Sec. 34.04.03.12. Disposition of Artifacts — Conveyance of Title

A. General. The Trust may determine that with respect to a particular application for a data recovery permit under Regulation .10 of this chapter, it is in the best interest of the State to do any of the following, or a combination of any of the following:

(1) Retain the State's title and control of recovered submerged archeological historic property;

(2) Enter into a disposition agreement and convey the State's title to recovered submerged archeological historic property; or

(3) Release the State's title to any recovered submerged archeological historic property that the Trust does not consider to be of significant archeological or historical value.

B. Disposition.

(1) If the Trust determines that it is in the best interest of the State to enter into a disposition agreement with the permittee, the decision as to what portion of recovered submerged archeological historic property the State will retain shall be based upon the Trust's assessment of the historic and archeological significance of the property following the intensive survey.

(2) General Guidelines.

(a) Except as provided in §B(3) of this regulation, the following ranges for the division of recovered artifacts apply:

(i) For sites over 100 years old but not included in or eligible for inclusion in the National Register, the Trust shall retain the State's title to at least 5 percent but not more than 30 percent of the artifacts in accordance with a final valuation determined through §C(5) and (6) of this regulation; and

(ii) For sites that are included in or eligible for inclusion in the National Register, regardless of age, the Trust shall retain the State's title to at least 20 percent but not more than 50 percent of the artifacts in accordance with a final valuation based upon the archeological and monetary market valuations determined through §C(5) and (6) of this regulation.

(b) The Trust shall determine the specific percentage within the ranges referred to in §B(2)(a) of this regulation by assessing the archeological value of the artifacts in relationship to the whole site. The Trust shall focus this assessment on whether the site contains any or all of the following:

(i) Cargo and, if so, whether it is of a repetitive nature or nonrepetitive nature;

(ii) Items that were personal possessions of an individual; and

(iii) Other artifacts that do not constitute cargo or personal possessions and, if so, whether they are unique or are repetitive as to the site.

(c) The Trust may make subsequent modifications to a determined percentage if it is later found that an evaluation of the site was incorrect due to reasons including misdating or misidentification, or the occurrence of unexpected cargo, personal possessions, or other artifacts.

(3) Sites Designated or Eligible to be Designated as National Historic Landmarks.

(a) For sites that have been designated or are eligible to be designated as National Historic Landmarks, there is a general presumption that the State's title to the artifacts will not be transferred to the permittee.

(b) In exceptional circumstances the Trust may consider transfer to the permittee of the State's title to artifacts from sites described in §B(3)(a) of this regulation if the Director has made, and the Secretary has approved, a written determination that the transfer will not significantly diminish the scientific, archeological, anthropological, or historical research value of the collection.

(c) In accordance with the same procedures and requirements described in Regulation .09E(3)-(8) of this chapter, the Trust may make up to 100 percent of the artifacts from sites described in §B(3)(a) of this regulation available through custodianship for display or exhibition. In addition, the Trust may consider requests that a limited number of the custodial artifacts may be placed into private collections of individuals who were related to the permit activities.

C. Title Conveyance Requirements.

(1) If the Trust determines that it is in the best interest of the State to enter into a disposition agreement with the permittee, the agreement shall be included within the data recovery permit. The agreement shall document that the:

(a) Trust and the applicant have agreed upon a division of the artifacts expected to be recovered which may be in value, in kind, or a combination of both; and

(b) Applicant has agreed that the applicant's share of the division constitutes reasonable compensation for the artifacts recovered to which the Trust determines to retain the State's title.

(2) The disposition agreement shall be approved by the Board as required by State Finance and Procurement Article, §5A-340, Annotated Code of Maryland.

(3) The Trust shall act as arbiter of the division of artifacts, giving due consideration to the fair treatment of the applicant and acting in the best interest of the State. In addition, the requirements of §C(4)-(6) of this regulation apply.

(4) The division of artifacts shall be determined in the disposition agreement based upon the valuations set in accordance with §C(5) and (6) of this regulation. If it is a division in kind, the division applies to each classification of artifacts as specified in the data recovery permit.

(5) An archeological valuation of the artifacts shall be determined according to an average valuation by a group of three archaeologists, including the field archeologist, the State Underwater Archeologist or designee, and a third archeologist mutually agreed upon by the Trust and the permittee. This valuation shall take into account the factors referred to in §B(2)(a)-(c) of this regulation and any other factors considered pertinent by the archaeologists.

(6) A monetary market valuation of the artifacts shall be determined according to an average valuation by three independent appraisers, one of which shall be selected by the Trust, one by the permittee, and one mutually agreed upon by the Trust and the permittee. The permittee's costs of artifact recovery and conservation may not be considered in determining the valuation of recovered artifacts.

(7) The Trust may grant rights of custodianship to all or a portion of artifacts to which the Trust has retained the State's title in the same manner, and in accordance with the same procedures and requirements, described in Regulation .09E(3)-(8) of this chapter.

(8) The terms of a disposition agreement shall include a provision that, except as provided in §C(9) of this regulation, following the actual disposition of the artifacts, the permittee owns the artifacts free and clear of any interest of the Trust or the State.

(9) The terms of a disposition agreement may include:

(a) An option or right of first refusal by the Trust to acquire from the permittee after disposition of title one or more artifacts about which the Trust has made a written determination approved by the Secretary to be of exceptional scientific, archeological, anthropological, historical, recreational, or other public value to warrant reacquisition by the Trust in certain circumstances; and

(b) The terms of additional compensation to be received by the permittee if, after recovery of the artifacts, the Trust elects to retain title to more artifacts than originally provided for in the disposition agreement.

D. Inspection After Recovery. A representative of the Trust and the permittee shall inspect all artifacts recovered under the permit within a reasonable period of time following recovery, but not later than 60 days after the expiration of the permit.

E. Actual Disposition. The Trust and the permittee shall carry out the terms of disposition of artifacts as agreed upon in the permit which shall allow for a reasonable period of time for photography, study, research, and conservation of the artifacts before final disposition.

F. Reimbursement for Expenses Not Allowed. The permittee is not entitled to claim reimbursement of any expenses associated with the recovery of submerged archeological historic property, including, without limitation, expenses of data recovery, transportation, storage, insurance, or conservation of artifacts.