[Federal Register Volume 59, Number 118 (Tuesday, June 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14677]


[[Page Unknown]]

[Federal Register: June 21, 1994]


=======================================================================
-----------------------------------------------------------------------

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.

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

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 manufacturer 
under its approval. The new expiration date for replacing (or 
recharging) the battery must be legibly marked on the outside of the 
transmitter. The battery useful life (or useful life of charge) 
requirements of this paragraph do not apply to batteries (such as 
water-activated batteries) that are essentially unaffected during 
probable storage intervals.
* * * * *
    10. Section 121.353(b) is revised to read as follows:


Sec. 121.353  Emergency equipment for operations over uninhabited 
terrain areas: flag and supplemental air carriers and commercial 
operators.

* * * * *
    (b) An approved survival type emergency locator transmitter. 
Batteries used in this transmitter must be replaced (or recharged, if 
the battery is rechargeable) when the transmitter has been in use for 
more than 1 cumulative hour, or when 50 percent of their useful life 
(or for rechargeable batteries, 50 percent of their useful life of 
charge) has expired, as established by the transmitter manufacturer 
under its approval. The new expiration date for replacing (or 
recharging) the battery must be legibly marked on the outside of the 
transmitter. The battery useful life (or useful life of charge) 
requirements of this paragraph do not apply to batteries (such as 
water-activated batteries) that are essentially unaffected during 
probable storage intervals.
* * * * *

PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING 
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF 
6,000 POUNDS OR MORE

    11. The authority citation for Part 125 is revised to read as 
follows:

    Authority: 49 U.S.C. app. 1354, 1421-1430, and 1502; 49 U.S.C. 
106(g).

    12. Section 125.209(b) is revised to read as follows:


Sec. 125.209  Emergency equipment: Extended overwater operations.

* * * * *
    (b) No person may operate an airplane in extended overwater 
operations unless there is attached to one of the life rafts required 
by paragraph (a) of this section, an approved survival type emergency 
locator transmitter. Batteries used in this transmitter must be 
replaced (or recharged, if the batteries are rechargeable) when the 
transmitter has been in use for more than one cumulative hour, or, when 
50 percent of their useful life (or for rechargeable batteries, 50 
percent of their useful life of charge) has expired, as established by 
the transmitter manufacturer under its approval. The new expiration 
date for replacing (or recharging) the battery must be legibly marked 
on the outside of the transmitter. The battery useful life (or useful 
life of charge) requirements of this paragraph do not apply to 
batteries (such as water-activated batteries) that are essentially 
unaffected during probable storage intervals.

PART 135--AIR TAXI OPERATIONS AND COMMERCIAL OPERATORS

    13. The authority citation for Part 135 is revised to read as 
follows:

    Authority: 49 U.S.C. app. 1354(a), 1355(a), 1421 through 1431, 
and 1502; 49 U.S.C. 106(g).

    14. Section 135.167(c) is revised to read as follows:


Sec. 135.167  Emergency equipment: Extended overwater operations.

* * * * *
    (c) No person may operate an airplane in extended overwater 
operations unless there is attached to one of the life rafts required 
by paragraph (a) of this section, an approved survival type emergency 
locator transmitter. Batteries used in this transmitter must be 
replaced (or recharged, if the batteries are rechargeable) when the 
transmitter has been in use for more than 1 cumulative hour, or, when 
50 percent of their useful life (or for rechargeable batteries, 50 
percent of their useful life of charge) has expired, as established by 
the transmitter manufacturer under its approval. The new expiration 
date for replacing (or recharging) the battery must be legibly marked 
on the outside of the transmitter. The battery useful life (or useful 
life of charge) requirements of this paragraph do not apply to 
batteries (such as water-activated batteries) that are essentially 
unaffected during probable storage intervals.

    Issued in Washington, DC, on June 10, 1994.
David R. Hinson,
Administrator.
[FR Doc. 94-14677 Filed 6-20-94; 8:45 am]
BILLING CODE 4910-13-M