Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 34 No. 39, September 26, 2008 issue of the Florida Administrative Weekly.
These changes respond to comments from interested parties and to suggestions made during public hearing held on October 21, 2008.
PROCEDURES FOR CONDUCTING EXPLORATION AND RECOVERY OF HISTORIC SHIPWRECK SITES
1A-31.0015 Definitions.
(1) through (5) No change.
(6) “Historic Shipwreck Site” means the remains of a sunken or abandoned ship or other watercraft on or below the seabed including but not limited to ships’ structure and rigging, hardware, tools, utensils, cargo, personal items of crew and passengers, and treasure trove, which is generally at least fifty years old. “Exploration agreement” means a contractual agreement between any person and the division that authorizes the conduct of certain exploration activities for archaeological materials on state-owned sovereignty submerged lands, imposes conditions on the conduct of those activities and does not create any interest in real property or in any state-owned sovereignty submerged lands.
(7) “Historical resource” means a building, structure, site, object or collection thereof (a prehistoric or historic district) which is generally at least fifty years old and of historical, architectural, or archaeological value. “Person” means any individual, firm, association, joint venture, partnership, estate, trust, syndicate, fiduciary, corporation, group, or governmental entity or officer.
(8) through (11) No change.
1A-31.0042 Diving on Historic Shipwreck Sites Exempted Areas and Sites.
(1) Diving on historic shipwreck sites in Florida waters does not require a permit.
(2) This chapter does not apply to:
(a) Any abandoned shipwreck in or on the public lands of the United States or in or on Indian lands as set forth in the Abandoned Shipwreck Act of 1987, 43 U.S.C. sec. 2105(d), herein incorporated by reference;
(b) Any vessel for which a federal admiralty court has awarded title as against the State of Florida prior to April 28, 1988, the effective date of the Abandoned Shipwreck Act of 1987 (herein incorporated by reference), while such title remains valid; or
(c) Vessels entitled to sovereign immunity under federal law or international law, treaty, or agreement, including without limitation, United States or foreign military vessels as defined in the Sunken Military Craft Act (Public Law Number 108-375, Div. A, Title XIV, Sections 1401-1408, Oct. 28, 2004, 118 Stat. 2094), herein incorporated by reference.
1A-31.0045 Non-permittable Excluded Areas and Sites.
The division will not issue permits for the following areas and sites:
(1) Any abandoned shipwreck in or on the public lands of the United States or in or on Indian lands as set forth in the Abandoned Shipwreck Act of 1987, 43 U.S.C. sec. 2105(d), herein incorporated by reference; The following categories of state-owned sovereignty submerged lands are not eligible for permits under this chapter:
(2) Any vessel for which a federal admiralty court has awarded title as against the State of Florida prior to April 28, 1988, the effective date of the Abandoned Shipwreck Act of 1987 (herein incorporated by reference), while such title remains valid;
(3) Vessels owned or operated by a government on military non-commercial service when they sank, which are entitled to sovereign immunity under federal law or international law, treaty, or agreement, including without limitation, United States or foreign military vessels, and as defined in the Sunken Military Craft Act (Public Law Number 108-375, Div. A, Title XIV, Sections 1401-1408, Oct. 28, 2004, 118 Stat. 2094), herein incorporated by reference;
(a) Inland fresh and brackish waters;
(4)(b) Areas of federal jurisdiction including but not limited to areas of the National Park System, National Marine Sanctuaries, National Wildlife Refuges, National Estuarine Research Reserves and US Military Reservations;
(5) Areas of the Florida Keys National Marine Sanctuary;
(6)(c) Areas of state jurisdiction such as including but not limited to State Parks, State Aquatic Preserves, Coastal and Aquatic Managed Areas, State Archaeological Landmarks, State Archaeological Landmark Zones, Underwater Archaeological Preserves, Underwater Archaeological Research Reserves; and
(d) Areas of legally defined and authorized local jurisdiction including but not limited to such uses as public recreation, resource conservation and resource management.
(7)(e) Areas of submerged lands conveyed to public or private entities;
(2) The following categories of shipwrecks are not eligible for permits under this chapter:
(8)(a) Vessels that are or have been under the jurisdiction of a federal admiralty court, when such jurisdiction was established prior to April 28, 1988, the effective date of the Abandoned Shipwreck Act of 1987, except where the applicant provides proof that the federal court’s jurisdiction and any rights it may have awarded are permanently terminated; and
(9)(b) Historic shipwreck sites that are of such singular historical or archaeological significance that permitted activities would be incompatible with the division’s responsibility to administer state-owned and state-controlled historic resources in a spirit of stewardship and trusteeship and to preserve archaeological sites and objects of antiquity for the public benefit. Significance shall be measured against the criteria established for National Historic Landmark designation, per 36 C.F.R. sec. 65.4 “National Historic Landmark criteria,” herein incorporated by reference.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.061(1), 267.11 FS. History–New________.
1A-31.0052 Security.
(1) The division and the permittee will cooperate to protect the permit area if state-owned historic resources are at risk.
(2) The permittee is responsible for protecting all archaeological materials they have recovered from the permit area.
The permittee is responsible for securing the permit area including any historic resources within or recovered from the permit area. When the division determines that state-owned historic resources are at risk, the division may require that the permittee institute specific security measures. The division may assist in securing the permit area and historic resources, to protect the public interest.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.061(1)(b), 267.14 FS. History–New________.
1A-31.0062 Types of Permit.
(1) The division may issue two types of permits:
(a) An exploration permit allows the permittee to collect remote sensing and visual information on potential historic shipwreck sites without excavation or bottom disturbance. The exploration permit may be modified in writing at a later stage to allow such limited disturbance and excavation for purposes of attempting to determine determining the presence or absence and the nature of potential historic shipwreck sites. The number, location, extent and type of such test excavations shall be specified in the permit modification.
(b) A recovery permit may be issued only after the existence and nature of a historic shipwreck site has been documented by exploration permit activities and mutually agreed upon confirmed by the division and the permittee. A recovery permit allows the permittee to conduct more extensive excavations and recover archaeological materials, and allows for the transfer of title to the permittee of objects recovered, per Rule 1A-31.090, F.A.C. The number, location, extent and type of such excavation and recovery operations shall be specified in the permit.
(2) The division shall not issue multiple permits for any active permit area or historic shipwreck site that is within an active permit area, including its buffer area.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.061(1) FS. History–New________.
1A-31.0082 Duration of Permit.
A permit shall have a term of three one years.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2) FS. History–New________.
1A-31.0092 Permit Area.
(1) The maximum size of an exploration permit area is three one square statute miles.
(2) The maximum size of a recovery permit area is limited to the size required to encompass the archaeological remains from which recovery is permitted.
(3) Permit areas shall be separated by a buffer zone of 100 500 yards width from:
(a) Other permit areas;
(b) rRecognized admiralty arrest areas.;
(c) Established navigation channels;
(d) Exempted areas and sites as defined in this chapter; and
(e) Excluded areas and sites as defined in this chapter.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2) FS. History–New________.
1A-31.011 Boats to Carry Identification.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.061(3)(i), (k) FS. History–New 5-7-68, Amended 1-1-75, 9-6-78, Formerly 1A-31.11, Amended 4-13-87, Repealed_________.
1A-31.020 Inspection by Permitting Agency.
Prior to or after issuance of any permit, the division may, without notice, inspect the permit area to perform any or all of the following:
(1) through (2) No change.
(3) Determine the state of the submerged lands as a baseline for cleanup and restoration;
(4) through (5) renumbered (3) through (4) No change.
(5)(6) Make a determination of compliance with Chapter 267, Florida Statutes, the terms of the permit, and the conditions specified in this rule, and all other applicable laws and rules;.
(7) Determine the status of historical resources and submerged lands in order to require protection or restoration of such resources.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2) FS. History–New________.
1A-31.030 Project Archaeologist Qualifications.
Any permit issued under this rule shall require the participation of a professional underwater archaeologist who shall serve as the project archaeologist. The project archaeologist must meet, at a minimum, the Secretary of Interior’s Standards for Professional Qualifications, as set forth in Federal Register Vol. 48, No. 190, p. 44739, or subsequent official version, herein incorporated by reference, and the following minimum qualifications of training, knowledge, experience and skills with an emphasis on underwater sites, water-saturated archaeological materials, and preservation methods, as evidenced by the project archaeologist’s resume submitted with the permit application:
(1) At least 12 24 weeks of supervised underwater archaeological fieldwork and 10 20 weeks of supervisory underwater archaeological fieldwork;
(2) through (4) No change.
(5) For exploration permits, at least one three months of experience in the operation of remote sensing devices in a marine environment for the purpose of discovery and evaluation of archaeological resources supervised by a specialist in the use of such devices;
(6) through (7) No change.
1A-31.036 Project Archaeologist Responsibilities.
The project archaeologist shall:
(1) through (3) No change.
(4) Be present when excavation work is conducted;
(5) Personally visually inspect the excavation;
(4)(6) Personally be present and visually inspect excavations when significant archaeological material clusters and/or areas of articulated ship’s structure are being excavated, and at such times as may be necessary to properly interpret the historic shipwreck site, as may be determined by the project archaeologist supervise excavation work and all recoveries in the permit area;
(5)(7) Ensure that adequate records are maintained during all remote sensing, testing, excavation, recovery, and conservation and stabilization of recovered artifacts laboratory procedures; and
(8) No change.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History– New________.
Note: Proposed as 1A-31.035.
1A-31.040 Application Procedures.
(1) through (5) No change.
(6) Renewals shall have a term of three one years.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2) FS. History–New________.
1A-31.046 Application Review Criteria for Issuing a Permit.
The division shall consider the following criteria in its decision to approve or deny a permit application, and may consider other relevant information:
(1) No change.
(2) Conflicts with other permit areas and non-permittable areas and sites, per Rule 1A-31.0045, F.A.C., exempted areas, exempted sites, excluded areas, excluded sites or navigation channels;
(3) Date of receiving the application in relation to other applications for the same location. A duplicate application for the same area shall not be entertained until the initial application for that area has been fully processed and made subject to a final order by the division;
(4) No change.
(5) Experience, ability and plans to restore submerged lands as demonstrated in the application;
(5) No change.
(7) through (8) renumbered (6) through (7) No change.
(8)(9) Financial ability to conduct complete the permitted activities as described demonstrated in the application;
(10) through (11) renumbered (9) through (10) No change.
(11)(12) Experience, ability and plans for data collection, security, inventory, and curation of recovered archaeological materials and records as demonstrated in the application;
(12)(13) Qualifications, experience and ability of the applicant to complete the proposed activities;
(14) through (16) renumbered (13) through (15) No change.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History– New________.
Note: Proposed as 1A-31.045.
1A-31.050 Permit Issuance.
The division shall only issue a permit when:
(1) The applicant has supplied evidence of sufficient financial ability to conduct complete the permitted activities operation as permitted;
(2) through (3) No change.
(4) The applicant has demonstrated that proposed project activities will utilize professionally accepted techniques for exploration, identification, reconnaissance, recovery, recording, conservation and/or stabilization, preservation, and analysis of archaeological materials recovered;
(5) The applicant has supplied an adequate plan for the conservation and/or stabilization, analysis, and curation of all archaeological materials recovered, records, and other materials resulting from the permitted activities proposed operation, including facilities if appropriate; and
(6) The division has determined that activities allowed under the permit are consistent not inconsistent with the requirements of this rule.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History– New________.
1A-31.055 Notice of Approval or Denial.
(1) The division shall notify the applicant of approval or intended denial of the application at the address provided in the application or as specified in any notice of change, per Rule 1A-31.080, F.A.C., within 90 days after receipt by the division of a completed application for a permit or a permit renewal. If the application is approved, the division shall furnish a permit document for signature by the applicant certifying agreement with its terms and conditions. The applicant shall return the signed permit to the division for signature by the division’s authorized representative. The permit shall be executed by the division and returned to the permittee within 15 days of receipt. The permit is effective when it is signed by the applicant and the division.
(2) If the division intends to deny the application, the division shall list those criteria from Rule 1A-31.045, F.A.C., on which the intended denial is based and inform the applicant of the options available within the 90 days as cited above.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2) FS. History–New________.
1A-31.060 Requirements for All Permits.
Each permit must include:
(1) through (4) No change.
(5) Registration numbers of all boats participating in the permitted activities, including a notice that registration numbers may be updated by the permittee as needed;
(6) through (8) No change.
(9) Description of the expected types of activity which must be undertaken by the permittee to restore the submerged lands following completion of the permitted activities;
(9)(10) Minimum standards of diligence, expressed as a projected schedule of specific work activities and dates by which such activities shall to be initiated or conducted completed;
(10)(11) Notice that the permit requires submittal of a final or interim an annual report meeting the guidelines established in subsection 1A-46.001(3), F.A.C. National Oceanic and Atmospheric Administration 1:80,000 nautical charts should be substituted for U.S. Geological Survey (1:24,000) 7.5 minute series topographic quadrangle maps as required in subsection 1A-46.001(3), F.A.C., as appropriate;
(11)(12) No change.
(13) Notice that no guarantee of being granted a renewal or new permit is stated or implied;
(12)(14) Notice that the permittee must notify the division in writing within 72 hours and immediately of any change affecting the ability or plans to conduct the complete permitted activities as set forth in the application and the permit, including changes in boats and boat registration numbers used in the permitted activities;
(13)(15) Notice that the use of clamshell dredges, cutterhead dredges, explosives and suction dredges greater than 10 6 inches in diameter is prohibited; and
(14)(16) Notice of the conditions under which that the use of propwash deflectors is allowed prohibited unless specifically authorized in the permit.
(15) Notice that all vessels used in exploration or recovery activities or operations shall carry copies of the executed permit issued by the division.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History– New________.
1A-31.065 Additional Requirements for Exploration Permits.
(1) No excavation or displacement of archaeological materials shall be conducted unless approved in writing by the division in the form of an amendment to the Exploration Permit. No archaeological materials shall be recovered unless approved in writing by the division in the form of an amendment to the Exploration Permit. All archaeological materials recovered under an Exploration Permit shall be included in the pool of artifacts considered for transfer to the permittee if a recovery permit is issued, per Rule 1A-31.090, F.A.C remain state property.
(2) With a minimum of disturbance to the permit area the permittee shall:
(a) Conduct such remote sensing of the entire permit area as may be required to locate the specific historic shipwreck site or sites as referenced in the permittee’s exploration application and permit;
(b) Identify the source of any anomalies as may be required, with an emphasis on locating the historic shipwreck site or sites as referenced in the permittee’s exploration application and permit;
(c) Delineate the extent of historic shipwreck sites, with an emphasis on locating the historic shipwreck site or sites as referenced in the permittee’s exploration application and permit; and
(d) Evaluate the potential characteristics and significance of any historic shipwreck site in consultation with the division, with an emphasis on locating the historic shipwreck site or sites as referenced in the permittee’s exploration application and permit.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History– New________.
1A-31.085 Permit Suspension and Revocation.
(1) When the division has reason to believe that a permittee may have violated one or more of the criteria for suspension or revocation of a permit, the division shall contact the permittee in writing and take other appropriate actions to make a determination of facts. If the division determines a violation has occurred, the division may suspend the permit by notifying the permittee of the violation and specifying corrective actions and dates by which such actions must be completed for the permit to be reinstated. If the stated corrective actions are not completed by the specified dates, the division may revoke the permit by notifying the permittee of the intent to revoke and informing the permittee of the available options. The division may suspend operations under a permit at any time for reasons, including but not limited to:
(a) Violation of the law or of this chapter;
(b) Violation of terms or conditions of the permit;
(c) Obtaining the permit by misrepresentation or failure to disclose all relevant facts;
(d) Making false statements in an application, report or other document submitted to the division under this chapter;
(e) Failure to meet minimum standards of diligence as specified in the permit; or
(f) Activity that jeopardizes archaeological materials.
(2) Criteria for suspension or revocation of a permit include: If the division intends to revoke the permit, then the permit shall remain suspended until the matter is resolved. The division may revoke a permit for any or all of the following:
(a) Violation of Chapter 267, Florida Statutes or this rule chapter Making false statements in an application, report or other document submitted to the division under this rule;
(b) Violation of terms or conditions of the permit Failure to meet minimum standards of diligence as specified in the permit;
(c) Obtaining the permit by misrepresentation or failure to disclose all relevant facts Violation of any of the terms or conditions of the permit;
(d) Knowingly making false statements in an application, report or other document submitted to the division under this rule chapter Violation of this chapter or any other applicable law or regulation;
(e) Failure to meet minimum standards of diligence as specified in the permit Obtaining the permit by misrepresentation or failure to disclose all relevant facts;
(f) Issuance based upon incorrect information, mistaken belief, or clerical error, or any other just cause as provided by this rule chapter; or
(g) Non-permitted activities that jeopardize archaeological materials.
(3) Suspension or revocation of a permit does not relieve the permittee of any obligations concerning restoration of submerged lands, protecting exposed archaeological materials exposed and/or recovered by the permittee remains or providing reports and information to the division as required by the permit.
(4) The division shall not unreasonably suspend or revoke a permit and shall take into consideration the unknown variables that are inherent in the exploration and recovery of historic shipwreck sites prior to the revocation or suspension of any permit. The division shall serve written notice of intent to revoke a permit, specifying the criteria from Rule 1A-31.045, F.A.C., on which the intended revocation is based and inform the applicant of the available options.
Rulemaking Specific Authority 267.031(1) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History– New________.
1A-31.090 Transfer Disposition of Archaeological Materials, Title to Archaeological Materials Conveyed.
The division may transfer archaeological materials to which it holds title to the permittee in consideration of recovery services provided to the state under the terms of a recovery permit. Specific pProvisions for transfer of archaeological materials will be specified in each recovery permit.
(1) The division may not transfer more than 80% of recovered archaeological materials to the permittee;
(2) Distribution of the recovered archaeological materials will be negotiated by the division and the permittee based on the historical value of recovered materials;
(3) Current holdings in the division collection shall be considered in the distribution of recovered archaeological materials;
(4) Artifacts recovered under an Exploration Permit for the same area or historic shipwreck site will be included in the pool of artifacts considered for transfer to the permittee, per subsection 1A-31.065(1), F.A.C.; and
(5) Each transfer of archaeological materials will include a written statement from the division to the permittee conveying title to the transferred materials.
Rulemaking Specific Authority 267.031(1), 267.115(6) FS. Law Implemented 267.031(2), 267.031(5)(i), (k), (o), 267.061(1) FS. History–New________.