Our Proposal For A Replacement Law For The Current AUCRAp

Synopsis:
This bill would enact a new Alabama Submerged Historic Cultural Resources Act to provide for the preservation of Submerged Historic Cultural Resources located in the navigable waters of Alabama. The act would be administered by the Oversight Committee in conjunction with the Alabama Historical Commission, the Department of Archives and History, and the Department of Conservation and Natural Resources. The bill would repeal the existing Alabama Underwater Cultural Resources Act. All Indian mounds and Indian burial grounds are already protected by existing law and do not fall under the jurisdiction of this bill.
Amendment 621 of the Constitution of Alabama of 1901 prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides local source of revenue, to the entity for the purpose. The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of Amendment 621. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in Amendment 621.

1. SUBMERGED ARCHAEOLOGICAL SITE. Any submerged archaeological site containing a group of five (5) or more archaeological artifacts greater than 100 years old, within an area of nine (9) square feet, that are on or embedded in the submerged lands belonging to the state of Alabama under navigable waters belonging to the state of Alabama and the sea within the jurisdiction of the state, excluding therefrom sunken logs, cants and timber resources of any type not associated as part of a shipping vessel. The area encompassed by a submerged archaeological site is defined as the aforementioned nine (9) square feet, not to include or apply to any adjacent areas.

2. ARCHAEOLOGICAL ARTIFACT. Objects made or modified by humans and commonly recognized to have historical significance as a desirable and collectible item. The intent of this wording is to exclude such items as shards of broken glass, nails, or pieces of scrap metal or rock that may be 100 years of age or older, but are not historically significant or deemed to be desirable to a collector.

3. ABANDONED SHIPWRECKS. All abandoned shipwrecks or remains of those abandoned shipwrecks greater than 100 years old and determined eligible for or listed in the National Register of Historic Places, and their contents that are on or embedded in navigable waters belonging to the State of Alabama and the sea within the jurisdiction of the state to which the state asserts title through the Abandoned Shipwreck Act or other means.

4. SUBMERGED CULTURAL RESOURCES. Abandoned Shipwrecks and Submerged Archaeological Sites.

5. EXCAVATION. The intentional removal of any sand, mud, sediment, debris, or other bottom material for the purpose of uncovering or attempting to remove any submerged historic cultural resource.

6. MECHANICAL EXTRACTION. The allowed use of mechanical extraction of Submerged Cultural Resources will be determined by the Oversight Committee.

7. OVERSIGHT COMMITTEE. An appointed committee comprised of 15 persons representing parties concerned with the interpretation, implementation and enforcement of this bill. No member of the Oversight Committee or his or her family or any company, corporation, association or organization with which the committee member is affiliated with shall be able to receive a permit for excavation of submerged cultural resources as addressed below. Appointments to the Oversight Committee shall be as follows:

a. Two (2) at-large appointments by the Governor.

b. Three (3) appointments consisting of one appointment each by the Director of the Alabama Historical Commission, the Director of the Department of Archives and History, and the Director of the Department of Conservation and Natural Resources.

c. Two (2) appointments by the Speaker of the House from the House of Representatives.

d. Two (2) appointments by the Lieutenant Governor from the Senate.

e. Three (3) appointments, one each by the Governor, Lieutenant Governor and the Speaker of the House from Alabama state-licensed and accredited dive schools.

f. Three (3) appointments, one each by the Governor, Lieutenant Governor and the Speaker of the House from Alabama residents that are recognized as historians, archaeologists or artifact collectors.

Use of state submerged cultural resources

(a) All submerged cultural resources as defined herein are declared to be state cultural resources subject to the exclusive dominion and control of the State of Alabama.

(b) Submerged cultural resources shall not be taken, damaged, destroyed, salvaged, excavated, mechanically extracted or otherwise altered without a prior contract or permit obtained through the Oversight Committee in consultation with the Alabama Historical Commission, the Department of Archives and History, and the Department of Conservation and Natural Resources.

(c) Removal of archaeological artifacts not part of a submerged archaeological site or abandoned shipwreck does not require a permit or contract from the Oversight Committee.

Management plan; rules and regulations

(a) Submerged Cultural Resources are a multi-use professional and recreational resource important to many diverse interest groups in Alabama including archaeologists, historians, divers, artifact collectors and fishermen.

(b) The Oversight Committee, in coordination with the Alabama Historical Commission, the Department of Archives and History, and the Department of Conservation and Natural Resources, shall, within 12 months of the Governor signing this act, develop and implement a management plan for submerged cultural resources.

(c) The management plan shall include the following:

1. Permitted or contracted activities for Submerged Cultural Resources.

2. There shall be no permits, licenses or contracts required for recreational divers to unobtrusively observe, view or record images of Submerged Cultural Resources as long as these activities are deemed to not pose a threat to the resource or disrupt ongoing archaeological operations.

3. The encouragement of underwater exploration and recreational diving on submerged lands and the establishment of a volunteer reporting and cataloging program for the benefit of all persons of Alabama that recognizes individuals and others who come forward with discoveries of submerged cultural resources or archaeological artifacts.

4. Establishing a process to designate appropriate curation and conservation methods and facilities for displaying and/or disposing of the State's portion of recovered Submerged Cultural Resources.

5. The Oversight Committee, in coordination with the Alabama Historical Commission, the Department of Archives and History, and the Department of Conservation and Natural Resources, shall, within 18 months of the Governor signing this act, promulgate, in accordance with the state Administrative Procedure Act and in the best interest of the state, any rule or regulation necessary to implement this division. The rules and regulations shall have the force and effect of law. These regulations are limited to the following:

1. Contracting or permitting for various activities.

2. Regulations shall be drafted in consonance with the findings of the management plan.

3. The establishment of an appeals process for denied permits or contracts.

4. Methods of enforcement of this division and rules and regulations promulgated hereunder.

Permit for excavation.

(a) Any qualified individual, company, corporation, or public institution desiring to conduct any type of excavation of submerged cultural resources shall first make application to the Department of Archives and History for a permit or contract to conduct the operation. If the Oversight Committee finds that the granting of a permit or contract is in the best interest of the citizens of the state, it may, subject to the other provisions of this division, grant the applicant a permit or contract for a period of time and under those terms and conditions as the Oversight Committee considers to be in the best interest of the state. Permits or contracts shall generally be issued for a period of 1 to 3 years with the exact time determined by the Oversight Committee. The application for a permit must be submitted in person or by registered mail or courier to the Department of Archives and History. If a permit is granted, the permit holder then must actively engage in working the permitted site or risk revocation of said permit. Permit applications with plans and qualifications shall be submitted to the Department of Archives and History for consideration by the Oversight Committee with applicants notified in writing by the Oversight Committee of the determination of the application within sixty (60) calendar days after the next quarterly meeting of the Oversight Committee. Permits shall be deemed granted for a period of 120 calendar days if the Oversight Committee does not respond with a determination within the sixty day (60) period.
(b) Holders of permits or contracts shall be responsible for obtaining permission of any federal agencies having jurisdiction, including, the United States Department of the Navy and the United States Army Corps of Engineers, prior to conducting those activities.
(c) Permits or contracts may be issued or made for any of the following activities without limitation:
1. Excavation permit or contract
2. Recovery permit or contract

Commercial fishing restrictions.

The Oversight Committee may restrict, when necessary, as determined in writing in the sole discretion of the Commissioner of Conservation and Natural Resources, the activities of commercial fishing vessels in or around known submerged cultural resources when the likelihood of damage to or any alterations of the submerged cultural resources is deemed evident. The restricted area shall encompass only the immediate area of the resource so as not to unduly disrupt fishing operations.

Distribution of funds.

(a) Any funds received by the Oversight Committee under the terms and conditions of permits or contracts made pursuant to this division shall be placed in funds maintained by the State Treasury.
(b) The Oversight Committee shall, pursuant to its rule making power, provide a procedure for the sale at public auction of any article seized pursuant to this division, with the proceeds going to the State General Fund to be appropriated by the Legislature.

Theft or disturbance of a submerged cultural resource

(a) A person commits the crime of theft or disturbance of a submerged cultural resource protected by the Oversight Committee if the person does either of the following:
(1) Intentionally and knowingly removes, alters, disturbs, or destroys any submerged cultural resource without the prior written authorization of the Oversight Committee by permit or contract.
(2) Knowingly buys, receives, conceals, aids in the concealment of, or possesses any illegally obtained submerged cultural resource.
(b) Intentional and knowing theft or disturbance of a submerged cultural resource having a value of less than one thousand five hundred dollars ($1500.00) shall constitute a Class A misdemeanor and be punishable, upon conviction, as provided by law.
(c) Intentional and knowing theft or disturbance of a submerged cultural resource with a value of one thousand five hundred dollars ($1500.00) or more shall constitute a Class C felony and shall be punishable, upon conviction, as provided by law.

Enforcement Division

Department of Conservation Officers shall be the sole agency to administer enforcement of this division.

Exceptions

(a) Notwithstanding any other provisions of this division to the contrary, no contract with or permit from or fee paid to the Oversight Committee shall be required for activities performed pursuant to the United States Army Corps of Engineers' permits, including general permits.
(b) Notwithstanding any other provisions of this division to the contrary, any violation of this division caused by activities conducted for the purposes not related to the excavation, or salvaging of submerged cultural resources may be cured and any otherwise applicable crimes or penalties will no longer apply if the activities in violation of this division are halted as soon as practicable after notice from the Oversight Committee or its agents and an application for any contract or permit determined to be necessary is submitted to the Oversight Committee. Prior to any further activity on the site.

This act shall be construed in pari material with Section 41-9-249.1, Code of Alabama 1975.

Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621 because the bill defines a new crime or amends the definition of an existing crime.

All laws or parts of laws that conflict with this act are repealed. Sections 41-9-291 to 41-9-299.2, inclusive, Code of Alabama 1975, are specifically repealed.

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

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