[No title available]

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.

-----------------------------------------------------------------------

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 manuf

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