Guidelines for Research, Exploration and Salvage of RMS Titanic

AGENCY:

National Oceanic and Atmospheric Administration, Department of Commerce.

ACTION:

Proposed guidelines; notice of hearing; request for comments.

SUMMARY:

These proposed guidelines have been developed for future research on, exploration of, and if appropriate, salvage of RMS Titanic. As mandated by the RMS Titanic Maritime Memorial Act of 1986 (Act), the proposed guidelines were developed in consultation with the United Kingdom, France, Canada and others. The broad and diverse public interest in RMS Titanic was also considered in developing the proposed guidelines. While the proposed guidelines set forth a preferred policy of in situ preservation of RMS Titanic, they also set forth the parameters for the research, recovery and conservation of RMS Titanic artifacts for the benefit of the public. Comments are requested on these proposed guidelines. NOAA also specifically requests comments from interested members of academia and research institutions.

DATES:

Comments on this proposal must be received at the appropriate address (See ADDRESSES) by 5:00 P.M. on July 3, 2000; public hearing, June 15, 2000, 9:30 A.M.; requests to present oral testimony must be received on or before June 13, 2000.

ADDRESSES:

Comments on these proposed guidelines and requests to present oral testimony at the hearing should be sent to NOAA, 1305 East-West Highway, SSMC IV, Suite 11515, Silver Spring, MD 20910; attention Titanic guidelines comments. Comments may also be sent via a facsimile (fax) to (301) 713-0404. The hearing will be held in Room 4830 of the Department of Commerce Hoover Building, 1401 Constitution Avenue, N.W., Washington D.C. 20230.

FOR FURTHER INFORMATION CONTACT:

Craig McLean, (301) 713-3125 ext. 151, or Ole Varmer, (301) 713-2967 ext 211.

SUPPLEMENTARY INFORMATION:

These proposed guidelines are issued under the authority of the RMS Titanic Maritime Memorial Act of 1986 (Act). Section 5(a) of the Act directs the National Oceanic and Atmospheric Administration (NOAA) to enter into consultations with the United Kingdom, France, Canada and others to develop international guidelines for research on, exploration of, and if appropriate, salvage of RMS Titanic. The guidelines are to (1) be consistent with the national and international scientific, cultural, and historical significance of RMS Titanic and the purposes of the Act, and (2) promote the safety of individuals involved in such operations.

The purposes of the Act are to: (1) Encourage international efforts to designate RMS Titanic as an international maritime memorial to those who lost their lives aboard the ship in 1912; (2) direct the United States to enter into negotiations with other interested nations to establish an international agreement that provides for designation of RMS Titanic as an international maritime memorial, and protects the scientific, cultural, and historical significance of RMS Titanic; (3) encourage, in those negotiations or in other fora, the development and implementation of international guidelines for conducting research on, exploration of, and if appropriate, salvage of RMS Titanic; and (4) express the sense of the United States Congress that, pending such international agreement or guidelines, no person should physically alter, disturb, or salvage RMS Titanic.

The Act directs NOAA to consult with the Secretary of State (DOS) and promote full participation by other interested Federal agencies, academic and research institutions, and members of the public with respect to how exploration and research should be conducted, and whether and under what conditions salvage of RMS Titanic should occur. NOAA and DOS have consulted with representatives of these interested groups in the course of developing these proposed guidelines. Public comment on the proposed guidelines should prove helpful in developing the final guidelines.

Section 6 of the Act directs DOS to enter into negotiations with the United Kingdom, France, Canada and other nations to develop an international agreement that provides for: (1) Designation of RMS Titanic as an international maritime memorial; and (2) research on, exploration of, and if appropriate, salvage of RMS Titanic consistent with the international guidelines developed pursuant to the purposes of the Act. The proposed guidelines are based primarily on the rules annexed to the January 5, 2000 draft international agreement that has been negotiated by the U.S., Canada, France and the United Kingdom.

Preparation of the Guidelines

The primary objective in developing the proposed guidelines has been to further the ongoing efforts to protect RMS Titanic as a maritime memorial and as an internationally significant resource of science, culture, and history. More than 1500 men, women and children lost their lives when RMS Titanic sank on April 15, 1912 and many of those were trapped in the ship's hull. This tragic loss of life and the encasement of the remains of many passengers and crew in RMS Titanic have caused many people around the world, including descendants of RMS Titanic's passengers and crew to view the shipwreck as a grave site. In addition, RMS Titanic is of great interest to scientists, archaeologists, historians, naval architects, educators, lawyers, salvors, the media, and the public. Accordingly, representatives of many diverse groups were consulted and their interests were considered in preparing these proposed guidelines.

The wreckage of RMS Titanic was discovered on September 1, 1985, during a joint French/U.S. expedition lead by Jean Luc Michel and Dr. Robert Ballard. Shortly thereafter, Dr. Ballard testified before Congress to encourage the enactment of legislation to designate RMS Titanic as a maritime memorial. On his second expedition in July 1986, Dr. Ballard placed a plaque on RMS Titanic providing notice to the world that it was discovered by a U.S./French expedition and that it should be left undisturbed as a memorial. Meanwhile, the U.S. Congress enacted and the President signed into law the RMS Titanic Maritime Memorial Act of 1986 to protect this unique shipwreck from potential harm caused by misguided salvage. To this end, the Act mandates that NOAA develop these guidelines.

In 1986, DOS contacted the referenced nations regarding the development of international guidelines and an international agreement. Despite the continued international interest in RMS Titanic, other countries exhibited little interest in developing international guidelines or an agreement as envisioned by the U.S. Congress. In 1995, the United Kingdom, France, Canada and the U.S initiated talks on negotiating guidelines and an agreement. The initiation of international discussion on the guidelines and agreement, at least in part, was based on information about the commercial salvage of RMS Titanic and the exhibition of recovered artifacts in the British National Maritime Museum.

In February 1995, the British National Maritime Museum sponsored a conference of experts in the fields of law, archaeology, history, science, and salvage in Greenwich, England to discuss the protection and management of RMS Titanic and other historic shipwrecks. Participants presented papers and discussions were held regarding the differences in approach between archaeologists and salvors, the Law of the Sea, the draft convention on underwater cultural heritage (UCH) prepared by the International Law Association, and the practices of various nations with respect to the protection and management of UCH.

In January 1996, the British National Maritime Museum held a second conference at the International Maritime Organization in London, England. The conference resulted in a statement of principle, called the Greenwich Declaration, concerning the management of UCH. The significance of UCH to humankind was recognized, as was the threat of its irrevocable loss unless its disturbance or removal is conducted in accordance with best archaeological practices and under the supervision of national authorities having jurisdiction over such activities. While Titanic was an impetus for the conferences, the focus was to provide protection for all UCH. The preparation of an international instrument by UNESCO for the protection of UCH was discussed as was the International Council of Monuments and Sites (ICOMOS) International Charter on the Protection and Management of Underwater Cultural Heritage. At both conferences there were also informal discussions on the international agreement and guidelines for research on, exploration of, and if determined appropriate, salvage of RMS Titanic.

Delegations representing the Governments of Canada, France, the United Kingdom of Great Britain and Northern Ireland, and the U.S. conducted negotiations between 1997 and 2000 in London and by video-conference to develop the text of an international agreement to protect RMS Titanic. Negotiations were held on September 29 and December 1, 1997; February 12, 1998; January 12, June 18, and December 2, 1999; and January 5, 2000. During the negotiation process, various experts in law, science, history, archaeology and salvage, including representatives of RMS Titanic Inc., were periodically consulted. While the Act directed the U.S. to develop guidelines and an international agreement, early in the process, there was a consensus that the guidelines should be incorporated into the international agreement. NOAA then drafted these proposed guidelines based primarily on the January 5 draft of the international agreement, particularly the annexed rules for activities aimed at RMS Titanic.

These proposed guidelines are based primarily on the rules annexed to the January 5, 2000 draft agreement resulting from the above-referenced negotiations. They are also based on widely accepted international and domestic professional archaeological standards, including the ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage, the UNESCO draft rules annexed to the draft Convention on the Protection of the Underwater Cultural Heritage, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, the National Park Service's Abandoned Shipwreck Act Guidelines, and NOAA's guidelines for archaeological research and recovery.

Scope and Definitions

These proposed guidelines are intended to guide the planning and conduct of activities aimed at RMS Titanic, including exploration, research, and if appropriate, salvage. As guidelines, they are advisory in nature. They are not enforceable by NOAA unless and until there is authorizing legislation enacted by Congress. As RMS Titanic is a British flagged vessel that lies well outside of the U.S. territorial sea and contiguous zone, the U.S. is not asserting jurisdiction over RMS Titanic in proposing these guidelines or otherwise. However, Congress has the authority to enact legislation regulating activities aimed at RMS Titanic. The U.S. enforcement regime in such legislation could rely on U.S. jurisdiction over its nationals, U.S. flagged vessels, port state jurisdiction, in personam jurisdiction and other jurisdiction consistent with international law.

For the purposes of the proposed guidelines, “RMS Titanic” means the shipwrecked vessel RMS Titanic; “Artifacts” means the cargo of RMS Titanic and other contents, including those associated objects that are scattered in its vicinity and any portion of the hull; “Project” means all activities aimed at RMS Titanic and/or its artifacts carried out in accordance with these guidelines; “Collection” means artifacts and records pertaining to a project.

Recent Salvage History of RMS Titanic

In 1987, Titanic Ventures, Inc. and the Institut Francais de Recherche pour l'Exploration de Mers (IFREMER) conducted a salvage expedition in which some 1,800 artifacts were recovered from the wreck site. In 1992, Titanic Ventures, Inc. filed an in rem action in the U.S. District Court for the Eastern District of Virginia. In 1993, RMS Titanic Inc. (RMST) acquired all of the assets and liabilities of Titanic Ventures, Inc. and conducted a second expedition with IFREMER. RMST and IFREMER conducted a third expedition in 1994 and a fourth expedition in 1998. Some 5,000 artifacts have been recovered to date.

Sale of Artifacts

The preferred policy is to preserve the artifacts at the site of RMS Titanic. If it is determined to be in the public interest to recover artifacts, the proposed guidelines provide that all artifacts recovered from RMS Titanic should be kept together and intact as project collections. Although not expressly delineated, following these guidelines would mean that individual artifacts would not be sold. However, this would not necessarily preclude the sale or transfer of an entire collection to a museum or other qualified institution, provided the collection is kept together and maintained for the benefit of the public consistent with these guidelines and the Act.

There are differences of opinion among professional scientists and others on whether the coal that was used to power RMS Titanic is a natural resource or a cultural artifact. Even if coal were determined not to come within the meaning of an artifact, such coal may still be useful for archaeological and scientific research. On the other hand, if the coal were determined to come within the meaning of an artifact, and, thus, covered by these guidelines, there are differences of opinion among professional scientists and others on whether all of the coal should be curated in perpetuity, or if it would be appropriate to keep only a representative sample following scientific analysis and study of all the coal. Current professional curation practices and standards provide museums or administrators with sufficient discretionary authority to include or exclude objects from the collection or to subsequently allow some of the objects to be deaccessioned from the collection. Deaccessioned objects can be disposed of in accordance with the museum's or administrator's deaccessioning policies and may include transfer to another institution, deposit as waste, or sale.

In Situ Preservation and Salvage

The proposed guidelines provide that in situ (or in-place) preservation is the preferred policy approach for memorializing RMS Titanic. This approach is consistent with widely accepted international and domestic professional archaeological standards and embodies the broader public interest in conservation of RMS Titanic. Under this policy, non-intrusive research and exploration of RMS Titanic is encouraged in order to protect the wrecksite for future research and access. The public interest in RMS Titanic is diverse. Congress and others view the site as a maritime memorial, a grave site and an underwater museum and laboratory. The hull and cargo are like a time capsule of that tragic event. Because intrusive activities may damage or destroy RMS Titanic, these proposed guidelines support the presumption that such activities should not be conducted unless justified by scientific, cultural or educational interests. This in situ preservation policy is compatible with non-destructive uses of the site, such as non-intrusive research, education, public viewing and even commercial use. This policy is also consistent with the treatment of RMS Titanic as the final resting place for many people, and the conservation of the surrounding natural environment.

The public interest in the recovery of shipwrecks and cargo under salvage law, in general, should now be reconciled with the public interest in the in situ preservation of RMS Titanic. However, in situ preservation does not preclude intrusive research, exploration or appropriate salvage in certain circumstances. Consistent with a precautionary management approach, once there is scientific, cultural or educational justification, then research, exploration or appropriate salvage activities could be permitted. However, to fulfill the public interest in RMS Titanic under salvage law and the Act, such salvage should only be conducted in accordance with the scientific and conservation standards set forth in the proposed guidelines.

Professional Scientific Approach

As noted above, these proposed guidelines are based on widely accepted international and domestic standards for professional scientific research. Most of those standards have already been subjected to professional scrutiny and public processes. In this case, those standards were revisited and specifically tailored for research, exploration and salvage of RMS Titanic and its artifacts. Among other interested parties, RMST and IFREMER were consulted in developing these proposed guidelines because they have had the most experience working at the wreck site.

Miscellaneous Requirements

Executive Order 12866

In deciding whether and how to regulate, federal agencies assess the costs and benefits of proposed regulations upon society, including individuals and business. While the proposed guidelines are non-binding, NOAA has considered the costs and benefits upon society arising from compliance with them. For those already applying the professional scientific approach to research, recovery and conservation of artifacts, NOAA does not expect that there will be any additional significant costs from complying with these proposed guidelines. However, for those explorers or salvors who do not as a matter of practice follow professional scientific standards and policies, then compliance with these proposed guidelines may result in additional costs. These costs could result in the expenditure of tens of thousands of dollars. Since an RMS Titanic salvage expedition can costs hundreds of thousands of dollars per day for ships, equipment and personnel, the additional costs for following the proposed guidelines are not expected to be significant. Although compliance with the guidelines may result in additional costs in the careful planning of the expedition, the application of the scientific approach generally results in a more efficient execution of the project and thus may save money in the end. The costs for compliance with the guidelines should also be weighed against the potential benefits to the society from protecting RMS Titanic and preserving the artifacts and research for present and future generations. Adherence to proper scientific methodology and approach is in the interest of the public because it preserves the integrity of the site, the artifacts recovered and the story contained at the wrecksite. Compliance with the proposed guidelines may also be viewed as an investment by those that have not followed the scientific standards in the past. The proper recording of information and conservation of artifacts increases the value of the collection to the salvors, researchers, museums and the general public. As a result, the additional costs involved in following the scientific approach are often offset by increased revenue from documentaries, films, and museum receipts. RMST has reported millions of dollars in annual revenues from the display of artifacts in museums. Some argue that keeping the collection together and intact is not as profitable as selling individual artifacts. However, it is difficult, if not impossible, to quantify the cost to society if the artifacts are sold such that the collection is no longer kept together for public use for research, education and viewing by the general public.

Executive Order 12630

Under this Order, federal agencies assess the takings implications of proposed policies and actions on private property protected by the Fifth Amendment. The goal is to better inform the agency decision makers about the potential agency activities. To the extent permitted by law, consistent with their statutory obligations, agencies are then better informed on how to minimize the impacts of such activities on constitutionally protected property rights. As these guidelines are non-binding in nature, they should not raise any regulatory takings implications under the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution.

Executive Order 12114

The purpose of this Order is to enable responsible officials to be informed of pertinent environmental considerations and to take such consideration into account in agency decision making with regard to major federal actions significantly affecting the environment outside the United States, its territories and possessions. While based on independent authority, this Order furthers the National Environmental Policy Act (“NEPA”) and other laws consistent with the foreign policy and national security policy of the United States. The proposed guidelines are not a “major federal action” as defined in DOC DAO 216-12 (Environmental Effects Abroad of Major Federal Actions). Since they are advisory in nature, they are not a “major federal action”. In addition, compliance with the proposed guidelines would not have any significant adverse effects on the environment. However, compliance with the proposed guidelines would further the purposes of NEPA and other laws. Conservation of the environment was carefully considered in developing the proposed guidelines. Compliance with the proposed guidelines would preserve RMS Titanic and would correspondingly further preservation of the surrounding natural environment.

A primary objective of the proposed guidelines is in situ preservation of RMS Titanic and its surrounding natural environment. In addition, activities that would harm or destroy RMS Titanic would be discouraged by the proposed guidelines. Since intrusive archaeological research, recovery or salvage can often harm the natural environment, compliance with the in-situ preservation principles would correspondingly preserve the surrounding natural environment. The proposed guidelines encourage non-destructive and non-intrusive research. Since non-intrusive research inherently avoids destruction of the surrounding natural environment, this proposed guideline would also protect the natural environment. In the event that activities to be conducted may harm RMS Titanic and the surrounding natural environment, the proposed guidelines provide for an assessment of environmental consequences. Thus, the proposed guidelines would further the purposes of NEPA, other laws and Executive Order 12114 by conserving RMS Titanic and the surrounding natural environment.

National Historic Preservation Act

Under this law, agencies are to take into account the effect of any federal undertaking outside the United States which may directly and adversely affect a historic property. Compliance with the proposed guidelines will not adversely affect RMS Titanic. To the contrary, compliance with the proposed guidelines will fulfill the public's interest in conserving the national and international historical significance of RMS Titanic. The Advisory Council on Historic Preservation was consulted in developing the proposed guidelines. NOAA plans to consult further with the Advisory Council prior to issuing any final guidelines.

Paperwork Reduction Act (PRA)

These guidelines contain voluntary collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the PRA. These requirements have been submitted to OMB for approval. Public reporting burden for these collections of information is estimated to average 12 hours to submit a project design and 12 hours to submit a report. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NOAA, 1305 East-West Highway, SSMC IV, Suite 11515, Silver Spring, MD 20910 (attention Titanic guidelines comments); and to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Wash., DC 20503 (Attention: NOAA Desk Officer).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

Guidelines for Research, Recovery and Salvage of RMS Titanic

Contents

I. General Principles

II. Project Design

III. Funding

IV. Duration—Timetable

V. Objectives, Methodology and Techniques

VI. Professional Qualifications

VII. Preliminary Work

VIII. Documentation

IX. Artifact Conservation

X. Safety

XI. Reporting

XII. Curation of Project Collection

XIII. Dissemination

Authority: 16 U.S.C. 450rr to 450rr-6.

Introduction: It is the sense of Congress that research and limited exploration activities concerning the RMS Titanic should continue for the purpose of enhancing public knowledge of its scientific, cultural, and historical significance, Provided, That, pending the adoption of the international agreement or implementation of international guidelines, no person should conduct any such research or exploration activity which would physically alter, disturb, or salvage the RMS Titanic.

I. General Principles

1. The preferred policy for the preservation of RMS Titanic and its artifacts is in situ preservation. Recovery or excavation aimed at RMS Titanic and/or its artifacts should be granted only when justified by educational, scientific, or cultural interests, including the need to protect the integrity of RMS Titanic and/or its artifacts from a significant threat. All artifacts recovered from RMS Titanic shall be conserved and curated consistent with these guidelines and kept together and intact as project collections.

2. Activities shall avoid disturbance of human remains. In particular, entry into the hull sections of RMS Titanic shall be avoided so that they, other artifacts and any human remains are not disturbed.

3. Activities utilizing non-destructive techniques and non-intrusive surveys and sampling shall be preferred to those involving recovery or excavation aimed at RMS Titanic and/or its artifacts.

4. Activities shall have the minimum adverse impact on RMS Titanic and its artifacts.

5. Activities shall ensure proper recording and dissemination to the public of historical, cultural and archaeological information.

II. Project Design

6. Activities shall be the object of a project design that shall include:

(a) The objectives of the project;

(b) A general description of the methodology and techniques to be employed;

(c) A description of the anticipated funding;

(d) A provisional timetable for completion of the project;

(e) The composition, qualifications and responsibilities of the anticipated team;

(f) The proposal for or results of all preliminary work;

(g) If applicable, plans for post-fieldwork;

(h) If applicable, a conservation and curation plan;

(i) A documentation program;

(j) A safety policy;

(k) If applicable, arrangements for collaboration with museums and other institutions;

(l) Report preparation, contents, and dissemination;

(m) If applicable, the anticipated disposition of archives, including artifacts; and (n) if applicable, a program for publication.

7. If unexpected discoveries are made or circumstances change, the project design shall be reviewed and amended.

8. Each project shall be carried out in accordance with its project design.

III. Funding

9. Projects shall be designed to ensure adequate funding in advance to complete all stages of the project including the curation, conservation and documentation of any recovered artifacts, and the preparation and dissemination of the report.

10. The project design shall include contingency plans that will ensure conservation of recovered artifacts and supporting documentation in the event of any interruption of anticipated funding.

11. The project design shall demonstrate an ability to fund the project through completion.

12. Project funding shall not require the sale of artifacts or other material recovered or the use of any strategy that will cause artifacts and supporting documentation to be irretrievably dispersed.

IV. Duration—Timetable

13. Adequate time shall be assured in advance to complete all stages of the project, including the curation, conservation and documentation of any recovered artifacts, and the preparation and dissemination of the report.

14. The project design shall include contingency plans that will ensure conservation of artifacts and supporting documentation in the event of any interruption in the anticipated timetable.

V. Objectives, Methodology and Techniques

15. The project design shall include the objectives, proposed methodology and techniques.

16. The methodology shall comply with the project objectives and with the general principles in section I.

VI. Professional Qualifications

17. Projects shall only be undertaken under the guidance of and in the presence of qualified technical and/or professional experts with experience appropriate to the objectives. The project shall not commence until the identity, qualifications, experience and responsibilities of the team members have been notified to and approved by the relevant national authorities.

18. All persons on the project team shall be:

(a) qualified and have demonstrated experience appropriate to their project roles; and

(b) fully briefed and understand the work required.

VII. Preliminary Work

19. The project design shall include:

(a) An assessment that evaluates the vulnerability of RMS Titanic and artifacts to damage by the proposed activities; and

(b) A determination that the benefits of the project outweigh the potential risk of damage.

20. The assessment shall also include background studies and relevant bibliography of available historical and archaeological evidence, and environmental consequences of the proposed project for the long-term stability of RMS Titanic and artifacts.

VIII. Documentation

21. Projects shall be thoroughly documented in accordance with professional archaeological standards current at the time the project is to be undertaken.

22. Documentation shall include, at a minimum, the systematic and complete recording of the provenance of artifacts moved or removed in the course of the project, field notes, plans, sections, photographs and recording in other media.

IX. Artifact Conservation

23. The project design shall include a conservation plan that provides for treatment of the artifacts in transit and in the long term.

24. Conservation shall be carried out in accordance with professional standards current at the time the project is to be undertaken.

X. Safety

25. All persons on the team shall work according to a safety policy prepared according to professional requirements and set out in the project design.

XI. Reporting

26. Interim reports shall be made available according to a timetable set out in the project design, and provided to relevant national authorities.

27. Reports shall include:

(a) An account of the objectives;

(b) An account of the methodology and techniques employed;

(c) An account of the results achieved; and

(d) Recommendations concerning conservation of any artifacts removed during the course of the project.

XII. Curation of Project Collection

28. The project collection, including any artifacts recovered during the course of the project and a copy of all supporting documentation, shall be kept together and intact in a manner that provides for public access, curation and its availability for educational, scientific, cultural and other public purposes.

29. Arrangements for curation of the project collection shall be agreed before any project commences, and shall be set out in the project design.

30. The project collection shall be curated according to professional standards current at the time the project is to be undertaken.

XIII. Dissemination

31. Projects shall provide for public education and popular presentation of the results.

32. A final synthesis shall be provided to relevant national authorities and made available to the public as soon as possible, having regard to the complexity of the project.