[Federal Register Volume 59, Number 118 (Tuesday, June 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14677]
[[Page Unknown]]
[Federal Register: June 21, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 649
[Docket No. 940366-4165; I.D. 021494E]
RIN 0648-AF39
American Lobster Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement measures in Amendment
5 to the Fishery Management Plan for the American Lobster Fishery
(FMP). Amendment 5 is intended to eliminate overfishing of American
lobsters in the exclusive economic zone (EEZ), with anticipated
complementary management action in state waters. A final rule published
on May 20, 1994 (59 FR 26454), implemented one of the measures approved
under Amendment 5--maintenance of the current 3\1/4\-inch (8.26-cm)
minimum carapace length. This rule implements the remaining measures
approved under Amendment 5: Limits on the issuance of new Federal
vessel permits for a 5-year period, change in escape vent width, dealer
permits, operator permits, a framework process to develop a stock
rebuilding program, and a revised definition of overfishing.
EFFECTIVE DATE: July 20, 1994.
ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR),
initial regulatory flexibility analysis (IRFA), and the final
supplemental environmental impact statement (FSEIS) are available from
Douglas Marshall, Executive Director, New England Fishery Management
Council, 5 Broadway, Saugus, MA 01906-1097. Copies of the Finance
Handbook may be obtained from Mr. Joseph Giza, Chief, Fiscal Policy and
Quality Assurance Branch, NOAA Financial Management Division, Caller
Service No. 8025, 20020 Century Boulevard, Germantown, Maryland 20874,
telephone: 301-443-8795.
Comments regarding the burden-hour estimates, or any other aspect
of the collection-of-information requirements contained in this final
rule, should be sent to the Regional Director, Northeast Region, NMFS,
One Blackburn Drive, Gloucester, MA 01930, and the Office of Management
and Budget (OMB) (Attention NOAA Desk Officer), Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Paul H. Jones, NMFS, Fishery Policy
Analyst, 508-281-9273.
SUPPLEMENTARY INFORMATION:
Background
Amendment 5, with some exceptions, was approved by NMFS on May 11,
1994. Background to the amendment was discussed in the proposed rule
(59 FR 11029, March 9, 1994), and is not repeated here.
Approved Management Measures
NMFS is implementing the approved measures of Amendment 5 through
two separate final rules. The first was published on May 20, 1994 (59
FR 26454). That final rule maintained the minimum carapace length for
lobsters at 3\1/4\ inches (8.26 cm), thereby rescinding the scheduled
increases in the minimum size. This rule implements the remaining
approved provisions of Amendment 5: (1) A 5-year moratorium on the
issuance of new Federal vessel permits, (2) dealer and vessel operator
permit requirements, (3) a decrease in the minimum width of the lobster
trap escape vent from 6 inches (152.4 mm) to 5-3/4 inches (146.1 mm),
and (4) a framework process that requires the development of a stock
rebuilding program in four management areas in the EEZ (Gulf of Maine
Near-shore, Southern New England Near-shore, Middle Atlantic Near-
shore, and Offshore) by the end of the first year of implementation of
Amendment 5. The framework process calls for the establishment of
Effort Management Teams (EMTs) for each management area to develop
area-specific management measures.
Amendment 5 also revises the overfishing definition for American
lobster to read:
The resource is recruitment overfished when, throughout its
range, the fishing mortality rate (F), given the regulations in
place at that time under the suite of regional management measures,
results in a reduction in estimated egg production per recruit to 10
percent or less of a non-fished population (F10%)
With respect to the definition, the Amendment also specifies that
the development of the status of the stock report and the evaluation of
fishery-induced effects will consider information based upon one or
more indices, including but not limited to: (1) Larval abundance index
in surface waters, (2) larval settlement index, (3) pre-recruit indices
by year class, (4) landings, (5) size composition of the landings, (6)
spawning stock biomass, (7) numbers of egg-bearing females, (8) effort
levels and catch per unit of effort, and (9) possible relationships of
biological parameters to water temperatures or other environmental
parameters. Although much of this information is currently unavailable,
it is NMFS' intent to incorporate this information, as appropriate,
into the determination of whether the fishery is being overfished when
such information can be developed into valid, quantifiable indices of
overfishing.
Based on the definition, the lobster resource is overfished. To
achieve reductions in fishing mortality, Amendment 5 includes a
framework process requiring the New England Fishery Management Council
(Council) to develop a stock rebuilding program during the first year
of implementation. The management measures may include any of the
framework measures specified under Sec. 649.44(d). These measures may
be applied to all segments of the harvesting sector within each
management area.
To determine which of these measures will be implemented in each of
the management areas, Amendment 5 establishes an EMT for each
management area. Each EMT is charged with recommending to the Council a
stock rebuilding program for its area no later than January 20, 1995.
Based on the EMT recommendations, the Council is required to submit
framework management measures to the Director, Northeast Region NMFS
(Regional Director). This development timeframe is designed to provide
industry members within each area with the opportunity to reach a
consensus by July 20, 1995 as to which options listed in Sec. 649.44(d)
should apply in their respective management area. NMFS has informed the
Council, in a letter from the Regional Director dated May 11, 1994,
that if the EMTs are unable to make their deadline, then NMFS will
begin the process of withdrawing the FMP.
The Council recommended to NMFS that the initial specification of a
seaward boundary line of the Southern New England Near-shore area,
which is contiguous with part of the Offshore area, be as set forth in
Sec. 649.42 (see Figure 3 of part 649). The Council will determine the
final location of a boundary line after the EMTs for these areas
jointly consider the issue and make a recommendation to the Council.
Long Island Sound, under the jurisdiction of the coastal states and not
part of the EEZ, is not specifically part of the Southern New England
Near-shore area.
Amendment 5 includes new permitting requirements for vessel
operators and dealers, and limits the requirements for limited access
vessel permits for a period of 5 years. During the third year of the
new permit requirements, the Council will conduct a formal review to
determine whether the limitation on permits is necessary to the stock
rebuilding program. The Council may choose to extend the limitation on
new permits for a specified period or terminate it if it determines
that such action is consistent with the stock rebuilding program.
Amendment 5 specifies the lobster fishery control date as March 25,
1991, rather than January 9, 1991, as published in the Federal Register
on March 25, 1991 (56 FR 12366). Shortly after publication of the
control date of January 9, 1991, the Council agreed to adjust that date
to the date of publication of the control date notice--March 25, 1991.
The EMTs will consider the following control date guidelines during
development of the stock rebuilding program: (1) In the event that a
system of assigning fishing rights is developed as part of the FMP,
such assignments shall be based on historical levels of participation
in the fishery prior to March 25, 1991, with consideration for recent
investments that have not yet been reflected in measures of
participation; (2) new or re-rigged vessels will be given consideration
in the assignment of fishing rights if (a) the vessel was under
construction or re-rigging for directed lobster fishing as of March 25,
1991, as evidenced by written construction contracts, work orders,
equipment purchases, or other evidence of substantial investment and
intent to participate in the lobster fishery; and (b) the vessel
possessed an American lobster permit and landed lobster prior to March
25, 1992; (3) historical participation will transfer with a vessel for
a transfer made after March 25, 1991, unless such transfer is
accompanied by a written document indicating the agreement of both the
buyer and the seller that any future fishing rights applicable to that
vessel are not being transferred with the vessel; and (4) any system of
assigning fishing rights will take into consideration the following
concerns relative to individuals or corporations that have sold a
vessel within the time that may be chosen to determine historical
fishing rights: (a) The degree of economic dependence upon the lobster
fishery, including, but not limited to the percentage of income derived
from the lobster fishery; (b) the extent of past participation in the
lobster fishery; and (c) the demonstration of intent prior to March 25,
1991, to re-enter the lobster fishery with another vessel.
Delayed and Disapproved Measures and the Reasons for Disapproval
The limited access permit requirements and the vessel operator
permit requirements will be implemented in 1995, so that they can be
included as part of the 1995 permitting process. The annual permit
renewal begins in August-September of each year, and limited access
lobster vessel permits and vessel operator permits will be required on
January 1, 1995. This implementation schedule will ensure that NMFS can
administer the requirement with the minimum burden upon applicants.
Three measures proposed in Amendment 5 were disapproved. Two
measures were disapproved because they were inconsistent with national
standard 4 of the Magnuson Fishery Conservation and Management Act
(Magnuson Act), which requires that any allocation of fishing
privileges be fair and equitable. These measures would have established
three vessel permit categories and would have set a quota for vessels
issued a permit and using gear other than lobster pots. The proposed
permit categories and quota would have unfairly impacted, without
adequate justification, one segment of the fishery while allowing
unrestrained increases in other sectors of the fishery.
Also disapproved were the Council's proposed mandatory reporting
requirements for dealers and vessels. The Council has not demonstrated
that the benefits of the mandatory reporting requirements justify the
costs, as required by E.O. 12866, particularly in light of the fact
that the majority of lobsters are harvested from state waters. NMFS
will pursue a cooperative approach with the states to share the costs
of such a data collection.
Comments and Responses
NMFS received comments on the proposed rule from one U.S. Senator,
the U.S. Coast Guard, the Council, four Maine state representatives,
five fishing industry associations, and nine individuals. All of the
comments were carefully considered during the formulation of this final
rule. Specific comments are discussed and responded to below.
The Council submitted comments requesting several clarifications
and changes to the regulatory text. Most of these changes are noted in
the Changes from the Proposed Rule section of this preamble. In
addition to these changes, the Council requested that a provision
restricting party, charter, and dive boats to six or fewer lobsters per
person on board be expanded to include any fishing vessel. NMFS is not
implementing this provision because it was not included as part of
Amendment 5 and, as such, has not received adequate public notice and
comment. The Council also requested that vessel owners not be in
violation of the prohibition against selling or transferring fish to
unpermitted dealers unless the sale or transfer were done knowingly.
NMFS has not adopted this change because it would make enforcement of
this prohibition almost impossible and because it would be inconsistent
with similar prohibitions in other fishery management plans. In any
event, NMFS will exercise discretion in enforcing this prohibition in
cases where vessel owners could not reasonably be expected to know
whether a dealer was validly permitted.
Comment: A U.S. Senator, the Coast Guard, four industry
associations, and six individuals stated that the amendment should be
approved.
Response: The comments have been noted and the amendment was
partially approved, as explained above.
Comment: One individual objected to the specific eligibility
criteria for a limited access vessel permit that require a vessel or
vessel owner to have been issued a Federal American lobster permit, or
a federally endorsed state American lobster permit, and to have landed
American lobsters prior to March 25, 1991.
Response: This provision complies with the Magnuson Act
requirements for establishing a system for limited access to a fishery.
If a system for limiting access to a fishery is included in a fishery
management plan, the Magnuson Act requires the Council and NMFS to take
into account such factors as present participation in the fishery,
historical fishing practices and dependence on the fishery, and
capability of vessels to be used in other fisheries. The Council and
NMFS considered all of these factors in establishing criteria required
to qualify for full participation in the American lobster fishery. A
control date was announced on March 25, 1991 (56 FR 12366), which gave
notice to participants and potential participants that future
participation in the fishery may be limited for vessels that entered
the fishery after the control date. The purpose of the control date was
to discourage increases in fishing effort and speculative entry into
the fishery while development of Amendment 5 progressed.
Amendment 5 also establishes an exemption to the limited access
fishery for party, charter and dive boats in possession of six or fewer
lobsters per person, or for recreational vessels and vessels that fish
exclusively in state waters for lobsters. Therefore, Amendment 5
provides the opportunity for recreational operators and other types of
operators who fish exclusively in state waters to participate in the
fishery while discouraging further increases in fishing mortality by
limiting the number of participants in the fishery.
Comment: Two individuals requested that the boundary line between
Management Areas 2 and 3 be omitted. Another requested that Management
Area 4 be split into two zones.
Response: The Council decided, and NMFS agrees, that a boundary
line between the Southern New England Near-shore area and the Offshore
area is needed to define the areas in the final rule so that
appropriate area specific management measures can be developed. The
Council has stated that future boundary lines for the areas will be
considered jointly by the EMTs for these areas and that the EMTs will
make recommendation on changes to the Council.
Comment: Two individuals requested that the boundary line for the
Management Areas be specified by Loran C coordinates, rather than by
latitude and longitude.
Response: All boundary lines listed in Federal fishery regulations
are specified by latitude and longitude, because such coordinates are
more precise and accurate for enforcement purposes.
Comment: Three individuals stated that the amendment should be
disapproved because it violates national standards. One industry
association stated specifically that Amendment 5 violates: (1) National
standard 1, because it does nothing to prevent overfishing; (2)
national standard 2, because it does not use the best scientific
information available; (3) national standard 3, because the Amendment
establishes management zones that do not manage the lobster stock
throughout the range of the stock; (4) national standard 4, because the
Amendment discriminates against the mobile gear sector; (5) national
standard 5, because there are severe restrictions placed on the mobile
gear sector and absolutely none on the trap sector; (6) national
standard 6, because the Amendment ignores the fact that mobile gear is
a variation within the lobster fishery; (7) national standard 7,
because, by establishing EMTs, the Amendment does not minimize costs.
Response: With the exception of the disapproved portions of
Amendment 5 noted above, NMFS has determined that the measures included
in Amendment 5 are consistent with all of the national standards.
Specific responses to the comments follows.
Amendment 5 is consistent with national standard 1 because it
mandates a timetable to implement measures to address overfishing based
on a specific definition of overfishing, and creates a framework system
to change management measures proposed by the Council. The process is
designed to develop an industry consensus, through the EMTs and the
Council, concerning the most effective management measures to achieve
the objectives of the FMP to reduce fishing mortality in each of the
four management areas. Thus, Amendment 5, as implemented, specifies the
process, the timetable, and the specific biological objectives that
will achieve the objectives of the FMP in addressing overfishing. If
the Council fails to submit management measures sufficient to meet the
FMP objectives, the regulations require the Secretary to determine
whether preparation of an amendment to the FMP is necessary. In
addition, NMFS stated in a letter notifying the Council of partial
disapproval Amendment 5 that it will begin the process to withdraw the
American lobster FMP if the EMTs have not submitted recommendations to
the Council concerning management measures within 6 months after the
effective date of the regulations implementing Amendment 5.
Amendment 5 is consistent with national standard 2 because the
Council determined, and NMFS agrees, that the NMFS weighout database is
the best scientific information available in determining the
conservation and management measures. Further, any new available data
will be considered in reviewing specific management measures submitted
to NMFS under the first-year framework process.
National standard 3 states that ``to the extent practicable,'' an
individual stock of fish shall be managed as a unit throughout the
range. The overall objective of the FMP is to support and promote the
development and implementation, on a continuing basis, of a unified,
regional management program for lobster. The American lobster FMP and
Amendment 5, as implemented by this rule, establishes a system to
manage the lobster stock as a unit throughout the range. The provision
for management areas recognizes that individual measures to achieve the
overall FMP objectives may need to vary because of regional and state
differences in how the lobster fishery is conducted. This is consistent
with national standard 3, which provides that FMPs need not be
identical for each geographic area within the management unit, if the
FMP justifies the differences. Since more than 80 percent of the
lobster fishery occurs in state waters, this approach is needed to
insure consistent, comparable management measures among the various
states engaged in the fishery.
The measures that create different categories based on gear were
disapproved because national standard 4 requires that any allocation of
fishing privileges be fair and equitable. The permit categories and
quota, although intended only to cap effort and prevent re-direction of
effort from other fisheries, impact, without adequate justification,
only one segment of the fishery and continue to allow unrestrained
increases in other sectors (with the exception of the permit moratorium
which affects all sectors equally).
Pertaining to national standard 5, the measures that place
restrictions on the mobile gear sector have been disapproved for the
reasons stated above.
Pertaining to national standard 6, for the reasons stated above,
gear categories were disapproved.
National standard 7 states that, ``where practicable,'' management
measures shall minimize costs. This amendment creates EMTs for each of
the four management areas to address concerns of geographic differences
in the lobster fishery as permitted under national standard 3, as
discussed above. Since more than 80 percent of the lobster fishery
occurs in state waters, NMFS has determined that this approach is a
practicable, cost-efficient way to insure consistent, comparable
management measures among the various states bordering the four
management areas established by Amendment 5. In particular, this
approach is necessary to be consistent with the agency's guidelines on
national standard 7, which state that a factor in deciding whether a
fishery needs management through regulations implementing an FMP is the
need to resolve competing interests and conflicts among user groups and
whether a measure can further that resolution.
Comment: One individual opposed the requirement for mandatory
vessel logbooks.
Response: This requirement was disapproved.
Comment: Two individuals requested that representation on the EMTs
include draggers and divers.
Response: Members of each EMT will be appointed by the Council, in
consultation with appropriate states and NMFS. This final rule does not
restrict or require participation on the EMTs by any specific group or
groups.
Comment: One individual requested that the definition of
recreational fishing vessel be changed to include dive vessels.
Response: The definition for recreational fishing vessels includes
dive vessels, provided that lobster harvested by dive vessels are not
intended to be, nor are they, bartered, traded, or sold.
Comment: A U.S. Senator and two industry associations expressed
concern with the 100 lobster possession restrictions and the target
quota for non-lobster pot vessels.
Response: These provisions have been disapproved.
Comment: One industry association asked if the wording of the
overfishing definition as defined in Amendment 5 will mandate a change
in the way future overfishing will be determined.
Response: The overfishing definition in the Amendment will be the
objective measurement of the status of the lobster stock and complies
with the 50 CFR part 602 guidelines.
Comment: Four Maine state legislators expressed concern over
conflicting state and Federal American lobster regulations.
Response: The overall objective of the FMP is to support and
promote the development and implementation, on a continuing basis, of a
unified, regional management program for lobster. The final rule
published on May 20, 1994 (59 FR 26454) is consistent with this
objective by maintaining the minimum size at 3\1/4\ inches (8.26 cm).
Comment: Four Maine state representatives expressed concern that
the Maine Legislature's Joint Standing Committee on Maine Resources was
not contacted to discuss any perceived or actual concerns about the
lobster resource.
Response: The Coastal Zone Management Act requires that the coastal
zone agency of each state affected by Amendment 5 be contacted and
asked whether they agree that the amendment is consistent, to the
maximum extent practicable, with their federally approved coastal zone
management program. On February 7, 1994, the Council sent a letter to
the Coastal Program Manager for the State of Maine, and on February 11,
1994, the Council received a reply from the State of Maine that
determined the amendment was consistent with the enforceable policies
of the Maine Coastal Program. In addition, the Commissioner of the
Maine Department of Marine Resources serves on the Council.
Comment: One industry association expressed concern that the
wording under Sec. 649.9(d)(1) does not exempt recreational vessels.
Response: NMFS has modified Sec. 649.4(a) and Sec. 649.9(d)(1) to
clarify that recreational vessels are exempt from the permit
requirements.
Comment: One industry association pointed out that recreational
fishing vessels, as defined in the proposed rule, were not limited to
six or fewer American lobsters per person aboard the vessel at any
time.
Response: It was not the intent of Amendment 5 to restrict the
recreational fishery for American lobsters. However, by definition,
recreational vessels are prohibited from bartering, trading, or selling
lobster.
Comment: One individual objected to the requirement for an operator
permit and stated that it should be the responsibility of the vessel
owner to make sure that the vessel operator is fully aware of, and
follows, all regulations.
Response: The intent of this measure is to improve regulatory
compliance by those who are most directly able to control the actions
of the vessel and crew. The number of operators having their permit
suspended or revoked is expected to be relatively small. Penalties
would be assessed against a vessel operator only if the vessel operator
is determined to have been involved in a major violation or is a
significant repeat offender of Federal fishing regulations. The
language gives notice to the vessel operator that his/her right and
privilege to operate and serve on a federally permitted fishing vessel
is subject to the condition that right may be suspended or revoked in
certain circumstances. Without the possibility of suspending or
revoking an operator's right to serve in any capacity on a federally
permitted vessel, the purpose of requiring operator's permits would be
meaningless. The language also puts the operator on notice that he/she
will be responsible for his/her actions and will not be able to move to
another vessel should a suspension occur. It is consistent with a
vessel permit suspension, which takes the vessel out of the fishery
during the time of suspension.
Changes from the Proposed Rule
Changes were made to several sections of the proposed rule to
clarify the measures and to ensure consistency with other fishery
regulations. In addition, substantive changes are made to the following
sections:
In Sec. 649.1, the narrative within the first paragraph is modified
to add the phrase ``This part implements the Fishery Management Plan
for the American Lobster Fishery (FMP), as amended by the New England
Fishery Management Council in consultation with the Mid-Atlantic
Fishery Management Council and the Atlantic States Marine Fisheries
Commission (ASMFC), and approved by the Assistant Administrator for
Fisheries'' to clarify further the purpose and scope of the FMP.
In Sec. 649.2, the definition of an ``Effort Monitoring Team'' is
modified to add the phrase ``a group of American lobster industry
representatives (appointed by the Council)'' to clarify who the
appointing authority is for the EMT.
In Sec. 649.2, the definition of a ``ghost panel'' is modified to
add the phrase ``after a period of time if the'' to clarify the meaning
of a ghost panel.
In Sec. 649.2, the definition of ``Lobster Plan Development Team''
is not used in these regulations and is deleted from this final rule.
In Sec. 649.2, the definition of a ``lobster pot trawl'' is added.
In Sec. 649.2, the definitions of ``reporting month and reporting
week'' are deleted from this final rule. The vessel and dealer
reporting requirement measures were disapproved by NMFS; therefore,
these definitions are no longer necessary.
In Sec. 649.2, the definition of ``sixth tail segment'' is not used
in these regulations and is deleted from this final rule.
In Sec. 649.2, the definition of a ``whole American lobster'' is
modified to add the phrase ``A cull whole American lobster is an
American lobster with one or both claws missing,'' to clarify the
meaning of a whole American lobster.
In Sec. 649.4 paragraphs (a)(1), (2), and (3) are added to clarify
NMFS' intent to allow 1994 permits to remain effective until December
31, 1994, and the remaining paragraphs of the section are redesignated
accordingly.
In Sec. 649.4(b), the narrative in the introductory text is
modified to add the phrase ``From January 1, 1995, through December 31,
1999,'' to clarify NMFS' intent to start issuing limited access
American lobster permits in 1995 and that this permit requirement will
expire at the end of 1999. In the same paragraph, the phrase ``not
intended for or resulting in trade, barter or sale'' is added to
clarify which vessels do not require a limited access American lobster
permit.
In Sec. 649.4(b)(1)(B), the phrase ``or federally endorsed state
American lobster permit,'' is added to clarify that a vessel issued a
federally endorsed state American lobster permit can also qualify for a
limited access permit.
In Sec. 649.4(b)(2), the phrase ``for the years after 1996 - 1999''
is added to clarify the intent of Amendment 5 to limit the issuance of
limited access vessel permits for a period of 5 years.
In Sec. 649.4, paragraph (b)(2)(ii) is added to clarify the intent
of Amendment 5 to limit the issuance of limited access vessel permits
for a period of 5 years.
In Sec. 649.4(e), the word ``overall'' is added to clarify what
vessel length information is needed.
In Sec. 649.4(h), the phrase ``A Federal American lobster permit
will expire upon the renewal date specified in the permit'' is added to
correct a statement in the proposed rule.
In Sec. 649.5(a), the phrase ``Beginning on January 1, 1995,'' is
added to clarify NMFS' intent to require operator permits beginning in
1995, the phrase ``not intended for or resulting in trade, barter or
sale'' is added to clarify further who does not require a vessel
operator permit, and text is added to clarify further the requirement
for an operator permit.
In Sec. 649.5, paragraph (g) was revised to correct an error in the
proposed rule.
In Sec. 649.6(b), the sentence, ``For 1994, a copy of an
applicant's completed application will serve as a temporary permit
until the applicant has received a permanent permit.'' is added. Since
dealers are required to have Federal permits upon the effective date of
this final rule, there is not sufficient time for applicants to comply
with the requirement to have their permit application submitted 30 days
prior to the date they desire the permit to be effective. This will
alleviate that problem.
In Sec. 649.6(e), the phrase ``and the applicant has submitted all
applicable reports specified in Sec. 649.7(a)'' is deleted. The vessel
and dealer reporting requirement measures were disapproved by NMFS;
therefore, this phrase is no longer necessary.
In Sec. 649.6, paragraph (f) is revised to correct a statement in
the proposed rule.
In Sec. 649.8(a)(6), the phrase ``unless such gear has been
rendered unfishable'' is added to allow for the retrieval of lost gear
or the unintentional catching of lost lobster pots by trawl vessels and
subsequent repairing or destroying of the gear on shore.
In Sec. 649.8(b), the phrase ``or unless the vessel is a
recreational vessels or vessel fishing for American lobsters
exclusively in state waters'' is added to clarify exemptions to this
prohibition.
In Sec. 649.8(c)(5), the phrase ``Beginning on January 1, 1995,''
is added to clarify that the operator permit requirement is not
effective until 1995.
In Sec. 649.8, paragraph (c)(10) is added to codify the statutory
requirements under section 307(1)(J) of the Magnuson Act.
In Sec. 649.8(c)(1)(iii) is modified to add the phrase ``per person
on board the vessel and the'' was added to clarify further the intent
of the prohibition.
In Sec. 649.20, the section heading is revised to clarify the
meaning of the section, and paragraphs (b)(3), (d)(3), and (e)(3) were
added to codify the statutory requirements under section 307(1)(J) of
the Magnuson Act.
In Sec. 649.23, the prohibition on transferring fish from one
vessel to another while at sea is deleted because the landing and quota
requirements proposed by the Council have been disapproved and this
measure is no longer necessary.
In Sec. 649.42, point I is added to the table in paragraph (b)(2)
because it was inadvertently omitted in the proposed rule, and the
heading of paragraph (b)(4) is modified to add the word ``EEZ'' to
clarify that the near-shore waters referred to in the table are in
Federal waters.
In Sec. 649.43, paragraph (b)(11) is redesignated paragraph
(b)(12), a new paragraph (b)(11) is added to clarify the Council's
intent that the control date guidelines be retained for consideration
by the EMTs, and paragraph (b)(12) is revised to clarify the Council's
intent on recommending adjustments or additions to management measures.
In Sec. 649.43, paragraph (e) is redesignated paragraph (f), and a
new paragraph (e) is added to clarify that the Council is not precluded
from taking necessary management actions in year 1 by the other
requirements of Sec. 649.43.
In Sec. 649.44(c), the references to Plan Development Teams (PDTs)
are deleted to clarify that frameworks, as described in Amendment 5 are
tied to EMTs, specifically. PDTs may, at the discretion of the Council,
develop independent findings and recommendations. Also, the phrase
``shall provide the appropriate rationale and economic and biological
analysis for its recommendation, utilizing the most current catch,
effort, and other relevant data from the fishery'' is removed from
paragraph (c) of this section, and placed in Sec. 649.44(d) to clarify
further the Council's intent on who should prepare the required
analysis.
In Sec. 649.44, paragraph (d)(11) is redesignated to (d)(12), and a
new paragraph (b)(11) is added to clarify the Council's intent that the
control date guidelines be retained. Redesignated paragraph (d)(12) is
revised to clarify the Council's intent on recommending adjustments or
additions to management measures.
Since all recordkeeping and reporting requirements contained in
Sec. 649.7 were disapproved, sections 649.8 (Vessel identification),
649.9 (prohibitions), 649.10 (Facilitation and enforcement), and 649.11
(penalties) in the proposed rule are redesignated as Secs. 649.7,
649.8, 649.9, and 649.10, respectively, in this final rule.
Since the contents of Sec. 649.22 (possession restrictions and
target quota), 649.23 (transfer at sea), and 649.24 (restrictions on
trawl gear while in the trap fishery) in the proposed rule were
disapproved, Sec. 649.25 (experimental fishing exemption) of the
proposed rule is redesignated as Sec. 649.22 in this final rule.
Republication of Part of 50 CFR Part 649
A revised version of Sec. 649.20(b)(1) and (2) was published in the
first final rule (59 FR 26454, May 20, 1994) for Amendment 5, effective
May 17, 1994. Those paragraphs are republished here for the convenience
of the reader so as to have the entire 50 CFR part 649 published
together.
Classification
The General Counsel of the Department of Commerce certified to the
Small Business Administration when this rule was proposed that if
adopted, it would not have a significant impact on a substantial number
of small entities. Therefore, an initial regulatory flexibility
analysis was not prepared.
This rule contains two new collection-of-information requirements
and two revisions to existing requirements previously approved by OMB.
These collection-of-information requirements have been approved by OMB.
Nevertheless, public comments are invited on the burden-hour estimates
for the collection of information requirements as listed below.
The new reporting requirements are:
1. Dealer permits, OMB Control No. 0648-0202, (5 min./response);
2. Operator permits, OMB Control No. 0648-0202, (1 hour/response).
Revisions to the existing requirements are:
1. Vessel permits, OMB Control No. 0648-0202, (1 hour/response);
2. Vessel permits, appeal of denied vessel permit, OMB Control No.
0648-0202, (3 hours/response);
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 649
Fisheries.
Dated: June 14, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 649 is revised
to read as follows:
PART 649--AMERICAN LOBSTER FISHERY
Subpart A--General Provisions
Sec.
649.1 Purpose and scope.
649.2 Definitions.
649.3 Relation to other laws.
649.4 Vessel permits.
649.5 Operator permits.
649.6 Dealer permits.
649.7 Vessel identification.
649.8 Prohibitions.
649.9 Facilitation of enforcement.
649.10 Penalties.
Subpart B--Management Measures
649.20 Harvesting and landing requirements.
649.21 Gear identification and marking, escape vent, and ghost
panel requirements.
649.22 Experimental fishing exemption.
Subpart C--Stock Rebuilding Program and Framework Adjustments to
Management Measures
649.41 Purpose and scope.
649.42 Stock rebuilding program requirements and time frame.
649.43 First-year framework specifications.
649.44 Framework specifications after the first year of
implementation.
Figures--Part 649
Figure 1--Standard Tetrahedral Corner Radar Reflector
Figure 2--American Lobster Management Areas Established for the
Purposes of Regional Lobster Management
Figure 3--Seaward Boundary Lines of the Southern New England
Nearshore Areas (Area 2) and the Offshore Area (Area 3)
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
Sec. 649.1 Purpose and scope.
This part implements the Fishery Management Plan for the American
Lobster Fishery (FMP), as amended by the New England Fishery Management
Council in consultation with the Mid-Atlantic Fishery Management
Council and the Atlantic States Marine Fisheries Commission (ASMFC),
and approved by the Assistant Administrator for Fisheries, NOAA. Red
crab fishing gear, which is fished deeper than 200 fathoms (365.8 m),
is gear not capable of taking lobsters, and is not subject to the
provisions of this part.
Sec. 649.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 620.2 of this chapter, the terms used in this part have the
following meanings:
American lobster or lobster means the species Homarus americanus.
Berried female means a female American lobster bearing eggs
attached to the abdominal appendages.
Carapace length is the straight line measurement from the rear of
the eye socket parallel to the center line of the carapace to the
posterior edge of the carapace. The carapace is the unsegmented body
shell of the American lobster.
Council means the New England Fishery Management Council.
Dealer means any person who receives American lobsters for a
commercial purpose from the owner or operator of a vessel issued a
valid Federal vessel permit under this part, other than exclusively for
transport on land.
Dive vessel means any vessel carrying divers for a per capita fee
or a charter fee.
Effort Monitoring Team (EMT) means a group of technical experts
made up of representatives from the Council, NMFS, the appropriate
states, and a group of American lobster industry representatives
(appointed by the Council), per management area, to each EMT.
Escape vent means an opening in a lobster trap designed to allow
lobster smaller than the legal minimum size to escape from the trap.
Fishery Management Plan (FMP) means the Fishery Management Plan for
American Lobsters, as amended.
Ghost panel means a panel, or other mechanism, designed to allow
for the escapement of lobster after a period of time if the trap has
been abandoned or lost.
Gross registered tonnage means the gross registered tonnage
specified on the U.S. Coast Guard documentation for a vessel.
Land means to enter port with fish on board, to begin offloading
fish, or to offload fish.
Lobster pot trawl means a number of lobster traps, all attached to
a single groundline.
Net tonnage means the net tonnage specified on the U.S. Coast Guard
documentation for a vessel.
Offload means to begin to remove, to remove, to pass over the rail,
or otherwise take away fish from any vessel.
Operator means the master or captain of the vessel, or other
individual on board the vessel, who is in charge of that vessel's
operations.
Party/charter boat means any vessel carrying fishing persons or
parties for a per capita fee or for a charter fee.
Postmark means independently verifiable evidence of date of
mailing, such as U.S. Postal Service postmark, United Parcel Service
(U.P.S.) or other private carrier postmark, certified mail receipt,
overnight mail receipt, or receipt received upon hand delivery to an
authorized representative of NMFS.
Recreational fishing means fishing that is not intended to, nor
results in the barter, trade, or sale of fish.
Recreational fishing vessel means any vessel from which no fishing
other than recreational fishing is conducted. Charter and party boats
and dive boats are not considered recreational fishing vessels.
Regional Director means the Director, Northeast Region, NMFS, 1
Blackburn Drive, Gloucester, MA 01930-2298, or a designee.
Re-rig or re-rigged means physical alteration of the vessel or its
gear in order to transform the vessel into one capable of fishing
commercially for American lobsters.
Scrubbing is the forcible removal of eggs from a berried female
American lobster.
Under agreement for construction means that the keel has been laid
and that there is a written agreement to construct a fishing vessel.
V-notched American lobster means any female American lobster
bearing a V-shaped notch in the flipper next to and to the right of the
center flipper as viewed from the rear of the lobster (underside of the
lobster down and tail toward the viewer).
V-shaped notch means a straight-sided triangular cut, without setal
hairs, as least 1/4 inch (0.64 cm) in depth and tapering to a point.
Whole American lobster means a lobster with an intact and
measurable body (tail and carapace). A cull whole American lobster is
an American lobster with one or both claws missing.
Sec. 649.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 620.3 of this chapter.
(b) Nothing in these regulations shall supersede more restrictive
state management measures for American lobsters.
Sec. 649.4 Vessel permits.
(a) 1994 vessel permits. (1) Through December 31, 1994, any vessel
of the United States fishing for American lobster in the EEZ must have
been issued and carry on board a valid permit required by or issued
under this part. The Regional Director may, by agreement with State
agencies, recognize permits or licenses issued by those agencies
endorsed for fishing for lobster in the EEZ, providing that such
permitting programs accurately identify persons who fish in the EEZ,
and that the Regional Director can either individually, or in concert
with the state agency, act to suspend the permit or license for EEZ
fishing for any violation under this part.
(2) Alternate State EEZ permitting programs will be established
through a letter of agreement between the Regional Director and the
director of the State marine fisheries agency concerned. The letter of
agreement will specify the information to be collected by the alternate
EEZ permitting program and the mode and frequency of provision of that
information to the Regional Director. The Regional Director will, in
cooperation with the State director, arrange for notification of the
existence and terms of any such agreements to the affected persons.
Persons intending to fish in the EEZ should determine whether an
alternate EEZ permitting program is in force for their state before
applying for a Federal permit under paragraph (d) of this section.
(3) Vessel owners or operators who apply for a fishing vessel
permit under this section, or for a State permit endorsed for EEZ
fishing under paragraph (a)(2) of this section, must agree, as a
condition of the permit, that all the vessel's lobster fishing, catch,
and gear (without regard to whether such fishing occurs in the EEZ or
landward of the EEZ, and without regard to where such lobster, lobster
meats, or parts, or gear are possessed, taken or landed) will be
subject to all the requirements of this part. All such fishing, catch,
and gear will remain subject to any applicable state or local
requirements. If a requirement of this part and a conservation measure
required by state or local law differ, any vessel owner or operator
permitted to fish in the EEZ must comply with the more restrictive
requirement.
(b) Limited access American lobster permits. From January 1, 1995,
through December 31, 1999, any vessel of the United States that fishes
for, possesses, or lands American lobster, in or harvested from the
EEZ, must have been issued and carry on board a valid Federal limited
access American lobster permit. This requirement does not apply to
party, charter and dive boats that possess six or fewer American
lobsters, not intended for or resulting in trade, barter or sale, per
person aboard the vessel at any time, or to recreational vessels, and
vessels that fish exclusively in state waters for American lobsters.
(1) Eligibility in 1995. (i) To be eligible to obtain a limited
access American lobster permit for 1995, a vessel must meet one of the
following criteria:
(A) The vessel or vessel owner had been issued a Federal American
lobster permit, or a federally endorsed state American lobster permit,
and landed American lobsters prior to March 25, 1991; or
(B) The vessel was under written agreement for construction or for
re-rigging for directed American lobster fishing as of March 25, 1991,
and the vessel was issued a Federal American lobster permit, or
federally endorsed state American lobster permit, and landed American
lobster prior to March 25, 1992; or
(C) The vessel is replacing a vessel that meets any of the criteria
set forth in paragraphs (b)(1)(i)(A) or (B) of this section.
(ii) No more than one vessel may qualify, at any one time, for a
limited access American lobster permit based on that or another
vessel's fishing and permit history. If more than one vessel owner
claims eligibility for a limited access American lobster permit, based
on one vessel's fishing and permit history, the Regional Director shall
determine who is entitled to qualify for the limited access American
lobster permit.
(iii) A limited access American lobster permit for 1995 will not be
issued unless an application for such permit is received by the
Regional Director on or before December 31, 1995.
(2) Eligibility in 1996 and thereafter. (i) To be eligible to renew
or apply for a limited access American lobster permit for the years
1996-1999, a vessel must have been issued a limited access American
lobster permit for the preceding year, or the vessel must be replacing
a vessel that had been issued a limited access American lobster permit
for the preceding year. If more than one vessel owner claims
eligibility to apply for a limited access American lobster permit based
on one vessel's fishing and permit history, the Regional Director shall
determine who is entitled to qualify for the limited access American
lobster permit.
(ii) Beginning January 1, 2000, any vessel of the United States
that fishes for, possesses, or lands American lobster, in or harvested
from the EEZ, must have been issued and carry on board a valid Federal
American lobster permit. This requirement does not apply to party,
charter and dive boats that possess six or fewer American lobsters, not
intended for or resulting in trade, barter, or sale, per person aboard
the vessel at any time, or to recreational vessels and vessels that
fish exclusively in state waters for American lobsters. The eligibility
requirements for limited access permits for the years 1996 - 1999 are
not applicable for obtaining an American lobster permit for the year
2000 and thereafter.
(3) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it is bought, sold, or
otherwise transferred, unless there is a written agreement, signed by
the transferor/seller and transferee/buyer, or other credible written
evidence, verifying that the transferor/seller is retaining the vessel
fishing and permit history for purposes of replacing the vessel.
(4) Notification of eligibility for a limited access permit. (i)
NMFS will attempt to notify all owners of vessels for which NMFS has
credible evidence that they meet the criteria in paragraph (b)(1) of
this section.
(ii) If a vessel owner has not been notified that the vessel is
eligible to be issued a limited access American lobster permit, and the
vessel owner believes that there is credible evidence that the vessel
does qualify under the pertinent criteria, the vessel owner may apply
for a limited access American lobster permit by submitting the
information described in paragraphs (d) through (e) of this section. In
the event the application is denied, the applicant may appeal as
specified in paragraph (b)(5) of this section. If, through either of
these procedures, the Regional Director determines that the vessel
meets the eligibility criteria, a limited access American lobster
permit will be issued to the vessel.
(5) Appeal of denial of limited access American lobster permit or
of permit category assignment. (i) Any applicant denied a limited
access American lobster permit may appeal the denial to the Regional
Director within 30 days of the notice of denial. Any such appeal must
be based on one or more of the following grounds, must be in writing,
and must state the grounds for the appeal:
(A) The information used by the Regional Director was based on
mistaken or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make
the initial decision on the appeal.
(iii) The appellant may request a review of the initial decision by
the Regional Director by so requesting, in writing, within 30 days of
the notice of initial decision. If the appellant does not request a
review of the initial decision within 30 days, the initial decision
shall become the final administrative action of the Department of
Commerce.
(iv) Recommendations to the Regional Director by a hearing officer.
A hearing officer shall be appointed by the Regional Director to review
the initial decision. The hearing officer shall make findings and a
recommendation to the Regional Director, which shall be advisory only.
(v) Upon receiving the findings and a recommendation, the Regional
Director will issue a final decision on the appeal. The Regional
Director's decision is the final administrative action of the
Department of Commerce.
(c) Condition. Vessel owners who apply for a permit under this
section must agree, as a condition of the permit, that the vessel and
vessel's fishing, catch, and pertinent gear (without regard to whether
such fishing occurs in the EEZ or landward of the EEZ, and without
regard to where such fish or gear are possessed, taken, or landed), are
subject to all requirements of this part. The vessel and all such
fishing, catch, and gear shall remain subject to all applicable state
or local requirements. If a requirement of this part and a management
measure required by state or local law differ, any vessel owner
permitted to fish in the EEZ must comply with the more restrictive
requirement.
(d) Vessel permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
obtained from the Regional Director. The application must be signed by
the owner of the vessel, or the owner's authorized representative, and
be submitted to the Regional Director at least 30 days before the date
on which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section. Applicants for 1995 limited
access American lobster permits who have not been notified of
eligibility by the Regional Director shall provide information with the
application sufficient for the Regional Director to determine whether
the vessel meets the eligibility requirements specified under paragraph
(b)(1) of this section. Acceptable forms of proof include, but are not
limited to, state weigh-out records, packout forms, and settlement
sheets.
(e) Information requirements. In addition to applicable information
required to be provided by paragraph (d) of this section, an
application for a Federal American lobster permit must contain at least
the following information, and any other information required by the
Regional Director: Vessel name; owner name, mailing address, and
telephone number; U.S. Coast Guard documentation number and a copy of
the vessel's U.S. Coast Guard documentation or, if undocumented, state
registration number and a copy of the state registration; home port and
principal port of landing; overall length; gross tonnage; net tonnage;
engine horsepower; year the vessel was built; type of construction;
type of propulsion; approximate fish-hold capacity; type of fishing
gear used by the vessel; permit category; if the owner is a
corporation, a copy of the Certificate of Incorporation; and the names
and addresses of all shareholders owning 25 percent or more of the
corporation's shares; if the owner is a partnership, a copy of the
Partnership Agreement and the names and addresses of all partners; if
there is more than one owner, names of all owners having more than a 25
percent interest; and name and signature of the owner or the owner's
authorized representative.
(f) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee shall be calculated in accordance with the
procedures of the NOAA Finance Handbook for determining administrative
costs of each special product or service. The fee may not exceed such
costs and is specified with each application form. The appropriate fee
must accompany each application; if it does not, the application will
be considered incomplete for purposes of paragraph (g)(1) of this
section.
(g) Issuance. (1) Except as provided in subpart D of 15 CFR part
904 and under paragraph (b)(5) of this section, the Regional Director
shall issue a Federal American lobster vessel permit within 30 days of
receipt of the application unless:
(i) The applicant has failed to submit a completed application. An
application is complete when all requested forms, information,
documentation, and fees, if applicable, have been received; or
(ii) The application was not received by the Regional Director by
the deadlines set forth in paragraph (b)(1)(iii) of this section; or
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraphs (b)(1) and (2) of this
section; or
(iv) The applicant has failed to meet any other application
requirements stated in this part.
(2) Upon receipt of an incomplete or improperly executed
application, the Regional Director shall notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(h) Expiration. A Federal American lobster permit will expire upon
the renewal date specified in the permit.
(i) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or until it otherwise expires, or
ownership changes, or the applicant has failed to report any change in
the information on the permit application to the Regional Director as
specified in paragraph (l) of this section.
(j) Replacement. Replacement permits, for an otherwise valid
permit, may be issued by the Regional Director when requested in
writing by the owner or authorized representative, stating the need for
replacement, the name of the vessel, and the Federal Fisheries Permit
number assigned. An application for a replacement permit will not be
considered a new application. An appropriate fee may be charged for
issuance of the replacement permit.
(k) Transfer. Permits issued under this section are not
transferable or assignable. A permit is valid only for the vessel and
owner to whom it is issued.
(l) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written notice of the change must be submitted to the
Regional Director. If the written notice of the change in information
is not received by the Regional Director within 15 days, the permit is
void.
(m) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(n) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(o) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
(p) Limited access American lobster permit renewal. To renew or
apply for a limited access American lobster permit in 1995 and
thereafter, a completed application must be received by the Regional
Director by December 31 of the year before the permit is needed.
Failure to renew a limited access American lobster permit in any year
bars the renewal of the permit in subsequent years.
(q) Abandonment or voluntary relinquishment of limited access
American lobster permits. If a vessel's limited access American lobster
permit is voluntarily relinquished to the Regional Director, or
abandoned through failure to renew or otherwise, no limited access
American lobster permit may be re-issued or renewed based on that
vessel's history, or to any vessel relying on that vessel's history.
Sec. 649.5 Operator permits.
(a) General. Beginning on January 1, 1995, any operator of a vessel
issued a Federal limited access American lobster permit under
Sec. 649.4(b), or any operator of a vessel of the United States that
fishes for, possesses, or lands American lobsters, in or harvested from
the EEZ must have been issued and carry on board a valid operator's
permit issued under this section. This requirement does not apply to
party, charter, and dive boats that possess six or fewer American
lobsters, not intended for or resulting in trade, barter or sale, per
person aboard the vessel at any time, or to recreational vessels, and
vessels that fish exclusively in state waters for American lobsters.
(b) Operator application. Applicants for a permit under this
section must submit a completed permit application on an appropriate
form obtained from the Regional Director. The application must be
signed by the applicant and submitted to the Regional Director at least
30 days prior to the date on which the applicant desires to have the
permit made effective. The Regional Director will notify the applicant
of any deficiency in the application, pursuant to this section.
(c) Condition. Vessel operators who apply for an operator's permit
under this section must agree, as a condition of this permit, that the
operator and vessel's fishing, catch, crew size, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward
of the EEZ, and without regard to where such fish or gear are
possessed, taken, or landed), are subject to all requirements of this
part while fishing in the EEZ or on board a vessel permitted under
Sec. 649.4(b). The vessel and all such fishing, catch, and gear will
remain subject to all applicable state or local requirements. Further,
such operators must agree, as a condition of this permit, that if the
permit is suspended or revoked pursuant to 15 CFR part 904, the
operator cannot be on board any fishing vessel issued a Federal
Fisheries Permit or any vessel subject to Federal fishing regulations
while the vessel is at sea or engaged in offloading. If a requirement
of this part and a management measure required by state or local law
differ, any operator issued a permit under this part must comply with
the more restrictive requirement.
(d) Information requirements. An applicant must provide at least
all the following information and any other information required by the
Regional Director: Name, mailing address, and telephone number; date of
birth; hair color; eye color; height; weight; social security number
(optional) and signature of the applicant. The applicant must also
provide two color passport- size photographs.
(e) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Financial Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (f) of this section.
(f) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director shall issue an operator's permit within 30 days
of receipt of a completed application, if the criteria specified in
this section are met. Upon receipt of an incomplete or improperly
executed application, the Regional Director will notify the applicant
of the deficiency in the application. If the applicant fails to correct
the deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(g) Expiration. A Federal operator permit will expire upon the
renewal date specified in the permit.
(h) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or the applicant
has failed to report a change in the information on the permit
application to the Regional Director as specified in paragraph (k) of
this section.
(i) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal operator
permit number assigned. An applicant for a replacement permit must also
provide two color passport-size photos of the applicant. An application
for a replacement permit will not be considered a new application. An
appropriate fee may be charged.
(j) Transfer. Permits issued under this section are not
transferable or assignable. A permit is valid only for the person to
whom it is issued.
(k) Change in application information. Notice of a change in the
permit holder's name, address, or telephone number must be submitted in
writing to, and received by, the Regional Director within 15 days of
the change in information. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(l) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(m) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(n) Sanctions. Vessel operators with suspended or revoked permits
may not be on board a federally permitted fishing vessel in any
capacity while the vessel is at sea or engaged in offloading.
Procedures governing enforcement related permit sanctions and denials
are found at subpart D of 15 CFR part 904.
(o) Vessel owner responsibility. Vessel owners are responsible for
ensuring that their vessels are operated by an individual with a valid
operator's permit issued under this section.
Sec. 649.6 Dealer permits.
(a) All dealers must have been issued, and have in their
possession, a valid permit issued under this section.
(b) Dealer application. Applicants for a permit under this section
must submit a completed application on an appropriate form provided by
the Regional Director. The application must be signed by the applicant
and submitted to the Regional Director at least 30 days before the date
upon which the applicant desires to have the permit made effective. For
1994, a copy of an applicant's completed application will serve as a
temporary permit until the applicant has received a permanent permit.
The Regional Director will notify the applicant of any deficiency in
the application, pursuant to this section.
(c) Information requirements. Applications must contain at least
the following information and any other information required by the
Regional Director: Company name, place(s) of business, mailing
address(es) and telephone number(s); owner's name; dealer permit number
(if a renewal); and name and signature of the person responsible for
the truth and accuracy of the report. If the dealer is a corporation, a
copy of the Certificate of Incorporation must be included with the
application. If the dealer is a partnership, a copy of the Partnership
Agreement and the names and addresses of all partners must be included
with the application.
(d) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Finance Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (e) of this section.
(e) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director will issue a permit at any time during the
fishing year to an applicant, unless the applicant has failed to submit
a completed application. An application is complete when all requested
forms, information, and documentation have been received. Upon receipt
of an incomplete or improperly executed application, the Regional
Director will notify the applicant of the deficiency in the
application. If the applicant fails to correct the deficiency within 30
days following the date of notification, the application will be
considered abandoned.
(f) Expiration. A Federal dealer permit will expire upon the
renewal date specified in the permit.
(g) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or ownership
changes, or the applicant has failed to report any change in the
information on the permit application to the Regional Director as
required by paragraph (j) of this section.
(h) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal dealer
permit number assigned. An application for a replacement permit will
not be considered a new application. An appropriate fee may be charged.
(i) Transfer. Permits issued under this section are not
transferable or assignable. A permit is valid only for the person, or
other business entity, to which it is issued.
(j) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written report of the change must be submitted to, and
received by, the Regional Director. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(k) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(l) Display. Any permit, or a valid duplicate thereof, issued under
this section must be maintained in legible condition and displayed for
inspection upon request by any authorized officer.
(m) Federal versus state requirements. If a requirement of this
part differs from a fisheries management measure required by state law,
any dealer issued a Federal dealer permit must comply with the more
restrictive requirement.
(n) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
Sec. 649.7 Vessel identification.
(a) Vessel name. Each fishing vessel subject to this part that is
over 25 ft (7.6 m) in length must display its name on the port and
starboard sides of its bow and, if possible, on its stern.
(b) Official number. Each fishing vessel subject to this part that
is over 25 ft (7.6 m) in length must display its official number on the
port and starboard sides of its deckhouse or hull, and on an
appropriate weather deck, so as to be visible from above by enforcement
vessels and aircraft. The official number is the U.S. Coast Guard
documentation number or the vessel's state registration number for
vessels not required to be documented under chapter 123 of title 46
U.S.C.
(c) Numerals. The official number must be permanently affixed in
contrasting block Arabic numerals at least 18 inches (45.7 cm) in
height for vessels over 65 ft (19.8 m), and at least 10 inches (25.4
cm) in height for all other vessels over 25 ft (7.6 m) in length.
(d) Duties of owner and operator. The owner and operator of each
vessel subject to this part must:
(1) Keep the vessel name and official number clearly legible and in
good repair; and
(2) Ensure that no part of the vessel, its rigging, its fishing
gear, or any other object obstructs the view of the official number
from an enforcement vessel or aircraft.
Sec. 649.8 Prohibitions.
(a) In addition to the general prohibitions specified in Sec. 620.7
of this chapter, it is unlawful for any person owning or operating a
vessel issued a Federal American lobster permit under Sec. 649.4 to do
any of the following:
(1) Retain on board, land, or possess at or after landing, American
lobsters that fail to meet the carapace length standard specified in
Sec. 649.20(b). All American lobsters will be subject to inspection and
enforcement, up to and including the time when a dealer receives or
possesses American lobsters for a commercial purpose.
(2) Retain on board, land, or possess any American lobster or parts
thereof in violation of the mutilation standards specified in
Sec. 649.20(c).
(3) Retain on board, possess, or land any berried female American
lobster specified in Sec. 649.20(d).
(4) Remove eggs from any berried female American lobster, land, or
possess any such lobster from which eggs have been removed.
(5) Retain on board, land, or possess any V-notched female American
lobsters throughout the range of the stock.
(6) Possess, deploy, haul, harvest lobster from, or carry aboard a
vessel any gear not identified, marked, vented, and panelled in
accordance with the requirements specified in Sec. 649.21, unless such
gear has been rendered unfishable.
(7) Fish for, land, or possess American lobsters after December 31,
1994, unless the operator of the vessel has been issued an operator's
permit under Sec. 649.5, and the permit is on board the vessel and is
valid.
(8) Fail to report to the Regional Director within 15 days any
change in the information contained in the permit application as
required under Sec. 649.4(l) or Sec. 649.5(k).
(9) Make any false statement in connection with an application
under Sec. 649.4 or Sec. 649.5.
(10) Fail to affix and maintain permanent markings, as required by
Sec. 649.7.
(11) Sell, transfer, or barter or attempt to sell, transfer, or
barter to a dealer any American lobsters, unless the dealer has a valid
Federal Dealer's Permit issued under Sec. 649.6.
(b) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel that has not been issued a limited access American lobster
permit as described under Sec. 649.4(b), to possess on board a vessel
or land American lobsters unless the vessel is a party, charter, or
dive boat and there are six or fewer American lobsters per person on
such boats, and the lobsters are not sold, traded or bartered, or
unless the vessel is a recreational vessel or a vessel fishing for
American lobsters exclusively in state waters.
(c) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified in paragraphs (a) and
(b) of this section, it is unlawful for any person to do any of the
following:
(1) Possess on board a vessel or land American lobsters unless:
(i) The American lobsters were harvested by a vessel that has been
issued and carries on board a valid Federal American lobster permit
under Sec. 649.4(a); or a valid limited access American lobster permit
under Sec. 649.4(b); or
(ii) The American lobsters were harvested by a vessel without a
Federal American lobster permit and that fishes for American lobsters
exclusively in state waters; or
(iii) The American lobsters were harvested by a party, charter, or
dive vessel that possesses six or fewer American lobsters per person on
board the vessel and the lobsters are not intended to be or are not
traded, bartered, or sold; or
(iv) The American lobsters were harvested by a recreational fishing
vessel.
(2) Sell, barter, or trade, or otherwise transfer, or attempt to
sell, barter, or trade, or otherwise transfer, for a commercial
purpose, any American lobsters from a vessel, unless the vessel has
been issued a valid Federal American lobster permit under Sec. 649.4,
or the American lobsters were harvested by a vessel without a Federal
American lobster permit that fishes for American lobsters exclusively
in state waters;
(3) Purchase, possess, or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose, as,
or in the capacity of, a dealer, American lobsters taken from or
harvested by a fishing vessel issued a Federal American lobster permit,
unless in possession of a valid dealer's permit issued under
Sec. 649.6;
(4) Purchase, possess, or receive for commercial purposes, or
attempt to purchase or receive for commercial purposes, as, or in the
capacity of, a dealer, American lobsters caught by a vessel other than
one issued a valid Federal American lobster permit under Sec. 649.4,
unless the American lobsters were harvested by a vessel without a
Federal American lobster permit and that fishes for American lobsters
exclusively in state waters;
(5) Beginning January 1, 1995, to be, or act as, an operator of a
vessel fishing for or possessing American lobsters in or from the EEZ,
or issued a Federal American lobster permit under Sec. 649.4 (b),
without having been issued and possessing a valid operator's permit
issued under Sec. 649.5.
(6) Assault, resist, oppose, impede, harass, intimidate, or
interfere with either a NMFS-approved observer aboard a vessel, or an
authorized officer conducting any search, inspection, investigation, or
seizure in connection with enforcement of this part;
(7) Make any false statement, oral or written, to an authorized
officer, concerning the taking, catching, harvesting, landing,
purchase, sale, or transfer of any American lobsters;
(8) Violate any provision of this part, the Magnuson Act, or any
regulation, permit, or notification issued under the Magnuson Act or
these regulations;
(9) Possess or land any American lobsters harvested in or from the
EEZ in violation of Sec. 649.20; or
(10) Ship, transport, offer for sale, sell, or purchase, in
interstate or foreign commerce, any whole live American lobster in
violation of Sec. 649.20.
(d) Any person possessing, or landing American lobsters at or prior
to the time when those American lobsters are landed, or are received or
possessed by a dealer, is subject to all of the prohibitions specified
in paragraphs (a), (b) and (c) of this section, unless the American
lobsters were harvested by a vessel without a Federal American lobster
permit and that fishes for American lobsters exclusively in state
waters; or are from a party, charter, or dive vessel that possesses or
possessed six or fewer American lobsters per person aboard the vessel
at any time and the lobsters are not intended for sale, trade, or
barter; or are from a recreational vessel.
(e) Presumption. American lobsters that are possessed, or landed at
or prior to the time when the American lobsters are received by a
dealer, or American lobsters that are possessed by a dealer, are
presumed to be harvested from the EEZ or by a vessel with a Federal
lobster permit. A preponderance of all submitted evidence that such
American lobsters were harvested by a vessel without a Federal American
lobster permit and fishing exclusively for American lobsters in state
waters will be sufficient to rebut the presumption.
(f) The possession of egg-bearing female American lobsters, V-
notched female American lobsters, or American lobsters that are smaller
than the minimum size set forth in Sec. 649.20(b), will be prima facie
evidence that such American lobsters were taken or imported in
violation of these regulations. Evidence that such American lobsters
were harvested by a vessel not holding a permit under this part and
fishing exclusively within state or foreign waters will be sufficient
to rebut the presumption.
Sec. 649.9 Facilitation of enforcement.
See Sec. 620.8 of this chapter.
Sec. 649.10 Penalties.
See Sec. 620.9 of this chapter.
Subpart B--Management Measures
Sec. 649.20 Harvesting and landing requirements.
(a) Condition. By being issued a Federal limited access American
lobster permit, the vessel owner is subject to all measures in this
subpart, regardless of where American lobsters were harvested.
(b) Carapace length. (1) The minimum carapace length for all
American lobsters harvested in or from the EEZ is 3\1/4\ inches (8.26
cm).
(2) The minimum carapace length for all American lobsters landed,
harvested, or possessed at or after landing by vessels issued a Federal
American lobster permit, is 3\1/4\ inches (8.26 cm).
(3) No person may ship, transport, offer for sale, sell, or
purchase, in interstate or foreign commerce, any whole live American
lobster that is smaller than the minimum size specified in this
paragraph (b).
(c) Mutilation. (1) No person may remove meat or any body appendage
from any American lobster harvested in or from the EEZ before landing,
or to have in possession on board any American lobster part other than
whole lobsters.
(2) No owner, operator or person aboard a vessel issued a Federal
American lobster permit may remove meat or any body appendage from any
American lobster before landing, or to have in possession on board any
American lobster part other than whole lobsters.
(d) Berried females. (1) Any berried female American lobster
harvested in or from the EEZ must be returned to the sea immediately.
(2) Any berried female American lobster harvested or possessed by a
vessel issued a Federal American lobster permit must be returned to the
sea immediately.
(3) No person may ship, transport, offer for sale, sell, or
purchase, in interstate or foreign commerce, any berried female
American lobster as specified in this paragraph (d).
(e) Scrubbing. (1) No person may remove extruded eggs attached to
the abdominal appendages from any female American lobster harvested on
or from the EEZ.
(2) No owner, operator or person aboard a vessel issued a Federal
American lobster permit may remove extruded eggs attached to the
abdominal appendages from any female American lobster.
(3) No person may ship, transport, offer for sale, sell, or
purchase, in interstate or foreign commerce, any whole live American
lobster that bears evidence of the forcible removal of extruded eggs
from its abdominal appendages as specified in this paragraph (e).
Sec. 649.21 Gear identification and marking, escape vent, and ghost
panel requirements.
(a) Identification. All lobster gear deployed in the EEZ or
possessed by a person whose vessel is permitted for fishing in the EEZ,
and not permanently attached to the vessel, must be legibly and
indelibly marked with one of the following codes of identification:
(1) A number assigned by the Regional Director; and/or
(2) Whatever positive identification marking is required by the
vessel's home-port state.
(b) Marking. In the areas of the EEZ described in paragraph (b)(4)
of this section, lobster pot trawls are to be marked as follows:
(1) Lobster pot trawls of three or fewer pots must be marked with a
single buoy.
(2) Lobster pot trawls consisting of more than three pots must have
a radar reflector and a single flag or pennant on the westernmost end
(marking the half compass circle from magnetic south through west, to
and including north), while the easternmost end (meaning the half
compass circle from magnetic north through east, to and including
south) of an American lobster pot trawl must be marked with a radar
reflector only. Standard tetrahedral corner radar reflectors (see
Figure 1 of this part) of at least 8 inches (20.32 cm)(both in height
and width, and made from metal) must be employed.
(3) No American lobster pot trawl shall exceed 1.5 nautical miles
(2.78 km) in length, as measured from buoy to buoy.
(4) Gear marking requirements apply in the following areas:
(i) Gulf of Maine gear area. All waters of the EEZ north of
42 deg.20' N. lat. seaward of a line drawn 12 nautical miles (22.2 km)
from the baseline of the territorial sea;
(ii) Georges Bank gear Area. All waters of the EEZ south of
42 deg.20' N. lat. and east of 70 deg.00' W. long. or the outer
boundary of the territorial sea, whichever lies farther east;
(iii) Southern New England gear Area. All waters of the EEZ west of
70 deg.00' W. long., east of 71 deg.30' W. long. at a depth greater
than 25 fathoms (45.72 m); and
(iv) Mid-Atlantic gear Area. All waters of the EEZ, west of
71 deg.30' W. long. and north of 36 deg.33' N. lat. at a depth greater
than 40 fathoms (73.15 m).
(c) Escape vents. All American lobster traps deployed in the EEZ or
possessed by a person whose vessel is permitted for fishing in the EEZ,
as specified under Sec. 649.4, must be constructed to include one of
the following escape vents in the parlor section of the trap. The vent
must be located in such a manner that it would not be blocked or
obstructed by any portion of the trap, associated gear, or the sea
floor in normal use.
(1) The specifications for escape vents are as follows:
(i) A rectangular portal with an unobstructed opening not less than
1\7/8\ inches (4.76 cm) by 5\3/4\ inches (14.61 cm);
(ii) Two circular portals with unobstructed openings not less than
2\3/8\ inches (6.03 cm) in diameter.
(2) The Regional Director may, at the request of, or after
consultation with, the Lobster Oversight Committee of the Council,
approve, and publish in the Federal Register any other type of
acceptable escape vent that the Regional Director finds to be
consistent with paragraphs (c)(1)(i) and (ii) of this section.
(d) Ghost panel. Lobster traps not constructed entirely of wood
must contain a ghost panel.
(1) The specifications of this requirement are as follows:
(i) The opening to be covered by the ghost panel must be
rectangular and shall not be less than 3\3/4\ inches (9.53 cm) by 3\3/
4\ inches (9.53 cm).
(ii) The panel must be constructed of, or fastened to the trap
with, one of the following untreated materials: Wood lath, cotton,
hemp, sisal or jute twine not greater than \3/16\ inch (0.48 cm) in
diameter, or non-stainless, uncoated ferrous metal not greater than \3/
32\ inch (0.24 cm) in diameter.
(iii) The door of the trap may serve as the ghost panel, if
fastened with a material specified in paragraph (d)(1)(ii) of this
section.
(iv) The ghost panel must be located in the outer parlor(s) of the
trap and not the bottom of the trap.
(2) The Regional Director may, at the request of, or after
consultation with, the Lobster Oversight Committee of the Council,
approve, and publish in the Federal Register, any other design,
mechanism, material, or specification not described in the regulations
in this part that serves to create an escape portal not less than 3\3/
4\ inches (9.53 cm) by 3\3/4\ inches (9.53 cm).
(e) Enforcement action. Unidentified, unmarked, unvented, or
improperly vented American lobster traps will be seized and disposed of
in accordance with the provisions of part 219 of this title.
Sec. 649.22 Experimental fishing exemption.
(a) The Regional Director may exempt any person or vessel from the
requirements of this part for the conduct of experimental fishing
beneficial to the management of the American lobster resource or
fishery.
(b) The Regional Director may not grant such exemption unless it is
determined that the purpose, design, and administration of the
exemption is consistent with the objectives of the FMP, the provisions
of the Magnuson Act, and other applicable law, and that granting the
exemption will not:
(1) Have a detrimental effect on the American lobster resource and
fishery; or
(2) Create significant enforcement problems.
(c) Each vessel participating in any exempted experimental fishing
activity is subject to all provisions of this part, except those
necessarily relating to the purpose and nature of the exemption. The
exemption will be specified in a letter issued by the Regional Director
to each vessel participating in the exempted activity. This letter must
be carried aboard the vessel seeking the benefit of such exemption.
Subpart C--Stock Rebuilding Program and Framework Adjustments to
Management Measures
Sec. 649.41 Purpose and scope.
The purpose of this subpart is to specify the requirements and
framework procedures for implementing the Stock Rebuilding Program,
intended to eliminate overfishing in any resource areas.
Sec. 649.42 Stock rebuilding program requirements and time frame.
(a) General. (1) The Council has until July 20, 1995 to submit to
NMFS management measures to achieve the objectives of the FMP. The
measures must be designed to achieve the FMP objectives for reducing
fishing mortality within 5 years for the stock in the Gulf of Maine
segment of the fishery and 10 years for the Southern New England
segment of the stock. Such measures may be submitted through the
Magnuson Act amendment process or through the first-year area
management framework specifications in Sec. 649.43.
(2) In developing such management measures, the Council shall
submit management measures to reduce fishing mortality in each of four
management areas specified in paragraph (b) of this section. These
management measures shall be implemented according to the first-year
area management framework specifications in Sec. 649.43.
(3) If the Council has not submitted management measures sufficient
to achieve the objectives of the FMP on or before July 20, 1995, the
Secretary shall determine, according to provisions of 16 U.S.C.
1854(c), whether to prepare an amendment to the FMP.
(b) Management areas. The Stock Rebuilding Program to be submitted
by the Council shall be developed based on the status of stock of
American lobsters and management considerations for each of the areas
described and defined in this paragraph (b) (see Figure 2 of this
part).
(1) Area 1. Near-shore EEZ Waters of the Gulf of Maine. This area
is defined by the area bounded by straight lines (rhumb lines)
connecting the following points, in the order stated, and the
territorial sea:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
A........................... 44 deg.04' N. 67 deg.19' W. and northward
along the irregular U.S. -
Canada Maritime Boundary
to the territorial sea.
B........................... 43 deg.03' N. 70 deg.00' W.
C........................... 42 deg.14' N. 70 deg.00' W.
D........................... 42 deg.08' N. 69 deg.55' W.
E........................... 42 deg.06' N. 70 deg.04' W.
------------------------------------------------------------------------
(2) Area 2. Near-shore EEZ Waters of Southern New England. This
area is defined by the area bounded by straight lines (rhumb lines)
connecting the following points in the order stated and the territorial
sea:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
E........................... 42 deg.06' N. 70 deg.04' W.
D........................... 42 deg.08' N. 69 deg.55' W.
F........................... 41 deg.10' N. 69 deg.06' W.
G........................... 40 deg.46' N. 71 deg.34' W.
H........................... 41 deg.06' N. 71 deg.43' W.
I........................... 41 deg.05' N. 71 deg.49' W.
------------------------------------------------------------------------
(3) Area 3. EEZ Offshore Waters. This area is defined by the area
bounded by straight lines (rhumb lines) connecting the following
points, in the order stated, and westerly of the U.S. - Canada Maritime
Boundary:
------------------------------------------------------------------------
Point Longitude
------------------------------------------------------------------------
A........................... 44 deg.04' N. 67 deg.19' W. and northward
along the irregular U.S. -
Canada Maritime Boundary
to the territorial sea.
B........................... 43 deg.03' N. 70 deg.00' W.
C........................... 42 deg.14' N. 70 deg.00' W.
D........................... 42 deg.08' N. 69 deg.55' W.
F........................... 41 deg.10' N. 69 deg.06' W.
G........................... 40 deg.46' N. 71 deg.34' W.
J........................... 40 deg.13' N. 72 deg.44' W.
K........................... 38 deg.39' N. 73 deg.24' W.
L........................... 38 deg.12' N. 73 deg.55' W.
M........................... 37 deg.12' N. 74 deg.44' W.
N........................... 35 deg.41' N. 75 deg.10' W.
O........................... 35 deg.15' N. 75 deg.28' W.
------------------------------------------------------------------------
(4) Area 4. Near-shore EEZ Waters of the Middle Atlantic. This area
is defined by the area bounded by straight lines (rhumb lines)
connecting the following points, in the order stated, and the
territorial sea:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
I......................................... 41 deg.05' N. 71 deg.49' W.
H......................................... 41 deg.06' N. 71 deg.43' W.
G......................................... 40 deg.46' N. 71 deg.34' W.
J......................................... 40 deg.13' N. 72 deg.44' W.
K......................................... 38 deg.39' N. 73 deg.24' W.
L......................................... 38 deg.12' N. 73 deg.55' W.
M......................................... 37 deg.12' N. 74 deg.44' W.
N......................................... 35 deg.41' N. 75 deg.10' W.
O......................................... 35 deg.15' N. 75 deg.28' W.
------------------------------------------------------------------------
(c) Effort Management Teams (EMT). (1) The Council shall establish
EMTs for each area specified in paragraph (b) of this section, for the
purpose of making recommendations to the Council on management measures
to achieve the objectives of the FMP.
(2) Members of each EMT shall be appointed by the Council, in
consultation with appropriate states and NMFS. Members of the EMT shall
consist of a group of technical representatives that serve on each EMT
and a group of representatives from the lobster industry, based on
their geographical affiliation with an EMT. The Council may decide the
number of representatives and operating procedures of the EMTs.
(3) No later than January 20, 1995, each EMT shall report its
recommendations for management measures for the stock rebuilding
program for the area it represents to the Council.
Sec. 649.43 First year framework specifications.
(a) On or before January 20, 1995, each EMT shall submit its
recommendations for management measures for the area it represents to
the Council. In developing these recommendations, the EMTs may consider
and recommend additional restrictions or limitations on vessels
participating in the lobster fishery according to the categories and
guidelines contained in paragraph (b) of this section.
(b) After receiving the recommendations of the EMTs, the Council
shall determine what management measures are necessary for each
management area, in order to achieve the objectives of stock rebuilding
specified in the FMP. For the management measures the Council
determines are necessary to meet FMP objectives, the Council shall
provide appropriate rationale and economic and biological analysis of
the determinations. The Council shall make these determinations over
the span of at least two Council meetings and provide the public with
advance notice of, and opportunity to comment on, the determinations
and the analyses before making final recommendations to be submitted to
NMFS. The Council's recommendation on necessary management measures may
come from one or more of the following categories:
(1) Minimum-size changes;
(2) A maximum-size limit;
(3) Trap limits;
(4) Seasonal closures of one or more management areas;
(5) Closed areas or zones within a management area;
(6) Restrictions on allowable fishing time;
(7) Restrictions on allowable catches;
(8) Permitting restrictions;
(9) Additional restrictions on gear;
(10) Overfishing definition;
(11) Limitations on participation in the fishery in accordance with
the control date guidelines listed below. These guidelines will apply
until a stock rebuilding program is established.
(i) It is the intent of the Council that in the event that a system
of assigning fishing rights is developed as part of the FMP, such
assignments shall be based upon historical levels of participation in
the fishery prior to March 25, 1991, with consideration for recent
investments that have not yet been reflected in measures of
participation.
(ii) New or re-rigged vessels will be given consideration in the
assignment of fishing rights if:
(A) They were under construction or re-rigging for directed lobster
fishing as of March 25, 1991, as evidenced by written construction
contracts, work orders, equipment purchases, or other evidence of
substantial investment and intent to participate in the lobster
fishery; and
(B) They possessed an American lobster permit and landed lobster
prior to March 25, 1992.
(iii) The public is further notified that it is the intent of the
Council that historical participation will transfer with a vessel, for
transfers made after March 25, 1991, unless such transfer is
accompanied by a written document indication the agreement of both
buyer and seller that any future fishing rights applicable to that
vessel are not being transferred with the vessel.
(iv) The Council further intends that any system of assigning
fishing rights will take into consideration the following concerns
relative to individuals or corporations that have sold a vessel within
the time that may be chosen to determine historical fishing rights:
(A) The degree of economic dependence upon the lobster fishery
including, but not limited to, the percentage of income derived from
the lobster fishery;
(B) Extent of past participation in the lobster fishery; and
(C) Demonstration of intent prior to March 25, 1991, to re-enter
the lobster fishery with a different vessel.
(12) Any other restrictions that the Council may designate for the
purpose of reducing or controlling fishing mortality rates, except that
an Individual Transferable Quota (ITQ) system would require a full FMP
amendment.
(c) After developing necessary management measures and receiving
public testimony, the Council shall make a recommendation to the
Regional Director on or before July 20, 1995. The Council's
recommendation must include supporting rationale and, if management
measures are recommended, an analysis of impacts, and a recommendation
to the Regional Director on whether to publish the management measures
as a final rule. If the Council recommends that the management measures
should be published as a final rule, the Council must consider at least
the following factors and provide support and analysis for each factor
considered:
(1) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource; and
(4) Whether there will be a continuing evaluation of management
measures adopted, following their promulgation as a final rule.
(d) If the Council's recommendation includes adjustments or
additions to management measures, after reviewing the Council's
recommendation and supporting information:
(1) If the Regional Director concurs with the Council's recommended
management measures and determines that the recommended management
measures may be published as a final rule, based on the factors
specified in paragraph (c) of this section, the action will be
published in the Federal Register as a final rule; or
(2) If the Regional Director concurs with the Council's
recommendation and determines that the recommended management measures
should be published first as a proposed rule, the action will be
published as a proposed rule in the Federal Register. After additional
public comment, if the Regional Director concurs with the Council
recommendation, the action will be published as a final rule in the
Federal Register; or
(3) If the Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(e) At any time, the Council may make other adjustments to
management measures implemented under this part pursuant to the
provisions in Sec. 649.44.
(f) Nothing in this section is meant to diminish the authority of
the Secretary to take emergency action under section 305(c) of the
Magnuson Act.
Sec. 649.44 Framework specifications after the first year of
implementation.
(a) Annually, upon request from the Council, the Regional Director
will provide the Council with information of the status of the American
lobster resource, based on the most recent stock assessment report.
(b) The Council and Atlantic States Fisheries Commission, through
consultation with the ASMFC Lobster Scientific Committee within the
stock assessment process and with the EMTs, shall continue to monitor
the effectiveness of the Stock Rebuilding Program and to ensure, to the
extent possible, that regional measures (within a Management Area) do
not shift costs from one Management Area to another.
(c) In addition, the EMTs, on at least an annual basis, shall
determine the extent to which the objectives of the FMP are being
achieved and shall make recommendations to the Council for further
management actions, if required.
(d) After receiving the EMT recommendations, the Council shall
determine whether adjustments to, or additional management measures are
necessary to meet the goals and objectives of the FMP. After
considering the EMT's recommendations, or at any other time, if the
Council determines that adjustments to, or additional management
measures are necessary, it shall develop and analyze appropriate
management actions over the span of at least two Council meetings. The
Council shall provide the appropriate rationale and economic and
biological analysis for its recommendation, utilizing the most current
catch, effort, and other relevant data from the fishery. The Council
shall provide the public with advance notice of the availability of
both the proposals and the analyses, and opportunity to comment on them
prior to, and at, the second Council meeting. The Council's
recommendation on adjustments or additions to management measures may
come from one or more of the following categories:
(1) Minimum-size changes;
(2) A maximum-size limit;
(3) Trap limits;
(4) Seasonal closures of one or more management areas;
(5) Closed areas or zones within a management area;
(6) Restrictions on allowable fishing time;
(7) Restrictions on allowable catches;
(8) Permitting restrictions;
(9) Additional restrictions on gear;
(10) Overfishing definition;
(11) Limitations on participation in the fishery in accordance with
the control date guidelines contained in Sec. 649.44(b)(11). These
guidelines will apply until a stock rebuilding program is established.
(12) Any other restrictions which the Council may designate for the
purpose of reducing or controlling fishing mortality rates, except that
an Individual Transferable Quota (ITQ) system would require a full FMP
amendment.
(e) After developing management actions and receiving public
testimony, the Council shall make a recommendation to the Regional
Director. The Council's recommendation must include supporting
rationale and, if management measures are recommended, an analysis of
impacts, and a recommendation to the Regional Director on whether to
publish the management measures as a final rule. If the Council
recommends that the management measures should be published as a final
rule, the Council must consider at least the following factors and
provide support and analysis for each factor considered:
(1) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource; and
(4) Whether there will be a continuing evaluation of management
measures adopted, following their promulgation as a final rule.
(f) If the Council's recommendation includes adjustments or
additions to management measures, after reviewing the Council's
recommendation and supporting information:
(1) If the Regional Director concurs with the Council's recommended
management measures and determines that the recommended management
measures may be published as a final rule, based on the factors
specified in paragraph (d) of this section, the action will be
published in the Federal Register as a final rule; or
(2) If the Regional Director concurs with the Council's
recommendation and determines that the recommended management measures
should be published first as a proposed rule, the action will be
published as a proposed rule in the Federal Register. After additional
public comment, if the Regional Director concurs with the Council
recommendation, the action will be published as a final rule in the
Federal Register; or
(3) If the Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(g) Nothing in this section shall impair the authority of the
Secretary to take emergency action under section 305(c) of the Magnuson
Act.
BILLING CODE 3510-22-F-P
TR21JN94.000
TR21JN94.001
TR21JN94.002
[FR Doc. 94-14989 Filed 6-20-94; 8:45 am]
BILLING CODE 3510-22-F-C
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 25, 29, 91, et al.
Emergency Locator Transmitters; Rule and Notice
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 25, 29, 91, 121, 125, and 135
[Docket No. 26180; Amendments No. 25-82, 29-33, 91-242, 121-239, 125-
20, and 135-49]
RIN 2120-AD19
Emergency Locator Transmitters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This rule requires that newly installed emergency locator
transmitters (ELT's) on U.S.-registered aircraft be of an improved
design that meets the requirements of a revised Technical Standard
Order (TSO) or later TSO's issued for ELT's. This rule is prompted by
unsatisfactory performance experienced with automatic ELT's
manufactured under the original TSO. Further, it addresses certain
safety recommendations made by the National Transportation Safety Board
(NTSB) and the search and rescue (SAR) community. The FAA is also
adopting improved standards for survival ELT's. The rule is expected to
have a dramatic effect on reducing activation failures and would
increase the likelihood of locating airplanes after accidents. In
addition, publication of this document coincides with notice of the
FAA's withdrawal of manufacturing authority for ELT's produced under
TSO-C91.
EFFECTIVE DATE: This document is effective June 21, 1994.
FOR FURTHER INFORMATION CONTACT:
Phil Akers, Aircraft Engineering Division (AIR-120), Aircraft
Certification Service, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
9571.
SUPPLEMENTARY INFORMATION:
Background
In 1971, responding to a congressional mandate for rulemaking
(Public Law 91-596), the FAA adopted amendments to parts 25, 29, 91,
121, and 135 of the Federal Aviation Regulations (FAR) to require the
installation and use of ELT's that meet the requirements of TSO-C91.
The amendments require that certain U.S.-registered civil airplanes be
equipped with automatic ELT's. An automatic ELT is a crash-activated
electronic signaling device used to facilitate search and rescue
efforts in locating downed aircraft. The ELT's crash sensor is commonly
called a G-switch (an actuation device that operates on acceleration
forces measured in G's; one G denotes the acceleration of the earth's
gravity). In most installations, the ELT is attached to the aircraft
structure as far aft as practicable in the fuselage in such a manner
that damage to the device will be minimized in the event of impact.
Certain aircraft, such as turbojet-powered aircraft and aircraft
engaged in scheduled air carrier operations, are excepted from this
requirement because they are more readily located after an accident
because they operate within the air traffic control system and their
operators have filed instrument flight plans. For example, scheduled
air carriers and turbojet-powered aircraft use the air traffic control
system (ATC) and air carriers use instrument flight plans. This rule is
applicable to those airplanes that are most difficult to locate after
an accident. An ELT is particularly helpful in locating an airplane
that is operated by a pilot who does not file a flight plan or operate
within the air traffic control system.
Survival ELT's are manually operated or automatically actuated upon
contact with water. Survival ELT's are required ditching equipment for
transport category airplanes and rotorcraft, as provided by the
operating rules. They are also required emergency equipment for
extended overwater operations on aircraft used in air carrier, air
taxi, and commercial operations.
Since the adoption of those amendments requiring installation of
ELT's, there has been unsatisfactory field experience with the
automatic ELT's. Accordingly, the FAA requested RTCA, Inc. (formerly
the Radio Technical Commission for Aeronautics) to develop a revised
technical standard that would address false alarms and improve the
failure-to-activate rate for automatic ELT's. The RTCA project produced
a minimum operational performance standard that is referenced in TSO-
C91a, issued in April 1985. Installation of ELT's that meet this
improved standard, however, is voluntary until compliance is required
as specified in this amendment.
NTSB safety recommendations A-78-5 through A-78-12, issued in 1978,
also addressed ELT problems; they are now classified by the NTSB as
``Closed-Acceptable Action,'' primarily because TSO-91a was issued.
Following the issuance of the new TSO, in 1987 the NTSB issued safety
recommendation A-87-104, that recommends existing ELT's be replaced
with ELT's that comply with TSO-C921a by 1989. That safety
recommendation also urged that ELT's be subject to specific maintenance
requirements.
In October 1990, the National Aeronautics and Space Administration
(NASA) and the FAA completed a report entitled, ``Current Emergency
Locator Transmitter (ELT) Deficiencies and Potential Improvements
Utilizing TSO-C91a ELT's'', hereafter referred to as the FAA/NASA
report. This report consolidates and analyzes most of the known data on
ELT problems and quantifies the safety problem. General aviation
accident and fatality data from the NTSB form the cornerstone of the
report. The most significant conclusions derived from the report show:
23 to 58 lives are lost per year due to ELT failures; 15 percent of ELT
failures are attributed to poor or no ELT maintenance; and after
excluding lives lost attributed to maintenance-related ELT failures, 64
percent or 13 to 31 of the lives lost each year could be saved with a
complete transition to TSO-C91a ELT's.
Based on the known unsatisfactory performance of the TSO-C91 ELT's
during the 1970's and 1980's, the FAA issued Notice No. 90-11 (55 FR
12316, April 2, 1990). This notice proposed that ELT's approved under
TSO-C91a (or later issued TSO's for ELT's) be required for all future
installations. The NPRM further proposed that the manufacture of the
TSO-C91 ELT's be simultaneously terminated with issuance of a final
rule. The term ``future installations'' applies to newly manufactured
airplanes, and to the replacement of existing ELT's as they become
unusable or unserviceable. Additionally, the FAA solicited comments on
the need for a fleet-wide ELT replacement program and specific
maintenance requirements. These issues are addressed below.
Sources of Information Referenced Below
NTSB Recommendations
1. NTSB safety recommendations A-78-5 through A-78-12, issued 1978;
2. NTSB safety recommendations A-87-104, issued 1987.
Reference Material
(1) The National Aeronautics and Space Administration (NASA) and
the FAA, a report entitled, ``Current Emergency Locator Transmitter
(ELT) Deficiencies and Potential Improvements Utilizing TSO-C91a
ELT's'', (FAA/NASA report), October 1990.
(2) FAA Action Notice A 8150.3 (July 23, 1990).
Related Activity
(1) Publication of this document coincides with notice of the FAA's
withdrawal of manufacturing authority for ELT's produced under TSO-C91.
(2) The Aviation Rulemaking Advisory Committee (ARAC) has been
tasked to make recommendations concerning an ELT retrofit policy.
Discussion of Comments
The FAA received 51 written comments in response to Notice No. 90-
11 from individuals, manufacturers, equipment users, associations, and
government agencies. Twenty-two support the proposed rule or its intent
while 20 express concern or nonsupport. Most of the nonsupport
commenters, however, address the fleet-wide replacement of automatic
ELT's rather than the proposal for new installations. Nine of the
comments do not take a position for or against the proposals; however,
they offer suggestions and advice.
Nineteen of the commenters supporting the rule represent major
segments of the aviation search and rescue community such as government
agencies and associations. These commenters also agree on the
unsatisfactory performance of current TSO-C91 ELT's.
Failure to Activate--Automatic ELT's
Eleven of the commenters contributed information supporting the
implementation of TSO-C91a, and stated that it would have a dramatic
effect on reducing activation failures and would increase the
likelihood of locating airplanes after accidents. Most commenters
agreed with the conclusions identified in the FAA/NASA report
explaining that failure-to-activate was caused by:
--Insufficient impact deceleration to cause the crash sensor (G-switch)
to activate the ELT;
--Improper installation;
--Battery problems;
--Fire damage;
--Impact damage;
--Antenna broken/disconnected;
--Water submersion;
--Unit not armed;
--Internal failure;
--Packing device still installed;
--Remote switch in off position; and
--ELT shielded by wreckage or terrain (although not an initial failure,
this was listed as another reason for the ELT not functioning).
An ELT manufacturer states that the term ``failure to activate''
encompasses two groups of cases that should not be treated in the same
manner. Group 1 situations are those in which the ELT does not operate
after a crash because it has a mechanical defect or failure. Group 2
situations are those in which the ELT does not operate because the
crash forces are insufficient to activate it. This commenter states
that the Group 2 cases should not be classified as ELT failures because
the ELT's did what they were supposed to do when they did not activate.
The commenter asserts that any ``failure'' associated with the Group 2
cases is a shortcoming of the current TSO-C91 standard that established
the crash sensor sensitivity specifications.
FAA Response: The FAA agrees with the manufacturer's comment about
two causes of failure-to-activate and notes that the FAA/NASA report
addresses these two situations. The FAA/NASA report documents well the
failures of ELT's approved under TSO-C91. As discussed previously, the
most significant conclusions from the report are that: (1) 23 to 58
lives are lost each year due to ELT failures; (2) many of these
failures are caused by poor ELT maintenance; and (3) a 64 percent
failure rate reduction can be expected with a complete transition to
TSO-C91a ELT's. Attachment 1 of the FAA/NASA report entitled,
``Validation of NASA ELT Reasons for Failure Analysis Report,''
verifies the NTSB data that provides the cornerstone of the FAA/NASA
report. In addition, the new ELT TSO-C91a contains revised G-switch
specifications designed to provide proper activation limits and to
minimize mechanical defects. This new design is expected to reduce the
number of false alarms and improve the failure-to-activate rate.
False Alarms--Automatic ELT's
Twenty commenters identified ELT false alarms as contributing to
poor performance. Several commenters cite the FAA/NASA report, which
documents the following causes of false alarms:
--G-switch (crash sensor);
--Corrosion;
--Incorrect installation of the ELT;
--Human failures or mishandling;
--Heat, water, or radiated interference;
--Accidental operation of the controls;
--Internal failure.
In addition to identifying the causes of false alarms, members of
the Search and Rescue community (SAR) note the significant, additional
cost of responding to false alarms, the ability to respond to real
emergencies, the cost to taxpayers, and the additional, unnecessary,
physical risk to SAR personnel caused by responding to false alarms. In
its comments, the NTSB stated that ``in a recent SAR mission the cost
incurred, excluding a significant contribution by volunteers, was $13
million.''
FAA Response: The FAA agrees with the comments regarding false
alarms. The primary beneficiary of reducing the number of false alarms
would be the SAR community. A reduction in false alarms would make more
SAR resources available to aid aircraft in distress. The resources
expended by SAR on false alarms would be significantly reduced. The FAA
expects that the current number of false alarms will be reduced by 75
percent with implementation of TSO-91a and a mandatory inspection and
maintenance program. However, as stated in the FAA/NASA report, the FAA
cannot quantify the benefits in lives to be saved. A reduction in the
number of false alarms would result in the Air Force Rescue
Coordination Center (AFRCC) spending less time analyzing the validity
of thousands of signals that occur annually on the 121.5 Mhz frequency.
Thus, it is reasonable to presume that if the pre-rescue preparation
time were reduced, additional lives could be saved.
Replacement Time and Costs
Although the FAA did not propose the replacement of existing ELT's
with models of newer design, in Notice No. 90-11, the agency solicited
opinion from affected users regarding a proposed time frame for a near-
term retrofit program. Twenty-one commenters address the time that
should be permitted for mandatory replacement of existing ELT's with
those approved under TSO-C91a. Seven commenters call for a
``voluntary'' replacement. In general, the SAR community proposes four
years. Most commenters acknowledge that a manatory timetable for
replacement is necessary to realize the benefits of this second-
generation ELT.
Twenty-six commenters express concern over the direct replacement
cost of existing TSO-C91 ELT's with TSO-C91a ELT's.
FAA Response: The FAA does not agree with the recommendations
concerning voluntary replacement. The FAA evisions this final rule
addressing new installations to be the first step in the much-needed
transition to the improved ELT's. Even though the FAA conducted an
extensive education program in the 1980's through the FAA Back-to-
Basics Program, seminars, advisory material, and pamphlets, the FAA
estimates that fewer than five percent of potential users voluntarily
installed the improved ELT's. Although a voluntary replacement program
may be less costly, resolution of the failure to activate and false
alarm problems would not be timely.
The Aviation Rulemaking Advisory Committee (ARAC) has been tasked
to make recommendations concerning the retrofit of ELT's in the entire
fleet. For a detailed description of this task, see the ARAC notice
published at 58 FR 16574, March 29, 1993.
Automatic ELT Replacement
Integration of 406 Mhz ELT's
Nineteen commenters recommend using the 406 Mhz ELT because it has
significant technical improvements over the 121.5/243 Mhz ELT equipment
system. Commenters also noted that 406 Mhz ELT's are compatible with
the Search and Rescue Satellite-Aided Tracking System (COSPAS-SARSAT).
Several commenters submitted data indicating that the COSPAS/SARSAT
system has proven to be an effective tool in detecting and locating
both maritime and aeronautical distress incidents. The data further
show that this satellite system had been credited with saving more than
1,700 lives since it was commissioned in 1982. In many of these
distress cases, the satellite system was the only means of detecting
the distress signal. The commenters assert that improvements in ELT
equipment, both on the 121.5 Mhz and 406 Mhz frequencies, will increase
the accuracy of location, reduce the time required to provide
information to the Rescue Coordination Centers, reduce the effects of
interference, reduce the number of false alerts on 121.5 Mhz, and
improve satellite coverage of all areas in the United States.
Most commenters support use of an improved 121.5/2430 Mhz ELT or
the improved ELT that includes 406 Mhz capability. The NTSB further
advocates a fleet-wide mandatory conversion to the 406 Mhz standard.
FAA Response: In October, 1992, the United States responded to an
International Civil Aviation Organization (ICAO) letter requesting
comments on ELT carriage requirements. The United States recommended
the use of 406 Mhz ELT's.
To accelerate the introduction of the 406 Mhz capability, and to
provide an acceptable standard of certification for ELT's, the FAA
issued TSO-C126 on December 23, 1992. The intended configuration of the
406 Mhz ELT can be accomplished by either of two approaches: (1)
Installation of a stand-alone 406 Mhz ELT to augment an existing 121.5/
243.0 Mhz ELT installation; or (2) Installation of an integrated 121.5/
406 Mhz ELT, or an integrated 121.5/243.0/406 Mhz ELT of which the
121.5 or the 121.5/243.0 portion meets the requirements of TSO-C91a.
TSO-C126 provides a standard for significant performance and
information improvements for ELT's and these improvements are expected
to permit more effective and timely SAR response after aircraft
accidents.
A 406 Mhz ELT would operate at much higher power levels than a
121.5/243.0 Mhz ELT. Lithium chemistry batteries appear to be the only
likely power source. The FAA is concerned about the safety
characteristics of these batteries and has placed some initial guidance
material in TSO-C126 to aid approving lithium batteries. Currently,
RTCA Special Committee 168 is developing a standard for the various
kinds of lithium batteries that could be used in aircraft. The FAA
plans to use the RTCA standard as a basis for a future TSO.
The 121.5/243 Mhz ELT's approved under TSO-C91a are expected to be
effective when used in conjunction with the U.S. National Airspace and
SAR systems. Therefore, the FAA recommends, but does not require,
carriage of 406 Mhz ELT's. Voluntary use of the 406 Mhz ELT's would
provide a definite enhancement over the minimum requirements of the
Federal Aviation Regulations. There may be even more life-saving
benefits derived from the 406 Mhz ELT for those operations conducted
over water and in remote areas; therefore, the FAA encourages
installation of the 406 Mhz ELT although the 121.5/243 Mhz will
continue to be used.
Costs of Automatic and Survival ELT's
Five commenters express concern over the additional cost of
automatic TSO-C91a ELT's required for new installations. The General
Aviation Manufacturers Association indicates that the estimated $75
installation cost in Notice No. 90-11 is inappropriate. It claims that
a realistic estimate for parts and labor is $750.
With regard to survival ELT's, Dayton-Granger, Inc. and the DME
Corporation currently estimate the cost of survival ELT's at
approximately $900. Both companies plan to manufacture ELT's approved
to the TSO-C91a standard. The Air Transport Association of America
(ATA) states that its member airlines estimate the cost of the TSO-C91a
survival ELT's to be $4,193 to $4,662 per aircraft. Additionally, it
states that the new TSO standards are unnecessary because there are no
problems with the current survival ELT's.
FAA Response: The FAA based its cost estimates on estimates
provided by manufacturers of authorized equipment. ARNAV Systems, Inc.,
whose automatic ELT is now marketed by Artex Aircraft Supplies, Inc.,
obtained TSO-C91a approval for the model ELS-10 in October 1986 and for
a lower cost model, the ELT-100, in March 1988. These automatic ELT's
sell for approximately $900 and $350 respectively, and have beneficial
design enhancements, such as built-in test equipment. Narco Avionics,
Inc., obtained approval for its automatic model ELT-910 in June 1989,
and is marketing it for approximately $400. Since the issuance of
Notice No. 90-11, ACK Technologies, Inc., received approval for its
automatic Model E-01 ELT in May 1990; the list price for this ELT is
$279. According to this manufacturer, a selling price of less than $200
may be possible, once full production is underway. Several other ELT
manufacturers have expressed an interest in producing low-cost TSO-C91a
ELT's.
This rulemaking applies only to ``new installations;'' therefore,
the FAA has attempted to minimize direct costs to operators while
enhancing operators' safety. In Notice 90-11 the FAA estimated that
automatic ELT's would cost an additional $150 to $400 per unit, and
that survival ELT's would cost an additional $875 to $1,225 per unit.
However, as a result of analyzing more recent data received from ELT
manufacturers, the FAA has reduced its estimates of incremental costs.
Automatic ELT's are estimated to cost an additional $50 to $200 per
unit, and survival ELT's are estimated to cost an additional $250 to
$750 per unit. Conversely, the FAA has increased its estimate of
incremental installation costs for automatic ELT's from $75 to $150 per
unit.
G-Switch
Eight commenters express concern about the design specifications of
the TSO-C91a crash sensor, known as a G-switch. These eight commenters
agree that the current TSO-C91 G-switch needs improvement because it is
the primary cause of an ELT's failure to activate. Several commenters
note that the FAA/NASA report estimates a 95 percent rate of
effectiveness increase expected from using the TSO-C91a G-switch.
FAA Response: On the basis of the current performance of TSO-C91a
ELT installations and the conclusions reported in the FAA/NASA report,
the FAA determined that TSO-C91a provides an adequate G-switch
specification for sensing an airplane crash and would minimize the
number of activation failures and false activations. In the event of
false activation, the ELT monitor would alert the pilot or ground
personnel. Additionally, the RTCA has determined that the TSO-C91a
standard is an appropriate specification to be included in the RTCA/DO-
204 standard for 406 Mhz ELT's.
Batteries
Seven commenters specifically raise the issue of batteries as a
factor in ELT's poor performance. Several commenters indicate that an
alternative to lithium chemistry batteries is needed and additional
battery research should be conducted. Suggestions for new battery types
ranged from use of solar batteries to use of size ``D'' batteries.
FAA Response: The FAA has found that most battery problems can be
eliminated if aircraft owners ensure that the ELT and its battery
receive a proper inspection as discussed in the next section, ELT
Maintenance. The status of FAA requirements for lithium batteries was
discussed previously.
ELT Maintenance
Consistent with the FAA/NASA report, 19 commenters note lack of
proper maintenance as a contributing cause of the current
unsatisfactory performance of TSO-C91 ELT's. Most of the commenters
agree that scheduled inspection of ELT's is necessary to reduce the
number of false alarms and to ensure their proper working order. The
NTSB, National Oceanic and Atmospheric Administration (NOAA), ACK
Technology, Inc., and The National Association for Search and Rescue
(NASAR) call for mandatory inspections.
FAA Response: The FAA agrees with these comments concerning ELT
maintenance and with NTSB recommendation, A-87-104, that recommended
replacing TSO-C91 ELT's with TSO-C91a ELT's. The FAA/NASA report also
concludes that an inspection and maintenance program for ELT's is
necessary. As discussed in the background section of this preamble, an
estimated 15 percent of ELT failures have been maintenance related.
The FAA already provides for mandatory ELT inspections in the
regulations and in TSO's. Meeting the inspection requirements is a
responsibility shared among the manufacturer, the inspector, and the
aircraft owner or operator. Maintenance of ELT's is a major issue;
accordingly, this section will digress from discussion of the comments
to emphasize these requirements. This is necessary so that users
understand the FAA's requirements concerning ELT maintenance.
ELT Maintenance Requirements--An Explanation
Subpart E of Part 91 provides inspection and maintenance
requirements for the continued airworthiness of the aircraft and all of
its components. Also, Sec. 91.207, of subpart C, requires that each ELT
be in an operable condition and provides specific requirements for
battery replacement. Technical Standard Order C91a requires that
instructions for periodic maintenance, which are necessary for the
ELT's continued airworthiness, be provided with each unit manufactured
under the TSO. These instructions must contain specific information to
ensure that appropriately rated persons will be able to inspect and
maintain ELT's in an airworthy condition to meet the needs of the
flying public and the SAR community. Manufacturers of the earlier (TSO-
C91) ELT's, however, were not required to submit periodic maintenance
instructions to the FAA with their TSO approval applications.
Therefore, the content and usefulness of instructions provided with
TSO-C91 ELT's may vary, depending on the approach used by each
manufacturer.
Section 43.13(a) requires persons performing inspections and other
maintenance to use the manufacturers' instructions or other
instructions acceptable to the FAA Administrator. The aircraft owner or
operator is responsible for ensuring that the ELT is included in these
inspections and is maintained accordingly. To provide guidance on
improving ELT maintenance, Action Notice A 8310.1, recommending a
specific supplemental inspection procedure for ELT's, was issued to all
FAA field personnel in September 1988. This information was also
included in the February 1989 issue of Advisory Circular 43-16, General
Aviation Airworthiness Alerts, and reissued in Action Notice A 8150.3
on July 23, 1990. This Action Notice applies to ELT's authorized under
both TSO-C91 and TSO-C91a.
To summarize the notice, the inspection procedure can be
accomplished by making a close examination of the ELT, its battery
pack, and antenna. The signal emissions and G-switch must also be
checked.
If the ELT's antenna is radiating a signal, it can be heard on any
frequency through a low-cost AM radio held about six inches from the
ELT's antenna. The aircraft's VHF receiver or a check with an airport
control tower may also be used to verify the ELT signal on the 121.5
Mhz frequency. An airplane's VHF receiver is located very close to the
ELT, and it is sensitive; therefore, it does not check the integrity of
the ELT together with its antenna. Consequently, using the airplane's
VHF receiver does not provide the same level of confidence in verifying
the ELT signal as using the AM radio or tower check. The ELT transmits
on the emergency frequency, therefore, the signal check must be
conducted within the first five minutes after any hour and it must be
limited to three sweeps of the transmitter's audio signal, in order not
to send false alarm signals.
To check the G-switch of most TSO-C91 ELT's, the unit is removed
from its mounting and given a quick rap with the hand in the direction
of activation indicated on the ELT case. For TSO-C91a ELT's, however, a
throwing motion is used, coupled with a rapid reversal.
Finally, although the antenna and G-switch checks are not measured
checks and do not quantify the adequacy of the G-switch or the power
output of the antenna, they do provide an acceptable level of
confidence that the ELT is functioning properly.
In response to NTSB recommendation A-87-104, the findings of the
FAA/NASA report, and the comments to this rulemaking, the FAA is
clarifying what must be done for an ELT to be considered in ``operable
condition'' as found in Sec. 91.207(a)(1) by adding a new paragraph
(d). Although paragraph (d) is new, it is written in accordance with
current regulations and guidance, as discussed earlier under, ``ELT
Maintenance Requirements--An Explanation''. Specifically, the new
regulation Sec. 91.207(a)(1)(d), describes how to inspect an ELT under
Part 43, Appendix D, paragraph (i), and requires that it be
accomplished within 12 calendar months after the last inspection. The
Appendix D requirements are non-specific in nature because they apply
to all components of the radio group, which includes the ELT's. The 12-
month requirement accommodates those airplanes maintained under either
an annual or a progressive inspection program and could be accomplished
under the provisions of any other program approved by the Administrator
under Sec. 91.409. The FAA has determined that this clarification is
not an additional requirement that would entail additional rulemaking
and an economic evaluation. The FAA has determined that this additional
information should be included in part 91 to reinforce to airplane
owners and inspectors what the FAA expects when an ELT is inspected.
``Approved'' as Opposed to ``TSO-Approved''
Three commenters express concern over the meaning of the word
``approved'' in the proposed language of the ELT rules. One commenter
indicates that this rulemaking procedure may ``establish a precedent
for future mass terminations of TSO authorizations, without going
through the rulemaking process.'' Another commenter requests that the
FAA refer to a particular TSO number instead of using the generic
language, ``approved TSO.''
FAA Response: The FAA intends to clarify the certification process
with regard to the regulations and TSO's. Since the effective date of
Amendment 21-50 to part 21 (September 9, 1980), The FAA's TSO revision
program has been eliminating TSO's from the rulemaking process and
eliminating references to specific TSO's from the regulations. The TSO
revision makes it possible for the public to use the most up-to-date
TSO or other standards that are found acceptable during the
certification of a particular piece of equipment. When specific TSO
standards are designated in a regulation, other TSO's or standards are
automatically excluded. As stated in Notice No. 90-11, ``This rule
replaces specific references to TSO-C91 in the FAR with `an approved
ELT that is in operable condition','' and withdraws all TSO-C91
authorizations issued to ELT manufacturers. In effect, this would allow
TSO-C91a, or any subsequent TSO's issued for ELT's, to be used as a
basis for compliance with the FAR. Using the language ``approved'' is
consistent with the FAA's responsibility to eliminate dated references
to regulations.
Whenever a material, part, process, or appliance is required to be
``approved,'' it must be approved under the Federal Aviation
Regulations. The approval can be obtained in one of the following ways:
(1) under a Parts Manufacturer Approval; (2) in conjunction with type
certification procedures for a product, including approvals granted by
a supplemental type certificate; (3) under a Technical Standard Order
authorization; or (4) in any other manner approved by the
Administrator.
Of these approval methods, TSO's contain minimum performance and
quality control standards for specified articles (material, part,
process, or appliance). The standards for each TSO are those the
Administrator finds necessary to ensure that the article concerned will
operate satisfactorily. Compliance with a TSO is only one method of
obtaining an approval and its use is not mandatory; therefore, the
standards contained in the TSO are not mandatory but are a way of
obtaining approval for a particular article.
Miscellaneous Comments
An ELT manufacturer requests that the word ``transmitter'' be added
to Sec. 91.207(c)(2) for consistency with the rest of the section.
FAA Response: The FAA agrees; this word has already been
incorporated into Sec. 91.207(c)(2).
One commenter encourages integration with the European Organization
for Civil Aviation Electronics.
In addition, the National Business Aircraft Association, Inc.,
expresses concern over the prematurity of the FAA's rulemaking and
states that the ramifications of other equipment such as the
international Automatic Dependent Surveillance (ADS) system used to
indicate the location of other aircraft must be fully understood. The
NTSB calls for integration with ICAO efforts in establishing ELT
carriage requirements.
FAA Response: The FAA disagrees with the National Business Aircraft
Association's comment that this rule is premature. The FAA will no
longer delay this final rule because there will always be new
technology on the horizon. The rule is in agreement with the ICAO
requirements, including recent changes pertaining to ELT's. The FAA is
a strong supporter of the search and rescue satellite system (COSPAS/
SARSAT). In addition, the ELT program, as outlined in this rulemaking,
takes into account national and international issues and these
considerations were integrated into the justification for this rule.
Three commenters request field testing of TSO-C91a ELT's to confirm
their potential costs and benefits before their use is mandated. Four
commenters call for additional research on ELT's. For example, the
General Aviation Manufacturers Association (GAMA) requests further
research on TSO-C91a G-switches and battery technology.
FAA Response: The FAA agrees with the intent of these comments on
the need for appropriate research and field testing. Transport Canada,
the Canadian counterpart of the United States Department of
Transportation, is currently field testing 130 ARNAV ELT's. Usable
results may not be available until late 1993. The FAA is working with
Transport Canada on its ELT improvement program and with other
government as well as non-government organizations on maximizing ELT
knowledge. However, in view of the Canadian study and numerous studies
documented in the FAA/NASA report, including an FAA ELT maintenance
survey on repair stations, the FAA has determined that there is no need
for research on new issues before regulatory action is taken.
Additional research would only delay the installation of improved ELT's
without any clear expectation of improvement over the TSO-C91a
specification.
One commenter encourages the FAA to expand its ELT educational
effort to install more reliable ELT's. NASA suggests that all pilots be
required to monitor the 121.5 Mhz frequency as part of the shutdown
procedure in aircraft that do not have a cockpit monitor.
FAA Response: The FAA agrees with the intent of both of these
comments. Working with organizations such as the Aircraft Owners and
Pilots Association, the FAA has been actively promoting the public's
awareness of potential problems with ELT's. A pamphlet entitled,
``Attention to ELT's: Insurance To Life'' has been distributed to all
active U.S. pilots. This pamphlet addresses the ELT false alarm problem
and recommends that a pilot-in-command monitor the 121.5 Mhz frequency
prior to engine shutdown. This information contained in the pamphlet
and ELT inspection procedures are discussed at pilot safety seminars
and have been incorporated in the FAA Back-To-Basics program.
The NASA report suggested that the pilot be required to check the
121.5 Mhz frequency before leaving the airplane.
One commenter requests that tow planes be excepted from the
requirements because they often are operated under harsh conditions
that could trigger false alarms.
FAA Response: The FAA agrees and the final rule does not change the
ELT requirements for tow planes. Those airplanes that are currently
excepted may continue operations without an ELT.
The ATA concludes, given the operating procedures of transport
category aircraft, that benefits to the travelling public from
automatic ELT's would be very limited. A complete replacement of its
members' fleets by 1995 would cost $14 million.
FAA Response: Survival ELT's, rather than automatic ELT's, are
required in transport category aircraft. Currently, automatic ELT's are
not required on transport category aircraft.
One commenter suggests that a fine be used as a penalty for an ELT
false alarm resulting from the pilot's failure to maintain the ELT.
FAA Response: The suggestion is beyond the scope of this
rulemaking.
Another commenter suggests that insurance considerations should be
the driving force to motivate aircraft owners to install ELT's, rather
than the FAA mandating ELT's.
FAA Response: The FAA disagrees and is not convinced that insurance
considerations alone would assure a 100-percent installation rate.
Moreover, in 1971, Congress passed a law that requires the installation
and use of ELT's on most aircraft.
Finally, one commenter interprets the language ``unusable or
unserviceable'' in Notice No. 90-11 to mean that replacement would be
required for a TSO-C91 ELT when it needed a battery change or was
removed for routine scheduled maintenance.
FAA Response: The FAA intends that the term ``unusable or
unserviceable'' be given its everyday meaning so as to require
replacement only when the ELT cannot be repaired. Thus, the TSO-C91 ELT
would not need replacement when it can be serviced with routine
maintenance.
Impact of the Rule
Summary of the Amendments
In summary, effective six months after publication of this Final
Rule, the FAA is withdrawing TSO-C91 authorizations for automatic
ELT's; therefore, the TSO-C91 model ELT's may not be manufactured after
that date. Current production of unsold TSO-C91 ELT's for general
aviation airplanes is sufficiently small so that accumulation of
inventories is unlikely. This inventory is expected to be depleted by
the time this rule becomes effective. The preamble to Notice No. 90-11
specifically stated that the FAA proposed to require installation of an
improved ELT that meets the requirements of a revised TSO, and to
terminate approval to use ELT's authorized under the original TSO-C91.
Although the notice stated that the new equipment would be required for
future installations, language to that effect did not appear in the
proposed amendment. To carry out this intent, Sec. 91.207(a)(1) and
(a)(2) are revised to state that ELT's meeting the applicable
requirements of TSO-C91 may no longer be installed.
Another change is being made to paragraph (a)(2) of Sec. 91.207 to
correct an error that inadvertently occurred when former Sec. 91.52 was
revised and renumbered as Sec. 91.207 during the recodification of part
91 in 1990. Former paragraph (b)(4) of Sec. 91.52 (the predecessor to
paragraph (a)(2) of Sec. 91.207) contained a reference to three
preceding paragraphs. That is, paragraph (a)(1)(i) was included in the
subject reference. The reference also should have included paragraphs
(a)(1)(ii) and (a)(1)(iii). This correction is effected by replacing
the reference to ``(a)(1)(i)'' with ``(a)(1)'', which subsumes all of
the provisions of paragraph (a)(1) into the reference.
With regard to survival ELT's, the TSO authorization withdrawal
will become effective two years after publication of this final rule.
The FAA is allowing additional time for the manufacturers of survival
ELT's to begin producing, and for operators to begin installing, TSO-
C91a ELT's. For new installations, the new requirements include
satellite compatibility, crash survivability, and certain environmental
specifications (temperature, water resistance, etc.) that will provide
definite improvement at reasonable costs.
Finally, a change is made to Secs. 121.339, 121.353, 125.209, and
135.167 to correct inadvertent errors that were made when the
applicable parts were codified in 1971 and 1980. These sections refer
to survival ELT's and specifically describe the timely replacement of
transmitter batteries. Currently, these sections state that the
transmitter batteries must be replaced when the transmitter has been in
use for more than one hour and when 50 percent of its useful life has
expired (according to the specific expiration date). The FAA has always
intended and enforced these regulations concerning survival ELT's to
prescribe a change of transmitter batteries when either the battery has
been in use for more than one hour or, when 50 percent of its useful
life has expired. This correction is consistent with Sec. 91.207
regarding automatic ELT's.
Technical Standard Order
Published simultaneously with this rule, the FAA, pursuant to
Sec. 21.621 of the Federal Aviation Regulations, is withdrawing each
TSO authorization to the extent that it authorizes the holder to
identify or mark ELT's with TSO-C91, effective six months after the
publication of this rule for automatic ELT's, and effective two years
after publication of this rule for survival ELT's.
Regulatory Evaluation Summary
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic effect of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to assess
the effects of regulatory changes on international trade. In conducting
these analyses, the FAA has determined that this rule: (1) Will
generate benefits that justify its costs and is not a significant
regulatory action as defined in the Executive Order; (2) is significant
as defined in DOT's Policies and Procedures; (3) will not have a
significant impact on a substantial number of small entities; and (4)
will not constitute a barrier to international trade. These analyses,
available in the docket, are summarized below.
Costs--Automatic ELT's
Based on the comments received in response to the NPRM, the FAA has
revised its estimates of the rule's costs. The FAA now estimates that
the incremental selling price of new ELT's will be $125 per unit above
those of old ELT's and that the incremental installation costs will be
$150 per unit. The FAA has also re-estimated automatic ELT acquisitions
to 3,500 units annually, including units installed on new airplanes and
replacements on existing airplanes. Applying these revised estimates to
the first 20 years of the rule (1995-2014), the costs of automatic
ELT's will total $19.3 million (or $10.2 million in 1993 dollars at
1994 discounted present value).
Costs--Survival ELT's
Recent efficiencies in production techniques have reduced the costs
from those estimated in the NPRM. As a result, the incremental
acquisition cost of survival ELT's is estimated to total $500 per unit.
The FAA estimates that, during the 1996-2015 evaluation period, 3,081
new survival ELT's will be installed, costing $1.5 million (or $0.8
million, discounted).
Benefits--Automatic ELT's
Based on the findings of the FAA/NASA report (cited earlier),
significant improvements in ELT effectiveness will reduce the time
required to locate downed airplanes and, concomitantly, improve the
chances of saving seriously injured crash survivors. Additional
benefits will be realized from reducing false alarms.
The report's most significant conclusions are that: 23 to 58 lives
are lost per year due to ELT's failure-to-operate; 12 to 18 percent of
these are attributed to poor or no maintenance; and, with 100 percent
TSO-C91a installations, a 64 percent failure rate reduction can be
expected. In addition, a 75 percent reduction in false alarms is likely
with all new units in place (although not directly specified in the
report, this evaluation estimates that 25 percent of false alarms, in
contrast to the 12 to 18 percent of ELT failures-to-operate, are
attributable to poor or no maintenance).
Consequently, using the midpoints of the range of lives lost (41)
and the range attributed to maintenance failures (15 percent), 22 or
more lives could be saved annually if all TSO-C91 ELT's were replaced
with TSO-C91a ELT's (41 x (1-.15) x .64), decreasing to approximately
18 annually as general aviation activity decreases during the 20-year
evaluation period. Since ELT replacements will take place gradually
over time, avoided fatalities will not reach their full potential for
several years after the period. Nevertheless, 81 fatalities are
expected to be avoided during the 20-year period following promulgation
of the rule, valued at $209 million ($86.4 million discounted).
The additional benefits expected from reduced false alarms are
calculated as follows. False alarms are estimated to cost approximately
$4.3 million annually (based on a $3.5 million estimate for 1987 by the
Air Force Rescue Coordination Center, adjusted to 1993 dollars).
Excluding the 25 percent of false alarms attributable to maintenance-
related problems, the expected reduction in false alarm costs totals
$2.4 million annually ($4.3 million x .75 x (1-.25)). Taking into
account the gradual, increasing percentage of the fleet equipped with
new ELT's over the 1995-2014 evaluation period, these benefits are
projected to total $8.9 million ($3.7 million discounted).
Benefits--Survival ELT's
There is no direct evidence of lives lost as a result of delays in
reaching survivors because of defective survival ELT's; however, such
occurrences are possible. Historical data indicate that an average of
61 preventable drownings occur per 10-year period in parts 121 and 135
operations. Over the course of the 1996-2015 evaluation period, only
one life needs to be saved in order for the benefits of new survival
ELT's to exceed the $0.8 million in discounted costs.
Comparison of Cost and Benefits
Costs and benefits summarized below are for the evaluation period
1995-2015 in terms of 1993 dollars at 1994 discounted present value.
Automatic ELT's are estimated to have incremental costs totalling $10.2
million and benefits of $90.1 million, yielding a benefit-to-cost ratio
of 8.8 to 1. Incremental costs of survival ELT's are estimated to total
$0.8 million, requiring the avoidance of only one fatality in order to
be cost-beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by government regulations. The FRA requires
agencies to review rules that may have ``a significant economic impact
on a substantial number of small entities.'' FAA Order 2100.14A,
Regulatory Flexibility Criteria and Guidance, establishes small entity
size and cost level thresholds for complying with RFA review
requirements in FAA rulemaking actions.
The small entities potentially affected by the rule are Part 121,
Part 125, and Part 135 operators that own nine or fewer aircraft, which
is the size threshold for aircraft operators considered small entities
by the FAA. The annual cost thresholds are $119,500 for operators of
scheduled services with entire fleets having a seating capacity of over
60; $66,800 for other scheduled operators; and $4,700 for unscheduled
operators. A substantial number of small entities is a number which is
not less than eleven and which is more than one-third of the small
entities subject to the rule.
The only type of entity with the potential to sustain a significant
economic impact as a result of this rule is an unscheduled operator.
Such an operator would have to purchase at least ten ELT's in a year in
order to exceed the $4,700 threshold. The rule will not have a
significant economic impact on a substantial number of small
unscheduled operators because most such operators own five or fewer
airplanes each, and it is unlikely that at least 11 of them
representing more than one-third of the total will purchase ten new
ELT's in any given year.
International Trade Impact Statement
The rule will have little or no impact on trade for either U.S.
firms doing business in foreign countries or foreign firms doing
business in the United States. Foreign air carriers are prohibited from
operating between points within the United States. Therefore, they will
not gain any competitive advantage over U.S. carriers. In international
operations, foreign air carriers are not expected to realize any cost
advantage over U.S. carriers because the differential in costs between
the existing and new ELT rule will not be significant enough to have an
adverse impact on the international operations of U.S. carriers.
Further, general aviation operations conducted in the United States are
not in any direct competition with foreign enterprises. For these
reasons, the FAA does not expect that the rule will result in any
international trade impact.
Federalism Implications
The regulations herein will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Conclusion
The FAA has determined that the potential benefits of the
regulation outweigh its potential costs and that it is not a
significant regulatory action under Executive Order 12866. In addition,
this rule will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act. This rule is considered significant
under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979) because it concerns a matter of substantial public interest. A
regulatory evaluation of the rule, including a Regulatory Flexibility
Determination and an International Trade Impact Analysis, has been
placed in the docket. A copy may be obtained by contacting the person
identified under FOR FURTHER INFORMATION CONTACT.
List of Subjects
14 CFR Part 25
Aircraft, Aviation safety, Air transportation, Safety
14 CFR Part 29
Aircraft, Aviation safety, Air transportation, Safety
14 CFR Part 91
Air carriers, Aircraft, Airworthiness directives and standards,
Aviation safety, Safety, Aircraft
14 CFR Part 121
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes,
Aviation safety, Air transportation, Common carriers, Safety,
Transportation
14 CFR Part 125
Aircraft, Airmen, Airplanes, Airports, Air transportation,
Airworthiness, Pilots
14 CFR Part 135
Air carriers, Aircraft, Airplanes, Airmen, Airspace, Aviation
safety, Air taxi, Air transportation, Airworthiness, Pilots, Safety,
Transportation.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR Parts 25, 29, 91, 121, 125, and 135 as
follows:
PART 25--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY AIRPLANES
1. The authority citation for Part 25 is revised to read as
follows:
Authority: 49 U.S.C. App. 1344, 1354(a), 1355, 1421, 1423, 1424,
1425, 1428, 1429, 1430; 49 U.S.C. 106(g).
2. Section 25.1415(d) is revised to read as follows:
Sec. 25.1415 Ditching equipment.
* * * * *
(d) There must be an approved survival type emergency locator
transmitter for use in one life raft.
* * * * *
PART 29--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY ROTORCRAFT
3. The authority citation for Part 29 is revised to read as
follows:
Authority: 49 U.S.C. App. 1344, 1354(a), 1355, 1421, 1423, 1424,
1425, 1428, 1429, 1430; 49 U.S.C. 106(g).
4. Section 29.1415(d) is revised to read as follows:
Sec. 29.1415 Ditching equipment.
* * * * *
(d) There must be an approved survival type emergency locator
transmitter for use in one life raft.
PART 91--GENERAL OPERATING AND FLIGHT RULES
5. The authority citation for Part 91 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. app. 1301(7), 1303,
1344, 1348, 1352-1355, 1401, 1421-1431, 1471, 1472, 1502, 1510,
1522, 2121-2125, 2157, 2158; 49 U.S.C. 106(g); articles 12, 29, 31,
and 32(a) of the Convention on International Civil Aviation (61
stat. 1180); E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970 Comp., p.920.
6. Section 91.207 is amended by revising paragraph (a) introductory
text, paragraph (a)(1) introductory text, paragraph (a)(2), and
paragraph (c) (2) to read as follows:
Sec. 91.207 Emergency locator transmitters.
(a) Except as provided in paragraphs (e) and (f) of this section,
no person may operate a U.S.-registered civil airplane unless--
(1) There is attached to the airplane an approved automatic type
emergency locator transmitter that is in operable condition for the
following operations:
* * * * *
(2) For operations other than those specified in paragraph (a)(1)
of this section, there must be attached to the airplane an approved
personal type or an approved automatic type emergency locator
transmitter that is in operable condition.
* * * * *
(c) * * *
(2) When 50 percent of their useful life (or, for rechargeable
batteries, 50 percent of their useful life of charge) has expired, as
established by the transmitter manufacturer under its approval.
* * * * *
7. Section 91.207 is amended by redesignating paragraph (e) as
paragraph (f), by redesignating paragraph (d) as paragraph (e); the
reference ``(d)'' in the concluding text of the redesignated paragraph
(e)(2) is removed and ``(e)'' is added in its place; and a new
paragraph (d) is added to read as follows:
Sec. 91.207 Emergency locator transmitters.
* * * * *
(d) Each emergency locator transmitter required by paragraph (a) of
this section must be inspected within 12 calendar months after the last
inspection for--
(1) Proper installation;
(2) Battery corrosion;
(3) Operation of the controls and crash sensor; and
(4) The presence of a sufficient signal radiated from its antenna.
* * * * *
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
8. The authority citation for Part 121 continues to read as
follows:
Authority: 49 U.S.C. app. 1354(a), 1355, 1356, 1357, 1401, 1421-
1430, 1472, 1485, and 1502; 49 U.S.C. 106(g).
9. Section 121.339(a)(4) is revised to read as follows:
Sec. 121.339 Emergency equipment for extended overwater operations.
(a) * * *
(4) An approved survival type emergency locator transmitter.
Batteries used in this transmitter must be replaced (or recharged, if
the battery is rechargeable) when the transmitter has been in use for
more than 1 cumulative hour, or when 50 percent of their useful life
(or for rechargeable batteries, 50 percent of their useful life of
charge) has expired, as established by the transmitter manufacturer
under its approval. The new expiration date for replacing (or
recharging) the battery must be legibly marked on the outside of the
transmitter. The battery useful life (or useful life of charge)
requirements of this paragraph do not apply to batteries (such as
water-activated batteries) that are essentially unaffected during
probable storage intervals.
* * * * *
10. Section 121.353(b) is revised to read as follows:
Sec. 121.353 Emergency equipment for operations over uninhabited
terrain areas: flag and supplemental air carriers and commercial
operators.
* * * * *
(b) An approved survival type emergency locator transmitter.
Batteries used in this transmitter must be replaced (or recharged, if
the battery is rechargeable) when the transmitter has been in use for
more than 1 cumulative hour, or when 50 percent of their useful life
(or for rechargeable batteries, 50 percent of their useful life of
charge) has expired, as established by the transmitter manufacturer
under its approval. The new expiration date for replacing (or
recharging) the battery must be legibly marked on the outside of the
transmitter. The battery useful life (or useful life of charge)
requirements of this paragraph do not apply to batteries (such as
water-activated batteries) that are essentially unaffected during
probable storage intervals.
* * * * *
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE
11. The authority citation for Part 125 is revised to read as
follows:
Authority: 49 U.S.C. app. 1354, 1421-1430, and 1502; 49 U.S.C.
106(g).
12. Section 125.209(b) is revised to read as follows:
Sec. 125.209 Emergency equipment: Extended overwater operations.
* * * * *
(b) No person may operate an airplane in extended overwater
operations unless there is attached to one of the life rafts required
by paragraph (a) of this section, an approved survival type emergency
locator transmitter. Batteries used in this transmitter must be
replaced (or recharged, if the batteries are rechargeable) when the
transmitter has been in use for more than one cumulative hour, or, when
50 percent of their useful life (or for rechargeable batteries, 50
percent of their useful life of charge) has expired, as established by
the transmitter manufacturer under its approval. The new expiration
date for replacing (or recharging) the battery must be legibly marked
on the outside of the transmitter. The battery useful life (or useful
life of charge) requirements of this paragraph do not apply to
batteries (such as water-activated batteries) that are essentially
unaffected during probable storage intervals.
PART 135--AIR TAXI OPERATIONS AND COMMERCIAL OPERATORS
13. The authority citation for Part 135 is revised to read as
follows:
Authority: 49 U.S.C. app. 1354(a), 1355(a), 1421 through 1431,
and 1502; 49 U.S.C. 106(g).
14. Section 135.167(c) is revised to read as follows:
Sec. 135.167 Emergency equipment: Extended overwater operations.
* * * * *
(c) No person may operate an airplane in extended overwater
operations unless there is attached to one of the life rafts required
by paragraph (a) of this section, an approved survival type emergency
locator transmitter. Batteries used in this transmitter must be
replaced (or recharged, if the batteries are rechargeable) when the
transmitter has been in use for more than 1 cumulative hour, or, when
50 percent of their useful life (or for rechargeable batteries, 50
percent of their useful life of charge) has expired, as established by
the transmitter manufacturer under its approval. The new expiration
date for replacing (or recharging) the battery must be legibly marked
on the outside of the transmitter. The battery useful life (or useful
life of charge) requirements of this paragraph do not apply to
batteries (such as water-activated batteries) that are essentially
unaffected during probable storage intervals.
Issued in Washington, DC, on June 10, 1994.
David R. Hinson,
Administrator.
[FR Doc. 94-14677 Filed 6-20-94; 8:45 am]
BILLING CODE 4910-13-M
