, all sunken naval auxiliaries, as well as other vessels that were owned or operated by a government on military noncommercial service at the time of their sinking, as forming part of the collection of sunken military craft (Section 1408 (3)).”
Importantly to the recreational diving community, Dr. Thomas indicated that, “the Department of the Navy (DoN), through its regulations, does not intend to restrict access to those DoN craft purposely sunk to establish artificial reefs or to other sunken former Navy vessels of which United States' title has been expressly divested. The final rule will explicitly clarify this matter.” This means that the two former DoN vessels in the DoN artificial reef program – the ex-Oriskany in the Gulf of Mexico and the ex-Radford in waters off of the coast of Delaware – are not impacted by this rule as the title to both vessels was transferred to the respective state authorities and, therefore, will not be considered sunken military craft subject to SMCA and DoN regulations.
The letter goes on to indicate that the United States' title to ex-Vandenberg and ex-Spiegel Grove was transferred to local governments in Florida and the ships were sunk for the purpose of establishing artificial reefs in the National Oceanic Atmospheric Administration (NOAA) Florida Keys National Marine Sanctuary (FKNMS). While they are no longer subject to SMCA and DoN regulations, they are under the jurisdiction of NOAA and remain subject to NOAA FKNMS regulations.
The letter from Dr. Thomas also clarified the issue of whether or not a penetrating dive on what might or might not be a sunken military craft would constitute a violation of the Act:
“DoN does not consider responsible diving and snorkeling on sunken military craft, including penetration of said craft, an activity that is prohibited by SMCA. A permit relieving persons from the stated prohibitions is only necessary when there is intent to disturb, remove, or injure a sunken military craft or terrestrial military craft. Only intentional or negligent actions that disturb the craft will be considered violations of SMCA. Through its regulations, DoN has gone further to accommodate various stakeholders by introducing a "Special Use Permit" in the proposed regulations in order to facilitate the permitting of minimally intrusive activities. DoN has received other public comments regarding the clarity of the definition of disturbance which it is presently considering.
Finally, Dr. Thomas indicated that “the diving and snorkeling communities by and large have served as effective ambassadors for the protection and preservation of underwater resources, including cultural resources and sunken military craft. DoN views responsible members of diving and snorkeling communities as partners in a common preservation effort and does not intend to impose unreasonable restrictions on diving or dive operators.”
The letter from Dr. Thomas can be seen in its entirety here.